Opinion piece by His Majesty on the call for a sovereign constitutional conference

On August 30, 2013

SOVERIGNITY: THE USURPING OF A STATUTORY PROPERTY

One argument, which incumbent governments and their advisers employ against the demand for a sovereign national conference, is that two sovereigns cannot coexist in one system.

What they imply here is that the incumbent government is a sovereign and convoking a sovereign national conference amounts to setting up another sovereign body.

This will make two sovereigns, and we cannot have two sovereigns in the same system. But is the present/incumbent government a sovereign one?
The answer is of course “NO”.

Any argument that suggests the contrary is arrogant, self –serving and misleading. 
In 1999, the Nigerian People, who remain always the authentic sovereign in this land, gave the Obasanjo government a restricted mandate to govern this country.

That mandate was restricted in three senses.
One, the mandate to govern was restricted to last for four years. Any extension beyond that four-year period required a fresh mandate.
Two, while the mandate lasted, the government was bound by the constitution which is the fundamental law of the land as distinct from the general ordinary laws which the government and its national Assembly are allowed to make. Action outside this constitution or fundamental law is a violation of the mandate.

Three, the Obasanjo government was supposed to operate on the basis of the manifesto that the ruling party presented to the Nigerian people during the electioneering campaign.

Usually, the manifesto of a political party forms part of the party’s mandate when in power. Unfortunately, for us in this country, parties may even get elected without any articulated manifesto.

In essence then, the Obasanjo government and its national Assembly were in 1999 given a restricted mandate to govern, making ordinary laws in the process as was necessary.
The mandate was renewed in 2003, again with the same restrictions. This same logic was re–enacted with the governments elected in 2007, and 2011.

The first point to be made loud and clear here is that a government with a restricted mandate cannot be sovereign.
Sovereignty lies with those who created the government, gave it the mandate, and placed restrictions on that mandate. It is the Nigerian people that gave the mandate, and to them alone belongs the sovereignty in the system.

Perhaps, a military government that came to power by force can claim to be sovereign in the sense that it created itself, and remains answerable only to itself. But a government elected by the people and supposedly accountable to the people cannot claim to be sovereign.

To claim that is to deny its history, its origin, and its obligation. This claim is in fact an act of rebellion against the sovereign will of the people, and should attract automatic sanctions by the electorate, which is the operational agency of the sovereign. Such a sanction is required to rebuke the immodesty in a creature that denies its creator or denies that it was ever created.

May be we need to remind the incumbent government and the national assembly that recall and impeachment procedures are instruments to remind them that they can not be sovereign.

The second point that needs to be made is that governments are given mandates to govern based on the constitution and existing and prospective ordinary laws.

In other words, government may make whatever ordinary laws necessary for good governance, but they are not supposed to tamper with the constitution, which is the fundamental law of the land.

The kind of comprehensive review of the constitution, which the present government is embarking on, was never part of its political mandate.

A government that begins to adjust the very constitution that is supposed to limit and restrain it would very soon become an unlimited government, and this is the very definition of tyranny.

The propensity to arbitrariness is a second nature to governments, and the only way of getting them to exercise power with restraint is to put that very constitution that guides and limits their conduct out of their reach.

Therefore, an incumbent government should not be allowed monopoly control of the constitution review process. The making of the constitution or its comprehensive review is an activity that belongs only to the sovereign.

The power of constitution amendment allowed for the National Assembly is in respect of changing (adding or removing) a few clauses in the constitution. It cannot be the intention of the framers of the constitution that the National Assembly be allowed power of comprehensive review of the constitution established to limit it.

It is elementary fact of politics that those who wield power tend to use it to protect and promote their interests.

We have seen evidence of this fact when the military gives us a constitution. We also saw the same thing when the State Governors of Obasanjo’s first term used their control of the State Houses of Assembly and the Conference of Speakers to throw out the constitutional proposal to limit Chief Executives to a one term.

If a constitution needs the kind of comprehensive review that the 1999 constitution is poised to suffer in the hands of the present government, then the nation would be better off setting up another body with a specific mandate to deliberate on a new constitution.

Constitutions are too important to be left to any incumbent government and its National Assembly whose political mandate is to make ordinary laws in furtherance of the day-to-day operations of governance.

Hence, it can be argued: section 9 of the 1999 constitution is flawed, because it defeats the sanctity of the spirit underpinning sovereignty as a concept!
The sovereign people who set up the present government with a mandate for general governance can also set up another body with a specific mandate to give us a new constitution or to comprehensively review the present constitution.

Neither the first body that is the incumbent government, nor the second, a Constituent Assembly or national conference can claim sovereignty because they are all products of mandates created by the one sovereign body, the Nigerian people.

It is therefore consistent with the unitary sovereignty of the Nigerian People to set up a National conference with a mandate to suggest ways of restructuring the country and presenting its deliberation to an elected Constituent Assembly to use it to draft a new constitution to be in turn submitted to be ratified in a referendum of the Nigerian people.

That constitution can be promulgated at the end of term of office of the present government. It will provide the new grind norm to guide the conduct of the next government.

The dubious theory of two sovereigns is all a camouflage for an evident lack of democratic commitment in our system. And the self-arrogation of sovereign status by the incumbent government and its national assembly is an attempt to legitimize a persisting dictatorial syndrome in our political system.

How can a Government and National Assembly, which derive their legitimacy from outside themselves, claim to be sovereign?

The national conference cannot be sovereign either because it will be subject to the Nigerian people, the only authentic sovereign in our system. But their decisions are not to be tampered with by the present government or its national assembly because the mandate of the conference is different from the mandate of the incumbent government.

The incumbent government and the national conference derive their mandates from the one sovereign, which are the Nigerian people.

There is no danger or even risk of having two sovereigns in the system. There is one undisputed sovereign, which are the Nigerian people. But this one sovereign can give out specific political mandates to other bodies in its system.

For instance, the mandate for general lawmaking and governance within the framework of the constitution goes to the incumbent government and national assembly, and another mandate for another political assignment (such as drafting a new constitution, or organizing a national conference to discuss meta issues of restructuring the state) goes to other bodies.
The confusion and trouble come when any of these bodies goes beyond itself and begins to arrogate to itself sovereign power or equate itself to the real sovereign.

For the avoidance of doubt, let me state here and clear that sovereignty cannot be alienated. No sovereign wants to give away its sovereign power. But it can give specific mandate for specified political assignment under appropriate restriction and sanction regimes built into its fundamental law.

Therefore neither in legal nor political theory can the present government and the national assembly legitimately claim sovereign status.

Finally, on the matter of who convokes the national conference, President Jonathan who is the only elected public officer with a nation-wide mandate to represent all of Nigeria can convoke the national conference on behalf of the people. But the president or his government or the national assembly cannot tamper with the conference report.

The conference report is to be passed on to an elected constituent assembly to be used as material for drafting a new constitution, which in turn is to be submitted to the Nigerian people in a referendum for final ratification as the new constitution.

In short, the national conference cannot be sovereign either because its report is still subject to ratification by the Nigerian people who are the real sovereign. But the president or the national assembly cannot tamper with the report of the conference either.

By the same logic the incumbent government and national assembly cannot be sovereign because the only sovereign in the land subject to the mandate and restrictions imposes them, which is the Nigerian People.

This means that neither the proposed National Conference nor an elected Constituent Assembly nor the incumbent Government nor its National Assembly can be sovereign.

They are all subject to the sovereignty of the Nigerian people. There is no other sovereign body.

Therefore, the risk of having two sovereigns does not exist.

I may be wrong in this matter; and I stand to be corrected.

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