Okocha NatCon dream constitution

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‘National Conference the Only Way to Dream
Constitution’


This Day
(Lagos)

OPINION
November 25, 2003
 

Lagos

Only a National Conference, not the
National Assembly, can and should make a new Constitution for Nigeria writes OCJ
Okocha, SAN in this letter to the National Assembly

The news that recently emerged from the
National Assembly was that a Joint Committee of the Assembly, 40 from the Senate
and 40 from the House of Representatives, had been constituted to attend to the
matter of reviewing, amending and/or modifying the Constitution of the Federal
Republic of Nigeria, 1999. This is the Constitution on which we have hinged our
present democratic experiment, with Nigeria in the test tube, and which said
experiment formally began on May 29, 1999.

While one must commend the
Distinguished Senators and Honourable Members for showing that they are alive to
their responsibilities, it seems to me that we must take to heart the old adage
that ANYTHING WORTH DOING, IS WORTH DOING WELL. I say so because, as should be
clear and obvious to all who are honest enough to admit it, Nigeria is in
crisis, and it behoves all serious and well-meaning persons and institutions to
avoid the follies of our inglorious past, and, in particular, to avoid the folly
of embarking on what I would generously categorize as ANOTHER EXERCISE IN
FUTILITY.

The l999 Constitution, as we all may
recall, was bequeathed to us by the departing military administration that was
headed by His Excellency, General A. A. Abubakar, GCFR. My recollection is that
shortly after that administration assumed power, it embarked on same kind of
national consultation exercise, with members of the Armed Forces Ruling Council
(or whatever it was called at the time) moving around the six so-called
geo-political zones of the country, in order to consult with the peoples of
Nigeria in those zones as to how best to move the nation forward. Ultimately, a
Constitutional Debate Co-ordinating Committee was established, with Hon. Justice
Niki Tobi (JCA, as he then was) as Chairman, to embark on a nation-wide debate
aimed at producing a Constitution for Nigeria. The working documents used for
that debate included the l 979 Constitution, the l 989 Constitution and the
Draft Constitution produced by the Constituent Assembly that was chaired by the
erudite Hon. Justice Adolphus G. Karibi-Whyte, CON, JSC. (now retired.).

Ultimately, the Military Government of
the day made its own in-puts to the document produced by the Constitutional
Debate Co-ordinating Committee, and, by a Decree, under the hand of General A.
A. Abubakar, brought the 1999 Constitution into force, with effect from May 29,
1999. Many have criticized and some have even vilified the Constitution. They
say that the document is false and bogus, and that it tells a lie, because it
was not, as stated in the preamble thereof, a Constitution that the people of
the Federal Republic of Nigeria made, enacted and gave to themselves.

Quite apart from those legitimate and
the other not so legitimate complaints, is the other very valid complaint, that
the 1999 Constitution is an incongruous document, in several material respects,
that some of its provisions are inconsistent and incompatible with themselves,
and that there are several matters in respect of which no provisions have been
made or in respect of which the provisions made are inadequate and insufficient.
It is agreed by most, if not all of us, that these several complaints cannot be
easily discountenanced, hence the justification which the President of the
Federal Republic, and the National Assembly in the last Administration ( 1999 –
2003) claimed as the basis upon which they both established their respective
Committees to attend to the matter of reviewing, amending and/or modifying the
1999 Constitution.

It is a fact of history now that all
the presumably honest and well-intentioned efforts of the two Committees
aforesaid came to naught, and this was after so much cost and expense had been
squandered in an exercise in futility; “ALL MOTION, BUT NO MOVEMENT”, as one of
my witty friends categorized the same.

As the history of the constitutional
development of Nigeria will reveal, and as most historians, political scientists
and lawyers will confirm, the making of a constitution has at all times required
the collective participation of the peoples for whose benefit the constitution
is being made. Whether by selection or by election, the body charged with making
or re-making a constitution for Nigeria must of necessity be truly
representative of the peoples of Nigeria. And while it may be argued that the
National Assembly, i.e. the Senate and the House of Representatives, comprises
the elected representatives of the peoples of Nigeria, my humble contention is
that that is not exactly correct, and neither is it true. This is based on the
following incontrovertible facts, namely:

_ The controversy that still persists
about the delineation of federal constituencies. While each State of the
Federation has three (3) senatorial districts, on the basis of equality of the
States, not so with federal constituencies and/or Local Government Areas.
Consequently, the oftrepeated question is whether there was equity and fairness
in the delineation of those federal constituencies, and the other is whether
they are truly representative of the several peoples of Nigeria, particularly
the minority tribes and ethnic nationalities thereof.

