The national conference on constituent power

The national conference on constituent power

PROFESSOR Ben Nwabueze has strong sentiments for a national dialogue. He feels that it is so important that the government should convene the National Conference of the Ethnic Nationalities of Nigeria. Among the citizens of this country may have expressed the same view. Hardly surprising, since the reality of Nigeria for long has been one of failed expectations and mounting frustration. The kernel of Nwabueze's submission, fully expressed in the discourse: "The imperative of a National dialogue," The Guardian of 28/6/2001 is that constituent power, the power to make or change the constitution of a country belongs to the people. I am of the view that in the case of Nigeria effective constituent power does not current reside in us, the people of Nigeria. A most convenient point, I think, to start my argument is to look at the relationship between the constitution and the ethnic nationalities that make up Nigeria.

Constitutionally, Nigeria is a federation of ethnic nationalities. One can readily point out the administrative convenience of having states rather than ethnic nationalities as the basic components of the Nigeria Federation. There are 36 states as against more than 200 ethnic groups. This is not a sufficient reason for the non-recognition of the ethnic groups or nations by the constitution. These groups after all have, as Anthony Akinola the writer has pointed out, territorial exclusivity. This singular fact should confirm the existence of an inalienable right to self-determination. This means that even where administrative convenience favours the establishment or creation of states rather than using the ethnic groups as the administrative units, it is definitely proper to accommodate within the legal framework the aspirations, the rights and fears of the ethnic groups concerned. The principle behind such a practice is to promote consensus and discourage a selfish entrenchment where the factor of numbers of population is used as the sole determinant of accession to and exercise of power. This principle favours rotation of the presidency, and respects the sanctity of ownership rights.

But surely, section 2(1) of the 1999 Constitution of the Federal Republic of Nigeria states: "Nigeria shall be a federation consisting of states and a Federal Capital Territory." There is nothing in the above provision that makes reference to the pre-existing ethnic groups, nor is there a declaration that the reason behind the creation of states is for ease of administration. The above provision merely states the position of the law. The states being essentially a law then are accordingly enforced as such. Similarly, Nigeria is the creation of a law and its claims to nation-statehood is by law or decree and accordingly they are enforced as such. However, it is quite clear that Nigerians think foremost of their ethnic origin rather than states of origin.

Self-interest as a concept, to Nigerians, is only meaningful when explained in relation to the relevant tribe. To Nigerians then Nigeria is a country of many ethnic nationalities each having territorial exclusivity. The constitution did not declare its recognition of this fact. The effect of this non-recognition is that Nigeria is of dual existence. There is the Nigeria of law-with the constitution, laws, decrees, armed forces and police. There is also the Nigeria of fact-with the Ogoni, Ijaw, Urhobo, Zango-Kataf, Yoruba, Igbo, Hausa, Efik and the other nations. The two do not exist in unity. The fact opposes the law and vice versa. That is why in the Nigeria of today, one is either a defender of the constitution or a promoter of the idea of a national conference of ethnic nationalities.

From the foregoing one can then begin to infer that what is good for Nigeria may not necessarily be good for the ethnic nationalities severally or collectively. Thus the conclusion may be rather impulsive which holds that the present structure of future restructuring of Nigeria must be founded on the consensus of the ethnic nationalities. Such position necessarily needs to be moderated when one notes that this Nigeria may well have a will of its own. That is to say, a will that bears no relationship with the aspirations or values of the ethnic nationalities collectively or severally. In more practical terms one can state as an example that while some ethnic nationalities want to possess the control of their natural resources, Nigeria may maintain that it is against its own interest to make such a "concession." A test of will may be threatened but in whose favour is the balance of power is an easy guess. It does seem clear that the aspirations of the various peoples of Nigeria with regard to the issue of the strategic interests of individual ethnic groups should not ignore the existence of Nigeria as law that is enforceable as such. Similarly, prosecuting a cause, even as noble as the national conference, while disregarding the interest of the government of the day is bound to end in frustration. This error of ignorance or indifference is not expressed directly or explicitly. The error rather reflects the relative youth of our appreciation of the peculiar Nigerians system. Our error thus is one of consciousness. We are yet to know of the reality of the disunity between the law and the fact of Nigeria. For instance the Nigerian constitution declares, the indivisibility of Nigeria as a united nation. Factually however, this statement is not regarded as the norm. We are instead deeply aware of our differences as tribes within Nigeria.

