From Jude Owuamanam, Managing Editor, Northern Operations
ABUJA (Sundiata Post) – Leaders of the South East have said that the only agreeable basis for restructuring the Nigerian federation is to implement the principles of true federalism.
In their position on the vexed issue of restructuring, the leaders said that their concern is not with the way government is actually conducted, whether well or badly conducted, but rather with the way it is formally organised in terms of its structures – the power structures or power relations, the territorial structures, and so on.
In a statement issued at the end of their meeting in Enugu, the South East leaders noted that though their position was not to underrate the vital importance of good governance, but that appropriate structures of government are a necessary foundation for good governance.
“We need, therefore, to get our governmental structures right, which is made all the more necessary because of our great ethnic diversity (with over 300 ethnic nationalities) and consequent divergence of interests and outlooks” the statement said.
The statement was signed by chairman, Professor Ben Nwabueze, for and on behalf of Igbo Leaders of Thought.
It said, “Federalism in Nigeria is dictated by the existence of a territorially large community comprising various geographically segregated ethnic groups divided by wide differences of religion, language, culture or economics. Its purpose is to enable each group, free from interference or control by the other groups, to govern itself in matters of internal concern, leaving matters of common concern, not overwhelmingly extensive in their range, to be managed under a central government constituted in such manner as to ensure that it is not dominated by any one group or a combination of them, and above all, to ensure justice, fairness and equity to all in the management of matter of common concern. It assures an optimal measure of self-determination or self-government consistent with the territorial integrity of the country. Self-determination connotes essentially, not independent government, but the right of each group to govern itself within the territorial integrity of the country as one state.
“By this, the differing interests and circumstances of the component groups are accommodated while at the same time securing the peace, stability, development and unity of the country and its survival against the forces of division and conflict inherent in the heterogeneous nature of the society. With the decentralisation of powers to the regional governments and the consequent reduction in the powers exercisable centrally, the central government cannot become an instrument of total domination, so that the question of who controls it can be expected to excite less conflict and bitterness than if all powers are concentrated at the centre.”
The leaders while enumerated the factors impeding true federalism to incoude:
(i) Manifest contradiction of a unitary, i.e. single, constitution for a federal system
Few contradictions in ideas could be more self-evident than that of a unitary or single constitution for a federal system of government. For unitarism and federalism are mutually exclusive, logically opposing concepts.
It is a manifest contradiction to conceive of a government, whether in a federal or unitary system, without a constitution. There is just no such thing. The very notion of a government necessarily implies a constitution. Separate governments, as required by federalism, necessarily imply a separate constitution for each of the governments.
The subversive consequences of the contradiction of a single constitution for a federal system are manifested in relation to –
execution and maintenance of the single constitution;
the respective extents of the judicial powers of the federal and state governments;
amendment of the single constitution.
The question arising is whether a constitution in its modern connotion can viably and meaningfully be applied and implemented in relation to every one of the 36 States.
(ii) Contradiction of a state or government without a separate coercive force of its own and under its independent control to maintain its existence and authority as a government and to enforce its laws.
States exist, says D’treaves, according as they have a coercive force to exact obedience to their commands. It is certainly incompatible with the notion of a separate government for each of the constituent units in a federal system that the only coercive force for the maintenance of their existence and authority as a government and for the enforcement of their laws is placed under the control of the Federal Government. The federating units in Nigeria need to have their separate and independent police force to conform with the requirements of federalism.
(iii) Incompatibility with the autonomy of a constituent unit in a federal system that the election of its political functionaries – governor, members of its legislative assembly and local government councils – should be conducted by an organ of the Federal Government.
(iv) Over-concentration at the Centre as regards political power relations (over-concentration at the Center as regards financial relations is dealt with separately)
Power, in the sense and context in which the term is here used, means essentially power to regulate the subject-matters of government, e.g. education, as distinct from the physical act of doing something, e.g. the physical act of establishing an educational institution, which can be done by both individuals and governments. The regulation of subject-matter, usually by means of legislation, is thus the essence of power. Power implies and includes control.
