Ise-Oluwa Ige
10 October 2008
analysis
On June 18, 1999, leading lights in the legal profession, including the doyen of the Nigerian Bar, the late Chief F.R.A. Williams (SAN), gathered in Lagos to dissect an important document called "a Constitution of the Federal Republic of Nigeria, 1999".
That was less than a month after the constitution came into operation. The venue was Excellence Hotels, located in Ikeja, the heart of Lagos.
The event, which was organized by the Ikeja branch of the Nigerian Bar Association (NBA), was to provide a forum for Nigerians to understand the 1999 constitution. The forum was also to decide whether or not it is proper for Nigerians, whom the 1999 constitution was meant to govern, should submit their lives to its control.
Late Chief F.R.A. Williams (SAN), fondly called "Timi the Law", a foremost constitutional lawyer who had played a prominent role in the constitutional development of Nigeria, in terms of constitution making and interpretation, was the first to open discussion on the document while deliver-ing his keynote address at the occasion.
When he started his critique of the 1999 constitution, there was graveyard silence in the hall as everybody wanted to hear him endorse or condemn the document.
Lifting the subject of discourse, he said: "the last speaker asks me to name the author of the 1999 constitution. From my early days as a student, I have been taught to classify a document which tells a lie about itself as a forged document. When I searched for the author, I found that the introduction to the 1999 constitution - the preamble - says: "We the people of the Federal Republic of Nigeria do hereby make, enact and give to ourselves the following constitution".
"This is what the constitution says about itself. I will classify it as I have always been taught to classify a document that tells a lie about itself. You all know that it is a lie." He paused. The pin-drop silence in the hall gave way for, first, an uproar, and later, a din of applause.
After dismissing the entire document as a fraud, he went into its content, which he took time to tear into shreds, saying "the price of liberty is eternal vigilance. We must look at everything done by our government, whether past or present, look at them critically and voice out our assent or dissent without fear or favour.
THE 1999 CONSTITUTION, A FRAUD
By implication, Chief F.R.A. Williams (SAN) said the then Head of State and his Provisional Ruling Council, which came to power by the force of arms, gave Nigerians the constitution and not what the preamble claimed. He implied in his comment that the 1999 constitution was a fraud, a forged document. Ever since, every occasion for discussion of constitutional issue had turned a convenient forum for bashing of the 1999 constitution.
Vanguard Law and Human Rights recalls that Chief Williams (SAN) did not just stop there, he was, in fact, the first to make a deliberate effort at re-making the constitu-tion. This, he did, by causing an organiza-tion called 'The Patriot' to be formed which aim was to advocate for the emer-gence of a genuine federal constitution. Timi the Law was the Chairman of The Patriot, a group of distinguished Nigerians, until he transited.
LAWYERS TRIED TO INVALIDATE 1999 CONSTITUTION
After his death, some individuals, mostly lawyers, also made some attempts at remak-ing of the constitution.
Specifically, they explored legal options to either expunge certain sections of the 1999 constitution, which they felt were bad for governance, or invalidate the entire consti-tution. For instance, in May 2004, ten lawyers came before a Federal High Court in Abuja with a constitutional suit to invalidate the 1999 consti-tution on the grounds that the constitution was not made by Nigerians and, therefore, illegitimate.
Their contention was that it was only the people, all the world over, that could draft constitution for themselves through a uniformed process and not the government. They argued that it was an error for any government to give people a constitution.
They sued the Federation Attorney-General and all the 36 states of the Federa-tion. In the suit, they formulated a couple of fundamental constitutional questions for the court to answer and requested for a number of reliefs should the questions be resolved in their favour.
In the main, they wanted a declaratory judgment that Decree 24, 1999, otherwise called the Constitution of the Federal Repu-blic of Nigeria 1999, could not be deemed to be a Constitution of the people of Nigeria until it was freely initiated, formed, written, published or enacted by the people in its original character without the influence, effect or tampering of a military dictatorship.
They also asked for a declaratory judgment that no group of Nigerians, whether military or civilians, could lawfully assume general authority without delegation from the people in a free exercise of will, to initiate, form, write, publish or enact a Constitution for other Nigerians bound by common and equal citizenship in the nation and thereafter term it as "Constitution" for Nigeria with binding power among other reliefs.
Although the then administration of President Olusegun Obasanjo itself realized the shortcomings of the document, it, however, came in stout defence of it and attacked the suit from its point of weakness. The then Federation Attorney-General, Chief Akinlolu Olujinmi (SAN), first challenged the legal right of the ten lawyers to institute the action. Anambra and Rivers States also joined in frustrating the suit. Government said those who prepared the Constitution were no longer in office.
It also told the court that the plaintiffs had not shown that the manner in which the constitution was drafted had affected their legal rights. Government argued that the case, as was constituted, did not disclose any reasonable cause of action.
Anambra State, on its own, argued that the case challenging the legitimacy of the 1999 constitution was capable of throwing the country into anarchy. It said that Nigerians did not send the plaintiffs to go and challenge the constitution on their behalf and that all laws made by the National Assembly since May 29, 1999 derived their validity from the 1999 constitution, which the plaintiffs sought to invalidate. He said that the suit was an invitation to chaos.
"The end result would be 'to your tent o Israel'. We would all pack our bags and baggage, including the court, and go," counsel to Anambra had told the court.
Anambra consequently asked the court to strike it out because the suit did not contain any trial issues. Rivers State, in its own view, contended that the 1999 constitution was Decree 24 and that it was law.
JUDGE REFUSES TO VOID 1999 CONSTITUTION
After hearing out parties in the case, the High Court turned down the request to inva-lidate the 1999 constitution. Presiding judge in the case, Justice Stephen Jonah Adah, said the lawyers had no locus standi to institute the action and that he had no powers to invalidate a constitution which created the court he was presiding over. He further held that there was no proof that they got the express permission of Nigerians to challenge the validity of the 1999 constitution before the court.
