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| Barr. Okoye |
By Festus Okoye, Source: Daily Trust
Other than the issue of the nomenclature of the proposed National Conference or Dialogue, the next most important and contentious issue is the Agenda for the proposed National Conference or Dialogue.
The issue of the Agenda for the National Conference or Dialogue would have been less contentious and more simplified if the Federal Government had done its homework and articulated its own position before constituting the Advisory Committee on National Conference or Dialogue. The fact that the proposed Conference or Dialogue has no agenda and name shows that the government did not think through the issues before putting it out to the Nigerian people.
It would have been better for the Federal Government to be clear on what it wants. Does it want a Sovereign National Conference with full powers and autonomy? Does it want a Constitutional Conference or a National Conference with limited powers and autonomy? Or does the government want a National Dialogue/Consultation that will serve as a talk shop for people to understand each other and some of the challenges confronting the nation?
The settlement of the type of Conference or Dialogue the government wants will also determine the Agenda for the Conference. So, the Agenda being proposed will imagine the different scenarios and possibilities and assume that there is an agreement that the Nigerian people want to discuss. In other words, there is no agreement on what should be on the Agenda and what should be excluded. It is therefore the responsibility of those who know to advice on the best approach that is rational and pragmatic.
The take off point is that there is a consensus that Nigeria is a sovereign State. This presupposes that the issue of the sovereignty of the country is not in doubt. That being the case, it is not contestable that there cannot be two sovereigns in a sovereign State. It is also not in dispute that the Constitution of the Federal Republic of Nigeria, 1999(as amended) is a product of transition from military rule to civilian rule and that the said Constitution with all its imperfections has served the Nigerian people since 1999. Therefore, for Nigeria to have a Sovereign National Conference, one sovereign must give way. This is because as Professor Nwabueze posited in his book, Constitutional Democracy in Africa, Volume 5:
"Democratic transition by way of a Sovereign National Conference is a coup'etat, just like military takeover of the state, and coups involve a break in governmental legitimacy. That the form of government overthrown by means of a Sovereign National Conference itself lacks legitimacy makes no difference. Two wrongs do not and cannot make a right; an illegal act does not cease to be such because its purpose is to put right another illegal act; that would only compound matters"
Although section 14(2) (a) of the Constitution locates sovereignty in the people of Nigeria, such is circumscribed by the Constitution itself. Section 14(2) (a) of the Constitution provides that:
Sovereignty belongs to the people of Nigeria from whom government through this Constitution derives all its powers and authority
It is my understanding that legal sovereignty is vested in the State on behalf of the people. The people is not the sovereign, the government is the sovereign. I agree on the reality of popular sovereignty within the limits consistent with the practice of government under which sovereignty is held by the government on behalf of the people, and is exercised by it by virtue of its responsibility to govern. This is the reality of the Constitution of the Federal Republic of Nigeria. It is this reality that locates the legislative powers of the Federal Republic of Nigeria in the National Assembly consisting of a Senate and a House of Representatives. It is also this same reality that locates the mode of altering the Constitution of the Federal Republic of Nigeria in section 9 of the same Constitution. It is also this same reality that is reinforced in section 1(1) of the Constitution wherein it is stated that the Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria. To this end, section 1(2) of the same Constitution also provides that the Federal Republic of Nigeria shall not be governed, nor shall any person or group of persons take control of the government of Nigeria or any part thereof, except in accordance with the provisions of the Constitution.
The implication of Section 1(1) and Section 1(2) of the Constitution is that anybody advocating for a Sovereign National Conference must first overthrow or weaken considerably the existing legal order before such a conference can materialize. One thing we must also bear in mind is that Sovereign National Conference achieved modest success in some countries and precipitated crisis in other countries and it did not lay the foundation for stable political governance in any of the countries involved.
The next question is whether all issues should be put on the table for the proposed National Conference or National Dialogue? It is my considered opinion that there are agreed ingredients of the Nigerian nation and we must be conscious of the lessons of history and not jump into the bandwagon of those claiming that every conceivable issue should be put on the table. For me, there are issues that are not negotiable and cannot be discussed and even if discussed can only be discussed in the context of strengthening them and not by way of altering them.