There are seven main respects in which both the 1979/1999 Constitutions, directly or as interpreted, have altered in favour of the federal government the power structure or power relations as it was under the 1960/63 Constitutions. First, 16, or 50 per cent of, matters, hitherto concurrent to both the Federal and Regional Governments under the 1960/63 Constitutions, are now made exclusive to the Federal Government; viz arms, ammunition and explosives; bankruptcy and insolvency; census; commercial and industrial monopolies, combines and trusts; drugs and poisons; fingerprints, identification and criminal records; labour (i.e. conditions of labour, industrial relations, trade unions and welfare of labour); prisons; professional occupations as may be designated by the National Assembly; quarantine; registration of business names; regulation of tourist industry; traffic on federal trunk road; public holidays; regulation of political parties; and service and execution in a state of the civil and criminal processes,
judgments, decrees, orders and other decisions of any court of law outside Nigeria or any court of law in Nigeria other than a court of law established by the legislature of a state. The complete exclusion of a State Government from all of these areas is a significant change indeed, for it takes away completely the initiative which, in the past, the Regions undertook in some of these matters.
Secondly, not only is the scope of concurrent matters now severely restricted by the transfer of roughly 50 per cent of them to the exclusive competence of the Federal Government, but also some of the matters still formally listed as such are actually dealt with in such a way as to make them exclusive to the Federal Government to a very large extent. For example, a State Government’s power over higher education is now restricted to merely making law for the “establishment of an institution for purposes of university, professional or technological education”. Subject to this, the whole field of higher education, the regulation of admissions and standards, the question of free education at that level, etc. is now exclusive to the Federal Government. While public safety and public order remain a concurrent matter (s.11), the principal instrument for maintaining and securing them, the police force and armed forces, are centralised in the Federal Government, without the concession made to the Regional Governments by the 1960/63 Constitutions to establish local police forces on a provincial basis.
Thirdly, the federal power over taxation of the income and profit of individuals is now, as in the case of company taxation, plenary, and not, as under the 1963 Constitution, limited to purposes specifically prescribed in the Constitution such as the securing of uniform principles of taxation, etc.
The federal power over trade and commerce is significantly enhanced by the power given to the National Assembly (a) to declare that any economic activities are to be managed or operated by the Federal Government to the exclusion of everybody else, including individuals (s. 16(4); (b) to set up a body to review from time to time the ownership and control of business enterprises operating in Nigeria, and to administer any law for the regulation of the ownership and control of such enterprises (s.16(3)). It is not clear whether an activity outside the competence of the Federal Government can be so declared. It is not reasonable to suppose that by this provision the Constitution intended that the National Assembly should have power to alter, by a mere resolution of its members, such a fundamental arrangement as the division of powers. An interpretation of this provision, in order to be consistent with the division of powers and with the procedure for the amendment of the Constitution, must, therefore, limit its scope to activities within the competence of the Federal Government.
Fourthly, federal power is now extended to certain matters hitherto under exclusive regional competence as residual matters. Minimum standard at the primary and secondary levels of education is now an exclusive matter for the Federal Government, so is the election of a State Governor and the members of the state House of Assembly. Land title is now largely exclusive to the Federal Government, for not only is the Land Use Act 1978 entrenched in the Constitution (s.315(5)), but also its provisions are to “continue to have effect as federal enactments and as if they related to matters included in the Exclusive Legislative List set out in Part 1 of the Second Schedule to this Constitution”. Aspects of local government are now also brought within the purview of the Federal Government. The extension of federal power to aspects of local government offends against the principle that local government is an example per excellence of a matter of local concern which places it squarely within the exclusive competence of the Regions or States.