A plausible argument may be that the constitutional restatement of the unity of Nigeria is an ideal, indeed a landmark indicating the way that the tribes of Nigeria ought to follow. The reality however is that this ideal is not reinforced by any initial consensus of the people. It is then only natural that there is a clamour in some quarters for a change. However laudable as this may be, it is clear that the protagonists of change by way of the National Conference have focused entirely on the single fact of the document called the 1999 Constitution. The slightest attention has not been paid to the deep differences among the various groups in Nigeria. They are thus mistaken in their failure to acknowledge the fact that Nigeria is a fragmented society. The immediate implication of this state of affairs is that there cannot be a unanimity in relation to the issue of change. This is because the benefits and the burden have not been evenly distributed. The development and funding of projects in other parts of Nigeria with the proceeds of the production of oil in the Niger Delta, while not encouraging the development of the Niger Delta is a good case on this point. I am not being emotional in this. The relevance of referring to the example of Niger Delta is to force a reflection on the part of those who believe, albeit in good faith, that the purpose of a national conference is to fashion a new and representative constitution. On a more personal note, the primary concern should be the answer to this question: in view of our deep differences within Nigeria, how effective can our awareness of our constituent power be without the resolution of these differences." Much more simply one may ask "how do we heal the internal division?"

"According to Nwabueze, surely, the power of the sovereign people of Nigeria to make a constitution for themselves or to change it cannot have been taken away by the provisions of the 1999 Constitution for constitutional amendment. The mandate conferred on the president and members of the National Assembly by their election is only a mandate to govern under and in accordance with the provisions of that constitution and to make as may be necessary, such changes in them not affecting the fundamental structures and principles of the system of government established by the constitution. It is a limited mandate and is not meant to substitute the government for the people as the repository of constituent power."

The only way that Professor Nwabueze could have come to the conclusion that in the Nigerian context there is a constituent power, is to presume it. One cannot argue about the primacy of the people in the scheme of things in an officially democratic system. This truth however, has more importance in a wholly academic context. In practical terms, what is at once fundamental is the exercise of such power. Much better then would be presumption had it been the professor had exhibited the fact that will support such a conclusion of a practical constituent power. He dwelt extensively instead on the infallible thoughts of foreign authorities on the subject of democracy. In a famous, generally accepted definition of it by Thomas Paine in his "Rights of Man" (1789), a constitution is not the act of a government. In the words of a leading authority on that constitution, Edward Corwin, "the US constitution obtains its entire force and efficacy, not from the fact that it was ratified by a pre-existing political community or communities for it was not but from the fact that it was established by the people to be governed by it."

However, it was clear that the claims made by the learned jurists related to the lofty claims of the American democracy. The Nigerian example may well be seen in that light as well, but then, the dynamics differ. Even the foreign authorities, if confronted with the case of Nigeria will qualify the universality of their submissions. For instance, a master of international politics like Henry Kissinger of the United States of America observed as follows in relation to new states like Nigeria: "In the west the nation existed before the state and indeed gave birth to it. In many developing countries the opposite is true; a state is trying to crystallise a sense of nationhood." (Kissinger: "Years of Upheaval," page 89)

It is clear then that exhibiting the sublime reasoning of remote relevance will not be the best for Nigeria, principally because they are detached from the vital facts that have bred the complexity called Nigeria. Professor Nwabueze believes that the divisive factors set in motion by the following: institution of Sharia, the call for exclusive control of resources, the clamour in the east for an Igbo president and the call for the establishment of state police, justify the urgent convocation of the National Conference of the Ethnic Nationalities of Nigeria. In another sense, they hold up to our eyes the fact of Nigeria as a fragmented society. In such a situation the outcome of such a conference should be to begin the process of finally setting free the various people of Nigeria. For convenience, politicians have called it a disintegration, but essentially it is a manifestation of the right to self-determination.

The primary objective that professor Nwabueze has in mind is not the this. His expressed aim remains the initiation of a constitution-making exercise. But is this practicable, in view of our fragmented society? For a matter as grave as making a new constitution, some unity of purpose is essential. Accordingly, to the extent that the National Conference is aimed at the making of a constitution, the most reasonable first step is to campaign and educate on the necessity of a consensus on the issue of holding a national conference. Even so, necessary compromises should be made by the various groups for such a consensus to be plausible. Such compromise must involve a marked moderation of views on the issues which will include sharia and resource control. These preliminary steps are a fundamental premise for an effective call for the holding of a national conference. The situation at the present is merely one of a loud call for the convocation of the National Conference, without highlighting the numerous factors that have militated against the plan for the conference.