_ Allied to the foregoing is our
controversial population figures, which have continued to be used as one of the
bases for the delineation of federal constituencies, and the creation of Local
Government Areas.

_ The integrity of the electoral
process which produced the present National Assembly. The argument of the
protagonists is that an electoral process that was seriously flawed, and in
respect of which those who were declared elected by the Independent National
Electoral Commission (INEC) are still being dragged through the judicial
process, cannot be said to have produced the true representatives of the peoples
of Nigeria.

_ Allied to the foregoing is the fact
that only a few of the several Political Parties in Nigeria actually
participated in the 2003 Elections into the National Assembly, and then only a
few won seats, with the Peoples Democratic Party (PDP), the largest party in
Africa, winning an overwhelming majority of seats in the two Chambers thereof.
By that token alone, all the principal offices and positions in both the Senate
and House of Representatives have been taken up by members of the PDP. We have
not been told who the members of the said Joint Committee are, from what
Political Parties they have been drawn, and what States, Senatorial Zones or
Federal Constituencies/Local Government Areas they represent, but Senator Alhaji
Ibrahim Mantu, the Deputy Senate President and Hon. Sir Austin Opara, the Deputy
Speaker of the House of Representatives, both from the PDP, have already been
designated Chairman and Deputy Chairman, respectively, thereof.

This is clearly not in the best
interest of the nation. And then, what about the interests of the other
Nigerians who do not belong to Political Parties, what about the interests of
Professional Associa-tions, Organized Labour, Students and other Civil Society
Organi-zations, which all have a say and a stake in the matter. It must be noted
that Nigeria has only recently embarked on its so-called democratic system of
government, but we all know that the democratic space available to all of us
needs to be opened up in a more all-embracing and all-inclusive manner, so that
the interests of the greater majority of the peoples of Nigeria must always be
taken into account when matters of far-reaching national consequence, such as
the review, amendment and modification of our nation’s constitution, are being
considered.

In the light of the foregoing facts and
matters, I make bold to say that the National Assembly, acting through its
aforesaid Joint Committee, will not be able to do any meaningful or satisfactory
work on the matter of the much needed review, amendment and modification of the
1999 Constitution. Constitution making is serious business, and a matter to be
given full time and attention. Without meaning any disrespect, I have to say
that our National Assembly, in this and in the Administration that ended on May
28, 2003, has not displayed the desired and/or requisite amount of seriousness
in or commitment to it’s constitutional duties and responsibilities. While it
may be the case that the National Assembly has been quite prolific in passing
resolutions, most of which had little or no impact on the glaring realities of
the times, the same cannot be said of the National Assembly’s performance in the
matter of lawmaking. Yes, they have passed the Appropriation Bills submitted to
them from year to year by the President of the Federal Republic, but we can
count on the fingers of our hands how many Bills originated from and were duly
passed by the National Assembly from year to year, since 1999. And quite
unfortunately, at all crucial and critical times, there have been very many
other mundane and invariably less than serious matters that engaged the
attention of the Distinguished Senators and Honourable Members, and what they
produced at all those times were mostly scandalous reports and disgraceful
commentaries.

I have to say in all honesty, and with
the deepest sense of responsibility, that we do need a NATIONAL CONFERENCE, if
we truly and honestly want to have a new Constitution for Nigeria, a
constitution which will stand the test of time, a Constitution which will
hopefully eliminate the jangling discords in the land, and a Constitution upon
which we may be enabled to build modern Nigeria; the Nigeria of our dreams. I do
believe that many of us who are true patriots hold the same view, but it would
appear that those of us who are not true patriots do not want to accept this
obvious truth, and they say that it would be difficult to hold a National
Conference when we already have in place an elected National Assembly, an
elected President, and elected Governors and Assemblies in the States. I humbly
submit, however, that the later argument is hollow and smacks of self-defeatist
logic. Where there is a will, there must be a way, and the way forward is not
too hard to find, because THE THING WEY DEY FOR SOKOTO, E DEY FOR SOKOTO. We
should not look too far for solutions, which we can find here at home; we should
be inventive.