Fifthly, the Federal Government is granted yet another new source of power by the provision authorising the National Assembly to establish and regulate authorities to promote and enforce the observance throughout the country of fundamental objectives and directive principles enshrined in the Constitution (Exclusive Legislative List, item 60(a), Second Schedule) – a provision misinterpreted by the Federal Government of President Obasanjo to grant powers beyond what could reasonably have been within its contemplation.
Sixthly, and perhaps the most disquieting of the Federal Government’s new sources of power, are the provisions embodied in the Fundamental Objectives and Directive Principles of State Policy in chapter 2 of the Constitution which may be described as the most people-oriented, part of the Constitution. Regrettably, the declaration of Fundamental Objectives and Directive Principles in the chapter has been invoked and is being employed as a grant of power to the Federal Government by a perverse interpretation of its provisions, enabling that Government to enact various laws patently subversive of the division of powers and the entire principle of true federalism enshrined in the Constitution.
Seventhly, again construing the declaration of Fundamental Objectives and Directive Principles of State Policy in chapter 2 of the Constitution as a grant of power, the chapter has also been invoked by the Federal Government to enact yet another law even more incompatible with, and more subversive of, Nigeria’s federal system, viz the Economic and Financial Crimes Commission Act 2004 (re-enacting an earlier Act of 2002). The particular directive relied on as authorising the enactment of the Act is that in section 15(5) directing the State, as defined in section 318 of the Constitution, to “abolish all corrupt practices and abuse of office”. To reiterate, the directive in section 15(5) is not a grant of power, and it is again a manifest distortion of its meaning and purpose so to regard it.
The result of the accretions of power to the Centre, either by direct grant by the Constitution or by perverse interpretation of its provisions, is to alter the power relations between it (the Centre) and the States so significantly as to change the character of the system quite substantially from a federal to a unitary system. The system remains federal largely in name.
Furthermore, the Exclusive and Concurrent Legislative Lists under the 1963 Constitution should be revisited with a view to deciding whether the power to be retained by the Centre should be further pruned down. Having revisited the said Lists, it is our view that the powers of the Federal Government thereunder should be further reduced in the following respects, viz
By submerging item 17 on the Exclusive Legislative List into item 10 on the Concurrent List relating to higher education
(ii) By moving item 19 on the Exclusive List to the Concurrent List, namely incorporation, regulation and winding-up of bodies corporate, other than co-operative societies, native authorities, local-government authorities and bodies corporate established directly by any law enacted by the legislature of a Region.
(iii) By moving item 20 on the Exclusive List to the Concurrent List, namely insurance other than insurance undertaken by the Government of a Region but including any insurance undertaken by the Government of a Region that extends beyond the limits of that Region.
(iv) By deleting item 25 on the Exclusive List relating to “mines and minerals, including oil fields, oil mining, geological surveys and national gas”, thereby making them residual matters, except with respect to ownership of land for purposes for an airport and the like.
(v) By deleting item 26 on the Exclusive List relating to museums and making it a concurrent matter.
(vi) By making police a matter on the Concurrent List, subject to the provisions of the Constitution establishing regional or state police.
(vii) By making judiciary a matter on the Concurrent List subject to the provisions of the Constitution relating thereto.
(v) Over-concentration in the Federal Government of power with respect to the disposition of the pool of money in the Federation Account
The 1999 Constitution, in section 162(1), establishes a pool of revenue belonging to all three levels of government, federal, state and local government, called the Federation Account, “into which shall be paid ALL revenues collected by the Government of the Federation, except the proceeds from the personal income tax of the personnel of the Armed Forces of the Federation, the Nigeria Police Force, the Ministry or department of government charged with responsibility for Foreign Affairs and the residents of the Federal Capital Territory, Abuja”.
Section 162 of the 1999 Constitution, with its ten subsections, is a negation of true federalism because of the undue preponderance of power vested in the Central Government with respect to the control of the money in the Federation Account. True federalism is negated by the undue preponderance of power given to the Federal Government to regulate or control the disposition of the common pool of revenue in the Federation Account, particularly as regards (a) the custody of the common pool of revenue, with the power of physical control and physical disbursement implied by custody; and (b) the power given to the Federal Government to prescribe the terms and manner of sharing the common pool of money among the federal, state and local governments.
