How to Evolve A  Peoples’ Constitution Memorandum

Submitted By

Prof Auwalu H. Yadudu

SUBMITTED TO: THE JOINT COMMITTEE OF THE NATIONAL ASSEMBLY ON CONSTITUTIONAL REVIEW

Awwalu@aol.com

DURING ITS PUBLIC HEARING HELD IN KATSINA, FEBRUARY  22 – 23, 2006.

Let me state at the outset that I make these submissions with utmost respect for the members of the committee. I have been urged by no other motive than to assist you to mid-wife a constitutional document that will command public respectability, serve as an enduring legacy and engender the sustenance of a stable democratic dispensation.

May I start by observing that the exercise your Committee is engaged in is by all accounts bedeviled by numerous controversies. Much of it, in my view, has been self-inflicted. Let us recall that it took the National Assembly (NASS) well over five years to face the constitutional amendment exercise with the seriousness it deserves. I am not unaware of the tremendous work that had previously gone into the exercise by the NASS Committee on Constitutional Review, the All-Party Review committee, the National Political Reform Committee, the NGO’s etc. Not having placed the amendment exercise on your high priority list all this while, members of the NASS have latterly, perhaps impelled by other undisclosed motives,  taken a sudden plunge into it. Be that as it may, the hurry with which you aspire to accomplish the exercise is baffling and risks tainting the legitimacy and credibility of your work.

By the public statements of the Principal Officers in the NASS, you desire to purge the 1999 constitution of all undemocratic vestiges. Whether or not you believe this, however, there is widespread public perception and skepticism that the NASS does not seem persuaded either to seek the broad and popular mandate of the people nor be guided by transparency or due process in undertaking the exercise. It is widely believed that certain provisions in the constitution are being modified with a view to conferring direct benefit to persons, officers and organs who are the architects of the review. You appear to be doing so in a self-serving manner. Your avowed intention to accomplish your task in record time is only matched by a seeming disregard of the views, perceptions and skepticisms of the very people whom you represent and to whom the authorship of the new constitution will ultimately be ascribed.

I must state that I do not dispute that the NASS has, in collaboration with the State Houses of Assembly, the constitutional mandate and responsibility to amend the 1999 constitution. Indeed I will, given unquestioned motive on your part and the observance of due process, even support such an exercise. I am however totally opposed to the method and timing of the exercise you are currently involved in. The suggestions I shall be making below are designed to rescue your assignment from these obvious flaws and defects.

You may also wish to note that there does not, at the moment and to the best of my knowledge, exist any enabling legislation to guide your deliberations at the NASS in adopting a constitutional amendment. Neither is there anything similar at the State level to guide the Houses of Assembly accordingly. Since our adoption of the American Presidential model in 1979, we have not undertaken any constitutional amendment to serve as a precedent. The 1963 constitutional amendment, by which Nigeria became a Republic and the Mid-Western Region was carved out of the Western Region, was an entirely different exercise carried our under the auspices of a Parliamentary system.

In order for your final product, the new constitution, not to be telling a lie similar to that leveled against the 1999 Constitution, which claims its origin and mandate to the “people” – when indeed it was the creature of the military -, I wish to make the following proposals of a procedural nature for your consideration. If I may point out, these recommendations do not pertain to any specific provision in the constitution or subject matter highlighted in your call for memoranda. They are matters which, in my considered view, will augur well to confer greater legitimacy on, ensure transparency in the process and enhance the emergence of a “Peoples constitution”.

1. Regardless of the cogency of any submissions you may end up collating or conclusions you may arrive at arising from the public hearings, I urge you to avoid any rush to effect a formal amendment to any part of the constitution between now and May 2007. This is because there is a nation-wide election in view and your mandate is about to expire or come up for renewal. More so, it is against the principle of natural justice for you to be a judge in your own cause. While it is universally considered immoral to enact an ordinary legislation that is targeted, it is even more so unconscionable to pass a constitutional amendment which confers benefit on, for example, the President who must assent to it to give it the force of law.

2. To fill the vacuum necessitated by the absence of verifiable, objective and fair rules by reference to which the amendment process at all levels can be carried out, I wish to counsel you to conceive of and pass an enabling Act which lays down all the ground rules needed. This should precede the commencement of the formal amendment process as envisaged under section 9 of the 1999 Constitution. I consider the Rules of Procedure, which currently regulate ordinary legislative deliberations at both chambers of the NASS, to be inadequate for this purpose. Constitutional amendment, in my estimation, is a far more serious business than ordinary law making.

3. To confer greater legitimacy and popular mandate on the document that may emerge, ensure that it commands the respect of the majority and be viewed as truly a Peoples’ constitution, the enabling Act proposed above shall stipulate that the new document be subjected to a national referendum to signify popular adoption.

4. To avoid overloading the menu of issues to amend in the constitution, I encourage you to be very selective in identifying the most pressing matters relating, for instance, to the structure of the federation, distortions in the polity and operationally difficult aspects which can be submitted for adoption at the referendum. Other matters of detail and interpretational difficulty ought to be left for the judiciary to refine, amplify and enunciate if and when their jurisdiction is invoked. That was the orderly path the Americans followed with patience in their constitutional development. I can say that, happily and to their credit, our superior courts have not been found wanting in this regard, going by their track record from 1999 to date.

5. Given the prevailing widespread suspicion and public discontent about the current review exercise, it behooves on the NASS to embark on a damage control outing so as to regain public confidence and trust. Trust me, you do need these to ensure that posterity will judge you kindly.

Prof Auwalu H. Yadudu

Faculty of Law, Bayero University, Kano.

25^th Muharram 1427 AH (23^rd February  2006)