27/02/2021
‘WE THE PEOPLE’ – AN ARGUMENT FOR THE RIGHT OF THE PEOPLES OF NIGERIA TO REFERENDUM
Joshua Omenga
The Nigerian State is an agglomeration of peoples of different ethnicities and cultures and religious affiliations. The constituent units that make up what is presently the Nigerian State were self-governing units prior to the British occupation of the vast area known today as Nigeria and the subsequent amalgamation of the units into a federating entity. The constituent units are bound together by the Constitution which is both the supreme law of the land and the source of all other laws in the land.
Section 14 of the 1999 Constitution of the Federal Republic of Nigeria as amended (hereinafter referred to as ‘the Constitution’), provides:
(1) The Federal Republic of Nigeria shall be a State based on the principles of democracy and social justice.
(2) It is hereby, accordingly, declared that:
(a) Sovereignty belongs to the people of Nigeria from whom government through this Constitution derives all its powers and authority;
(b) The security and welfare of the people shall be the primary purpose of government; and
(c) The participation by the people in their government shall be ensured in accordance with the provisions of this Constitution.
By the above-quoted section, the Constitution sets up the salient features of the government of Nigeria and its relationship with the peoples of Nigeria. This provision asserts that Nigeria is a State based on the principles of democracy. Also, by Section 2(1) of the Constitution, Nigeria shall be known by the name of ‘the Federal Republic of Nigeria’. The Nigerian State is therefore a republican state governed by the principles of democracy. The rights ensuing from this description of the Nigerian State can only be fully appreciated on analysis.
According to Black’s Law Dictionary, a republic is a ‘system of government in which the people hold sovereign power and elect representatives who exercise that power.’ Robert A. Dahl defined Republic as ‘a government which (a) derives all of its powers directly or indirectly from the great body of the people and (b) is administered by persons holding their office during pleasure, for a limited period, or during good behaviour.’
The term ‘republic’ derives from the Latin word res publica which means literally ‘public affair’ or ‘public matter’. The equivalent Greek term is Politeia. Aristotle used the term ‘politeia’ in his definition of democracy as ‘when the citizens at large govern for the public good’.
The Constitution cannot be more deliberate in recognising and referring to Nigeria as a republic, by which it means that the government of Nigeria belongs to the peoples of Nigeria. Furthermore, the Constitution recognises that ‘sovereignty belongs to the people.’ This, without more, is an imprimatur for the peoples of Nigeria to participate in the government of Nigeria – ‘directly or through their elected representatives.’
When therefore Section 14 of the Constitution declares the principle of the Nigerian State to rest on democracy, it does not only reiterate a fact but solidifies its own legitimacy. To undermine the potency of the declaration in this section in the guise of ‘non-justiciability’ is suicidal for the Constitution, as it would negate its preambular affirmation that the Constitution derives from the will of the people.
The will of the peoples of Nigeria is the source of the Constitution; the Constitution in turn is the source of all authorities within the Nigerian polity. The declaration by the Constitution that the government of Nigeria shall operate on democratic principle is merely an affirmation of the peoples’ will.
Democracy is defined in Black’s Law Dictionary as ‘government by the people, either directly or through representatives.’ Thus, democracy is aptly captured by Abraham Lincoln as ‘the government of the people by the people and for the people.’
The ideal form of democracy is the direct democracy in which all members of the society are involved in the affairs of the society – in raising issues, in deliberating upon issues raised and in proffering solutions to issues. Representative democracy emerged as a result of the unfeasibility of direct democracy in modern and complex societies. In his Presidential Constitution of Nigeria, Prof Ben Nwabueze captures the essence of representative democracy:
Democracy connotes self-government, that is to say, government conducted by the people as a collectivity and as individuals. The ‘self’ there refers not only to the people as a free and independent community but also to the attribute of personal participation by the several individuals comprising the community. Democracy is thus a form of government in which the highest premium is placed on the participation of the individual in the government.
The Nigerian State is structured in a way that the peoples of Nigeria periodically elect their representatives in both the legislative and the executive arms. Those elected to the legislative arms are entrusted with the responsibility to make laws for the good government of Nigeria while those elected to the executive positions are entrusted with the responsibility to take actions and implement policies.