That was the end of the case.
LAWYER ASKS COURT TO EXPUNGE SECTION 308 FROM 1999 CONSTITUTION
Then came a Lagos-based lawyer, Chief Andrew Oru, before the same court seeking it to expunge Section 308, which confers immunity on 74 political office holders in the country. He said the section makes gover-nors, their deputies, Mr President and his vice to be above the law. He also argued that the provision allows political officer holders to steal as much state funds as they want without any legal right by the governed to challenge them. His plea to the court to issue an order expunging the provision also failed.
GOVT. MOVES TO REVIEW 1999 CONSTITUTION
Granted that the reliefs sought by the two groups of lawyers that came to court were strange and academic, the government itself realized the inevitability of re-making the 1999 constitution and had made efforts to amend it. In response to various agitations, former President Obasanjo tried to amend the constitution but failed because many Nigerians felt that he wanted to use the constitutional review to elongate his tenure.
President Yar'Adua has taken over this burden and something seems to be in the offing. But, as sincere as Yar'Adua's attempt seems, leaders of various ethnic self-determination groups in Nigeria including an elder-statesman, Chief Anthony Eremosele Enahoro, have dismissed his move as sheer waste of time.
They said there is nothing to review in the constitution, truth is that the constitution is not act of the people of Nigeria, as claimed in page A869 of the constitution of the Federal Republic of Nigeria (Promulgation) Decree 1999 by virtue of Sections 1 and 2 of Decree No 24, 1999. According to them, the preamble "We the people of Nigeria...do hereby make, enact and give to ourselves the following constitution" is a lie because it is an act of the then Head of State, Gen Abdulsalami Abubakar (rtd), and his Provisional Ruling Council (PRC). That the only option is to make a new constitution or adopt a draft constitution of the Federal Republic of Nigeria already proposed by Peoples National Conference (PRONACO).
Enahoro, alongside four others, is presently before the Abuja Federal High Court seeking a judicial intervention to achieve their goal. According to their lead counsel, Mr Tony Nnadi, he said his clients were aware that some lawyers had made efforts in the past to invalidate the 1999 constitution, but his clients do not share that procedure because there would be anarchy in the country if their relief was granted since there was no prayer in their suit to take care of how the country should be governed upon invalidation of the constitution.
He said that although they are also going for a kill of the document, he, nevertheless, said they were more methodical in their approach. Apart from Enahoro, other opinion moulders from different geo-political zones of the country, who stormed the High Court for judicial intervention, are Chief C.C. Onoh from the East, Bishop Bolanle Gbonigi from the South, Yerima Usman Shettima from the North and Hajia Mujaheedat Dokubo Asari from the South-South.
Tony said that there is so much tension in the country because of the inadequacies of the constitution. For instance, he said the issue of true federalism was one that made a lot of people reject the 1999 constitution.
"Will you believe that some white journa-lists visited some of the militants in the creeks to find out why they were up in arms with investors in their region and were told that the main bone of contention was the 1999 constitution? These militants not only fingered the 1999 constitution as the main reason for the unrest in the region, they also brought out the draft constitution for the Federal Republic of Nigeria by PRONACO as what they want the government to adopt".
"In the proposed constitution, regions are allowed to control their resources but this 1999 constitution does not allow this. Inside the creek, they have this draft constitution. They said this is why they have been fighting. So what I am saying is that my clients believe that Nigeria is illegitimately constituted for now and they have put forward the Draft Peoples Constitution as what the people subscribe to. They said the dubious 1999 constitution was made in complete negation of the rights of the federating peoples of Nigeria to self-determination as there was never a meeting between them to agree on a constitution".
"They said making a constitution is a sovereign act of the people, the same way shareholders of a company exclusively decide their memorandum and articles of association. They are contending that Government, which is merely a management team, cannot usurp the authority of the owners\shareholders - the people". Those who seek to sustain that fraud by an 'amendment' are either ignorant, dishonest or both.
"They said South Africa crossed a similar hurdle when it had to wholly discard its apartheid constitution to make way for a constitution made by the people in exercise of their sovereign rights to self determina-tion. They concluded by saying the 1999 constitution is worse than the then apartheid constitution," he said.
Tony said that his clients are, however, before the High Court with a peculiar originating summons which seeks to declare that the 1999 constitution is not act of the people of Nigeria as portrayed.
"My clients are not asking the court to invalidate the 1999 constitution. All they want is an order of the court setting aside the preamble to the 1999 constitution for being untrue and a gross misrepresentation of the facts of its true origin. They also want an order that the draft peoples constitution, proposed by the Peoples National Conference, be put to a 'Yes or No' referendum forthwith with a view to adopting same as Nigeria's new constitution".
"In the alternative, they want an order that the Draft Peoples Constitution be put side by side with the 1999 constitution to a referendum for Nigerians to choose. And in the event the people of Nigeria reject the 1999 constitution the same way they have been rejecting it from the beginning, they want an order specifying a time frame not exceeding 18 months for the termination of the operation of the 1999 constitution".
"They are of the view that instead of sponsoring anarchy by asking for invalidation of the constitution, we want the court to issue an order mandating the adoption of their proposed peoples constitution or come up with another that will be acceptable to all federating peoples of Nigeria," he said.
Without doubt, the reliefs sought by Enahoro and others are peculiar and fanciful in the way they were couched, but the question is: how far can they go?Although the government had, more than a year ago, filed a preliminary objection to the hearing of the case the same way it did in the two cases cited in this report, only time will tell if these respected opinion moulders will make a difference.
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