WHOSE OR WHICH CONSTITUTION IS BEING TOUTED FOR REFERENDUM? - BY PROF AUWALU YADUDU, North West, Confab Delegate - August 10, 2014 I have had the privilege of reading the electronic version of the draft report to be circulated to members of the Confab tomorrow. I have found it necessary to set forth, for the records, the following intervention on a very crucial matter contained in the report. I am compelled to use the medium of an open letter to members and the secretariat in view of the fact that due to time constraints and having regard to the Rule of Procedure of the Confab, there may not be an opportunity to subject the matter to intense debate or interrogation at this stage. The draft report in chapter 7 recognizes and acknowledges that Conference has not come to a decision on what modalities to adopt for the implementation of its various resolutions. Hence it proposes to members either to consider the various resolutions as amendments to the 1999 Constitution or treat it as a “ new Constitution”. If Conference agrees with the former case, the draft concedes to follow the amendment process via the National Assembly. However, if Conference considers the proposals to amount to a new constitution, the draft posits that there is a necessity for a referendum to adopt it. In an attempt to force that idea down members’ throat, the draft report canvasses that we should follow the examples of countries such as Egypt, South Africa etc while it brazenly ignores the legal and constitutional impediments. I am opposed to treating the resolutions of the confab as “ a new Constitution” for the following reasons: It is incontrovertible that the Constitution of the Federal Republic of Nigeria, 1999 contains, very clear provisions, under section 9, and has spelt out explicit rules to govern specific steps to follow to alter its provisions, including the adoption of an entirely new Constitution if deemed desirable, I am satisfied that the procedure for any alteration does not envisage or recognize “referendum” as a mechanism for bringing about any change to theexisting Constitution or the adoption of a new one. Moreover, for any alteration to the constitution to be legitimate or credible, it must be validated by the concurrent adoption of the National Assembly and the resolution in support of 2/3 (24) of the Houses of Assembly of the States where this is assented to by the President. One needs not be reminded that the National Conference comprises unelected members – however dignified or experienced they may be in their individual capacities - and, consequently, it lacks the powers of a constituent assembly, in the exercise ofwhich it may propose or adopt a new constitution. In other words, the Confab, being unelected, does not derive its mandate from the sovereign will of the people and cannot claim to be speaking for them. Forsuch a defective Confab to assume such a role or purport to adopt a new constitution, as representatives of the people or under any guise,would amount to the usurpation of powers it does not possess. It cannot discharge or exercise a mandatenot conferred on it by law. If the Confab, whose members lack popular mandate and whose composition is undemocratic having been assembled in a very skewed manner by the use of a template of dubious legal or constitutional basis, purports to promulgate “a new constitution” the constitutional document thereby produced would tell even a bigger lie than is being leveled against the 1999 Constitution which is being disparaged as the handiwork of the military. It should also be pointed out that there does not exist any Act of parliament or Rules of Procedure in Nigeriathat would enable any organ or under which to conduct a referendum and no agency of government is empowered by law to carry out same. For the avoidance of any doubt the Confab, whether at plenary or committee stages of its work, never tasked any members to propose a “draft constitution” which may be considered for adoption by “referendum” or in total disregard of the existing cons
Posted on: Mon, 11 Aug 2014 23:09:07 +0000
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