CONSTITUTIONAL AMENDMENT AND OUR CONSTITUTION

CONSTITUTIONAL AMENDMENT

AND OUR DEMOCRACY

 

By

 

Dr. Tunji Abayomi

Attorney -at –Law

 

LAW DINNER 2008

Law Society

Adekunle Ajasin University

September 26, 2008.

 

CONSTITUTIONAL AMENDMENT AND OUR

DEMOCRACY

by

* Tunji Abayomi

Attorney -at –Law

 

Let me express my appreciation to the Adekunle Ajasin University Law Society and its Faculty of Law for the choice of Topic for this year's Law Dinner. The current national dialogue is on the undying issue of Constitutional Amendment and it is appropriate that a Law Faculty of the stature of our premier University in Ondo State should partake in the passion of this present time. Judged by the effervescence of the present National Assembly largely made up of one-party elected officials, out of a bad election, it is necessary to react to the extended interest of the National Assembly in amending the so called 1999 Constitution. The question, however, remains, whether an amendment is actually warranted, whether it is at this point necessary, whether it is at all proper. What are we actually amending? Are we amending a Constitution or unconstitutionality?

 

Now if a Constitution is Constitutional it is amenable and amendable according to its own prescription. In the words of Honourable B.E Everett Jordan, Chairman of the United States Committee on Rules and Administration, in spite of the fact that we should ordinarily and naturally revere the constitution, it is nonetheless “changeable too because the circumstances in which it must function require an adaptation of institutions and a refitting of modes of doing things”. Yes, the Constitution must, in the words of Professor Corwin, be “a living statute, palpitating with the purpose of the hour, re-enacted with every waking breath of the people, whose primitive right to determine their institutions is its sole claim to validity as law and as the

matix of laws”

 

The same opinion was expressed by Lord Halifax.

“A Constitution cannot make itself; somebody made it, not at once but at several times. It is alterable, and by that draweth nearer perfection; and without suiting itself to differing times and circumstances, it could not live. Its life is prolonged by changing seasonably the several parts of it at several times.”

 

Indeed no Constitution is intended by its makers to be static, rather it is in the words of Chief Justice John Marshall (U.S. Supreme Court) envisioned that the Constitution would “endure for ages to come and consequently be adapted to various crises in human affairs”. Constitutional amendment is the surest way to assure the adaptation of a valid Constitution to the changing tides in human affairs.

 

For me, therefore, the current issues rotate not around the value or validity of a Constitutional amendment. The central concept of Constitutional jurisprudence in the current amendment debate concerns, in my view, the fundamental principles guiding constitutional amendment doctrine and whether in our peculiar situation in Nigeria, our constitution meets the minimum test of c o n s t i t u t i o n a l i s m t o w a r r a n t t h e application of the encompassing amendment principles in the refitting of Constitutional modes to the changing times of our nation. But before we venture further, we need to know what a Constitution is and what it is not. Thereafter, we need to compare what we now have or what is otherwise called the 1999 Constitution to the norms of Validity and Constitutionality or constitutional legitimacy generally accepted through the ages. Then, we can conclude on the value and validity of the current amendment efforts by the National Assembly of Nigeria.

 

It is now generally accepted that a valid Constitution creates the powers of state and the limitation on such powers. Thus in practical terms in the cause of governance, the validity of the acts of government is charged, changed or challenged by the written Constitution. The Constitution thus becomes far more than just a broad discretionary mandate on powers and duties that elucidate general affection and regard. Constitution has occupied among the people, in our time, solely and inalterably the primary cockpit to guide governance in all ramifications. But perhaps its more profound authority is that it designs the nature and structure of institutions of government in a sovereign state, prescribing in general, inherent characteristics of sovereignty, including authority of government over local matters. Among the essential characters sought to be Constitutionalised in democratic constitutions, are federalism, that is, the union of several states for common and collective interests under the division of powers within defined spheres. Another important principle of federal Constitutions worldwide is the doctrine of separation of powers. This concept is about three distinct departments of government i.e. legislative, executive and judicial set forth in Aristotle’s' Politics but elaborated by Montesquieu with the idea of government of “Checks and balances” in Book XI of his Spirit of the Laws. As Montesquieu noted “men entrusted with power tend to abuse it”.

 

Consequently, it was necessary and proper to break up the powers of government. The above entire colligation of ideas is in a constitution presumed to emerge from the minds of the people who are deemed to make a constitution for the practice of their government. The truth is, government itself is not expected to be inevitably involved in the formulation of the original Constitution which is presumed to precede government, let alone approving, enacting and adopting it for the people. As I noted at page 75 of my book 'State and Citizens':

 

“A constitution remains mankind's greatest valve to control the passions and actions of governments and assure their conformity with the dictates of reason, human rights, common sense and general will. Since a constitution is formed and fashioned by the people as a fundamental guide to control the principles of governance, the unadulterated and uninhibited right of the people in a free exercise of wish and will must form the basic platform upon which any constitution is placed if it is to be legitimate and enforceable.”

