In this piece, a legal practitioner and human rights activist, Dr. Tunji Abayomi, examines the current effort by the National Assembly to amend the 1999 Constitution and posits that this constitution, which was imposed on the country by the military, should be jettisoned and Nigerians should be empowered to make for themselves, their own constitution.

The current national dialogue is on the undying issue of Constitutional Amendment, and it is appropriate that a Law Faculty of the stature of our premier University in Ondo State should partake in the passion of this present time.

Judged by the effervescence of the present National Assembly, largely made up of one-party elected officials, out of a bad election, it is necessary to react to the extended interest of the National Assembly in amending the so called 1999 Constitution. The question, however, remains, whether an amendment is actually warranted, whether it is at this point necessary, whether it is at all proper. What are we actually amending? Are we amending a Constitution or unconstitutionality?

Now if a Constitution is Constitutional it is amenable and amendable according to its own prescription.

In the words of Honourable B.E Everett Jordan, Chairman of the United States Committee on Rules and Administration, inspite of the fact that  we should ordinarily and naturally revere the constitution, it is nonetheless “changeable too because the circumstances in which it must function require an adaptation of institutions and a refitting of modes of doing things”. Yes, the Constitution must, in the words of Professor Corwin, be “a living statute, palpitating with the purpose of the hour, re-enacted with every waking breath of the people, whose primitive right to determine their institutions is its sole claim to validity as law and as the matrix of laws”

The same opinion was expressed by Lord Halifax.

“A Constitution cannot make itself; somebody made it, not at once but at several times. It is alterable, and by that draweth nearer perfection; and without suiting itself to differing times and circumstances, it could not live. Its life is prolonged by changing seasonably the several parts of it at several times.”

Indeed no Constitution is intended by its makers to be static, rather it is in the words of Chief Justice John Marshall (U.S. Supreme Court) envisioned that the Constitution would “endure for ages to come and consequently be adapted to various crises in human affairs”. Constitutional amendment is the surest way to assure the adaptation of a valid Constitution to the changing tides in human affairs.

For me, therefore, the current issues rotate not around the value or validity of a Constitutional amendment. The central concept of Constitutional jurisprudence in the current amendment debate concerns, in my view, the fundamental principles guiding constitutional amendment doctrine and whether in our peculiar situation in Nigeria , our constitution meets the minimum test of constitutionalism to warrant the application of the encompassing amendment principles in the refitting of Constitutional modes to the changing times of our nation. But before we venture further, we need to know what a Constitution is and what it is not. Thereafter, we need to compare what we now have or what is otherwise called the 1999 Constitution to the norms of Validity and Constitutionality or constitutional legitimacy generally accepted through the ages. Then, we can conclude on the value and validity of the current amendment efforts by the National Assembly of Nigeria.

It is now generally accepted that a valid Constitution creates the powers of state and the limitation on such powers. Thus in practical terms in the cause of governance, the validity of the acts of government is charged, changed or challenged by the written Constitution.  The Constitution thus becomes far more than just a broad discretionary mandate on powers and duties that elucidate general affection and regard. Constitution has occupied among the people, in our time, solely and inalterably the primary cockpit to guide governance in all ramifications. But perhaps its more profound authority is that it designs the nature and structure of institutions of government in a sovereign state, prescribing in general, inherent characteristics of sovereignty, including authority of government over local matters.

Among the essential characters sought to be Constitutionalised in democratic constitutions, are federalism, that is, the union of several states for common and collective interests under the division of powers within defined spheres. Another important principle of federal Constitutions worldwide is the doctrine of separation of powers. This concept is about three distinct departments of government i.e. legislative, executive and judicial set forth in Aristotles’ Politics but elaborated by Montesquieu with the idea of government of “Checks and balances” in Book XI of his Spirit of the Laws. As Montesquieu noted “men entrusted with power tend to abuse it”. Consequently, it was necessary and proper to break up the powers of government.

The above entire colligation of ideas is in a constitution presumed to emerge from the minds of the people who are deemed to make a constitution for the practice of their government. The truth is, government itself is not expected to be inevitably involved in the formulation of the original Constitution which is presumed to precede government, let alone approving, enacting and adopting it for the people. As I noted at page 75 of my book ‘State and Citizens’:

“A constitution remains mankind’s greatest valve to control the passions and actions of governments and assure their conformity with the dictates of reason, human rights, common sense and general will.

Since a constitution is formed and fashioned by the people as a fundamental guide to control the principles of governance, the unadulterated and uninhibited right of the people in a free exercise of wish and will must form the basic platform upon which any constitution is placed if it is to be legitimate and enforceable.”

You will by now have appreciated the direction of my thoughts. We have, out of failure of rational review or objectivity of the autocratic document forced on us by the military dictatorship assumed that we have a constitution for our democracy. From my understanding of Constitutionalism this appears not to be so.

In truth the nation has no Constitution. This is why in my February 12, 2008 letter to Senator David Mark, President of Senate on the intended review of the so called 1999 Constitution I observed inter alia:

“I feel compelled to advise against the growing fad of a constitutional amendment, as am rather convinced that what the nation needs is a legitimate Constitution of the people, not the amendment of an organically erroneous Constitution. An illegitimate constitution is not amendable.

Nothing appears to highlight the legacy of the autocratic past than the current constitution which we call the 1999 Constitution but which the makers entitled by law as “Decree 24, 1999” .

You are not unaware of at least three previous attempts under the last government to amend “our Constitution” all of which came to nothing. In short the issue confronting Nigeria is not about amendment of her constitution, the issue is the legitimacy of her Constitution. The Constitution we have, did not arise from our desire, demands or deposition. It was neither approved, sanctioned nor sanctified by us, of us or for us by general interest or will, or approbation. It arose from force and was forced on us by a dictatorship we loathed, a dictatorship that illegally usurped government contrary to our laws. It was given by military government to the people when it should have been the people, in a properly constructed union, through their constitution, that should give to themselves a government.

The Constitution told a most notorious falsehood about itself affirming what is most untrue that “we the people” gave to ourselves the said Constitution.

The greatest mischief of the current Constitution is actually its wrong origin, and it behoves us to depart from such original error and create a proper constitutional frame-work for the future governments which ought to emerge from freedom and general consensus”.

As it was in the past from General Abdul-Salam Abubakar to General Olusegun Obasanjo to Brigadier David Mark, all of whom I have interacted with on this issue, the dedication of our military leaders to the autocratic past has inhibited their responsibility to work for a democratic constitution. This was why Senator David Mark gave a largely irrelevant reply in his letter to me dated August 8, 2008:

“RE: REVIEW OF THE CONSTITUTION
His Excellency, the President of the Senate, Distinguished Senator David A.B Mark, GCON, is in receipt of your letter on the above subject matter.

He commends you for your letter and reaffirms that the processes leading to the amendment of the Nigeria Constitution allows Nigerians to make inputs through their elected representatives as to do otherwise will amount to anarchy.

While wishing you well in all your endeavours, please accept the assurances of His Excellency’s consideration and very high personal regards”.

Now of the 1999 constitution we face no contradiction to the position that it is simply not a Constitution, but a fruit of a manifestly poisonous tree, that is the tree of dictatorship instead of democracy.

First, unlike any known democratic Constitution, its other name is Decree 24 of 1999. Second, it was given by a treasonable oligarchy to the people of Nigeria without the approbation of the people.

Worse still, it was made by government instead for the Constitution to make government. Still more bizarre, is its proclamation:

AND WHEREAS the Constitutional Debate Co-ordinating Committee has presented the report of its deliberations to the Provisional Ruling Council. Read More