The National Conference and the issue of referendum

Some civil society leaders that declined participation at the National Conference cited the plethora of reports of Committees that the Federal and State Governments refused to implement and felt genuinely concerned on whether the National Conference will not become another jamboree or a political diversion. There is also the unwritten and understated anxiety relating to […]

Some civil society leaders that declined participation at the National Conference cited the plethora of reports of Committees that the Federal and State Governments refused to implement and felt genuinely concerned on whether the National Conference will not become another jamboree or a political diversion.
There is also the unwritten and understated anxiety relating to the timing of the National Conference. Previous Conferences ran into turbulent waters when mysterious documents emerged and forces outside the Conference sought to and attempted to smuggle in resolutions, documents and decisions that had nothing to do with the Conference.
We at the level of civil society had no illusions about the National Conference. We knew the limitations of the National Conference but felt that we can utilize its platform to advance the cause of the Nigerian people and moderate the divisive and opportunistic tendencies of those that have consistently held the Nigerian economy and politics hostage.
The moment the National Conference started, we realized that some of the delegates had fixed and unbendable positions. Some researched their positions and came with solid data to the Conference. Some rightly or wrongly suspected a hidden agenda and decided to maintain the status quo. Some came to showcase themselves to the Federal and State Governments as people the government can do business with and consciously positioned themselves as Gubernatorial and Ministerial materials. Some came to maintain or advance or amend laws that will strengthen certain institutions or advance their material acquisition.
However, what bothered most of the Delegates is how to translate their efforts into reality. Some of them bothered about the continued bashing of the fundamental law of the land as illegitimate. A few of the Delegates believe that the Constitution of the Federal Republic of Nigeria is not perfect. This is understandable as the Constitution of any country is a living document that is subject to alterations based on the changing dynamics of the society. Secondly, some of the Delegates believe that the President of the Federal Republic of Nigeria convened the National Conference based on having been elected as such within the confines and ambit of the Constitution and he swore to maintain, preserve and uphold the Constitution. It stands to reason therefore that if the Constitution that brought the President to power is illegitimate, the National Conference convoked by him is illegitimate and the outcome will in the same vein be illegitimate.
Having presented, debated and adopted the reports of 20 of its Committees, the National Conference returned to the vexed issue of the modalities for the implementation of its decisions. Some delegates out of patriotic favor clothed the National Conference with the garb of sovereignty. Some claimed that the National Conference enjoys higher electoral standing than the National Assembly. Some cautioned moderation on grounds of the less than clear legal and constitutional framework that brought the National Conference into being.  
My take on some of these issues is that some of the Distinguished Delegates decided to play to the gallery and satisfy interests outside the Conference. Some debated and pontificated for the camera and did not in the main address the fundamental question of what to do with the report of the National Conference.
I am of the firm view that it is redundant to keep canvassing that the Constitution of the Federal Republic of Nigeria, 1999(as amended) is an illegitimate document. If the said document is illegitimate, it means that all the political structures in place including all elections under it are illegitimate and illegal. It also means that those at the National Conference, appointed by a President who is a product of illegitimacy are also engaged consciously in an illegitimate venture. Unless they are saying that they want to cure illegitimacy with illegitimacy.
The second issue resolves around the preamble to the Constitution itself. They claim that the said Constitution tells a lie about itself by claiming that the Nigerian people met and gave themselves the said Constitution and to cure it the Constitution must be subjected to a referendum. While there is merit in this assertion, almost all of us have derived one benefit or the other from the Constitution. We have relied on the Constitution to secure freedom and other benefits for the Nigerian people. Some ran elections on the basis of the Constitution. It stands to reason that the imperfections and complaints relating to the Constitution can be cured and or managed within the context of an imperfect arrangement. As pointed out by the Hon Justice Acholonu, J.S.C in the case of Charles Okike v LPDC “there is no Constitution that is perfect even if an autochthonous Constitution like ours. The fact that our Organic Law by its nature is indigenous does not mean that the wise men and women who framed it are vested with omnipotence of God or vested with the ability to take care of all possible eventualities. This explains why in most jurisdictions with Written Constitutions amendments are now and again made to attempt to infuse new life into the Constitution and make it relevant to societal needs.  Even in a Constitution as in the case of the Great Britain where the Constitution is not written various effects are always being made to modernize it to take care of developments in the nation. The reason for this is that as the society is dynamic and laws should reflect and therefore be in accentuation to societal development, it is important  that care should be taken that the Constitution being the primary law is from time to time clothed with new garb that will make it reflective of the aspiration of the society.
What then should we do with the outcome of the National Conference? Order X111 of the National Conference Procedure Rules 2014 provides a guide on this. It provides that there shall be a Final Report which shall be the accurate recording of all the decisions reached by the National Conference. It also provides that the Final Report shall be signed by the Chairman, Deputy Chairman and the Secretary after approval by the Conference before presentation to President of the Federal Republic of Nigeria. Order X111(3) also provides that “Should the Final Report lead to the drafting of issues of law and policy, the Conference shall in consultation with the six Principal Officers of the Conference advise the government on the legal framework, legal procedures and options for integrating the decisions and outcomes of the National Conference into the Constitution and laws of the land.”
Right from the onset, all the Delegates subscribed to the National Conference Procedure Rules 2014. All of us knew that we are a Committee set up by the President of the Federal Republic of Nigeria to assist and advice on options to solving the challenges of the Nigerian nation. All of us recognized through the Rules the existence of the “Constitution and Laws of the land”. All of us agreed that should the Final Report lead to the drafting of issues of law and policy, the Conference shall in consultation with the six Principal Officers of the Conference advise the government.
It is therefore disingenuous to clothe the National Conference with mystical and mythical powers and sovereignty. Our options are clear. Separate issues that have administrative flavor and cluster them into Federal, State and Local Government dockets. Those that have policy flavor will also be clustered in the same manner. The recommendations that will lead to legal changes be in one docket and the drivers will straddle all tiers of government. Those changes that will require constitutional amendment will segregate and appropriate bills by appropriate tiers of government forwarded to the National and State Assemblies. If there are one or two weighty issues that require a referendum, the National Assembly will be encouraged to amend the Constitution and provide for a referendum.  
It will be suicidal and irrational to subject a document with over 500 recommendations to a referendum of YES or NO. What it means is that if a citizen disagrees strongly with one item out of 500 recommendations, the citizen may likely vote NO and kill the entire document.
Barrister Festus Okoye, Constitutional Lawyer, Executive Director Human Rights Monitor & A Civil Society Delegate to the National Conference.