It is not in contention that the peoples of Nigeria in electing their representatives in the legislative houses and in mandating the elected representatives through the Constitution to make laws for the good governance of Nigeria, the laws made by the members of the legislature may be said to be the will of the people whom the elected legislators represent and on whose authority by virtue of the Constitution they act. It is also not in contention that the peoples of Nigeria have conferred on their elected executives the power to implement the laws made by the National Assembly of Nigeria.
However, the authority of the members of the Nigerian legislature to make law is but mere delegation from the people. The extent of the power delegated on the legislature does not detract from its nature. The power granted by the peoples of Nigeria to the National Assembly of Nigeria to make laws is not unlimited. As a delegator reserves the power to define the extent of power delegated, the peoples of Nigeria also reserve the power to circumscribe the extent to which their elected representatives may exercise the powers of law making delegated on them. John Locke in his Second Treatise on Government very aptly describes the relationship of the people to the legislative powers of the state, thus:
The people alone can appoint the form of the common-wealth, which is by constituting the legislative, and appointing in whose hands that shall be… The power of the legislative, being derived from the people by a positive voluntary grant and institution, can be no other than what that positive grant conveyed, which being only to make laws, and not to make legislators, the legislative can have no power to transfer their authority of making laws, and place it in other hands.
Thus, whereas the legislative body in whom the people have authorised to make laws cannot abdicate law making to others, the people who authorised the legislature to make laws may define the limits of the power of the legislature, withdraw, reassign the power of legislation or exercise the power by themselves. It is the principle of delegation that the delegator may freely exercise powers he has already delegated, being at the hierarchy of authority.
Delegation of authority being the conferring of authority from the higher to the lower, the peoples of Nigeria who, by their votes and collective will expressed in the Constitution, conferred legislative power on the National Assembly of Nigeria, are higher in the hierarchy of law-making in Nigeria. Not for a moment can it therefore be supposed that the peoples of Nigeria cannot exercise the right of law-making for themselves by themselves, much less be restricted from so doing by the legislators authorised by the people. It is my submission that the peoples of Nigeria, without more, are entitled to exercise the right of legislation directly through any means of their choosing.
Moreover, not only are the peoples of Nigerian entitled to make laws for themselves directly, irrespective of the existence of duly authorised legislative body, they may in fact abrogate the powers of the legislative body, dissolve it, reconstitute it or do with the power of legislation howsoever they deem fit for their collective interest. The encompassment of the peoples’ power over their elected legislators is aptly summarised by Locke:
The legislative being only a fiduciary power to act for certain ends, there remains still in the people a supreme power to remove or alter the legislative, when they find the legislative act contrary to the trust reposed in them: for all power given with trust for the attaining an end, being limited by that end, whenever that end is manifestly neglected, or opposed, the trust must necessarily be forfeited, and the power devolve into the hands of those that gave it, who may place it anew where they shall think best for their safety and security. And thus the community perpetually retains a supreme power of saving themselves from the attempts and designs of any body, even of their legislators, whenever they shall be so foolish, or so wicked, as to lay and carry on designs against the liberties and properties of the subject.
It is my submission that the right of the peoples of Nigeria to exercise their collective will by making decisions on issues affecting them supersedes, when contradicted by, the powers of the National Assembly of Nigeria.
I concede that the 1999 Constitution of the Federal Republic of Nigeria is silent on the power of the peoples of Nigeria to directly legislate for themselves or take policy decisions through referendum or any other means. However, we submit that the absence of this provision is not an implied denial of such power; it is but an affirmation of the obvious: that the peoples of Nigeria need no express authorisation to exercise direct legislative powers on the political affairs of Nigeria, being as we have demonstrated the very donors of the legislative power.
But if for a moment we are inclined to listen to any pontificating voice insisting that the failure of the Constitution to provide for the right of direct legislation by the peoples of Nigeria implies a denial of the power to do so, we infer from such pontification that the Constitution has limited or intended to limit the power of the people to control their own affairs. But such supposition is insupportable in reason and manifestly impossible, for no one has the power to bind himself except morally. The peoples of Nigeria being the donors of the powers in the Constitution, any provision of the Constitution – express or implied – which seeks to deny the right and powers inherent in the peoples of Nigeria and exercisable by them over their own affairs is a null and insupportable provision, a constitutional blunder. It is my submission that not even the non-provision of the right to direct legislation in the 1999 Constitution of the Federal Republic of Nigeria can be rationally interpreted to deprive the peoples of Nigeria the powers to directly decide their affairs.