Custody of the common pool of money
Custody of the common pool of revenue by the federal government, (with the power of physical control and physical disbursement implied by custody) flows from the provision of section 162(1) that “the Federation shall maintain a special account to be called the Federation Account”. The word “maintain” in section 162(1) implies custody, possession, and the making of payments or disbursements of money in the Account in amounts authorised by law. But it does not imply that the federal government is the owner of the money in the Account, with power to make payments from it to the state and local governments as recipients of its largesse, which is the notion underlying President Olusegun Obasanjo’s Monitoring of Revenue Allocation to Local Government Act 2005 (commonly referred to as the Monitoring Act). Far from the federal government being the owner, the money in the Federation Account belongs in common to it, the states and local governments.
The statement above accords with what obtains in actual practice. Every month officials of the state governments, including quite often the state Governor himself, go, cap-in-hand, as it were, to Abuja for their share of the money in the Federation Account disbursed or paid out to them by officials of the federal government as paymaster. The hassle of getting payment keeps them in Abuja for days on end, and is a negation of true federalism; it simply caricatures true federalism.
Power given to the National Assembly under section 162(3) to prescribe the terms and manner of sharing the common pool of money
The power given to the Federal Government under section 162(3) of the Constitution, to prescribe the terms and manner of sharing the money in the Federation Account among the federal, state and local governments is a somewhat over-bearing power in a federal system.
The words, “terms and manner”, enable the National Assembly to determine by law the percentages of the money to go to each level of government. The effect of the power given to the federal government by section 162(3) is to place in its hands the control of 90 per cent of the total revenue sources of the states. By means of this power the National Assembly can reduce the state governments to the position of almost complete dependence on, or subordination to, the federal government, by making the allocation on terms that will allow to the states only a very small share of the revenue, so small as not to have any meaningful bearing on their financial needs as determined by the functions assigned to them by the Constitution. To take an extreme example, an allocation of, say 5 per cent, to the state and local governments, though it may be against the spirit of the provision, will be in accordance with its letters, and therefore a constitutionally valid exercise of the National Assembly’s unqualified discretion to prescribe the proportion or percentage to go to the state and local governments.
“It is not of course being suggested that there is any real likelihood of the National Assembly, in the exercise of this power, ever disregarding the needs and legitimate claims of state and local governments in the way supposed in the example above. Yet the possibility that it may do so remains, with its undermining effect on true federalism.
It is our view that section 162, with its ten sub sections, should be expunged from any new Constitution and be replaced by new provisions that conform with the requirements of true federalism.
(vi) Re-distribution of powers by the Constitution, not devolution of powers by the Central Government
“Among the misconceptions surrounding the national discourse on Re-structuring is the error that Re-structuring involves, inter alia, devolution of powers by the Central Government to the federating units. The term devolution of powers is appropriate only in a unitary system; it is a process whereby the Central Government delegates or transfers certain powers to subordinate units of government in the country, it is not appropriate in a federal system. Re-structuring in a federal system relates to the redistribution of powers by the Constitution among the constituent units of the federal system i.e. the Centre and the federating units, each being co-ordinate with, not subordinate to, the other.
On resource control and fiscal federakism, the leaders said the provision in section 162(2) proviso that “the principle of derivation shall be constantly reflected in any approved formula as being not less than thirteen per cent of the revenue accruing to the Federation Account directly from any natural resources” runs counter to the principle of fiscal federalism.
Keeping aside for a moment the interpretative problem raised by this not-too-clearly-worded proviso, the provision is the source of much of the agitation about resource control. The effect of the provision is to leave it to the Federal Government to determine in its discretion what the allocation based on derivation should be, so long as it is not less than 13 per cent, which seems to negate or to run counter to the principle of fiscal federalism.