The first issue is the issue of the Supremacy of the Constitution of the Federal Republic of Nigeria, 1999(amended). For good or for bad, section 1(1) of the Constitution makes it supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria. Section 1(2) of the same Constitution also provides that the Federal Republic of Nigeria shall not be governed, nor shall any person or group of persons take control of the government of Nigeria or any part thereof, except in accordance with the provisions of the Constitution.
The second issue relates to the indivisibility and indissolubility of the Federal Republic of Nigeria. The moment we accept the limitations of the Conference by whatever name called, it will be clear that it is possible for Nigerians to discuss anything under the sun in such a conference bearing in mind some of the agreed ingredients of the Nigerian federation. This is consistent with section 39 of the Constitution of the Federal Republic of Nigeria that guarantees the right to freedom of expression and the press. This means that the Conference can discuss and recommend to the National Assembly the strengthening of section 2(1) of the Constitution of the Federal Republic of Nigeria which states that Nigeria is one indivisible and indissoluble sovereign state to be known by the name of the Federal Republic of Nigeria.
However, if we go to the Conference or Dialogue to negotiate on the division or dissolution of the Nigeria, the Conference or Dialogue will end in confusion and may ignite a conflagration of immense proportions.
We must as a people and as a nation agree that we should only discuss the strengthening of the bond of unity and not join forces of disintegration by discussing the dissolution of the country.
It is also my contention that there are issues that the National Assembly can conveniently discuss and based on that alter the Constitution. Some of these issues are already receiving attention in the National Assembly. We must therefore submit weighty issues to the Conference and leave the National Assembly to conclude its Constitutional Amendment Process. The National Assembly should be left to discuss issues like immunity clause, legal challenge to pre-election matters, issues concerning the Judiciary; the issue of tenure of government; gender equality and justifiability of Chapter 11 of the Constitution
The National Conference of Dialogue should discuss the following issues among other issues that may be put in the Agenda:
1. The place of Local Governments in the structure of Government. Nigerians must agree whether the Local Governments should be constitutionally strengthened and or removed completely from the Constitution. In which cases States should be allowed to determine what they want.
2. Nigerians must discuss and agree on what citizenship means and the incidents of citizenship. This will address the issue of indigene/settler challenge in most parts of Nigeria.
3. Since the issue of State or Federal Police has become a recurring decimal in our national life, the Nigerian people should be given the opportunity to discuss the type of Police Force they want.
4. The issue of Land Use and Allocation should be discussed. This is because it appears that the present Land Tenure System is being used and has been used to dispossess the ordinary people of their lands rather than creating a uniform Land Tenure System for Nigeria.
5. The fate of States Independent Electoral Commissions should be discussed and this should be tied to the fate and existence of the various Local Governments.
6. The Structure of the Federation should be discussed. Let debates be generated as to whether the challenge of Nigeria is the structure of the Federation or the issue of good governance.
7. The Devolution of Powers from the Federal Government to the State Governments should be part of the agenda. This is because, some people believe that the Federal government is too powerful and uses its immense powers to oppress the States. They therefore want powers to be devolved to the States. This should also be discussed in relation to the Local Governments or Administrative Units.
8. The issue of Fiscal Federalism should be put on the table for discussion and this should be synchronized with the question of Resource Control and Revenue Allocation.
9. The recognition of geopolitical zones as entities should be put on the table for discussion. This should also include whether some States should be merged. This should also be tied with the issue of State creation. There is the need to clear the confusion.
10. The issue of Federal Character Principle should be discussed. Some people believe that the issue of Federal Character should be renegotiated. Some also believe that it should have a time limitation. Some believe that it should be extended to women and persons with disability.
11. The issue of a Role for Traditional Rulers has been on the agenda for some time now. I believe that the Nigerian people should discuss it and take a position.
12. The issue of poverty and youth unemployment should also be on the agenda for National Discourse. It is important to know why poverty is still growing at an alarming rate irrespective of the abundant resources in Nigeria
13. The Nigerian people should discuss the issue of Internal Security Challenges and the Armed Forces of Nigeria.
These issues are not exhaustive but no nation can discuss all its challenges in one conference.
Barrister Festus Okoye is Executive Director, Human Rights Monitor
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