DAWODU.COM 

IT would be recalled that we The Patriots, have for a long time been in the forefront of the demand for a National Conference. We have not stopped with a verbal demand, but have followed it up with concrete action by preparing a Bill, the National Conference and Referendum Bill, copies of which were sent to the Presidency, the National Assembly, the State Governors and Houses of Assembly and numerous private organisations.

The Presidency just put the Bill away, the Senate gave it a cursory looked and threw it out, and the House of Representatives simply sat on it.

The long title of the Bill describes it as "A Bill for an Act to make provisions for convening a National Conference of the people of Nigeria for the purpose of preparing a Constitution for consideration and adoption by the people of Nigeria at a Referendum and matters ancillary thereto." The long title thus provides a clear enough description of the character of the conference proposed. This is re-nationalities and ethnic groups comprised in this Nation so as to give them the opportunity to exercise their inherent right to determine democratically for themselves the Constitution by which they wish to be governed in one united Nigeria" (emphasis supplied). The preamble further declares that the need for the conference arises from the fact that the constitution under which the country is governed "came into existence as a result of a Decree enacted by the Federal Military Government."
 

The Bill then goes on to spell out the machinery and process for the selection or election of delegates, quorum at the Conference, conduct of proceedings, method of taking decisions, oath by delegates, secretary and other support staff, laying before the National Assembly of draft Constitution passed by the Conference, publication of the draft to the public, and the process for holding a Referendum for the adoption of the Constitution by the entire mass of the people, which is to bestow legally binding force upon it.

A Referendum of the people to adopt the constitution is the most fundamental aspect of the whole process. It is no doubt a revolutionary process, but that is what legitimately due to the people of this country-an opportunity, for the first time since the creation of the Nigerian state in 1914, to adopt, through a Referendum, a constitution by and for themselves in exercise of the constituent power inherent in them as a sovereign people, not just to make an input in the amendment of an imposed constitution. It is their birthright as a sovereign people, a birthright of which they have long been denied, first, by our British colonial master, then, by our military masters, and now, by our democratic rulers in the Presidency and the National Assembly. There is no justifiable reason for continuing to deny them that birthright.

Thus, the Conference envisaged under the Bill differs totally in nature and character from that which the Federal Government, after years of unyielding opposition, is now promoting. The character of the latter is most aptly defined by the word "dialogue," a conversation, or, in the even more apt characterisation of it by the print media, a "talk-shop".

Its character as a talk-shop is confirmed by the Attorney-General of the Federation, Chief Akinlolu Olujinmi (SAN), in an interview in The Guardian newspaper of February 9, 2005, where he was reported to have said: "We are calling on Nigerians to come and talk on matters affecting them". It is not contemplated that the conference will have power to take final or binding decisions on any matter, only to make "recommendations which the National Assembly and the Presidency will look into and see how to integrate these views into our Constitution.... The views that will emerge from the national conference might also become very useful. What we are doing now is not to just go ahead and amend the constitution without getting the views of the delegates to the national conference" (emphasis supplied). In other words, the conference is simply part of a process to aid the Presidency and the National Assembly in the amendment of the Constitution.

The conference does not therefore have even the status of the Constituent Assembly established by decree in 1977 and 1986 and was given power to deliberate and take decisions, subject to the overriding authority of the Federal Military Government, on the form and content of the constitution, a draft of which was presented to it in the form of a bill and its proceedings on it were, by the terms of the governing Decree, to be conducted in accordance with prescribed regulations, following a procedure of first and second readings and detailed consideration in a committee of the whole Assembly.

The character of the Federal Government sponsored conference as a mere talk-shop is further underscored by the fact that there is no enabling law to back it up. According to the Attorney-General of the Federation, an enabling law is unnecessary, because "Nigerians do not need any new law to freely assemble and discuss the future of their country... There are no legal issues that is being looked into now". Yes, a mere talk-shop needs no enabling law, since freedom to talk, to converse with others, is guaranteed by the supreme law of the land, the Constitution. The Honourable Attorney General's reasoning reduces to an absurdity what is meant to be a serious national exercise. Without an enabling law, a National Conference, in the true sense of it, is a farce, a charade.

The continued denial of the Nigerian people's right to adopt a constitution for themselves through a Referendum is not only wholly unjustified by world at large. The precedent for this was initiated by the American Revolutionaries by the adoption of "a Constitution for the United States of America" in 1787. The significance of that constitution in this connection lies partly in the novel principles, ideas and frame of government enshrined in it but more in the democratic process by which it was adopted through a National Convention in Philadelphia and State ratifying Conventions. In the result, the new Republic was anchored upon a solid moral foundation resting on the will and consent of the people - on "a voluntary social impact... established by peaceful debate," rather than by imposition by the will and power of an imperil sovereign or a dominant, ruling group within the country. The American Revolutionaries gave the world the first written democratic constitution. Nigeria does not have and never has had a democratic constitution, and hardly deserves to be called a democracy.

