A re-make, not an amendment

Preamble

AUTOCHTHONY’ or the  home-grown’ nature of a ‘constitution’ many theorists say, is the basis first, for its legitimacy and then for its effectiveness. No constitution they say is ‘legitimate’ without being ‘autochthonous’, or ‘native’ to the environment that it is created to govern. The German social scientist, Freidrich Carl Von Savigny described this connection using the German word ‘Volkgeist’ –an organic distillation of the spirit of a people side by side with the ‘laws’ that they ‘freely’ give to themselves.

He said that any constitution should be the manifestation of that ‘spirit’, and not merely “an abstract set of rules that any sovereign imposes on society”. Nor can a constitution be ‘effective’ without the people it seeks to govern ‘freely’ consenting to it and then ‘willfully’ accepting to be so governed. The people must either by themselves give a constitution to themselves or they must have control -if not over the process by which it is made or by which it is given- at the very least they must ‘freely’ and ‘willfully’ give their consent. Nothing can be loftier.

Yet other theorists are no less right who say that it is still to be preferred that a people -if they are not lucky from the outset to be governed by an ‘autochthonous’ constitution- at the very least they should be governed even if by one that they did not ‘freely’ consent to or ‘willfully’ accept to be governed by. Reason being that a ‘constitution’, no matter by ‘who’ made or ‘however’ it is given, is still a better proposition than to be governed by military decrees.

Which is to say that by any ‘code’ or ‘norm’ necessary, except by the maxims or ways of the military, should a society accept, at the most minimum, to be governed. And maybe it is the reason that they say ‘the worst democracy is still better than the best dictatorship’.

Many emerging nations, including Nigeria, have not been lucky from the outset, to operate ‘autochthonous’ constitutions.

They were bequeathed instead, ‘post-colonial constitutions’ either by departing colonial masters (who ruled by ordinances and by royal prerogatives) or they were offered ‘post-military constitutions’ by disengaging military dictatorships (that governed by edicts and by special decrees).

And so from the ‘Independence Constitution’ of 1960 through to the 1963 Republican Constitution, down to the many un-enacted draft constitutions that were precursors to the 1999 Constitution of General Abdussalami Abubakar, none was ‘autochthonous’ enough to be called ‘peoples’ constitution’. None was a product of the ‘Volkgeist’ that it should be described as a manifestation of the ‘spirit of the people’.

Battle of supremacy

Thus, it is not true that ‘sovereignty’ in our system of democracy has ever resided with ‘the people’. In truth ‘the people’ have neither been able to decide the ‘constitution’ that regulates their own affairs, nor have they ever been able to control the legislatures that they are deemed to have ‘freely’ and ‘willfully’ elected. It is inconceivable therefore that in the milieu of competing supremacies ‘the people’ can be said to be the ultimate ‘sovereign’. On the contrary ‘the people’ here have always been at the receiving end of the competition for supremacy: whether sovereignty is vested in the National Assembly, or in the President or in the judicial arm; or in the Constitution. Parliament lords it over the people; the executive arm is hardly any less victimizing; nor are the courts any more credible as the ‘last hope of the common man’. Yet, the fact alone that the so called ‘peoples representatives’ now even make laws in spite of ‘the people’ is proof enough that ‘the people’ are not their own sovereigns.

Nor is the claim also that the ‘Constitution’ is supreme, in our own case, any longer tenable when even the Constitution now lies prostrate and unable to defend itself against the banditry of the very National Assembly that the Constitution has brought about. Truth is NASS and not ‘the people’ or the ‘Constitution’, or even ‘the courts’, has always been supreme. Our legislature alone has power to make new laws and to amend or abrogate existing ones. And now our lawmakers even arrogate to themselves the power to annul the Constitution (virtually) and to give us a brand new one. That is how unrestrainably powerful we have allowed our National Assembly to be. That from the power routinely to make, to amend or abrogate laws for the peace, order and good governance of the country, they now arrogate to themselves the right to bring down the entire house and to raise in its place a new structure of their own design.

