“The delegates must resolve that the constitution they make shall not be varied nor panel-beaten by any other body whatsoever”.
CONSTITUIONAL SOVEREIGNTY OF THE PEOPLE.
Last week, I suspended my 8 month old discussion of the problems afflicting education in Nigeria in order to reiterate some of the pitfalls in the 1999 Constitution and the solutions I had suggested. This week, I will address the all important issue of the finality or irreversibility of the decision of the National Conference. The recipe for eradication of poverty, ignorance, disease and criminal activities in this country Nigeria is no doubt the people’s constitution. Equally, it is the people’s constitution that brings about unity, employment and rapid economic development. The proponents of the National Conference including my humble self had submitted that sovereignty resides in the people and not in the National Assembly or any body of people elected under 1999 constitution. The opponents, mostly the National Assembly members, claim that the decision of the National Conference must be brought before them for amendment or panel-beaten because sovereignty resides in them.
CONCEPT OF SOVEREIGNTY
The concept of sovereignty has been discussed throughout history, from the time of the Romans through to the present day. It has changed in its definition, concept, and application throughout, especially during the Age of enlightenment. The current notion of state sovereignty is often traced back to the Peace of Westphalia (1648), which, in relation to states, codified the basic principles:
Sovereignty is the quality of having supreme, independent authority over a geographic area, such as a territory. It can be found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided. In theoretical terms, the idea of “sovereignty”, historically, from Socrates to Thomas Hobbes, has always necessitated a moral imperative on the entity exercising it.
There are people who hold the view that sovereignty is vested directly in the sovereign by divine right such as in the case of absolute monarchies and on the other side of the divide there are people who posit that sovereignty originates from the people. Most interestingly amongst those who hold the latter view there is still some level of division. This centers on the argument whether the people transfer their sovereignty to the sovereign or whether they retain their sovereignty. Without a doubt those who oppose the convocation of the Sovereign National Conference only on the basis that it cannot be held since there is a government in place, do so on the basis of their conviction that the people have transferred their sovereignty to the Government.
Anyone who holds the view that the people have transferred their sovereignty to the government invariably agrees that sovereignty is not divinely acquired. It means that such a person agrees that it originates from the people, the only area of discord being whether the people after electing a government retain their sovereignty or not If it is then agreed that sovereignty originates from the people, identification must be made of how the people pass or confer that sovereignty to the government. In other words, is any overt act required to show that the people have indeed taken this all important step or is it to be assumed in some or all cases?
If it is agreed that sovereignty originates from the people, what is the reason or purpose for the conferment by them of sovereignty on the government? If these reasons or purposes fails or if the Government becomes destructive of them, do the people have any right to intervene or are they constrained in that regard by the fact they have allegedly transferred their Sovereignty to the Government? The answers to these and more are to be found in an examination and proper appreciation of the notions or concepts of “Popular Sovereignty” and “Consent of the Governed” as they relate to Nigeria.
Popular sovereignty or the sovereignty of the people is the principle that the legitimacy of the state is created and sustained by the will or consent of its people, who are the source of all political power. It is closely associated with Republicanism and the social contract philosophers, among whom are Thomas Hobbes, John Locke and Jean-Jacques Rousseau. It is also defined as the doctrine that sovereign power is vested in the people and that those chosen to govern, as trustees of such power, must exercise it in conformity with the general will.
Benjamin Franklin expressed the concept when he wrote, “In free governments, the rulers are the servants and the people their superiors and sovereigns.
THE 1999 CONSTITUTION CONCEDES SOVEREIGNTY TO THE PEOPLE
I have said it before and I repeat that sovereignty does not lie or reside in the National Assembly but in the people. A brief reference to the Constitution of 1999 recognizes the concept of consent or the will of the people, in the preamble of the constitution which states as follows:
We the people of the Federal Republic of Nigeria having firmly and solemnly resolve….. do hereby make and give to ourselves the following constitution.
Of course the 1999 constitution lied against itself when it claimed that the Nigerian people had resolved to give themselves the 1999 constitution.
Undoubtedly, a factor which is most fundamental to constitution making which is “consent” of the governed is conspicuously absent in the 1999 constitution. Clearly this is not a case where notion of implied consent of the governed can be applied. As warped as the 1999 Constitution is, the same 1999 constitution nevertheless states unambiguously in section 14(2) as follows:
“Sovereignty belongs to the people of Nigeria from whom government through this constitution derives all its powers and authority”
NATIONAL CONFERENCE MUST FIRST RESOLVE ISSUE OF SOVEREIGNTY
Going by the above provisions of the 1999 constitution and the internationally accepted meaning of sovereignty there is no doubt that it resides in the people of Nigeria and not in the three arms of the government. Therefore, the first issue which I urge the accredited members of the Constitutional Conference to address and agree upon is the issue of sovereignty. The National Constitutional Conference must first address this fundamental issue. The National Conference must come to the only reasonable decision that sovereignty resides in the people who have nominated them to make a people’s constitution for them.
They must resolve that the constitution made by the delegates shall be the people’s constitution and that no part of it shall be amended, varied or panel-beaten by anybody whatsoever. It is only then that the most sensitive and fundamental issues which the 1999 constitution glossed over can be properly and effectively addressed. I, for one, cannot conceive how the present National Assembly can in good conscience and impartially address some of the issues from which they are benefitting under the lopsided 1999 constitution. Some of such issues include the following:
- Whether or not Sovereignty resides in the National Assembly
- Whether the number of legislative chambers should be reduced
- Abolition or drastic reduction in salary or allowances.
- Reduction of number of Houses of Assemblies in the country
- Reduction of number of legislators in each house of Assembly
- Payment of sitting allowances to National Assembly members instead of jumbo salary
- Abolition of constituency development grant
- Abolition of bicameral legislature
- Abolition of 1999 Presidential system
- Adoption of parliamentary system
- Reduction of the huge annual budget for the National Assembly etc.
To be continued…
AARE AFE BABALOLA, OFR, CON, SAN, LL.D