MEMORANDUM TO THE PRESIDENTIAL CONSTITUTION CONFERENCE ADVISORY COMMITTEE: PREPARED AND SUBMITTED BY THE YORUBA NATIONAL ASSEMBLY
Friday, 1st November 2013
WHEREAS the Nigerian nation-state continues to stand on a very faulty and weak constitutional foundation which invariably undergirds its anemic and dysfunctional social institutions, cultures and personality types that are systematically failing to deliver on the promise of the dividends of democracy, nation-building, growth and development; but continues to lurch from one crisis to another;
AND WHEREAS this very faulty and weak constitutional foundation of the country continues, since the advent of external and internal colonialism, to exist because it has never clearly derived its source of authority directly from the people acting in a constituent assembly (or national sovereign conference) and asking adult citizens to consent (or not) on the conference outcomes in a referendum;
AND WHEREAS a legitimate constitution is not only the foundation of the state, with roots anchored in the people, it is also a medium for the people in a Convention, (as in the case of the American people at the Philadelphia Convention in 1787), a Constituent Assembly or a Sovereign National Conference, to define and affirm their aspirations to become a nation, to define and affirm the purposes, aims and objectives of the nation-state they, by the constitution, are creating, and the direction they desire it (the nation-state) to go which is not a mere matter of formal or verbal formulation by a legal draftsman but rather an authentic embodiment of the true feelings and sentiments of the people, commanding wide acceptance by the generality of them;
AND WHEREAS mimicking the assertion in the preamble to the Constitutions of the United States and other countries, where the constitution is in fact made by the people, the preamble to the 1979 and 1999 Nigerian Constitutions declares in a palpable lie: “We the People of the Federal Republic of Nigeria…do hereby make, enact and give to ourselves the following Constitution” – which is an expensive and intolerable lie and a grievous insult to invoke the name and authority of the people in a Federal Military Government Decreed document in the making of which they had no hand at all;
AND WHEREAS the peoples of Nigeria are being governed in accordance with the unremedied lie and its ruinous overpowering concentration of powers, functions and resources in a central government that promotes policies of fragmentation, marginalization and alienation of large majority of the Nigerian stakeholders as critical provisions of the Military Decreed Constitution of the Federal Republic of Nigeria, 1999 continue to make nonsense of the principles (a) of inclusion and participation of Nigeria’s principal stakeholders; (b) of federalism or unity-in-diversity (or diversity-in-unity); (c) of secularism (or separation of State and Religion); and (c) of republicanism and monarchy;
AND WHEREAS following elections to the Office of President, Vice President and to the Senate and House of Representatives for the Federation and to the Offices of Governor, Deputy Governor and House of Assembly for each of the current 36 States comprising the Nigerian Federation, there developed a general clamour by ethnic groups, civil society groups and individuals comprised in this Nation-state for convening a Conference of the Nationalities and the establishment of an Independent National Constitution Conference with full powers of laws that will enable the ethnic Nationality groups comprised in this Nigeria country have the golden opportunity to exercise their inherent right to determine democratically for themselves the new Federal and Regional Constitutions by which they wish to be governed in one united Nigeria as their supreme laws of the land binding on all organs of government and on all authorities and individuals in the Nigerian federation;
AND WHEREAS the President of the current Federal Republic of Nigeria considers it necessary and expedient for the peace, order and good government of Nigeria to make provisions through the Presidential Advisory Committee to facilitate the processes and procedures for the convening of the aforesaid Conference;
NOW, THEREFORE, having resolved to welcome the institution of a Presidential Advisory Committee on a national conference/dialogue, as a first step towards determining basic questions that shall guide the next phase of an Independent Nigerian Nationalities Constitutional Conference in the current Nigerian federation, WE OF THE YORUBA NATIONAL ASSEMBLY, acting for and on behalf of the Yoruba Nation, are of the strong opinion that time and resources should be spent on creating proper procedure to make a valid and legitimate Constitution because it is the procedure of making a Constitution that legitimizes it, not the content, instead of always working to amend all extant illegitimate and disputed Nigerian Constitutions that have undergirded the Nigerian anomie and dysfunctional society; and hereby respectfully submit hereunder our views and positions in the following desideratum or unassailable factors as our ‘Memorandum’ on each of the terms of reference given to your Advisory Committee by President Goodluck Ebele Jonathan as follows:
1. TO CONSULT EXPEDITIOUSLY WITH ALL RELEVANT STAKEHOLDERS WITH A VIEW TO DRAWING UP A FEASIBLE AGENDA FOR THE PROPOSED NATIONAL CONSTITUTIONAL CONFERENCE.
