REPORT OF NATIONAL CONFERENCE: NEED FOR A REFERENDUM (3)
“Sovereignty belongs to the people. It does not and cannot belong to their elected representatives. Indeed the Section 14(2) of the Constitution provides that sovereignty belongs to the people from whom the government through the Constitution derives its authority and power… the National Assembly cannot without full participation of the people consider or make fundamental changes in the structure of the country. Where large scale changes in the structure of the constitution, such as a change from Presidential to Parliamentary system, bicameral to unicameral legislature are contemplated or canvassed, then the people have a right to be heard on these questions. It is not for the National Assembly to accept or reject them on behalf of the people”.
Last week I addressed the need to subject the recommendations of the last constitutional conference to a referendum. I referred to numerous instances where referendums have been resorted to in other countries to arrive at crucial decisions. I am however aware that many hold the view that the national assembly is best positioned to bring about adoption of those recommendations in the form of amendments to the constitution. Indeed the then Senate Majority Leader, Senator Ndoma Egba in reaction to calls for a referendum posited that as the process of amendment of the Constitution as set out in the Constitution itself did not make a provision for the holding of a referendum, it would be unconstitutional to hold one. Therefore having held that there is no provision in the amendment procedure to call for a referendum the National Assembly proceeded to the states to seek views of Nigerians on such matters such as devolution of powers, state creation and police etc. However As expected, no reference was made to critical and fundamental issues such as bi-camera or unicameral legislature, reduction in the numbers of house of assemblies, reduction or otherwise of the salaries and allowances of legislators payment of sitting allowances to legislators instead of huge salaries etc.
SOVEREIGNTY BELONGS TO THE PEOPLE
Firstly the position that the National Assembly should implement the recommendations is hinged on the mistaken belief that the Government of which the National Assembly is an integral part is sovereign thereby making the involvement of the people in the constitution making process absolutely unnecessary. Nothing can be farther from the truth. As I have already argued several times in this column, sovereignty belongs to the people. It does not and cannot belong to their elected representatives. Indeed the Section 14(2) of the Constitution provides that sovereignty belongs to the people from whom the government through the Constitution derives its authority and power.
The situation is akin to that of a manager who has been put in charge of the day to day administration of a building by the owners of the said building. The ability or power of the manager to administer the building in any manner will be determined by the agreement under which he was appointed manager. That agreement which may give him powers to make rules for the occupants of the building will never go as far as transferring ownership of the building to him. It will contain a clause stating who the owners are. That is just what Section 14(2) does.
Further to the above is the fact that the manager to whom the administration of the building has been delegated cannot take decisions which will be inimical to the title of the owners. Every decision he takes must be tailored towards protection of the title and ownership status of his masters. He cannot for example unilaterally decide to turn a building of 4 flats of 3 bedrooms each into an apartment of 16 rooms of what is commonly called “face me I face you” rooms as this will obviously reduce the value of the property whilst at the same time increasing the strain on installed facilities and running up the cost of maintenance of the building. In a similar vein the National Assembly cannot without full participation of the people consider or make fundamental changes in the structure of the country. What has been entrusted to Government is a political and constitutional structure. Where large scale changes in the structure of the constitution, such as a change from Presidential to Parliamentary system, bicameral to unicameral legislature are contemplated or canvassed, then the people have a right to be heard on these questions. It is not for the National Assembly to accept or reject them on behalf of the people. It is not unconstitutional for a manager of a company or the representative of the owner of a building to request the owner of the building to decide on the best way forward.
It must still be pointed out that it is necessary to refer the issue to a referendum because the issue is beyond the National Assembly. The issue that is generally turned over to the people during election campaign is totally different from the issue at stake in the process of making a new Constitution. At the hearings organized by the National Assembly on amendment of the constitution, people turned out in thousands, only to answer questions put to them. Most of them who put up their hands were not heard and in addition, they were expected to say yes or no to the questions drafted by the National Assembly. On the contrary, in referendum, every citizen is entitled to have his say during the ballot paper.
What is clear from the dismissal of the idea of a referendum or the convocation of a Sovereign National Conference is a mistaken belief that strict adherence to the law making procedure is all that is required to guarantee the promulgation of a true peoples constitution. However It is settled that it is not the procedure adopted in the passage of a law that will determine whether a law meets the aspirations of the people or not. What is at stake is the form of government that would adequately reposition this country to its past glory.
What is of utmost importance is the rediscovery by Government of the true purpose of Governance which is the just and efficient management of the country in a manner beneficial to the people which objective or purpose can only be achieved through a proper peoples’ Constitution. What must never be forgotten is the dream and vision of the founding fathers of our country for a united and prosperous Nigeria which vision is best captured by the words of the late Alhaji Tafawa Balewa who in the course of the debate of the motion for independence in 1959 stated as follows:
“I am confident that when we have our own citizenship, our own national flag, our own national anthem, we shall find the flame of national unity will burn bright and strong”
AARE AFE BABALOLA, SAN, CON, D.LL, D.Litt