The non-inclusion of the right of the people to decide their affairs through referendum is a mere constitutional vacuum. Its absence in the constitution does not imply its absence in the collective will of the peoples of Nigeria. From the perspective of legal theory, the collective will of the people is the source of the production of the legal norms and the power to make the constitution. It denotes the will which predates the constitution and is superior to it.
I argue that the sacrosanctity of the Constitution lies not in its content or self-declaration but in its being the expressed will of the people. The Constitution is not supreme because it proclaims itself to be so, any more than any other law made by the National Assembly can be superior to the Constitution by the mere fact of declaring itself to be so. The Constitution is sacrosanct and supreme because it embodies the will of the people. Other laws in the land are subordinated to the Constitution and voided to their extent of inconsistency with the Constitution because such laws, in making contrary provisions, seek to subvert the will of the people embodied in the Constitution. Although the Constitution embodies – or should embody – the will of the people, it cannot be supposed that the people have expressed the totality of their will in the Constitution at the one instance of their formulating it. If it were so, the Constitution would be an unwieldy document, and there would be no need for delegating their representatives to make further laws. And besides, such argument fails to take cognisance of the changing nature of the human society which no careful foresight and deliberation can provide for. This is why even an autochthonous constitution may fail to make certain provisions which may only be remedied by amendments, usually through referendum to confer on the amended constitution the legitimacy of the previous one. It is therefore no argument to say that the peoples of Nigeria do not have the power and the right to directly participate in the government of Nigeria through referendum because such power and right have not been conferred or recognised in the Constitution.
An alternative argument to the silence of the Constitution on the right to referendum is that it denotes permission rather than repression. It is apposite to bear in mind the doctrine of substantive due process invoked by the Constitutional vacuum. Chief Justice Camden held in Entick v Carrington [1765] EWHC KB J98 that a person is permitted to do anything not forbidden by law while officials are restricted from doing anything not permitted by law. Thus, whereas the peoples of Nigeria can freely express themselves through referendum because no law, not even the constitution, restricts them from doing so, the government of Nigeria through its officials cannot interfere with the exercise of this right by the people because no law permits them to do so.
The right of the people to direct participation in their government is not recognised only in the Nigerian Constitution. As a right inhering in all humans, it is recognised and enshrined in many international humanitarian treaties and instruments.
Article 21 of the Universal Declaration of Human Rights (UDHR), 1948 provides:
Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
Article 1(1) of the International Covenant on Civil and Political Rights (ICCPR) 1966 provides:
All peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
Amplifying the right of the people to self-determination, Article 25 of the ICCPR further provides:
Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in Article 2, and without unreasonable restrictions:
a. To take part in the conduct of public affairs, directly or through freely chosen representatives.
b. To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors.
c. To have access, on general terms of equality, to public service in his country.
These provisions constitute the current international standard on the participation of citizens in the government of their country. They set the standard by which democratic nations such as Nigeria are evaluated, especially the member states of the United Nations. Nigeria, as a member of the United Nations Organisation and a democratic state so proclaimed in its national constitution, is bound by the standard of citizen participation set out in these international humanitarian instruments.
According to John Dugard in his book, Recognition and the United Nations, the right of the people to self-determination is not only an entrenched international law principle but has risen to the status of jus cogens – a principle of international law that certain peremptory norms are accepted by states as a norm from which no derogation is permitted. In the Legal Consequence of the Construction of a Wall in the Occupied Palestine Territory Advisory Opinion [2004] ICJ reports 136, the International Court of Justice declared the right to self-determination to be erga omnes, i.e., international obligations owed to the international community irrespective of consent. A similar decision was held in Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States) Merits [1986] ICJ reports 14).
Beyond the international community, States within the African region have also drafted for themselves the African Charter on Human and Peoples’ Right (‘African Charter’), a regional human rights treaty intended to reflect the history and culture of the member states.
Article 13 of the African Charter provides:
1. Every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with provisions of the law.
2. Every citizen shall have the right of equal access to the public service of his country.
3. Every individual shall have the right of access to public property and services in strict equality of all persons before the law.