Our legislators are deploying their constitutional powers with impunity, to remake the Constitution and by so doing to confer on themselves immunities against prosecution, to perpetuate for their own benefit electoral advantages in the guise of consolidating ‘legislative experience’ and to make their principal officers –after leaving office- members of the prestigious National Council of States. Gaining more powers for themselves and witling down the powers of their constitutional check-mates, it appears seems is the main motivation for NASS’ embarkation on this magnitude of constitutional amendment exercise.

Against the grain of doctrines

But the whole idea about the principle of ‘rule of law’ is not just about ‘due process’. It is most importantly about ensuring for example that those who make laws neither do it maliciously to target persons or institutions, nor do they do it with bias for their own personal gains. How we allow NASS to make laws targeting persons and institutions (as in the case of Magu and the EFCC); or to make laws motivated by personal benefits (as in conferring immunity on their principal officers or removal of term limit for legislators), beats the imagination. This defeats the idea about ‘rule of law’ which is about the predominance of law over everything and every person; and the exclusion of all forms of arbitrariness, impunity and prerogative or wide discretionary powers.

Just as the idea too about the doctrine of separation of powers among and between the arms of government is not only about ‘checks and balance’, or merely about the ‘independence’ (or inter-dependence) of the arms of government, but most importantly it is about the need to ensure that no powers of more than one arms of government unite in any one arm in a manner that breeds impunity or arbitrariness. How the NASS alone proposes bills which it alone also legislates to approve –the way annually it insists on ‘proposing’ items into the budget and legislating to approve them- also beat the imagination.

Over a long haul, yes; the NASS can –through regular and continuous piecemeal legislation and re-legislation- hope, at least, to make an un-autochthonous constitution ‘just’, ‘fair’ and thus ‘effective’; because the people by and by are more likely to accept than they are to reject to be governed by ‘just and fair’ propositions no matter ‘how’ or ‘by whom’ those propositions are arrived at. But no matter how we try, we cannot make to become ‘autochthonous’ a constitution which, ab initio, was not made –or willfully consented to- by the people, without convening a conference -sovereign or otherwise.

If it’s good for America

I said recently in ‘Much ado about ‘true’ federalism’, that when some of the earliest fault lines of America’s experiment with ‘confederacy’ forced her into reconsidering one form of power-sharing arrangement (confederacy) for another (federalism), she did not merely embark on a constitutional amendment process to correct the anomalies of the Articles of con-federation. America convened a Constitutional Convention (1787) to birth and to inaugurate a new ‘federation’. And since, like America, we are dealing fundamentally with a systemic problem necessitating a radical change from one form of power-sharing arrangement (supposedly unitary) to another (‘true federalism’), we should, like America, endeavour to go to the roots of it. If the claim –rightly or wrongly- has always been that Nigeria operates a ‘unitary’ system in the guise of a ‘federal’ one, we should go beyond mere constitutional amendment –like America did- to birth into a ‘true’ federal system, whatever that means. This is better than to allow a dictatorship-bound NASS continue to grow even more monstrous!

When you cut too many corners in making a ‘square’, they say you can only end up with a ‘circle’. The NASS, although it is empowered to ‘make’, ‘amend’ or ‘abrogate’ laws, it is not so empowered, -by mere quorum-regulated sittings, to legislate to ‘annul’ the Constitution or by the mere adoption of two-thirds majority, to vote to give to ‘the people’ a brand new one. It trivialises the sacredness of the whole idea of ‘constitution-making’; that a few people by the incidence merely of having been elected to parliament, routinely to make, amend or abrogate laws for the order and good governance of the nation, should now arrogate the power to transform into a ‘constituent assembly’ with a fresh mandate radically to alter the system.

 

Postscript

WOULD ‘the people’ if they were truly to give themselves -or if they were to vote freely to delegate others to give them- a constitution, would they have allowed immunity to be conferred on legislators? Or would they have allowed term limit to be removed for lawmakers? If the answer is NO, then the constitutional amendment is not worth it.

Again if they were truly to give themselves a constitution, would the people have allowed for proper devolution of powers, to give more autonomy to the states and local governments? If the answer is YES, then again, the constitutional amendment by NASS is not worth the efforts. Since ‘the people’ would have done it differently, then it’s not a ‘peoples’ amendment! It is a re-make of the Constitution, by other than ‘the people’ –or their own delegates!

 Re-‘Still on Maitama’

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