My humbly suggestion is as follows:

_ The National Assembly should as a
matter of urgency pass a Bill to convoke a National Conference for the sole
purpose of making a new constitution for Nigeria.

_ The said Bill, when it becomes law,
shall make provision for three persons each to represent each State of Nigeria,
on the basis of the fact that the States, being the federating units in Nigeria,
are equal.

_ Each of the three representatives of
the States shall be elected, one each from each of the three senatorial
districts/zones of the States, which said election shall be conducted by INEC
nationwide.

(b) Five persons shall be selected by a
coalition of political parties, professional associations, organized labour,
students unions and other civil society organizations, to represent those varied
interests.

(c) One hundred and thirteen, which is
calculated from above as the total membership of the National Conference, is not
a small number. Recall that 49 wise men made the document from which emanated
the Constitution of the Federal Republic of Nigeria, 1979, and that the National
Assembly now wants 80 of their number to do the job.

(d) The National Conference when
assembled, shall elect its own Chairman, and other principal officers.

_ The same Act will make provision for
the time when the National Conference will sit to make the new Constitution.
This should be six to nine months, maximum. There should be no limit to its
assignment, which is to make a new Constitution for Nigeria.

_ The new Constitution, when made, will
be brought into force on an appointed date, after a referendum conducted by INEC
throughout Nigeria, where the people will be required to vote YES or NO for the
same.

_ Upon the coming into force of the new
Constitution the National Assembly and the States’ Houses of Assembly shall
stand dissolved, while the elected President and Governors shall run a
transitional government for a period of six months, from the date upon which the
Constitution comes into force. If they selfishly wish to perpetuate themselves
in office, they can work out the timetable to coincide with their tenures as
stipulated in the 1999 Constitution.

_ INEC shall, within three (3) months
of the date upon which the new Constitution comes into force, organize elections
nationwide, for elections into Local Governments, (Chairmen and Councilors),
States’ Governments (Governors and Members of Houses of Assembly), and the
Federal Government (President and Members of States’ Senate and House of
Representatives).

_ A maximum period of three months
after the elections shall be allowed for election petitions and appeals, which
must be concluded within that period, before the newly elected President,
Governors and other elected persons/officials which should be sworn in precisely
six months after the date upon which the new Constitution comes into force.

_ The President, and Governors
currently serving, and who will ultimately man the transitional governments that
will be in place for six months after the date on which the new Constitution
comes into force, shall not be entitled to participate in the nationwide
elections that will be held under the new Constitution. If they wish to
participate in the said elections, they must resign their offices at the time
when the new Constitution comes into force, and so must Ministers and
Commissioners who wish to participate in the elections under the new
Constitution.

_ Members of the Constitutional
Conference shall not be entitled to participate in the elections under the new
Constitution, save as voters, and neither shall they be entitled to be appointed
as Ministers, Commis-sioners or into any other political offices until after the
end of the tenure of the government to be elected under the new Constitution.

_ Upon assumption of office, the
Governments elected under the new Constitution shall be entitled to dissolve and
reconstitute INEC and the States Independent Electoral Commissions, in
accordance with the provisions of the new Constitution.

_ The Act convoking the National
Conference should also make provisions to guarantee and secure the funding of
the National Conference and the INEC.

The foregoing represents the broad
outline suggested as the bases upon which we may proceed to make, enact and give
to ourselves as the peoples of Nigeria, a new Constitution for the Federal
Republic of Nigeria. All that remains is for all of us as Nigerians to approach
the matter with a true and honest sense of nationalism and patriotism. If it
must be repeated, Nigeria is presently a nation in crisis, and something urgent
and radical needs to be done to rescue the ship of state which is precariously
proceeding to the precipice. Now is the time, and we all, and our succeeding
generations shall remain forever grateful that we acted when we should. And may
the Almighty and Eternal God grant us the courage and fortitude to act in the
best interests of our beloved country, Nigeria.

Mr. O.C.J Okocha, SAN, JP is the
immediate past President of the Nigerian Bar Association.

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