 

You will by now have appreciated the direction of my thoughts. We have, out of failure of rational review or objectivity of the autocratic document forced on us by the military dictatorship assumed that we have a constitution for our democracy. From my understanding of Constitutionalism this appears not to be so.

 

In truth the nation has no Constitution. This is why in my February 12, 2008 letter to Senator David Mark, President of Senate on the intended review of the so called 1999 Constitution I observed inter alia:

 

“I feel compelled to advise against the growing fad of a constitutional amendment, as am rather convinced that what the nation needs is a legitimate Constitution of the people, not the amendment of an organically erroneous Constitution. An illegitimate constitution is not amendable.

 

Nothing appears to highlight the legacy of the autocratic past than the current constitution which we call the 1999 Constitution but which the makers entitled by law as “Decree 24, 1999”.

 

You are not unaware of at least three previous attempts under the last government to amend “our Constitution” all of which came to nothing. In short the issue confronting Nigeria is not about amendment of her constitution, the issue is the legitimacy of her Constitution. The Constitution we have did not arise from our desire, demands or deposition. It was neither approved, sanctioned nor sanctified by us, of us or for us by general interest or will, or approbation. It arose from force and was forced on us by a dictatorship we loathed, a dictatorship that illegally usurped government contrary to our laws. It was given by military government to the people when it should have been the people, in a properly constructed union, through their constitution, that should give to themselves a government.

 

The Constitution told a most notorious falsehood about itself affirming what is most untrue that “we the people” gave to ourselves the said Constitution. The greatest mischief of the current Constitution is actually its wrong origin, and it behoves us to depart from such original error and create a proper constitutional frame-work for the future governments which ought to emerge from freedom and general consensus”.

 

As it was in the past from General Abdul-Salam Abubakar to General Olusegun Obasanjo to Brigadier David Mark, all of whom I have interacted with on this issue, the dedication of our military leaders to the autocratic past has inhibited their responsibility to work for a democratic constitution. This was why Senator David Mark gave a largely irrelevant reply in his letter to me dated August 8, 2008:

 

“RE: REVIEW OF THE CONSTITUTION

His Excellency, the President of the Senate, Distinguished Senator David A.B Mark, GCON, is in receipt of your letter on the above subject matter. He commends you for your letter and reaffirms that the processes leading to the amendment of the Nigeria Constitution allows Nigerians to make inputs through their elected representatives as to do otherwise will amount to anarchy.

 

While wishing you well in all your endeavours, please accept the assurances of His Excellency's consideration and very high personal regards”.

 

Now of the 1999 constitution we face no contradiction to the position that it is simply not a Constitution, but a fruit of a manifestly poisonous tree, that is the tree of dictatorship instead of democracy.

 

First, unlike any known democratic Constitution, its other name is Decree 24 of 1999. Second, it was given by a treasonable oligarchy to the people of Nigeria without the approbation of the people. Worse still, it was made by government instead for the Constitution to make government. Still more bizarre, is its proclamation:

 

“AND WHEREAS the Constitutional Debate Coordinating Committee has presented the report of its deliberations to the Provisional Ruling Council.

 

AND WHEREAS, the Provisional Ruling Council has approved the report subject to such amendments as are deemed necessary in the public interest and for the purpose of promoting the security, welfare and good governance and fostering the unity and progress of the people of Nigeria with a view to achieving its objective of handing over and enduring Constitution to the people of Nigeria;

 

AND WHEREAS, it is necessary in accordance with the programme on transition to civil rule for the Constitution of the Federal Republic of Nigeria 1979 after necessary amendments and approval by the Provisional Ruling Council to be promulgated into a new Constitution for the Federal Republic of Nigeria in order to give the same force of law with effect from 29 May 1999:

 

NOW THEREFORE, THE FEDERAL MILITARY GOVERNMENT hereby decrees as follows:-

 

1.         (1) There shall be for Nigeria a Constitution which shall be as set out in the schedule to this Decree.

(2) The Constitution set out in the Schedule to this Decree shall come into force on 29 May 1999.

(3) Whenever it may hereafter be necessary for the Constitution to be printed it shall be lawful for the Federal Government Printer to omit all parts of this Decree apart from the schedule and the Constitution as so printed shall have the force of law notwithstanding the omission.

 

2. This Decree may be cited as the Constitution of the Federal Republic of Nigeria (Promulgation) Decree 1999.”

 

It is apparent from the above 'Constitution of the Federal Republic of Nigeria (promulgation) Decree 24, 1999' that the so called 1999 Constitution is an entirely military affair. It was brought about through a Debate Committee it set up on November 11, 1998. The conclusions of the Committee was submitted to the Military Government that tore it apart as it deemed fit and later enacted it to law over us without our consent. In short even by all the “whereases” preceding Decree 24, 1999, it is clear that the so called 1999 Constitution is neither from us nor of us.

 

It is, therefore, clear that the Constitution is not of the people of Nigeria. If the National Assembly is of the people of Nigeria, then it should do the job it ought to do or the job the people of Nigeria gave it, which, in my view, excludes legitimizing a wrong Constitution through a wrong Constitutional amendment.