Article 20(1) of the African Charter further provides:
All people shall have right to existence. They shall have the unquestionable and inalienable right to self-determination. They shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen.
There is no iota of doubt left that on the strength of these authorities, the peoples of Nigeria are entitled to freely determine their political, economic and social affairs, directly or through their chosen representatives. The above-cited provisions are not mere paper declarations: they are rights universally recognised and binding on Nigeria by virtue of her belongingness in the international community of states. The right of citizens to participate in the political affairs of their country has become so engraved in international law as to form customary international, if it is in fact not recognised as jus cogens for which no state is permitted to derogate from. Nigeria has signed and ratified these treaties, and in the case of the African Charter on Human and Peoples’ Rights, transformed it into Nigerian legislation. In a definitive pronouncement in the case of General Sanni Abacha v Chief Gani Fawehinmi(2000) 6 NWLR (Pt.660) 228, the Supreme Court came close to equating the African Charter with the Constitution when it held, per Ogundare JSC (Iguh, Uwaifo and Ejiwunmi JJSC concurring):
Where a treaty had been incorporated into national law, it became binding and the courts were to give it like effect as all other laws enacted by the National Assembly. In the instant case that had been achieved by the 1983 Act. As an international treaty, the Charter possessed greater vigour and strength than other domestic statutes: however, that was not to say that the Charter was to be considered as superior to the Constitution.
This pronouncement is in tandem with the foreign policy of the Nigerian state with regards to treaties, entrenched in Section 19(d) of the Constitution:
The foreign policy objectives shall be respect for international law and treaty obligations as well as seeking settlement of disputes by negotiation, mediation, conciliation and adjudication.
The will of the peoples of Nigeria expressed in the Constitution being respect for international treaties, it is not and cannot be the contemplation of the Nigerian state not to be bound by these international and regional treaties providing for the rights of citizens to free participation – directly or through representatives – in the government of their States. These instruments affirm and concretise the right of the peoples of Nigeria to actively participate in the determination of political, economic and social issues affecting the Nigerian State.
Having ascertained and established the power and right of the peoples of Nigeria to participate directly in their political affairs, the pertinent question becomes: how may the peoples of Nigeria do so? This is no light matter when we consider that the Nigerian State has a population of nearly 200 million (two hundred million) people, of which more than half constitute the adult population. It is manifestly impracticable for this number of people to directly participate in law-making in the same way as the ancient Athenians who gathered together at the agora to take collective decisions on public affairs. How therefore can the people of Nigeria exercise their right and power to directly determine their affairs whenever they so desire to do?
The peoples of Nigeria can directly legislate and take decisions on the affairs of the government of Nigeria through referendum, periodically and systematically conducted. Permit me to briefly expatiate.
Black’s Law Dictionary defines referendum as: ‘the process of referring a state legislative act, a state constitutional amendment, or an important public issue to the people for final approval by popular vote.’Referendum, according to Chambers Dictionary, is ‘the principle or practice of submitting a question directly to the vote of the entire electorate.’ Referendum is the direct participation of the electorate in policy and law making of the government.
As an incidence of democracy, referendum is the means by which a people vote on the granting or amendment of current civil rights, liberties or association as recognised by the government. It is a means by which majority of the voting public rather than their judicial or legislative chambers determine the actions for the state to carry out. It is an expression of direct democracy.
Referendum allows the citizens in a country to vote on legislation drafted by the elected legislative body and also empowers the citizens to petition for the submission of extant legislation for voting by the public. Through referendums, citizens may also propose specific legislative and policy measures and call for votes on them. Whatever form referendum takes, the end result is the expression of the collective will of the people. When such votes are cast on legislative or policy measures, the decisions taken are binding on the government, being the will of the people on whose authority the government exercises its powers.
The use of Referendum as an instrument of participation in government is necessitated by changes in human societies. These changes being often unforeseen, dealing with them are not contemplated by the electorate when donating the powers of law-making and policy decisions to their elected representatives. Deliberation and determination of these novel issues become the responsibility of the people, to do so directly or through their elected representatives authorised to so do. In the words of Prof Ben Nwabueze:
If government is to be representative of the changing outlook and needs of the people, it is necessary therefore that the people should be able at reasonably frequent intervals to give practical expression to the changing wishes concerning the government.
