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Introduction
In the last part of this treatise, we examined democracy and the rule of law under the Nigerian Constitution, followed by a brief discussion of autochthony of the Constitution and why its absence undermines the Constitution’s legitimacy. In this week’s feature, I proffer arguments why a new Constitution is imperative, highlighting its key features. This will be followed an x-ray of referendums (or referenda) and incidents (different classes or types) merits and demerits. Read on.
The need for a new people’s Constitution: My thesis
The fact that the military imposed the 1999 Constitution completely robs it of its legitimacy and acceptability, as it does not represent the nation’s Identity Card, covenant and the supreme will of the people. Though a Constitution may be initiated through or amended by parliament, the final and decisive act of promulgation is strictly reserved for the people through a referendum. It is this act that confers ownership, legitimacy and credibility on the document called a Constitution. The 1999 Unitary Constitution of Nigeria lacks all these attributes.
The illegitimacy bedeviling our Constitution cannot be cured or remedied by amendments. The branches will sooner than later grow, and the tree will stand again. What is to be done is to remove the taproot of the tree and it will be dead forever.
So, for us to have an autochthonous Constitution that derives its legitimacy from the Nigerian people, we may need to go back to the 2014 National Conference (where I was a member and headed the subcommittee on Constitution drafting, human rights and legal reforms). The Committee made appropriate recommendations, which were subjected to the plenary session and were consensually adopted. It was agreed that there was the need to have a totally brand-new Constitution for the people of Nigeria. The 492 members that were at the National Conference represented all strata and walks of the Nigerian people – labour; trade unions; youth; students; Civil Society; market women; professionals; technocrats; military; police; civilians; traditional rulers; educationists; members of the diplomatic corps; physically challenged; etc.
The reason for a new Constitution is simple. Even if we were to amend the present Constitution, the emergent document will still suffer the same affliction as the present one; because you do not treat a serious ailment like leprosy with medicine or drug meant for eczema. The problem will persist. Since the Constitution is still chronically defective, a million amendments, no matter how detailed or significant, will not grant the desired Constitution, which emanates directly from the people. Consequently, there is the need for a brand-new Constitution. The process by which a Constitution emerges is as important, if not more important, as the contents of the Constitution.
Significant features of the new constitution
The 1999 Constitution lacks autochthony. Being imposed, it worsened the unitary nature of government, and concentrated enormous powers at the centre. While the 1979 Constitution had 67 items on the exclusive legislative list, and 12 items on the concurrent list, the 1999 Constitution increase this to 68 on the exclusive list, but retained only 12 items on the concurrent list. This indicates an unacceptable unbearably strong centre and very weak federating units.
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. There shall however be a central Federal Constitution. Each State shall control its resources, maintain its own Constitution, have its own Police Force, and its hierarchy of courts up to the Supreme Court. Each sub-regional group (Geopolitical Zone) will have a Supreme Court that entertains appeals from the Supreme Courts of States within the sub-regions. Only serious matters of Constitutional importance between States, and between States and the Federal Government shall go to the Supreme Court in Abuja. Any conflict between States’ Constitutions and the Federal Constitution shall be resolved in favour of the Federal Government. The States remain the federating units with the Federal Government, thus having a two-tier system of government.
Each State shall be allowed to create its own Local Governments depending on its needs and financial capability. Each of the federating states shall control its resources and pay 30% of income generated from these resources to the central government to enable it take care of its fewer 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.
What is a referendum?
A referendum is popularly known as a system where the electorate body (voters or citizens of a country) through a ballot approve or reject an act of the legislature. This posits referendum as the practice of submitting to popular vote of the people passed on or proposed by a legislative body or by popular initiative (Butler & Ranney, 1994,). It is one of the truest ways of ensuring citizens take part in the decision-making process that shapes the future and fate of their country. A referendum is a general vote by the electorate on a single political question which has been referred to them for a direct decision. This may result in the adoption of a new policy or specific law. A constitutional referendum is thus a form of referendum where a popular vote is cast for the adoption or amendment of a constitution, by members of the electorate.
How a referendum is passed
In most jurisdictions, a referendum takes the form of a question on which voters must vote either “Yes” or “No”. In these circumstances, whichever option receives the most votes – and thus more than half of the popular vote – is successful. Hence for a one-question (yes or no) referendum to pass, more than half the voters must vote either in the positive or negative. In some counties, a minimum turnout of the voters is required for a referendum to be successful, on those cases, where less than 40% or 50% of the electorate vote in that referendum, such results are rejected. A rare practice in a referendum is a multiple answer referendum, in which voters are asked to pick one from various alternatives for election.
Classification of referendum
A referendum is called automatically under circumstances defined in the Constitution or in the legislation, and the consequences of the votes cast are usually (but not always) binding. Thus, referendums are classified into mandatory referendum and optional referendum.