As it is, the call should be directed at the civil society, which incidentally Nwabueze and others claim to represent. The basic idea of a democratic system is that the people have the power and that the government is comprised the representatives of the people. It is thus the people that beget the organising for change. The impression that is surprisingly being conveyed by Professor Nwabueze, and other leaders who have spoken in support of the National Conference, is that the Federal Government is the main obstacle to its convocation. This position however only serves to distinguish and compartmentalise the related standing of the government and the people in a democracy. This is not tenable given the fact that the government came to power through a popular election. In the context of the modern idea of democracy an election raises the presumption that the pattern of voting reflects the different opinions on electoral issues. The question ought to be asked as to why the National Conference has not been projected as an electoral issue.

Curiously, however, Nwabueze's partisanship in the matter of the National Conference does not include the slightest allusion to the due political process as a vehicle for the realisation of his goal. It is only fair to say then that he has no interest in the utility of the electoral process. However, in continuing along the academic path and relying only on argument, Nwabueze's strategy has been this straightforward, uncomplicated and unrealistic: "The changes envisaged represent a fundamental and radical departure from the existing arrangement, which at once puts them outside the contemplation of the government's power of constitutional amendment. They and their underlying objectives can only be meaningfully and realistically addressed at a conference of ethnic nationalities." Which political class will buy this argument? Till the end of his submission the term "fundamental and radical departure from the existing arrangement," was left undefined. As it is, the lustre of intelligibility eluded the term and it remained an incredible diminution of government powers.

Perhaps in an attempt to regain some clarity the professor made reference to a similar remark made by the first Prime Minister of Nigeria, Alhaji Tafawa Balewa. For emphasis I quote Nwabueze, "The limited nature of the madate is an axiomatic principle. It was accepted and affirmed by our late respected Prime Minister, Alhaji Tafawa Balewa. He had said during the discussion on the transition to a republican constitution in 1963 that the demand for a change from the existing Westminster parliamentary system of government to a presidential one is beyond the mandate of the government to bring about without the approval of the people in a referendum and that without such approval only non-fundamental changes were within the government's power to make under the provisions in the 1960 Constitution relating to constitutional amendment. I am sure that Alhaji Maitama Sule, Chief (Dr.) M. T. Mbu, Chief Mbazulike Amaechi and perhaps some others present here today can readily recall the prime minister's statement. It was quoted verbatim and with approval in one of my books".

There is a distinction between the late Prime Minister's statement and that of the Professor. The former referred to a referendum and to the definition of Nigeria's political system. It did not mention a national conference or a parallel representative body and necessarily should be taken as excluding any application of the term in this regard. For Nwabueze the term "fundamentally and radical departure from the existing arrangement" immediately justifies a national conference. The mention of a referendum in Nwabueze's analysis is in respect of the ultimate adoption or rejection by the people of the "resolution" reached at the conference. It must be taken that the determination of the issues directly by referendum is not included in his proposals. He wants a dialogue within an arrangement called the National Conference. Admittedly, reading and listening to the relevant speeches of the sage, one was tempted to see in them the first signs of a new and different political class. But having gone through the foregoing analysis of his argument, I have my doubts.

The new political class should be different from the present one. First, it should embrace the electoral process ab initio as the sole lawful way of enthroning a new legal or constitutional order. Secondly, it should appreciate both the domestic presence and international existence of the state of Nigeria. In other words, the concept of sovereignty applies to Nigeria as a state, and also applies to the Nigerian democracy which gives sovereign power to the people.

The reality of this materially shows the futility of such radical activism or extreme militancy on the issue of sharia and resource control, since the sovereign state of Nigeria may lawfully regard such as an act of violation of its sovereign status. This was what happened at Odi. Thirdly the new political class should implement a programme for the healing of the internal divisions among our people and accept this as a prelude to moving forward the process of having a national conference. In other words mere arguments are pointless and are a ruse calculated at isolating and emasculating the progressive movement. If Professor Ben Nwabueze and others like Professor Bolaji Akinyemi, Chief Anthony Enahoro and Chief Rotimi Williams cannot offer anything better in answer to the issues raised by the three points, doubts should remain as to their good faith.

November 2001