Referendum is the ideal means by which the peoples of Nigeria may raise the issues affecting them, campaign for referendums on such issues and vote on the policy actions to be taken on such issues.
Many issues requiring policy measures and actions are currently confronting the Nigerian State. It is not being alarmist to remark that Nigeria is on the brink of self-destruction if these issues are not tackled appropriately and expeditiously. Here are some of these issues, in no order of their precariousness:
1. Economic meltdown in Nigeria resulting from poor economic policies undertaken by the Nigerian government.
2. Security meltdown due to operations of insurgents and other groups posing security risks to the Nigerian State and the peoples of Nigeria.
3. The activities of herdsmen and the risk they pose to the peoples of Nigeria, especially the farming communities.
4. The agitation of some sections of Nigeria for separation from the Nigerian State.
5. The agitation of some sections of Nigeria for being denied participation in the government of Nigeria.
6. Incessant disruption in the educational sector, especially the higher institutions as a result of strike actions.
7. The management of the Nigerian resources.
The above are just some issues among many issues facing the generality of the peoples of Nigeria which require urgent attention. Neither through laws nor executive measures can these issues be properly tackled without the input of the peoples of Nigeria. Assuming without conceding that the elected representatives of the peoples of Nigeria have the capacity and willingness to deal with these issues, they are yet issues that the peoples of Nigeria need to be part of deliberating upon and deciding on appropriate measures. They are issues that cannot be properly resolved without wide consultation with the peoples of Nigeria. In the words of Professor Sir Arthur Lewis in Politics in West Africa: ‘The primary meaning of democracy is that all those affected by a decision should participate in making it.’
Not only is it expedient for the peoples of Nigeria to participate in the raising, deliberation and determination of these issues the result of which will make or mar the Nigerian State, the necessity of the peoples’ participation is to bind the people in fact and in conscience. People are more amenable to laws and policy decisions they are part of, and in proportion disregard and protest decisions taken without their consultation. The inclusion of the peoples of Nigeria in determining these issues will not only make for definite result but will ensure the peoples’ obedience to the resultant laws and policies, thereby preventing a total breakdown in the Nigerian State.
It is my submission that in the interest of the peoples of Nigeria and by virtue of the democratic tenets entrenched in the Nigerian Constitution and in the human rights instruments internationally recognised, it is pertinent for this honourable court to make declarations and orders to empower and facilitate the exercise of the right of the peoples of Nigeria to not only express their opinions on the affairs of the Nigerian State but also to make meaningful impact on the government of Nigeria through decision-making by means of referendum.
CONCLUSION
The plinth of my argument is that the peoples of Nigeria have the power and the right to propose and formulate issues for referendum, campaign for the issues so formulated and vote on them. This is, in my opinion, an incidence of the right of the people to freedom of expression and participation in their political affairs.
This is a momentous period in the history of Nigeria when it is impossible to appropriately deal with the issues confronting Nigeria without wide consultation of, and participation by, the peoples of Nigeria. It begs the question to note that the current democratic practice in Nigeria is only invoked at the time of election when the people are called upon to choose their leaders – that is assuming of course that we do not question the processes of the election and how far the winners in election reflect the choice of the people. After elections, the peoples of Nigeria have no other means of participating in their government. Their elected representatives, especially at the legislative arm, make no consultations with the people before proposing or voting on laws and policies. What the legislators and executives churn out as the will of the people are merely the will of the representatives – the will which, we must concede, have not proved to be in the interest of the peoples of Nigeria. And what is more, even among these elected representatives, factions and cabals have emerged who continually seek to subvert the will of the representatives and thus further alienate the peoples of Nigeria from participation in the government of Nigeria.
Much of the agitations in Nigeria result from the divide between the peoples of Nigeria and their government. Because their will have continually been subverted by corrupt processes, many citizens of Nigeria have become disenchanted with the political affairs of Nigeria. Providing the enabling environment for public discussion and determination of issues affecting the peoples of Nigeria is a means of curing this current apathy in Nigeria and reducing the issues of agitations and citizens’ discontent.
© 2019 Joshua Omenga
