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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