(Continued from last week)

AND WHEREAS, the Provisional Ruling Council has approved the report subject to such amendments as are deemed necessary in the public interest and for the purpose of promoting the security, welfare and good governance and fostering the unity and progress of the people of Nigeria with a view to achieving its objective of handing over and enduring Constitution to the people of Nigeria;
AND WHEREAS, it is necessary in accordance with the programme on transition to civil rule for the Constitution of the Federal Republic of Nigeria 1979 after necessary amendments and approval by the Provisional Ruling Council to be promulgated into a new Constitution for the Federal Republic of Nigeria in order to give the same force of law with effect from 29th May 1999:

NOW THEREFORE, THE FEDERAL MILITARY GOVERNMENT hereby decrees as follows:-

1.      (1)     There shall be for Nigeria a Constitution which shall be as set out in the schedule to this Decree.

(2) The Constitution set out in the Schedule to this Decree shall come into force on 29th May 1999.

(3) Whenever it may hereafter be necessary for the Constitution to be printed it shall be lawful for the Federal Government Printer to omit all parts of this Decree apart from the schedule and the Constitution as so printed shall have the force of law notwithstanding the omission.

2.      This Decree may be cited as the Constitution of the Federal Republic of Nigeria (Promulgation) Decree 1999.

It is apparent from the above ‘Constitution of the Federal Republic of Nigeria (promulgation) Decree 24, 1999’ that the so called 1999 Constitution is an entirely military affair. It was brought about through a Debate Committee it set up on November 11, 1998. The conclusions of the Committee was submitted to the Military Government that tore it apart as it deemed fit and later enacted it to law over us without our consent. In short even by all the “whereases” preceding Decree 24, 1999, it is clear that the so called 1999 Constitution is neither from us nor of us.

It is, therefore, clear that the Constitution is not of the people of Nigeria. If the National Assembly is of the people of Nigeria, then it should do the job it ought to do or the job the people of Nigeria gave it, which, in my view, excludes legitimizing a wrong Constitution through a wrong Constitutional amendment.

CONCLUSION
Since in its most absorptive power, a Constitution is intended to secure the people of a state from arbitrary exercise of power and abuse of principles of right, our constitution must first be delivered from power abuse and power delirium which its making, and adoption by a military dictatorship through its Decree 24, 1999 represents. There is in my view no process of Constitutional logic or reasoning that can affirm the right of a military dictatorship to give to the people of Nigeria by decree, a Constitution.

The 1999 Constitution is a fraud forced on the people of Nigeria . Consequently, the greatest Constitutional amendment needed by our people is to be enabled and empowered to make for themselves their own Constitution.

The length of time that we have continued under this wrong Constitution with its rough and unconstitutional origin, with its inherent illegitimacy and false representation should not deter us from returning to Constitutional common sense. It is never too late to return to common sense. The 1999 Constitution is merely a law of a military oligarchy like any military Decree. We know that a Constitution cannot be made in exercise of legislative power. A constitution is not law. In this regard, may I draw your attention to page 14 – 16 of my book “Constitutional Powers and Duties of the President” where I listed 10 principal differences between a Law and the Constitution. For example, while a written Constitution is a political document that is adopted by the people to control all laws and all governments at all times, a law which is usually enacted by a legislature has no power outside itself and is usually limited to the resolution of specific problems.

When the United States found out that the Articles of their Confederation adopted on November 15, 1777 for her first government, by the original 13 states prior to March 2, 1781 adoption of the name “the United States of America”, was insufficient to promote the general welfare of the people and mutual confidence among them, they opted for what all reasonable nations do. They set it aside and initiated a Federal Constitutional Convention that met on May 25, 1787 to form an entirely new Constitution. On September 17, 1787 i.e. less than four months the convention completed its work, adopted a resolution directing that the new Constitution be laid before the Congress of the United States and the Conventions of the several states for ratification before its adoption. The federal convention of the United States that formed the Federal Constitution was made up of the best and highest 54 minds of the time because of the significance of its job. The conventions of nine states ratified the Constitution by July 26, 1788, the Congress of the United States , thereafter, in October 1788 passed a resolution in keeping with the opinion of the Federal Convention setting March 3, 1789 as the date for commencing proceedings under the Federal Constitution. It was not until April 30, 1789, that George Washington was inaugurated as the first United States President. United States Supreme Court met for the first time on February 1, 1790.

In his book ‘Democracy in America’, Alexis de Tocqueville at page 101 -103 spoke of how under the Article of Confederation the wheels of government were stopping, that America was then warned by its lawmakers of the weakness of the union of Confederacy and called for remedy. He spoke of how America turned its attention to itself without haste or fear to remedy the inadequacies:

“If ever there was a short moment when America did rise to that climax of glory where the proud imagination of her inhabitants would constantly like us to see her, it was at that supreme crises when the national authority had in some sort abdicated its dominion.”

Here it needs to be observed that the people of the United States realizing the inherent defect in the Confederacy Constitution avoided the pitfall of an amendment to an inherently defective Constitution. The first ten Amendments i.e. the Bill of Rights were submitted on the new Federal Constitution never on the old defective Constitution.

It is always solely within the power of the people to make or unmake their Constitution. For a Constitution to be legitimate it must emphatically be rooted in the will of the people and it can only exist according to their consent, wish and approbation.

This has never been the case in Nigeria. The 1999 constitution is a symbol and function of a ruthless dictatorship that illegally usurped our collective rights to constitute government over us. A greater injustice and outright offence will be visited on our people by the present National Assembly, if, instead of upholding the rights of Citizens to fashion a Constitution for themselves, engages, like the last three attempts under the past government in another worthless amendment process.

The National Assembly in exercise of law-making power, inspite of the error of its origin, can assist the development of constitutional governance in Nigeria not by amending an unamendable illegitimate 1999 Constitution that usurped the primitive right of the people to make for themselves a constitution, but by assuring to the people, a convention of the people for the purpose of making a proper constitution.

After all, they can learn from the Congress of the United States , which, realizing the weakness and inadequacies of the Confederal Constitution which was adopted in 1778 officially declared, on February 21, 1787 the dangers to the Union under the Confederal Constitution, before voluntarily submitting itself to the Federal Constitutional revolution of 1787.

While a legitimate representative Assembly can propose an amendment within the prescriptive internal direction of a valid Constitution, what the present National Assembly should first emphatically do is to amend the autocratic origin of our Constitution, democratize and legitimize it, preceding the current deliberations on Constitutional amendment, by truly making our Constitution of the people of Nigeria .

Interestingly, the way to do so is far less complicated than the N1 billion 8th amendment effort of another illegal Constitution because a military government has no legislative power to make a Constitution. What is required is a law made by the National Assembly enabling the people of Nigeria to give to themselves a Constitution.  Let us always remember that what legitimizes a Constitution is never its content but the procedure of bringing it about.

Concluded.

Dr. Tunji Abayomi, the Head of Tunji Abayomi & Co, delivered this lecture at a forum organised by the Law Society, Faculty of Law, Adekunle Ajasin University, Akungba, Ondo State, recently.