5 days ago
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Introduction
In the fifth installment of this treatise, we advanced on why it is imperative for Nigeria to evolve a new people’s Constitution, highlighting its key features. We also x-rayed referendum, explaining the process for its passage, followed by a discussion of its variants, advantages and disadvantages. We also examined some countries who have put their Constitutions through that test.
This week’s feature continues with that theme- with particular emphasis on the American experience, and that of Tunisia, Eritrea, Egypt, Morocco, etc., it is concluded with my personal take on the issue under discussion. Enjoy.
Need for a referendum and countries that subjected their new Constitutions to citizens’ referendum (Continues)
Iran
A proposed new Constitution which would make Iran an Islamic Republic, introduce direct elections for the presidency, create a unicameral parliament and require any constitutional changes to go through a referendum was proposed by the Iranian Government. To bring this about, a constitutional referendum was held in Iran on 2nd and 3rd December, 1979. The new Islamic constitution was approved by 99.5% of voters at the referendum.
Bangladesh
A constitutional referendum was held in Bangladesh on 15th September, 1991. Voters were asked “Should or not the President assent to the Constitution (Twelfth Amendment) Bill, 1991, of the People’s Republic of Bangladesh?” The amendments altered the existing Constitution and reintroduced Parliamentary system of government. It also abolished the position of Vice-President and provided that the President be elected by Parliament. 83.6% of Bangladeshis voted in the referendum, with a turnout of 35.2%.
Morocco
A referendum on constitutional reforms was held in Morocco on 1st July, 2011. It was called in response to a series of protests that spread across Morocco, which had begun on 20th February, 2011, when over 10,000 Moroccans took to the streets in massive demonstrations demanding democratic reforms. A commission was set up to draft proposals by June 2011. A draft was released on 17th June, 2011, which brought about fundamental changes upon people’s referendum.
Egypt
In October 2012, the Egyptian Constituent Assembly announced that its first draft of a new Constitution and launched a public awareness campaign called “Know your Constitution”, to educate the public. On November 29, 2012, the Egyptian Constituent Assembly finalized the drafting process of a new Egyptian Constitution. One week later, on December 8, 2012, Egyptian President Mohamed Morsi issued a new constitutional declaration announcing that the constitutional draft would be voted on in a national referendum. In accordance with article 60 of the Transitional Constitutional Declaration of March 2011, a special judicial commission was formed to supervise the referendum process and monitor vote counting. The referendum took place in two rounds on two different dates: December 15 and 22, 2012. The majority of Egyptians thus voted in favour of the newly drafted Constitution in a popular National Referendum, a Constitution that brought about profound reforms.
Eritrea
Eritrea’s Proclamation 55/1994 established a Constitutional Commission, which organized popular participation in the process of a new Constitution. The commission’s members and more than four hundred specially trained teachers instructed the public on constitutional issues and related political and social questions using local vernaculars. The process took three years to solicit the views of a broad cross-section of Eritreans. The participation of a majority of Eritreans gave the people a “sense of ownership of the Constitution”.
Tunisia
Tunisia’s first modern Constitution was the fundamental pact of 1857. This was followed by the Constitution of 1861, which was replaced in 1956, after the departure of French administrators in 1956. It was adopted on 1st June, 1959 and amended in 1999 and 2002, after the Tunisian Constitutional Referendum of 2002. Following the revolution and months of protests, a Constituent Assembly drafted a new Constitution in 2014, adopted on 26th January, 2014 after a referendum.
The American example of a people’s constitution through a referendum
As a great contrast to the 1999 Nigerian experience, when America became independent from Britain in 1776, it held a constitutional convention under the leadership of George Washington, between May 14 and September 17, 1776, in Philadelphia, Pennsylvania; 55 delegates represented the autonomous confederates, with a view to creating a “more perfect union”. Broad outlines of a new union were proposed and hotly debated.
Between May and September, 1787, 50 American confederate representatives met in Philadelphia, Pennsylvania, to debate, with a view to having a ‘more perfect Union’. This was after their independence from Britain in 1777. Thirty-nine out of the 55 delegates voted for and ratified a new constitution, beginning December 1787. Eleven states, and, later, 13 states, in a referendum of the people, adopted and ratified it on June 21, 1778. This led to the process of setting up a new government on March 4, 1789.
The new Constitution outlined broad aspects of government to supersede their earlier Articles of Confederation. They adopted Republicanism, Federalism, Presidentialism and Judicial review. They also adopted the doctrine of separation of powers (a concept earlier most ably propounded by the great French Philosopher, Baron de Montesquieu, in 1748). They also adopted a Bill of Rights, Bicameral Legislature, Electoral College, Executive President, Judiciary made up of Supreme, Circuits and District Courts.
That Constitutional Convention threw up the great Federalists such as Alexander Hamilton, John Jay, James Madison and Washington, who became the first President of America. The American Constitution being a product of the people is respected by the American people. It has only 192 pages, 27 amendments and is a slim document of 7,591 words. Compare this with the Nigerian Constitution that is figuratively as fat as a briefcase.
Other countries that used referendum to galvanise their people
Referendum thus simply means that the people are made to buy into an idea and own it. This occurred when a new Constitution emerged from the people of the then Midwest region on the 10th of August, 1963, to be separated from Western region, through a popular referendum. Heavens did not fall. There are other examples. The Eritreans separated from Ethiopia with a people’s referendum.
