By Julius Alabi, Akure
Renowned Human Rights Activist and Pro-Chancellor/Chairman of the Governing Council, Adekunle Ajasin University, Akungba-Akoko (AAUA), Dr. Tunji Abayomi, has said that with the current situation in the country, Nigeria needs a new constitution, not amendment of the 1999 Constitution.
Abayomi made this known in a letter dated 9th June, 2021 to the Deputy Senate President/Chairman Ad-hoc Committee on Review of the 1999 Constitution, Senator Ovie Omo-Agege over his comments when he hosted members of the Alliance of Nigeria Patriots, a copy given to newsmen in Akure, the Ondo state capital yesterday.
Omo-Agege had told the Alliance of Nigeria Patriots that “One of the issues you raised is the replacement of the 1999 Constitution. I am not so sure that we, as a parliament, have the power to replace the constitution. We can only make amendments. And it is explicit in Section 8 and 9 of the constitution how we can do that and the requisite number of votes required.
“I say that because there are some top attorneys in this country who, for some reasons, keep saying that we don’t even need any of this, that we should just bring a new constitution. We can’t do that. What we are mandated to do by law is to look at those provisions and bring them up-to-date with global best practices, especially to the extent that they tally with the views of the majority of Nigerians, so we are not in a position to replace this constitution but we can only amend.”
But, Abayomi, a Constitutional Lawyer while berating Omo-Agege over his comment, said many Nigerians consider the 1999 constitution military-driven. He said a new constitution for the country has become necessary in view of inherent flaws in the 1999 Constitution.
According to him, the National Assembly got her legislative powers from the Nigerian people who voted the members like MPS of U.K to make laws before the birth of the military 1999 Constitution.
“It follows that the National Assembly has legislative powers to make law to enable the peoples of Nigeria to give to themselves a Constitution. The Republic of Chile has only recently rejected the 1980 military Constitution of General Augusto Pinochet in a national plebiscite for a people’s Constitution.
“You can learn from Chile, the most economically successful nation in South America to help Nigeria, your nation. Please do not delay before things get too late,” he advised.
He added: “Now, it should have been expected that vital decisions on what to do with our Military Constitution (Decree 24 of 1999) should be a matter that will compel the views of experts at your invitation so that our nation is not destroyed for lack at knowledge. This unfortunate has not happened.
“You will by now have received reports from various constituencies on the desire of Nigerians for a new people’s Constitution and their disgust for yet another money consuming constitutional amending process following Senator Ekeremadu’s Journey to nowhere. Amending our Constitution has become in perpetual succession, always a duty of every National Assembly. Deep thinking should establish by now that something appears to be wrong considering that the wrongs sought to be righted by the amendments have not subsided.
“We have kept the amending train in perpetual motion, yet things are getting worse for Nigeria and in Nigeria. Do you not think deeper thinking requires the energy of mind and of the intellect for a new intelligent path?
“You have not invited the many outstanding constitutional experts in Nigeria nor have you taken advantage of vital books on the Constitution two or three of which I myself have sent to the National Assembly. Nevertheless, to assist the National Assembly with the guidance of knowledge and standing on the right of citizenship, I would, in this letter agree, disagree and explain why the National Assembly remains the ONLY body that can help the Nigeria people to give to themselves a Constitution of the people, by the people and for the people in place of Decree 24, 1999 Military Constitution.
“True, you are correct. The National Assembly cannot give Nigeria a Constitution. Her duty is to pass law not a Constitution which is never passed into law. At page 14 of the enclosed book “Constitutional Powers and Duties of the President” I have distinguished on ten grounds the differences between a law and a Constitution which at any rate is not a law.
“A legislative Assembly is the presumptive consequence of a Constitution, always its creation. A legislative Assembly is never deemed to predate a Constitution which is a document on how the people wish to be governed by a limited government. In an appropriate situation, a Constitution is made before a Legislature is created.
“So, Mr. Deputy Senate President, you are so right that the National Assembly cannot give Nigeria a new Constitution. But in your rightness you have done something wonderful, something vital, something impressive, something necessary and proper. You have just killed or invalidated the 1999 Military Constitution for one simple reason.
‘If the National Assembly cannot give Nigeria a new Constitution so is the Military government debarred from doing the same. But why?
“The Military government conferred on itself ONLY the legislative powers co-equal to the legislative powers conferred on the National Assembly in its Supremacy of Power Decrees – ‘any function which is conferred by any existing law…shall vest in the Provisional Rulling Council…’
“Thus as I noted at page 10 of the enclosed book – The Contrary is equally true. A function not vested in the National Assembly must emphatically be denied the Federal Military Government as outside its legislative competence. Now, the power to make a Constitution is not within the legislative competence of a National Assembly; for only the Constitution itself can create the National Assembly. It follows that the making of a Constitution by Decree is outside the legislative competence of the military government and consequently is an invalid exercise of power.
“So you’re very right, only our people not the military, not the National Assembly through the exercise of legislative powers can give our people a Constitution.
“Now Mr. Deputy Speaker, while you’re right in saying that the National Assembly cannot give a new Constitution to Nigeria, you are very, very wrong to rely on the very unlawful and illegitimate Constitution for the ground or authority for your position. Just as error cannot correct error, as wrong cannot correct wrong the 1999 Constitution cannot correct the current Constitutional wrong imposed on the people of Nigeria by the Military. The only sensible option is a new path to a new Constitutional order which can only come about when the peoples of Nigeria come together to agree on a Constitution over them.
“Truth is, only the National Assembly can bring about the process of a peoples’ constitution. How? Let us start from the beginning of the present Constitution otherwise called Decree 24 of 1999.
“The 1999 Military Constitution came in effect on May 29, 1999 at 12 mid-night. You may wish to check the preamble to Decree 24 of 1999, it was not, I repeat not, the Constitution that gave Nigeria a government. This is of course contrary to constitutional normalism, for it is never a government that gives a nation a Constitution. Always it is a Constitution that gives a government. Our military government gave us its Constitution that as it is falsely claimed that it originated from “we the people.
“Please note also, it is never the content of a Constitution that validates a Constitution. Always it is the procedure of making a Constitution which is always in the people. The question for your reflection is whether an illegal and illegitimate Constitution can be amended to return and restore to it legality and legitimacy. The question is of course capital NO.
“If as I said, the Military Constitution did not originate the 1st National Assembly in 1999, it follows that it did not create it, cannot arm or disarm it, notwithstanding the continuing absence of necessary understanding that has sustained the improper reliance on a military law otherwise called Decree 24 of 1999 as a Constitution.
“So where then will the authority of the National Assembly be derived for initiating a new Constitutional order or process for the Federal Republic of Nigeria? The authority of the National Assembly is simply derived from the legislative powers delegated to it by the votes of Nigerian electors who created, by their votes in 1999 a National Assembly.
“In short the National Assembly becomes just like the House of Commons in the United Kingdom which is, as you are aware elected by universal suffrage usually for five years like the members of the National Assembly were elected.
“The united Kingdom has no written Constitution, yet her government is always legitimized not by any law or Constitution but by the votes of the electors Sovereignty as you know resides in “we the people,” he added.