We make bold to reiterate that it is self-evident that, in a democracy, it is NOT government that gives a nation-state a Constitution rather it is a Constitution that gives a nation-state a government so much so that a valid Constitution is NEVER enacted into Law but usually endorsed, through a binding referendum or a set of referenda, as the organic will of a people as recommended by their independent constitutional conference representatives.
We, therefore, recognize and insist on the fact that the primary landlords who are therefore the ONLY sovereign principal stakeholders of the Nigeria nation-state and to whom all other authorities in governance are subordinate agents are the mono- and multi-linguistic nationalities: who must be consulted and assisted by the Presidential advisory Committee on national conference/dialogue to meet to discuss the reasons of what are the agenda and methodology for constituting their Union so as to ensure that each and every one of them shall develop and determine the appropriate agenda for the Union deliberations and method of nominating and selecting and appointing its own national linguistic delegates in such manner(s) as to prevent unnecessary and unwholesome interventions of parochial and partisan rivalries and ‘foreign’ beneficial interests.
Hence, we humbly suggest the adoption of the year 2006 proposal by the PRO-NATIONAL CONFERENCE ORGANIZATIONS (PRONACO) of twelve (12) mono-ethnic and six (6) multi-ethnic Nationality categories – making a grand total of eighteen (18) Nationality Regions (See Schedule one under Appendix One below on pages 19 – 24); OR, in the alternative, six (6) Administrative Zones OR their Constituent thirty-six (36) States (See Schedule two under Appendix One below on pages 25 – 66) – as the ones that best represent all the relevant principal stakeholders in the Nigerian project whose views must drive the contents of discussions and decisions/agreements on their agreed Conference Agenda.
With regards to the subjects or contents for the conference AGENDA, which must be recommended to the first Plenary Session of the Conference for deliberation and adoption, we accept the views of the National Consensus Group (a civil society organisation) that “the Constituent Assemblies formed to make past Constitutions can guide us. But we can even accelerate the process because there is no magic in terms of the contentsof a people’s Constitution for the Nigerian federation that cannot be derived from previous Constitutions. Despite the intense arguments on the contentsof the Constitution, Constitution is validated by the procedure of making it not the content.
Thus a Constitution that is made through the right process, though appearing unreasonable in content, is a valid Constitution nonetheless because a people, in making their Constitution, can decide how they want to be governed for good or for bad”. We, therefore, offer the suggestions exhibited under Appendix Two (on pages 27 – 41) of this Memorandum which, judging by the tortured and turbulent corruption-laden ‘presidential’form of political history of Nigeria, are necessary and sufficient bases for providing adequate ‘parliamentary’ form of answers to the enduring Nigerian national question of how the peoples of our multi-ethnic country can begin, for the first time since the loss of independence and the advent of pervasive external and internal colonialism, live in unity, peace and progress.
2. TO MAKE RECOMMENDATIONS TO GOVERNMENT ON STRUCTURE AND MODALITIES FOR THE PROPOSED CONFERENCE
(i) With respect to the structure of the conference, we advise as follows:
(a)The conference shall be structured on the basis of equal representation of members from each of the Mono- and Multi-linguistic nationality Regions/Zones/States indicated earlier under your first term of reference.
(b) Each Mono- and Multi-linguistic nationality Region/Zone/State shall make its representation inclusive; taking account of mostly inherited vital characteristics of sex, age, relevant knowledge, indignity and sub-ethnic diversity within the nationality Region/Zone/States.
(c) Each Mono- and Multi-linguistic nationality Region/Zone/Statere presentation must be allowed to bring its own group of advisers (that may indeed include professionals, trade unions, students unions, market women etc) who shall have no voice and vote at the Conference but shall be allowed to attend the Conference for the purpose of collecting data on the basis of which to advise their representatives on points raised at the Conference, etc.
(d) Each Mono- and Multi-linguistic nationality Region/Zone/State must bring an Agenda which shall indicate, inter alia, the system of government it wishes to establish, including the territorial structure of the Region/Zone/State, the structure of powers and relationships, financial relations, as well as issues of justice to ensure, among other things, that the critical resources and high offices in the Federal and Regional/Zonal/State Governments are not monopolized by “a few ethnic or other sectional groups” – stating especially in their lists of preferred Exclusive(only federal), Concurrent (Federal and Regional), and Residual (only Regional) powers, functions, and resources.
(e) Nomination and selection to the National Constitution Conference shall be on non-partisan basis; meaning those known political parties and other sectarian groups shall not take part in the nomination and selection of Conference Delegates.