Many other countries of the world fashioned out new Constitutions after their people’s referendum. Such examples can be found with the people of Indonesia, Lithuania, Poland, Romania, Switzerland, Sweden, East Timor, Hong Kong, Bangladesh, Pakistan, Russia, Philippines, Singapore, Taiwan, Thailand, Austria, Bulgaria, Croatia, Denmark, Estonia, France and Germany. Others are Greece, Hungary, Ireland, Italy, Latvia, Luxemburg, Malta, Poland, Romania, Spain, Slovenia, Ukraine, Canada, Mexico, Chile, Costa Rica, Australia, Uruguay, New Zealand, etc. The people of Norway (53.5%) in a referendum in 1972, voted against being part of the European Economic Community in a referendum, without any provision for such a referendum in their Constitution. The same Norwegians in January 1994, in a referendum of 52.2% of the people, rejected membership of the European Union (EU). On 23rd June, 2016, the people of UK voted to exit EU in the EU Referendum, also known as BREXIT Referendum.
So, we need a BRAND-NEW CONSTITUTION and it can be done. Again, we do not need to amend the present Constitution under section 9 because it will never work. Rather, we need a BRAND-NEW CONSTITUTION that is autochthonous, indigenous, people-driven. This will enable it command the Peoples legitimacy, acceptability and credibility.
A new people’s Constitution: My specific recommendations
Restructuring is meant to make Nigeria work better and give a sense of belonging to all persons in Nigeria. It is meant to overhaul the current polity by giving power back to the people through their elected; rework a new Constitution that truly reflect their aspirations; address the peculiar needs of the federating units; and resolve and restore true fiscal federalism. It is meant to afford minority groups a sense of national identity; afford them control over their natural resources; allow them establish their own court systems, police forces and community policing systems; give them maximum security; afford them a fair and effective political structure; and allow the people develop according to their pace, while paying a fair tax to the central Government to enable it oversee limited areas of jurisdiction within the exclusive legislative list. To achieve such restructuring of Nigeria, I hereby make the following humble recommendations:
1. To properly restructure, we need a fresh people’s Constitution anchored on a six-zonal federal structure; with the present states, still retained as federating units, thus having a two-tier system of Government.
2. There shall be a central Federal Constitution, whose provisions shall prevail in the event of a conflict with the provisions of States and sub-regional Constitutions.
3. Each State shall maintain its own Constitution, have its own Police Force, and its hierarchy of courts up to the Supreme Court.
4. Each sub-regional group (Geopolitical Zone) shall have a Supreme Court that entertains appeals from the Supreme Courts of States within the sub-Regions, as was with the Western Region Court of Appeal. Only serious matters of Constitutional importance between States and States, and between States and the Federal Government shall go to the Supreme Court in Abuja.
5. Abolish section 162(4) – (8) of the Constitution and allow each State shall be free to merge existing LGCs or create fresh LGCs, depending on its needs and financial capacity. Such LGCs shall be made through autonomous and not dependent on State Governors.
6. Each of the federating states shall fully control its own up to 100% resources and pay 30% of revenue generated from these resources to the central government to enable it take care of its fewer allotted functions. In a proper federation, the central government does not own the resources and then allocate or dole out revenues to the sub-national units. It is the other way round. This was the position under the 1963 Republican Constitution, true fiscal federalism set up that allowed states to own their resources, pay tax to the central Government and develop according to their pace and needs. Let states begin to bake, and not merely share the National Cake.
7. Separate the office of the Attorney-General of the Federation from the highly political office of the Minister of Justice.
8. Separate the office of the Accountant-General of the Federation from that of the Accountant-General of the Federal Government.
9. Enthrone participation by vulnerable groups in governance, and bring about gender equality through a clearly defined Affirmative action.
10. Abrogate one chamber of the NASS (360 House of Representatives members; 109 Senators are too much for Nigeria). Or, allow existing members to sit on part-time and get paid sitting allowances.
11. Maintain Nigeria’s secularity and hands Governments off religious matters.
12. Removal of the immunity clause in prima facie criminal offences for the offices of President, Vice President, Governor and Deputy Governor while in office. This will stop their criminal proxy activities.
13. There shall be rotation of power between the North and the South.
14.Make provision for independent candidature.
15. Create specific Constitutional and Anti-Corruption courts.
16. Revamp of the electoral process; Allow transparent counting of votes and allow the votes to count.
17. Enable funding of members of the NASS by constituent States.
18. Create a specific role for traditional rulers and the traditional institution. They are the nearest unit to the grassroots.
19. Reform the Judiciary by banning mere interlocutory appeals to the Supreme Court and demarcating clearly between pre and post-election matters. Halt the process of courts conceiving, incubating and delivering President, Governors, Legislators, Chairmen of LGCs and Councilors.
20. Remove the artificial discrimination inherent indigeneship and residency.
21. There shall be clearly defined timelines for initiating assenting to and passing bills by all Legislatures in Nigeria.
22. Whittle down the entire bureaucracy in all the three arms of Government in Nigeria.
23. Make justiciable and actionable in a court of law, the entire provisions of Chapter II of the Constitution that is dealing with socio-economic rights.
24. Constitutionalise electoral Reforms and punish for electoral offences, including banning for 10 years, politicians that are involved in, or instigate electoral crimes.
25. The Exclusive Legislative of the Federal list shall be greatly pruned down to matters concerning Aviation Policy and Regulations; Banking, Bills of Exchange and Promissory Notes; Citizenship, Naturalization and Aliens; Creation of States; Currency, Coinage and Legal Tender; Customs Duties; Foreign and External Affairs; Defence and Defence Matters; Immigration into and Emigration Matters; Nuclear Energy; Ownership of and Control over Educational Matters that border on Federal Tertiary and Research Institutions. (To be continued).
Thought for the week
“On principle, I always support the opinion of a population who express themselves through a referendum”.
(Matteo Salvini).
English (US) ·