The American precedent of adopting a constitution through a democratic process and thereby bestowing on it the character of a democratic constitution has since become a world wide phenomenon. In the 20 countries of former French Africa, a referendum and/or a specially elected constituent assembly, as the process for adopting a constituent, have become a norm firmly rooted in tradition inherited from French colonialism - since the French Revolution of 1789, all successive French constitutions had been adopted at a referendum. With them, i.e. countries in former French Africa, the making of a constitution otherwise than by this democratic process is almost unthinkable.

In line with the tradition, therefore, the constitutions by which all but five of the countries transited to multiparty democracy were submitted to, and adopted by the people at a referendum on the following dates - Benin on December 2, 1990; Burkina Faso, March 1991; Mauritania, July 12, 1991; Niger, May 12, 1996; Madagascar (not a new Constitution but an extensive revision of the existing Constitution) March 15, 1998; Guinea, December 23, 1990; Morocco, September 11, 1991; Comoros, October 20, 1996; Djibouti, December 28, 1994; Mali, January 12, 1992; Chad, March 31, 1996; Togo, September 27, 1992; Gabon, July 21, 1995. Remarkably, none went for a specially elected constituent assembly which was used in some of the countries in the past, all now opting for the real thing - the people themselves directly.

In four of the remaining five of these states, transition was effected, not by means of a new constitution, but under the existing constitution suitably amended by a law enacted through the ordinary legislative process, but the existing constitution itself had been adopted by the people at a referendum - Cameroun (existing constitution of 1972 amended for the purpose of transition by a law of 1996); Cote d'Ivoire (existing constitution of 1960 amended by law of 1990, with further amendments in 1994 and 1998); Tunisia (existing Constitution of 1959 amended by law of 1988); and Senegal (existing Constitution of 1963 amended by law of 1994, as further amended in 1998).

 The fact that the existing constitution was adopted at a referendum does not, however, justify the side-tracking of the people in the making of a major and fundamental amendment involving change from one-party system to multiparty democracy; after-all, as noted earlier, the revision in Madagascar was approved by a referendum.

Algeria is thus the only country in former French Africa in which a new Constitution, transiting the country from military rule to multiparty democracy was adopted in 1996 without submitting it to the people for approval in a referendum, but this was apparently because of the state of emergency declared following widespread violence by Islamic fundamentalists; the previous constitution of 1976 had been approved at a referendum.

Like in nearly all the countries of former French Africa, a referendum was the method used in adopting the transition constitutions of the two former Spanish colonies-Equatorial Guinea (referendum of November 16, 1992) and Sao Tome and Principe (referendum of August 1990). So also Ethiopia's transition constitution of 1995 and Eritrea's of 1997 are both democratic constitutions; they were adopted by constituent assemblies specially elected for the purpose on December 8, 1994 and May 23, 1997 respectively. (Ethiopia's Socialist Constitution of 1987 was also a democratic constitution, having been adopted in a referendum). Egypt's Constitution of 1980, which is still in force, and the amendments made to it on May 20, 1980 were approved at a referendum.

In former British Africa in which the countries have been shackled by the British tradition of not recognising the people as a constituent power-Britain itself has no written constitution-nine of the countries have broken free from the tradition since the inception of the democratic revolution in Africa in 1990 and have had their transition constitutions adopted by the people in a referendum-The Gambia, Ghana, Malawi, Seychelles, Sierra Leone and Sudan-or through a constituent assembly specially elected for the purpose-Namibia, South Africa and Uganda-the 1983 Constitution of South Africa was approved in an all-white referendum in November of that year by 1,260,223 votes in favour and 691,557 votes against. Proposals for a new constitution for Zimbabwe were submitted to, and rejected by people in a referendum in 2001.

Nigeria, the giant of Africa, should be in the vanguard of the movement towards the democratisation of the constitution in Africa, and should not be marching against its currents in opposition to the wishes of the people.

A people's conference is part of the process of democratising the constitution, the final culmination of which is a referendum of the people to adopt it. If it is not held now when circumstances seem appropriate for a properly controlled and channelled conference, it is bound to take place at some date in the future, perhaps in a manner or form beyond the control of anyone. That is the lesson to be learnt from the French Revolution of 1789. It was the Estates-General in France in 1789 which, defying attempts by the king to disperse it, moved its meeting place to a tennis court and continued to meet there, eventually setting in motion the Revolution, the bloodiest Revolution in all history, which produced the radically transformed society we know today as France. The French Revolution had its sequel in other parts of Europe in 1830, 1832, 1848, 1851 and 1871, a sequel that also radically transformed the political and constitutional landscape of Europe. The precedent of the French Estates - General had been re-enacted in the form of a Sovereign National Conference (SNC) in seven African countries in the period 1990 to 1993 - Benin, Togo, Congo (Brazzaville), Niger, Mali, Chad, Gabon and Zaire.

Finally, whilst we stand by the type of National Conference proposed and outlined in our National Conference and Referendum Bill, we suggest as a way forward a meeting between the President, the leadership of the National Assembly, the leadership of The Patriots, PRONACO and other eminent organisations to try and find a common ground.`