(ii) In terms of modalities or the procedural rules, ground norms for deliberations, conference bulletins and other modalities determined by the Conference Commission are, again, expected to be presented and recommended to the first Plenary Session of the Conference for discussion and adoption at the conference opening session on Day One. In particular, we submit as follows:
(a) The proceedings of the National Constitution Conference shall be conducted in accordance with the Standing Orders of the House of Representatives with such modifications (including the requirement that all the delegates from each Region shall vote in a block of one or, in other words, that each Region’s/Zonal’s/State’s votes on any and all issues shall always count as one)as may be approved by at least two-third majority of the Regions’s/Zonal’s/State’s Conference Delegates and, subject to such modifications, the Standing Orders shall be deemed to be the Standing Orders of the National Constitution Conference.
(b) Attendance at the National Constitution Conference by delegates from the Federating Units shall be mandatory; however, the quorum for the purpose of transacting any business other than adjournment shall not be less than two-thirds of the entire membership. Provided that no proceedings of the National Constitution Conference shall be rendered invalid under this section unless objection is raised by a member present, other than the person presiding, that there are fewer members present than the prescribed quorum. In case of any boycott of the National Constitution Conference by a section or part thereof of the Nigeria country before or during the pendency of the Conference, quorum shall be constituted by two-thirds of the members then present and diligently participating in the Conference; and any or those boycotting the Conference shall be regarded as having exercised its or their Nationality or peoples’ right to self-determination, including opting to secede from or cease to be a part of the Nigerian federation.
(c) Conference decisions on federal powers, functions, and resources allocation formula shall be by consensus, and the person presiding at a meeting of the National Constitution Conference shall use his best endeavour to see that decisions are made by consensus among those present and forming a quorum at the meeting. Upon failure to arrive at a consensus, any region or group of them that is involved in such disagreement shall have the freedom to exercise its or their Nationality or peoples’ right to self-determination, including opting to secede from or cease to be a part of the Nigerian federation. The democratic principle behind this suggested Conference decision-making modality is, regardless of size, the equality and autonomy of the Regions/Zones/States and the right of each of them to be protected from any form of imposition and domination by other Regions/Zones/States in a matter of Fundamental Rights of the Federating Units and their citizens.
3. TO MAKE RECOMMENDATIONS TO GOVERNMENT ON HOW REPRESENTATION OF VARIOUS INTEEREST GROUPS AT THE CONFERENCE WILL BE DETERMINED
In relation to representation at the National Constitutional Conference, we advise as follows:
(i) By way of emphasis and as indicated earlier, nomination and Selection to the National Constitutional Conference shall be on non-partisan basis, meaning that known political parties and other sectarian groups shall not take part in the nomination and selection of Conference Delegates.
(ii) Delegates to the National Constitution Conference shall be drawn through nomination and selection from either each of the 18 Mono- and Multi-nationality Regions on the basis of 20delegates from each of them (making a total of 360); OR, in the alternative, from each of the 6Administrative Zones on the basis of 54delegates from each of them (making a total of 324); OR, still, from each of the 3 senatorial districts in each of the 36 States of the federation on the basis of 3 delegate per district (making a total of 324) nominated and selected from identifiable linguistic nationalities indigenous to the Region/Zone/State, regardless o f delegates’ other acquired professional and/or social identities.
(iii) A person shall be eligible for nomination and selection as a delegate to the National Constitution Conference if he or she is a citizen of Nigeria and is not less than 18 years of age.
(iv) Any vacancy occurring among the delegates to the National Constitution Conference shall be filled by a replacement from the Region concerned.
(v) The following persons shall not be eligible for nomination and selection as delegates to the National Constitution Conference if:
(1) He is of unsound mind; OR
(2) He is bankrupt or makes a composition with his creditors; OR
(3) He is convicted of a felony, or any offence involving dishonesty; OR
(4) He is found guilty of serious misconduct in relation to his/her public duties; OR
(5) He is a member of the Armed Forces or the Nigerian Police Service, or a member of the public service of the federation or of a state/local government unless he/she has resigned his/her office not less than 30 days before his/her nomination and selection.
4. TO ADVISE ON A TIME FRAME FOR THE CONFERENCE
On timeline, we advise as follows:
(i) The conference shall complete its assignment within nine months from the date of its inauguration by the President of the Nigeria Federation.