Fiscal federalism requires that “mines and minerals including oil fields, oil mining, geological surveys and natural gas” should be a residual matter within the exclusive competence of the Regions or States. We have therefore expunged them from the Exclusive Legislative List and make them a residual matter in accordance with the requirements of fiscal federalism.
4. RE-STRUCTURING THE TERRITORIAL STRUCTURES OF THE NIGERIAN FEDERAL SYSTEM
The issue here is whether the powers to be taken away from the Centre should be given to the present 36 States or to bigger territorial structures based on regions or zones. Six or eight are proposed. We opt for eight, namely North West, North Central, North East, South West, South East, South South, Middle Belt, (comprising the present States of Kwara, Kogi and Benue) and Mid-Western Zone (comprising Edo and Delta states).
A structure based on the existing 36 States raises the question of the viability of the 36 States for this purpose. Viability in this context should not be viewed entirely in terms of economics. It should also be considered in relation to the issues mentioned above – the issues of a separate constitution, a separate police force, a separate machinery to organize and conduct elections for the political functionaries of the State.
A structure based on regions or zones is posited as bestowing greater advantages. Chief Emeka Anyaoku has under-scored the advantages of re-structuring the Federation into six zones by comparing what obtains today with what used to be under the three (later four) Regions structure of the past. In an Address at the University of Ibadan, titled Nigeria : In urgent need of true Federalism, he said:
“It is an incontrovertible fact that Nigeria was making more progress in national development in the early years of its independence when it practiced a truer federalism with four regions as federating units that had substantial powers devolved to them from the centre. Those were the days of significant exports of groundnuts, tin ore, and very high quality leather (marketed abroad as Moroccan leather) from the Northern region; of cocoa from the Western region; of rubber and timber from the Mid-West region; and of palm produce and coal from the Eastern region of Nigeria. They were also the days of healthy competition between the regions with the regional Premiers – Sir Ahmadu Bello in the North, Chief Obafemi Awolowo in the West, Dr Michael Okpara in the East, and Chief Dennis Osadebey in the Mid-west embarking on, and delivering manifest socio-economic projects. (Published in The Guardian of 2 February, 2016)
The six or eight zones structure envisages that the existing 36 states will be retained as governmental units. The crucial issue would remain, however, that of the relation of the present 36 states to the central Government. The relation would depend upon whether the states are to be constituted in, and derive their powers from, a separate zonal constitution or from the federal one. On the whole, it would be neater and more appropriate that they be constituted in separate zonal constitutions as suggested by Dr. Ekwueme, with the result that the creation of additional states will be a zonal affair, and cease to be a bedeviling issue at the national level. The national constitution will simply define and delimit the powers of the Federal Government, apart of course from provisions relating to citizenship, bill of rights, fundamental objectives and directive principles of state policy, the organs and agencies of the federal government. As was the case in 1960 and 1963, the regional or zonal constitutions would derive their status and authority as a supreme, overriding law from a stipulation to that effect in the national constitution, and must not be subject to alteration by the regional legislatures alone, without the concurrence of the National Assembly.
Again, as in 1960 and 1963, the provisions in the regional (zonal) constitutions relating to the state governments, their organs and powers , should be more or less uniform, and should be agreed to at a national conference. In this way, the states would have been adequately guaranteed and protected by the Central Government.
Considering that they too will be instituting a federal arrangement, the separate regional (zonal) constitutions should follow the pattern of the 1979 and 1999 constitutions rather than that of the federal constitutions of 1960 and 1963. They should contain provisions relating to the division of powers between the regional and state governments, the establishment of their organs, agencies and instrumentalities, the allocation of revenue between them, etc. According to Dr. Ekwueme, “the powers of the regions will be drawn partly from the powers now exercised by the federal government and partly from the powers now exercised by the state government”. The details of power sharing between the three tiers of government, Federal, Regional and State, will of course be a matter for agreement at a conference, but, broadly speaking, more powers should be lodged in the regions than in the centre or the states.