 

CONCLUSION

Since in its most absorptive power, a Constitution is intended to secure the people of a state from arbitrary exercise of power and abuse of principles of right, our constitution must first be delivered from power abuse and power delirium which its making, and adoption by a military dictatorship through its Decree 24, 1999 represents. There is in my view no process of Constitutional logic or reasoning that can affirm the right of a military dictatorship to give to the people of Nigeria by decree, a Constitution. The 1999 Constitution is a fraud forced on the people of Nigeria.

 

Consequently, the greatest Constitutional amendment needed by our people is to be enabled and empowered to make for themselves their own Constitution. The length of time that we have continued under this wrong Constitution with its rough and unconstitutional origin, with its inherent illegitimacy and false representation should not deter us from returning to Constitutional common sense. It is never too late to return to common sense. The 1999 Constitution is merely a law of a military oligarchy like any military Decree. We know that a Constitution cannot be made in exercise of legislative power. A constitution is not law. In this regard, may I draw your attention to page 14 16 of my book “Constitutional Powers and Duties of the President” where I listed ten principal differences between a Law and the Constitution. For example, while a written Constitution is a political document that is adopted by the people to control all laws and all governments at all times, a law which is usually enacted by a legislature has no power outside itself and is usually limited to the resolution of specific problems.

 

When the United States found out that the Articles of their Confederation adopted on November 15, 1777 for her first government, by the original 13 states prior to March 2, 1781 adoption of the name “the United States of America”, was insufficient to promote the general welfare of the people and mutual confidence among them, they opted for what all reasonable nations do. They set it aside and initiated a Federal Constitutional Convention that met on May 25, 1787 to form an entirely new Constitution. On September 17, 1787 i.e. less than 4 months the convention completed its work, adopted a resolution directing that the new Constitution be laid before the Congress of the United States and the Conventions of the several states for ratification before its adoption. The federal convention of the United States that formed the Federal Constitution was made up of the best and highest 54 minds of the time because of the significance of its job. The conventions of nine states ratified the Constitution by July 26, 1788, the Congress of the United States, thereafter, in October 1788 passed a resolution in keeping with the opinion of the Federal Convention setting March 3, 1789 as the date for commencing proceedings under the Federal Constitution. It was not until April 30, 1789, that George Washington was inaugurated as the first United States President. United States Supreme Court met for the first time on February 1, 1790.

 

In his book 'Democracy in America', Alexis de Tocqueville at page 101 -103 spoke of how under the Article of Confederation the wheels of government were stopping, that America was then warned by its lawmakers of the weakness of the union of Confederacy and called for remedy. He spoke of how America turned its attention to itself without haste or fear to remedy the inadequacies:

 

“If ever there was a short moment when America did rise to that climax of glory where the proud imagination of her inhabitants would constantly like us to see her, it was at that supreme crises when the national authority had in some sort abdicated its dominion.”

 

Here it needs to be observed that the people of the United States realizing the inherent defect in the Confederacy Constitution avoided the pitfall of an amendment to an inherently defective Constitution. The first ten Amendments i.e. the Bill of Rights were submitted on the new Federal Constitution never on the old defective Constitution. It is always solely within the power of the people to make or unmake their Constitution. For a Constitution to be legitimate it must emphatically be rooted in the will of the people and it can only exist according to their consent, wish and approbation. This has never been the case in Nigeria. The 1999 constitution is a symbol and function of a ruthless dictatorship that illegally usurped our collective rights to constitute government over us.

 

A greater injustice and outright offence will be visited on our people by the present National Assembly, if, instead of upholding the rights of Citizens to fashion a Constitution for themselves, engages, like the last three attempts under the past government in another worthless amendment process. The National Assembly in exercise of law-making power, in spite of the error of its origin, can assist the development of constitutional governance in Nigeria not by amending an unamendable illegitimate 1999 Constitution that usurped the primitive right of the people to make for themselves a constitution, but by assuring to the people, a convention of the people for the purpose of making a proper constitution. After all, they can learn from the Congress of the United States, which, realizing the weakness and inadequacies of the Confederal Constitution which was adopted in 1778 officially declared, on February 21, 1787 the dangers to the Union under the Confederal Constitution, before voluntarily submitting itself to the Federal Constitutional revolution of 1787.

 

While a legitimate representative Assembly can propose an amendment within the prescriptive internal direction of a valid Constitution, what the present National Assembly should first emphatically do is to amend the autocratic origin of our Constitution, democratize and legitimize it, preceding the current deliberations on Constitutional amendment, by truly making our Constitution of the people of Nigeria. Let us always remember that what legitimizes a Constitution is never its content but the procedure of bringing it about.

 

Thank you for your attention.

 

 

 

LAW DINNER 2008

Adekunle Ajasin Law Society

September 26, 2008.

* Tunji Abayomi is Head of Tunji Abayomi & Co, leading Nigerian Human Rights Activist, Author,

national and international opinion leader on African issues. He can be reached on

Tunjiabayomi@hotmail.com.