(ii) The Conference shall ensure, through its provisions, that a new constitution ratified ONLY on a Regional referenda shall be gazetted and come into full force and effect by October 1, 2014 to, among other worthy considerations, allow for the timely conduct of the 2015 General Elections on the basis of its overall provisions. We give primacy and preference to the separate nationality Regional/Zonal/State Referendum because, to all intents and purposes, the Nigeria country does not, at any time, have any reliable and valid census data to guarantee an acceptable one-country-wide Referendum for all the Nationalities. As stated earlier, every effort must be made to protect every Nationality against domination and oppression by the apparent numerical weight of other(s) in extant population of registered voters. In this regard, if there is a “NO” vote from a Region, such shall be taken as a necessary and sufficient indication of its declared intention to achieve autonomy or independence for its or their citizens.
Most importantly, we would like to advise that, within their respective jurisdictions, both the Federal and State governments should be prepared to enact appropriate laws to prorogue, if necessitated by time constraints, both their executive and legislative arms of government so as to enable all the existing three tiers of government continue in office and more or less function as TRANSITIONAL/INTERIM FEDERAL/STATE GOVERNMENTS, by holding and performing their respective Legislative and Executive duties under the existing 1999 military decreed Constitution (as amended) until both the new Federal and Regional/State/Zonal democratic Constitutions are adopted and their stipulated or mandated elections are held; and the legitimate results of those elections shall be the only bases upon which all the new and legitimate respective governments shall be constituted in accordance with the dictates of these new Federal and Regional Constitutions.
NOTE: In general, therefore, we in The Yoruba National Assembly strongly hold the pragmatic view that if we need some more time to actualize each and every stage of our proposals in order to get the constitution-making processes through to success, it is infinitely safer and better for all principal parties and other stakeholders to work out the modalities for such an extension of time. It is better late than never to reinvent and truly federalize our constitutional arrangements to properly and adequately enable present and future generations cater for their own welfare, stability, unity, growth and development.
5. TO MAKE RECOMMENDATIONS ON LEGAL FRAMEWORK FOR THE CONFERENCE
On legal framework for the conference, we advise as follows:
(i) That there shall be TWO Bills from the Government to do the following:
(a) The First Bill to deal with the enactment of an Act to make provision for the establishment of an Independent Constitution Conference Commission (otherwise referred to and known as “The Constitution Conference Commission”) with full powers of laws to drive the democratic processes of the production of the Nigeria Federal and Regional Constitutions and restructure them for connected purposes. It is quite instructive to note that your current Presidential Constitution Advisory Committee is not a different type of ‘animal’ from this Independent Constitution Conference Commission except only in regard to the fact that your Committee has not yet been promulgated into Law that may give it more powers, functions and resources!
This task should be calendarized to take not more than one month – since the country can still boast of independent men and women of undoubted knowledge and high moral integrity in every ethnic Region/Zone/State of the country who can be trusted by the current Federal and State Governments as their legal inheritors of their assumed legislative sovereignty by unreservedly delegating to them, through appropriate amendments of relevant Sections of the current 1999 Federal Constitution (as amended) – especially Sections Eight and Nine – their very onerous and sensitive responsibilities as currently enshrined under those two Sections. In view of the making of a law by the National Assembly to enable the peoples of Nigeria to, for the first time ever, give to themselves a Constitution, the importance of the National Assembly has at any rate been highlighted and taken care of in the constitutional process through their taking charge of this enabling law governing the constitution-making processes.
Since the Legislature can legitimately make law, then it means it can legally make law [such as a pragmatic law amending Sections 8 and 9 of the 1999 constitution] to enable the people give to themselves a valid constitution. The Legislature can determine the content of such law (within its right to make law), the perimeters and terms of such law. The Legislature can call for a public hearing to fashion out such law as a vital beginning of legitimate, valid and lawful Constitution making process. (See Appendix Three on pages 42 – 60 below).
NOTE: By and through this first Constitution enabling Bill, the debates bedeviling the futile disputes as to who has the custodial or sovereign power and authority to frame or make the original Nigerian Constitution and lateramend the extant Constitutions would have been tactically navigated and diplomatically avoided and put to final and lasting rest in every stakeholders’ beneficial interests. As a ‘win-win’ device, it is virtually the legislative equivalent of the now prudent and familiar “doctrine of necessity” ably invoked by the 6th Federal Legislative Assembly to resolve contentious grey areas of the 1999 Constitution (as amended) concerning modes of succession during the unfortunate and untimely death of President Musa Yar’Adua in the Year 2011.
Due to the technical legal nature of this Bill and for ease of reference, we have decided to provide your Presidential Constitution Advisory Committee with a template of topics as authentic samples that the Bill must cover as indicated hereunder (page 51) as Appendix Three.
(b) The Second Bill to deal with the enactment of an Act to make provision for convening an Independent Nationalities Constitutional Conference (otherwise referred to and known as “The National Conference”) of the people of Nigeria with full powers of territoriality and for purposes of discussing and deciding any and all issues and matters affecting them and preparing a constitution and matters ancillary thereto for consideration and adoption by the peoples of Nigeria at each Regional/Zonal/State referendum.