The leaders said for any Restructuring to be effective, it must require the enactment of a new Constitution and not amending the existing one.
The statement added, “There are three main reasons why re-structuring cannot effectively and meaningfully be done by amendment to the existing 1999 Constitution, but imperatively requires a new Constitution adopted by the people at a Referendum. (It is disquieting that the National Assembly is still regaling us with talks about constitution amendment, thus making itself part of the problem standing in the way of Re-structuring.)
“First, the 1999 Constitution is not a democratic Constitution. Indeed, it is a Constitution only in a loose sense of the word, but not in the strict, generally accepted sense of “an original act of the people” by which a state and its government are constituted. The 1999 Constitution was not made by the people either through a referendum or through a constituent assembly specially elected for the purpose and specifically mandated in that behalf or both. It was made instead by the Federal Military Government (FMG) by way of a schedule to a Decree, Decree 24 of 1999. It was a sheer imposition on the people. It was therefore a palpable lie for it to have invoked the name of the people in a document in the making of which they had no hand at all, as the Constitution did in its preamble : “We the People of the Federal Republic of Nigeria….. Do hereby make, enact and give to ourselves the following Constitution”.
“Second, the fact that the Constitution (1999) was not made by the people constitutes a flaw in it that cannot be cured. Nothing can change its character as a Constitution made, not by the people, but by the FMG and simply imposed on the people by that Government. Thus, even if all the proposals to be contained in a new Constitution for Nigeria were to be integrated into it (i.e. 1999 Constitution), it would still remain what it is, a constitution made by the FMG, and would still not meet the desire and demand of Nigerians for a new Constitution made by themselves and for themselves, and deriving its authority, as the supreme law of the land, directly from the people by means of a referendum. In other words, the 1999 Constitution can never become a democratic or a Peoples Constitution by integrating into it all the decisions and outcomes of the deliberations by the people at a national convention or constituent assembly. Integrating the decisions of the 2014 National Conference into the 1999 Constitution is like putting new wine into an old, cracked bottle contaminated by dead decomposing things inside it, the effect of which would be to emasculate our aspirations for rebirth, greatness and unity. This is thus a further reason why we need a new Constitution, viz to give force of law to decisions of the 2014 National Conference.
“It follows that the issue before us is not about what a constitution contains, about its contents, but rather about whether it is made through a democratic process and whether therefore it derives its authority, as the supreme law of the land, directly from the people. The distinction between the contents of a constitution and the source of its authority as the supreme law of the land is a fundamental one.
“Third, the 1999 Constitution has become largely, if not thoroughly, discredited. It commands or enjoys little respect and obedience among Nigerians. It has been deprived of much authority by manifold acts of abuse, perversion, desecration and even subversion perpetrated with impunity. Acts of flagrant violation of its provisions are legion, as when, for example, a panel investigating allegation of misconduct against Governor Dariye of Plateau under section 188(5) of the Constitution said, in refusing to obey an order of the High Court, that no court could stop it carrying out the investigation, or when six members in a House of Assembly of twenty-four members, with the backing of the federal might, took it upon themselves, in flagrant violation of the Constitution, to impeach and remove a Governor elected by the entire people of the State. If and when this attitude of disrespect for the Constitution percolates down the body of the entire society, as is noticeably happening already, then, a situation of incipient anarchy would have been created.
“The tragic result of these violations of the Constitution perpetrated with brazen impunity is to prevent the Constitution from acquiring that aura of sacrosanctity that enables a constitution to command or enjoy respect, obedience and longevity. The 1999 Constitution never enkindled in the people the spirit needed for the growth of an attitude towards it as something sacrosanct. A constitution cannot be adequately sanctioned by organised force alone. More important is the sanction of tradition that regards the constitution as something inviolable, something so fundamental in the life of the nation that respect for it should be regarded as almost a kind of religion, and any violation of it as a sacrilege. What this means is that the constitution should be treated as above the game of politics, and should not be tampered with in order to enhance the political fortunes of the rulers or to satisfy their whims and caprices. In short, a constitution should command and enjoy sacrosanctity. It is no blasphemy to say this, since the Constitution of the United States does in fact enjoy something of that status. Among Americans it is worshipped and venerated almost as fervently as a religion, no doubt with occasional abuses for partisan advantage. That is part of the explanation for its longevity. It has now endured for more than 220 years, the longest surviving constitution in the world, and its continued endurance in perpetuity seems pretty well assured.
