Thursday, September 5, 2013

PROCEDURE FOR DRAFTING AN ENTIRELY NEW CONSTITUTION

The current Senate has, on its own, proposed an amendment to Section 9 of our Constitution which deals with the ‘Mode of altering provisions of the Constitution’. The Senators are proposing to add several sub-sections to this section which will effectively give the National Assembly the powers to draft and enact an entirely new constitution for Nigeria. This proposal has never been subjected to a debate in a plenary session of any of the two NASS chambers nor at a public hearing.
The 49-Member Senate Committee on the Review of the 1999 Constitution introduced this proposal as the very first item on their list of proposed amendments for deliberation. On page 11 of their report to the Senate, the Committee wrote:
“The Committee feels there is the need to make an elaborate provision in Section 9 of the Constitution for a procedure to bring an entirely new Constitution into being. This is predicated on the belief that the incremental approach to constitutional amendment may not be sustainable in the long run. The need may arise in the future for a whole new document.”
The Committee therefore proposed the insertion of 14 new sub-sections to the current Constitution that provision as follows:
1.      That for the purpose of altering the provisions in the 1999 Constitution, the President’s assent shall not be required;
2.      That the NASS may propose a new Constitution for the Federation;
3.      That the new constitution shall come into effect in the manner stipulated in 4 to 14 below;
4.      That there shall be a Senate and House of Reps committee to be known as Joint Constitution Drafting Committee (JCDC);
5.      That the JCDC shall consist of 2 members from each State (one each from the Senate and House of Reps) and 2 members representing the FCT (one from the Senate and one from the House of Reps);
6.      That the Senate President and House of Reps Speaker shall appoint the JCDC chairman.
7.      That the JCDC shall produce a draft Constitution and submit same to the Senate President and the Speaker of the House of Reps.
8.      That the Draft Constitution shall be presented to both Houses of the NASS within 3 months as receipt of the JCDC Report.
9.      That if approved by 2/3 of the members of both Houses of the NASS, the Report shall be forwarded to all 36 State Houses of Assembly
10.   That State Assemblies shall vote on each section of the Draft Constitution, requiring just a simple majority to pass each section, while 2/3 of the State Assemblies shall be required to pass a section for it to make it into the proposed Constitution.
11.   When State Assemblies return the Draft Constitution, the Clerk of the NASS shall ensure that State Assemblies have complied with the provisions of this section.
12.   That the Clerk of the NASS shall then circulate the Draft Constitution to each member of the NASS and also forward copies to the Independent National Electoral Commission (INEC).
13.   That the INEC shall, within 6 months, conduct a referendum for the approval or otherwise of the Draft Constitution.
14.   That if the Draft Constitution receives a simple majority of votes cast in 2/3 of the States of the Federation, it shall come into force as the Constitution of the Federal Republic of Nigeria.
This proposed amendment to the current Constitution throws up many issues that would require very careful study. It also throws up many questions that would need answers before a decision is taken whether the amendment should be allowed or not.
Firstly, the Senate constitution review committee did not give a convincing reason for seeking empowerment for the NASS to draft and enact entirely new constitutions for the country. The portion of their report quoted said the need for the NASS to be so empowered is hinged on “the incremental approach to constitutional amendment which may not be sustainable in the long run.” I find this argument hollow, shallow and unconvincing.
Secondly, the NASS would like to grant itself powers to both draft and enact new Constitution. It may be in order for enact the document, but should they also draft it? Why should the drafting not be left for a separate committee that more broadly represents the people? The powers of drafting and enacting a new Constitution should not be vested in the same body. The legislators were elected to make laws primarily. The mandate given to them by the people cannot be construed to include the people’s sovereignty to make draft a fundamental governing document like a Constitution. Also, 2 legislators per State is far too small a representation for our huge population and diversity of opinion, culture, geography, religion and aspirations. 
Thirdly, the Senate proposed to dispense of a presidential assent to the new Constitution while they granted themselves the prerogative of drafting the document, debating on it and approving it. If they were sincere, they would have also removed the need for the NASS to tamper with the draft, provided such a draft emanated from the people. This point proves that they cannot be the drafters of any new Constitution. Even after State Assemblies have passed new provisions, the NASS wishes to arrogate to itself powers to still decide if what the State Assemblies have done is acceptable to them or not. Then the final document could not be said to be a Constitution which the people of Nigeria have decided to give themselves.
Fourthly, the popular practise the world over is for constitutional drafting to be done by representatives of the people elected purely for that purpose. However, in the proposed amendment, the NASS wishes to usurp the people’s powers to give themselves a Constitution.
Fifthly, the requirement of a simple majority as proposed for section by section State Assembly debates is unheard of in the process of Constitution drafting. The minimum requirement the world over tends to be 60% and above. The simple majority requirement as proposed is a ploy to ensure that State Assemblies very easily pass whatever the NASS has done. For example, a sizeable of opposition to a section of up to 59% will still not be able to quash the NASS proposals.
In conclusion, Nigerians are urged to oppose the proposed amendment that will empower the NASS to draft and enact new Constitutions for Nigeria. The acceptable amendment should be one that recommends the election of hundreds of representatives to constitute an independent constitutional drafting committee. The acceptable amendment should also specify that the NASS shall not tamper with the resulting draft Constitution but enact it.    
James Pam, 04 September, 2013
Jamespam2004@yahoo.com     

   

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