This task should be calendarized to take not more than one month.
Due to the technical legal nature of this Bill and for ease of reference, we have also decided to provide your Presidential Advisory Committee with a template of topics as authentic samples that the Bill must cover as indicated hereunder (pages 60 – 70) as Appendix Four.
6. TO MAKE RECOMMENDATIONS FOR LEGAL PROCEDURES AND OPTIONS FOR INTEGRATING DECISIONS AND OUTCOMES OF THE NATIONAL CONFERENCE INTO THE CONSTITUTION
With respect to legal procedures for integrating decisions and outcomes of the National Conference into the constitution, we advise as follows:
(i) A referendum shall be held at each Regional/Zonal/State level to determine the wishes of eligible Nigerian registered voters in a “YES” or “NO” vote on the draft Federal and Regional/Zonal/State constitutions put before the citizens by the National Conference Commission and Independent National Electoral Commission acting on behalf of the National Conference.
(ii) Approval or disapproval of the Draft Constitutions by each Regional/Zonal/State level shall be determined by a simple majority of “YES” or “NO” votes. A majority of “YES” or “NO” votes for the purpose of the referenda shall mean a simple majority of votes cast at the Regional/Zonal/State level with not less than two-third of votes of total eligible voters and voting in each Region or Zone or State – whichever “federating unit” is ultimately adopted by the National Conference Delegates.
7. ADVISE THE GOVERNMENT ON ANY OTHER MATTERS THAT MAY BE RELATED OR INCIDENTAL TO THE CONFERENCE
Through Public Enlightenment, we strongly advise that all stakeholders in the Nigerian federation, including especially the Federal and State Governments as well as civil society groups, shall embark on systematic mass public education and mobilization of citizens to promote the laudable goals and objectives of the National Conference as follows:
(i) The public education programmeshould involve use of public and private media structures, from newspapers to radio/ television and the social media. This should explain the importance of enhancing Nigeria’s unity through frank discussions on how to create a federal constitution that citizens of all linguistic nationalities can own and feel comfortable with, as distinct from the current constitution that has been a source of tension among nationalities since it was decreed into existence by military rulers in 1999. Mass public education is crucial to stem any misunderstanding or distortion of the vision and thinking behind doing what several countries across continents do regularly: re-creating and re-focusing their countries for better governance and a more peaceful environment for faster and sustainable growth and development.
(ii) The public mobilization programme should involve the appointment and use of appropriate numbers of Regional/Zonal/State facilitators in each and every one of the 774 local governments to, again, explain the importance of enhancing Nigeria’s unity through frank discussions on how to create a federal constitution that citizens of all linguistic nationalities can own and feel comfortable with, as distinct from the current constitution that has been a source of tension among nationalities since it was decreed into existence by military rulers in 1999. Mass public mobilization is crucial to stem any misunderstanding or distortion of the vision and thinking behind doing what several countries across continents do regularly: re-creating and re-focusing their countries for better governance and a more peaceful environment for faster and sustainable growth and development.
Finally and for the avoidance of doubt, the Yoruba National Assembly would like to use this golden opportunity to reiterate the long-standing position of the Yoruba people that the different and differing nationalities in the Nigerian nations-state must collectively grab this rare chance to really design a “devolved” process and product of constitution-making by making the Nationalities the focal points of organization such that those currently at the helm of our country’s political affairs will be seen and trusted as implementing the avowed wishes of the people.
We strongly support the Movement for National Reformation warning “against the danger of turning the urgent and the all important need for an authentic national conference into a make-shift ‘political summit’ designed to satisfy the short-time needs for the 2015 presidential elections. The country must not forget to remember that substitute summits in the past became failed missions. An authentic national conference should be a conference of the nationalities of Nigeria with advisory inputs by national interest groups”.
Also like the National Consensus Group, “we note, however, that we cannot run away from the agitations of our people on the imperfect state of the Nigerian nation- state. Moreover, we note that the legitimacy, authenticity and internal value of the present 1999 Constitution (as amended) is not without some inherent problems about its source and contents. If the present government can make a Constitution free from the challenge of legitimacy for Nigeria, the President will be making the greatest contribution to the science of government. In the hallowed interests of the citizens of Nigeria, it is not hard to do so; what it needs is the will for it”.
Prayerfully, may the Supreme Being guide and guard each and every one of you in this critically important assigned duty to provide, once and for all time(?), a Road-Map to a resounding success of the Nigeria Federation of our dream.