We can all agree that notwithstanding the stress and concerns of the present, we all will be happier if Nigeria was a much better nation with regard to the wealth of the nation, the well-being of her people, her position in the world and her banner of unity, cohesion and liberty and health.
It is of course now very clear that the great future anticipated by our ancestors, that future the world foresaw when we voluntarily demanded for freedom from colonial rule under the banner of hopeful sovereignty, has been greatly diminished by our very acts or inactions. Today our nation is certainly afraid of its future which lays before her with sombre challenge.
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It will be a mistake to disregard the need to have an urgent conversation on Nigeria and her government. Undoubtedly governance is really at the heart of our anxiety as a people. The centralization of political power appears to have endangered our confidence, shattered our faith and weakened our belief in one Nigeria of one people under God, it has also not achieved the necessary political mechanic required to build the nation we want, desire or deserve nor has it in fact enhanced the brilliance and intuition of our people for Nigeria’s greatness.
To the contrary, centralization of power, will appear to have obscured and eclipsed the promises of democracy, the prospects of development and growth in all ramifications. It appears to have also diminished the value and benefit of wealth, power, place, order, economy, security, society and even our civilization.
A nation should be strong enough to review her past, assess it properly and sincerely, cast honest and proper judgment that will compel proper decision and action for her future happiness. Such review often helps to redeem the past by freeing today from its burden ordeals, harshness and pain.
In my view such review, also has a great possibility to renew, reshape and even re-order a nation-state and make it stronger and deeper.
Much has been proposed in recent years to increase the illumination of the dim light of national peace, progress and good government. In my view these propositions are mere adventures when we think deeply about the foundation of national neuroses that appear to be getting bigger, more complicated and more terrifying every new and passing day.
We can certainly learn from some nations that share with us the beliefs of democracy and freedom.
Let us look at two of these nation.
THE UNITED STATES OF AMERICA
The Articles of Confederation and Perpetual Union was the first Constitution of the United States of America. It was drafted by the second Continental congress from 1776 to 1777, adopted on November 15, 1777 and ratified in 1781. The Continental Congress was not without any achievements. The Congress provided leadership during the American Revolution. In addition to the Articles of Confederation, it drafted the declaration of Independence.
The Articles of Confederation created a loose Confederation of Sovereign States and a weak central government. National government was comprised of a single legislature, the Congress of the Confederation. The Articles of Confederation gave Congress of the Confederation powers over foreign affairs, conduct of war and regulation of currency.
Considering that the United States was made up largely of the same people who spoke the same language within the same origin, culture, tradition and religion, the need to improve on the powers of National government over one people under central power soon became apparent especially to enhance national stability and ensure beneficent ends of politics.
In 1786 Alexander Hamilton, a lawyer and political leader from New York called for Constitutional convention to discuss governance in the United State. The Confederation Congress endorsed and adopted the idea of National discourse in 1787. In consequence, the Congress invited all 13 confederal States to send delegates to a meeting in Philadelphia.
On May 25 1787 the Constitutional Convention opened in Philadelphia Independence Hall with 55 delegates from the several states in attendance. The convention continued until September 17. It is to be noted in particular, that the delegates were particularly well-educated men from diverse departments of life. The French intellectual aristocrat Alexis de Tocqueville who got to America in 1831 spoke of the 55 delegates as some of the greatest minds of the time in his essential work “Democracy in America” (Harper & Row, 1966).
The initial duties of the Continental delegates was to amend the Articles of confederation. They soon found the need and necessity to debate a new Constitution for America, which would become binding on all the confederal states for all intents and purposes.
By September 1787 the convention had drafted a new Constitution which, to become binding on the States, had to be ratified by nine of the 13 States. Between December 7, 1787 and June 21, 1788 nine of the 13 states had ratified the new Constitution.
A new government under the new Constitution began on March 4, 1789 and George Washington became America’s first President on April 30, 1789. On February 2, 1790 the Supreme Court of the United States held its first session commencing the full operation of a national government.
Now, what lesson for our nation in the choice that the American Political Leaders made in 1787? Well the American political leaders did not reject difficult choices that could light the hope of their nation. They faced and made the hard choices. They sacrificed their personal regional and religious interests for the purpose of making a great Constitution that has produced the greatest nation on earth.
The American political leaders were rather inpatient to look among themselves for men with great appetite for great ideas that will rule their nation and increase her understanding, stability, worth and wealth, not men who were determined to resist change when it was necessary, proper or compelling.
REPUBLIC OF CHILE
Chile like Nigeria is reputed to be the most economically important Nation within its region of South America. In the last one year, the world has witnessed much agitation against inequality and injustice in governance in Chile. But what was the solution? Despite the booming economy the people of Chile insisted on a brand new Constitution of the people and got it by 79% yes vote for it, in a referendum that approved a Constitution written by equal citizens instead of one made for them.
Chile’s current Constitution like that of Nigeria, dates back to General Augusto Pinochet, the military dictator who governed the Country from 1973 to 1990.
First the Military government only gave itself in Decree 1 of 1984 the power to make laws equal to that of the National Assembly NOT the power to make a Constitution. In making the Constitution without Legal authority the Military acted unlawfully. A Constitution, you must please appreciate, is not law. (see Tunji Abayomi: Constitutional Powers and Duties of the President 2002. Law searchers (Nig. Ltd) P.14
Second the Military government recognized quite clearly that only “the people” can give to themselves a Constitution. That was precisely why it began its Constitution though falsely and fraudulently claim that “WE THE PEOPLE of the Federal Republic of Nigeria: DO HEREBY MAKE, ENACT and give to ourselves THE FOLLOWING Constitution:”
Thus the second fraud on the people is the false representation and outright lie the Constitution told on its face. The 1999 Constitution lied that we gave it to ourselves when it was the Military dictatorship that forced it on the peoples of Nigeria.