Mandatory (obligatory) referendum
Mandatory referendums may be required in relation to predetermined issues. Typically, these are issues of major national significance, for example, adoption of international treaties, transfer of authority to international bodies, and taxes and public expenditure commitments. In addition, in many countries, proposed amendments to the Constitution must be affirmed by a referendum. Alternatively, mandatory referendums may be required in predetermined situations. One example is in Presidential systems, where in the case of disagreement between the President and the Legislature, a referendum may be required to resolve the dispute.
Optional (facultative) referendum
The second category of referendum is the optional or facultative referendum. These are votes of the electorate which are called for by a formal demand, which may emanate from the Executive, members of the Legislature, citizens or from some other defined agent. The consequences of the vote may or may not be binding. A government can decide to initiate a referendum on a major political issue. It might do so because public pressure for a referendum forces it to hold one, or it might choose to hold a referendum because it is divided on the issue at hand.
Optional referendums initiated by the government have been held frequently in Europe on the issue of European Union integration (although in some cases, such referendums have been mandatory because they involve an amendment to a country’s Constitution). Although these referendums may not be legally binding, it may be politically difficult for a government to ignore the outcome.
A further type of optional referendum is the Abrogative Referendum. An abrogative referendum is a vote of the electorate which may decide to either retain or repeal a law or decree that has been agreed and promulgated by the legislature and already implemented. Usually, citizens force a vote by collecting a certain number of signatures in support of such vote.
Types of refenrendum
A number of referendums are routinely held in various jurisdictions, and thus, can be foreign-policy oriented or domestic policy-oriented, such as:
Independence referendum: An independence referendum is a type of referendum in which the residents of a territory decide on whether the territory should become an independent sovereign state.
Treaty referendum: The procedure by which a nation becomes a party to an agreement already in force between other nations.
Constitutional (or charter) referendum: A referendum held to ratify a proposed constitution or constitutional amendment in a country. In such referendum, the country seeks to adopt or reject a proposed constitution.
Prohibition referendum: A referendum which is held to prohibit an action by private parties in a country.
Rights refendurm: A referendum to determine the status of a class of people within a country.
Advantages of a referendum
It provides a level of political support for difficult decisions: If there is a difficult decision to make, then a referendum can solidify support for it. When a majority of the people back a political decision, it helps to create a lock in the choice, making it easier to proceed.
It creates specific points of negotiation: The priorities of the politicians may be different than the priorities of the people. By offering a referendum, the government is able to glean information about what their districts desire, making it easier to create policies or procedures which reflect the majority’s will.
It creates a mandate to follow: In Colombia, the government had negotiated a peace deal with FARC, which had promoted civil conflict within the country for over 50 years. The referendum to proceed with the deal was rejected by 50.2% of the people, which created a mandate for the government to find a different way to operate. If any ruling body is unsure of which direction to go, they can seek a mandate from the people to know how to proceed.
Disadvantages of a referendum
It allows for false actors to campaign for specific results: Referendums allow for a campaign to be started for each side of the question proposed. Campaigns provide space for false actors to misrepresent positions to the general public. Because the goal of a referendum is to provide more information to everyone, the false information offered is often believed.
It creates division: Referendums create division within communities, especially if a narrow victory or loss occurs. These divisions take time to heal, if they ever do. There is one general rule for a referendum: if you call one, there needs to be a level of certainty that you will win.
The need for a referendum and countries that subjected their new constitutions to citizens’ referendum
Iraq
The first Monarchial Constitution of the Republic of Iraq came into force in 1925 and existed till the 1958 Revolution which established a Republic. Interim Constitutions were adopted in 1958, 1964, 1968, and 1970, until the Transitional Administrative Law was adopted in 2003 after the fall of Saddam Hussein. In 1990, a draft Constitution was prepared but never promulgated due to the onset of the Gulf War. The current Constitution was adopted on September 18, 2005, by the Transitional National Assembly of Iraq, and confirmed by a constitutional referendum, held on October 15, 2005. It was published on December 28, 2005, in the Official Gazette of Iraq (No. 4012), in Arabic original, and thus came into force.
Kenya
There were three versions of the Kenya Constitution; with the most recent being the 2010 redraft. This replaced the 1963 Independence Constitution. This version of 2010 was presented to the Attorney-General of Kenya on 7th April, 2010, officially published on 6th May, 2010, and was subjected to Referendum of the Kenya people on 4th August, 2010. It was voted for and approved by 67% of Kenya citizens. It was then promulgated on 27th August, 2010.
South Africa
After the elections of 1994, the new Parliament (working as the Constitutional Assembly) began writing the final Constitution of South Africa. On May 8, 1996, the Constitutional Assembly completed two years of work on a draft of a final Constitution, replaced the interim Constitution of 1993 by the year 1999. The objective to submit the draft to the Constitution court was to ensure that the final Constitution was legitimate, credible and accepted by all South Africans.
The process of drafting involved many South Africans in the largest public participation programme ever carried out. Nearly two years later, representatives of political parties negotiated the formulations contained in the final draft and ignited an integration of ideas from ordinary citizens, civil society and political parties represented in and outside of the Constitutional Assembly. The Constitution therefore represents the collective wisdom and will of the South African people because it was arrived at by general agreement and consent of all South Africans. (To be continued).
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