Virtually every session (4 year tenure) of the National Assembly since 1999 has embarked on the exercise of the 'amendment' of 1999 Constitution. After the exercise, we will read of alterations to the constitution whence some phrases will be reconstructed, some words added or subtracted, some lines are deleted, some replaced and new ones are added and serious effort is made to make the Constitution maintain its original identity by retaining original chapters and sections. But what is a 'constitutional amendment' and what does it connote and entails?
S. 9(1) of the 1999 Constitution provides that: ‘The National Assembly may, subject to the provisions of this section, alter any of the provisions of this constitution’. The word 'amendment' is not used. The Black’s Law Dictionary Eighth Edition by Bryan Garner defines the word; ‘alteration’ as: ‘an act done to an instrument, after its execution, whereby its meaning or language is changed’. It also defines ‘amendment’ as: ‘a formal revision or addition proposed or made to a statute, constitution, pleading, order or other instrument; a change made by addition, deletion, or correction especially an alteration in wording'. The foregoing shows that the two words are rather synonymous than different, if at all.
By S. 9, the initiative to alter the Constitution is the prerogative of the National Assembly. It then requires the endorsement of the State Assemblies. The call for memoranda therefore simply means that people should give their suggestions on what they think should be added or subtracted or tweaked for better meaning or purpose. Then, the members of the Review Committee of each and or both Chambers will then sit like WAEC to mark which suggestions are acceptable and throw the rest to the trash bin.
But the 2021 exercise has a revolutionary fervour. The people, especially the southerners and more especially the Yorubas and Igbos, have woken up to the reality that there is need for restructuring if the Nigeria project must continue. The merit or otherwise of that call is not the issue here but the possibility of the requisite overhaul that it entails. If there should be a restructuring, there may be a rearrangement of the composition and duty-sharing among arms and tiers of government, the change of political system, revenue sharing, founding of new institutions to meet with needs of national cohesion and aspiration, number of local governments and states, a review of emoluments and perquisites of offices, terms and tenures etc.
Those cannot be achieved under S. 9 of the Constitution by way of alteration? It will be a complete new constitution. The Chairperson of the Lagos Venue of the public hearing of the memorandums asked some of the speakers, especially those clamouring for a 'brand new' constitution: 'Who will do it?; with a snag that it is the National Assembly that represents the people and there cannot be any need to bring up another body either of elected or selected members. To some extent, the National Assembly has a good point. Why choose another set when a set exists and has been clothed with authority.
However, the 1999 Constitution while recognising the nominal 'people' as constituted in the State and National Assemblies also recognises the actual people under S. 8(1) when it provides for a referendum after the representatives have expressed the desire of their people for creation of a new state in S. 8(1)(a) under sub-subsections (b) and (c). The issue of creating a new state is considered too important for just the representatives in the assembly to consider without the input of the people directly by way of a referendum. That is not forgetting that it is the people that must even initiate the process in the first instance which request must be ‘supported’ by their representatives.
In this instance, while the National Assembly may receive memorandums in the form of advice for 'alteration' of the Constitution, what is required now is an overhaul which is described in one term as ‘brand new constitution’. For instance, the people want true federalism with significant changes in the revenue sharing formula, power devolution and the right to decide the number of local governments; they are calling for a return to regional government, a review of the bicameral legislature and the presidential system of government itself... These are material alterations if implemented.
The Black’s Dictionary proffered in its definition of ‘alteration’ thus: ‘material alterations void an instrument’. Material alteration is defined thereunder as a significant change in something especially a change in a legal instrument sufficient to alter the instrument’s legal meaning or effect. Therefore, if this exercise is carried out, the 1999 Constitution will be technically voided. Interestingly, as the composition and features of the National Assembly including its remuneration and expenditure profile comes under scrutiny, it is unsafe to place such considerations under the purview of that body as it runs foul of the Latin maxim: nemo judex in causa sua (you cannot be a judge in your own cause).
The National Assembly has shown insensitivity by propounding and advertising a Restructuring Bill suggesting the creation of new states thus the House of Representatives is considering increasing the states to 42 while the Senate is proposing 50 States as if that is the next thing we need at a time when states like Osun, Kogi, Ebonyi, Jigawa and many others have difficulty paying workers' salaries and are at almost zero development profile. What is the sense in creating new ones if the National Assembly is not merely acting the script of existentialism of the military era creating new states to assuage the aggrieved people? It is a fallacy of inept distraction. Power belongs to the people and the representatives of the people must appreciate when, especially due to their irresponsibility, the principals have asked to be involved in their own business; and, when the ‘power of attorney’ is not absolute.
What is sensible now is for the National Assembly to collate the memorandums received so far, call for further memorandums with a time limit and deliver them to a new assembly of aggregate representation of all interests who have submitted by way of selection. I can recognise geo-political, traditional rulers, youths, state governments, local government workers, NBA, religious organisations, civil society groups, women groups and a few individuals. A number could be agreed and the above-mentioned groups will be constituted, equipped with the memoranda submitted in volumes to work on them by plenary for a given time and submit a report to the National Assembly for implementation. The National Assembly will then hold sessions with the Constitution Amendment Assembly and produce a Draft Constitution which will be adopted vide a referendum and enacted into law as the new grundnorm.
The American Constitution has been standardised in terms of system of government such that what is required is modifications hence, the alterations are numbered as '10th, 56th ... Amendment'. The Nigeria Bar Association had an exercise in 2015 with fundamental changes in its operations and therefore promulgated the 2015 Constitution. It has been amended (or better still altered) a few times, hence, it bears the appellation '2015 NBA Constitution (as amended). That appellation follows the tradition of the '1999 Constitution (as amended)'.
The 1999 Constitution with its inadequacies has outlived its usefulness and the people have expressed a strong desire for a new order. They must be allowed to create that new order in the right atmosphere to avoid an impending implosion. That is the path of honour and reality now and the National Assembly must be wise enough not to attempt to stand in the way. Time is of the essence. It is 2022 Constitution of the Federal Republic of Nigeria or broke.
Sahid Shillings Esq.
(3/9/21)
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