The third fraud on the people is the nature of the Constitution. A Constitution, to be legitimate, must originate from the free will and consensus of a people not from force. Constitution is never enacted like a law since it’s an agreement by the people on the nature and structure of a government they create over themselves. Contrary to the absurd experience of Nigeria, it is NEVER a government that gives a nation a Constitution, rather it is always a Constitution that gives a Nation a government.
The 1999 Constitution is Decree 24 of 1999. A Decree is nothing but forced law. To understand its nature and the citizen diminishing tendency of that May 5, 1999, Decree 24, it is sufficient to take time to read the preamble to the Decree.
In short what Nigeria needs is a Constitution of the people, by the people and for the people. It is certainly reasonable and sensible that we should have a consensus on how to manage Nigeria our collective inheritance instead of allowing the Military to force its will, way and choice on us, if we truly aspire after peace, order and good government.
WHAT THEN IS THE SOLUTION AND HOW DO WE BRING IT ABOUT.
It is important to recognize and take into consideration the realities of Nigeria. Nigeria unlike the United State is separated by ethnicity, religion, region, culture, language, space and emotion. We are not one people in Nigeria. We are many peoples wanting to unite to form a nation.
A more remarkable, result oriented approach should necessarily be for our peoples,made divinely diverse by language and location to come around a conference or convention table in loyalty to building a great nation from different people to agree on the terms of their togetherness, that is to agree on a Constitution.
Please note, this is not about restructuring. Nigeria’s structure can only be her representative Constitution. As the nation presently has no such Constitution freely agreed upon by her many peoples she obviously has no structure agreed, upon by her diverse people. You cannot restructure a nation that has no structure.
In conclusion to unlock the great potentials of Nigeria what is now needed is for the National Assembly as a Public duty to learn the lessons of change that the political leaders of other nations have learnt by bringing about a law to enable the people of Nigeria to truly give to themselves a Constitution.
Now some have questioned the rationality of proposing a law made by the National Assembly to bring about the new Constitution.
The rational, the legal and legitimate basis for the National Assembly to do this, is that the National Assembly derives lawmaking power from the electors more like the United Kingdom that has no written Constitution.
Here again, we must appreciate that the 1999 Constitution did not infact Originate the governments of Nigeria in 1999. Indeed on May 5, 1999 Decree 24 so proclaimed:
“WHEREAS the Federal Military Government of the Federal Republic of Nigeria in compliance with the Transition to Civil Rule (Political Programme) Decree 1998 has, through the Independent National Electoral Commission, conducted elections to the Office of President and Vice-President, governors and Deputy-Governors, Chairmen and Vice-Chairmen, the National Assembly, the Houses of Assembly and the Local government councils”
So contrary to the norms in democracy, it was not a Constitution that gave us our democracy at least in 1999. It was a military government of dictators that wrongly gave us a Constitution and a government. Time has indeed come to correct this grievous error and the only body that can legitimately remedy the error of Constitutional wrong-making is the National Assembly.
Finally in the last few years much effort and national wealth have been committed to what the National Assembly calls “constitutional Amendment”. We know of course that an illegitimate constitutional is neither amenable nor amendable. A constitution is legitimized not by its content but by the procedure of making a Constitution.
How do you amend a military constitution to originate it in the people, the proper and legitimate makes of the Constitution?
How do you even amend it to establish a legal basis and authority for the Military that, as I said, gave itself no power to make a Constitution. These are legal impossibilities.
Besides the legal impossibilities identified, the Nation’s Constitutional tragedy is exemplified in the 2010 Act to amend the 1999 Constitution. In a valid Constitution, a President plays no role in its amendment since it is always the legislature that is often invested with amending powers, yet the Court per Okechukwu Okeke, Judge held quite rightly that the amendment of the 1999 Constitution remained “inchoate and lack the force of law until it is presented to the President of the Federal Republic of Nigeria for his assent”. (see Agbakoba vs. National Assembly (FHC/L/05/941/2010). If what is needed was to pass a Bill which is then presented to the President for his assent like any ordinary law, what then is the purpose of taking the proposed amendment to the Houses of Assembly of the several states for approval? The Constitutional dilemma presented by the wrong amending procedure should have exposed the National Assembly to the inherent error in the making of the 1999 Constitution.
The National Assembly should be sincere with Nigeria by forgetting her worthless amendments for a worthwhile Constitution making for the people.
The duty of the National Assembly will be enough if it helps Nigeria to have a Peoples’ Constitution instead of wasting Nigeria’s resources to correct a gravely uncorrectable error inherent in the making of a Constitution by the Military government.
As I once told President Obasajo in his Presidential residence, the Military government may have had good intentions in making a Constitution it had no power or right to make, but that Constitution must be seen as a fruit of a poisonous tree. The poisonous tree is the coercion, force and dictatorship inherent in a military order.
The origin of the fruit being incurably poisonous, no healthy fruit can be expected. The 1999 Constitution came by dictatorship and force, it can never guarantee peace, order or good government consequently the time is now, not tomorrow to take a new redeeming look at our nation’s most important government document that is the Constitution.
Thank you for your attention.
OLATUNJI O. ABAYOMI (DR)
OLATUNJI O. ABAYOMI (DR)