“I think the way forward for us in Nigeria is to make a new beginning under a new constitution made by the people and constituting therefore a new political order. In the words of the Daily Independent Editorial of Tuesday February 11, 2014, Nigerians imperatively need to “make a new beginning” under a new Constitution; they need to create “a new order that will liberate the nation from the apron-strings of wheeler-dealers, and chart a road map to its destiny”.
The statement continued: “Role of a new Constitution in Re-structuring
“The role of a new Constitution in Restructuring is, among other things –
To establish new territorial structures of government i.e. six or eight zones or regions, each with its own separate zonal or regional Constitution;
To redistribute powers among the federal government and the federating units;
“To establish other structures as may be required, such as other apparatuses of government, like regional or state police force, independent electoral body for each zone or region.
Making a new Constitution
“Yet another misconception surrounding the issue of Re-structuring is the view asserted by the National Assembly that the 1999 Constitution can only be altered or amended (sections 8 and 9) but cannot be completely abolished and replaced by a new Constitution. This view is erroneous, because it fails to take account of the fact that the 1999 Constitution can be abolished simply by the repeal of Decree 24 of 1999 to which it is annexed as a Schedule. (The Decree is an existing law under section 315 of the 1999 Constitution and, like all existing laws within federal competence, can be repealed by the National Assembly). Upon the repeal of the Decree, the 1999 Constitution completely disappears from existence.
“The making of a new Constitution requires, as the most important step, its approval by the people at a referendum by virtue of a power inherent in them as a sovereign people. Being inherent in the people as a sovereign people, the power to approve a new Constitution at a referendum does not need to be conferred on them by law enacted by the National Assembly.
“A draft of the new Constitution to be submitted to the people for approval at a Referendum should be prepared by a Committee composed of persons with requisite knowledge, experience and integrity, including leading members of the 2014 National Conference, and should be subjected to debate and approval by the Committee. Approval by the people at a Referendum, given by a majority of Yes votes at the Referendum, is the act that bestows validity and legitimacy on the new Constitution. Discussion of the draft Constitution by a Constituent Assembly set up by law and specially elected for the purpose, may, before its submission to the people for approval at a Referendum, additionally be used to reinforce the process and to impart more thoroughness to it.
“From what is said above, the National Assembly has a role to play in the process of making a new Constitution. Just as in the case of election to elective public offices or the election of Constituent Assembly members, so also the holding of a referendum to approve a new Constitution must be authorised and regulated by law enacted by the National Assembly. In a polity governed by law, people cannot just troop out to vote in a referendum to approve a new Constitution, without a law authorizing and regulating the voting. But that does not affect or detract from the inherent power of the people as a sovereign people to make or approve a constitution for themselves. It must be emphasized that only the form and manner and procedure for voting in a referendum is what requires to be authorised and regulated by law enacted by the National Assembly, but not the power to make or approve a new constitution itself which, as earlier stated, inheres in them as a sovereign people.
“The approval of a new Constitution at a referendum and the abolition of the 1999 Constitution must be synchronized; in other words, the two must be made to take effect at one and the same time, i.e. contemporaneously or simultaneously, in order to avoid a vacuum.
“Again, it needs to be emphasized that the National Assembly cannot be sidelined completely in the process of making a new Constitution, except of course where the process is by means of a revolution. That was the error of the 2014 National Conference which was not established or authorised by law and which therefore lacked power to take legally binding decisions or to implement or enforce them.”