Despite near unanimity that the 1999 constitution is ridden with flaws and inadequacies; Nigerian lawmakers are doubtful of the prospect of writing a brand new constitution, even as the National Assembly rounds off its National hearing on the review of the constitution in Abuja today.

Speaker of the House of Representatives Rt. Hon. Femi Gbajabiamila recently described the 1999 constitution as a ‘national compromise’ to avoid prolonged military rule. The constitution was handed down from the military when Nigeria transitioned back to a democratic system of government in 1999. And, because of this, it has been termed as fraudulent for its origin and blamed for many of Nigeria’s recent problems, especially in the areas of power imbalance between the Federal Government and subnational governments.

But, the lawmakers have persistently argued that all they can do for now as remedy is to do periodic amendments of the document as there is no provision for the conduct of a referendum in the constitution, thereby making its replacement a difficult, if not an impossible task. Section 9 of the constitution of Nigeria 1999 makes provisions on the Mode of altering provisions of the constitution. It is under Part II (Powers of the Federal Republic of Nigeria) of Chapter 1 (General Provisions) of the constitution. Section 9 has four subsections. (1) The National Assembly may, subject to the provision of this section, alter any of the provisions of this Constitution.

(2) An Act of the National Assembly for the altertion of this Constitution, not being an Act to which section 8 of this Constitution applies, shall not be passed in either House of the National Assembly unless the proposal is supported by the votes of not less than two-thirds majority of all the members of that House and approved by resolution of the Houses of Assembly of not less than two-thirds of all the States.

(3) An Act of the National Assembly for the purpose of altering the provisions of this section, section 8 or Chapter IV of this Constitution shall not be passed by either House of the National Assembly unless the proposal is approved by the votes of not less than four-fifths majority of all the members of each House, and also approved by resolution of the House of Assembly of not less than two-third of all States.

The foregoing conditions are very cumbersome and there is no guarantee that regions or geopolitical zones in the majority will not wield their weight against the minority groups. This has persuaded several persons and different segments of the Nigerian society to advocate for a new constitution since this constitution was hurriedly put together and approved by a Decree of the Military government; it is high time a peoples’ constitution was put together for the country.

The conundrum, however, is that while the lawmakers argue that throwing out the present constitution removes the legitimacy upon which they were elected for a term of office; Nigerians on the other hand feel no sacrifice should be too much to offer in order to give birth to a restructured and more workable country through the writing of a new constitution.

Reinforcing that position while speaking at a public hearing organised by the Senate on the review of the constitution in Abuja on Thursday, Mrs Oby Ezekwesili, former Minister, said the law should be amended to provide for a referendum for a new constitution arguing that the country’s diversity needs to be “effectively managed” on the principles of equity, justice and equal opportunities. “The current 1999 constitution is outdated. Allow a single amendment for referendum for a deliberation on a new constitution for the country.” She said.

Responding to persistent demand for a new constitution in a television interview recently, Chairman of the Senate Committee on Review of the 1999 constitution, Senator Ovie Omo-Agege argued that the present constitution limits the National Assembly’s power to jettison the 1999 constitution and write a brand new constitution. He submitted that a right step to take towards bringing this into reality would be for Nigerians to go back to their elected representatives urging them to include the conduct of referendum in the constitution and if passed by two thirds of the National Assembly members it will give a leeway to that end. Unfortunately, referendum is not one of the seventeen thematic areas listed for the proposed constitution review.

Senator Omo-Agege said that Nigeria should make do with these periodic reviews of the constitution until Nigerians get the ideal constitution they desired. He buttressed his argument further by observing that in more than 200 years of America’s history, their constitution has undergone 25 amendments and it is still functioning and not for once has there been a clamour to throw the constitution away for a new one.

He noted further that progress may have been slow but submitted that previous amendments to the constitution have helped in addressing pressing issues. He cited the example of how the Vice President can take over power in case of incapacitation of the President and the Not-Too-Young to rule Act which amended the constitutional age limits for persons to contest election. He said the National Assembly would vote on all the areas for amendments one by one having learnt from its previous experience of lumping all the issues together in only one bill. This will be the fifth amendment of Nigeria’s constitution if successfully accomplished.

Some lawmakers like Senator Smart Adeyemi said the issue of inserting conduct of referendum into the constitution is an option that could be considered in subsequent amendments but Nigerians feel the time is now because there are so many issues on which the National Assembly would never be able to agree. For instance, it has been difficult for new states and new Local governments to be created in a civilian administration. The current fourth republic is already 22 years old.

Even the zonal public hearings have shown how polarized the country is. While states in the South clamour for more resource control speakers from the North argue that all resources belong to Nigeria. The establishment of state police is another issue. While it is popular in the South West and South South, some South East speakers and key persons from from the North have argued vehemently against it.

Some analysts have argued that it is a fallacy for Lawmakers to make argument that it is difficult to insert conduct of ‘a referendum’ in the constitution. They cited the example of a country like Chile which eventually had to decide on writing a new constitution when several amendments became inadequate to addressing their pressing issues. This argument was put forward by the Speaker of the Rivers State House of Assembly, Rt. Hon. Ikuiniyi Ibani at the South South zonal public hearing which held at Portharcourt.

The Chilean people in a 2020 national plebiscite overwhelmingly voted to draft a new constitution. On October 25, 2020, a referendum was held which saw Chilean voters overwhelming approve 78% in favour of writing a new constitution by a convention. It is Chile’s eighth constitution, replacing the constitution of 1925.

The current Constitution of Chile was approved by Chilean voters in a plebiscite on September 11, 1980, under the military dictatorship of Augusto Pinochet. It was partially enacted on March 11, 1981 and has been fully effective since March 11, 1990. It was amended considerably on August 17, 1989 (via referendum) and on 22 September 2005 (legislatively), and also in 1991, 1994, 1997, 1999, 2000, 2001, 2003, 2007, 2008, 2009, and 2010. It is Chile’s eighth constitution, replacing the constitution of 1925.

Now Chile is writing a new constitution which will be approved or rejected by popular vote in a referendum in 2022. The country has put together a Constitutional Convention writing the new constitution. That commission was elected last month though several members were handpicked to represent different spectrum of the Chilean society. Though, the question of legitimacy similar to what critics raised about President Jonathan’s 2014 constitutional conference is also being raised, it would appear that the majority of the Chilean people are determined to have a new constitution.

However, there is a thin line of difference between a plebiscite and a referendum. Whereas a referendum is binding on the government a plebiscite is somewhat advisory because the government does not have to act upon its decision.

Agitations for restructuring of the country may not abate if most of the issues generating resentment in the country are not addressed in a fundamental manner using the instrumentality of the constitution which will give the people a sense of belonging. In the words of Mrs Oby Ezekwesili “Major socio-political issues that need to be solved are effective management of Nigeria’s diversity based on the principles of justice, equity, inclusion and equal opportunities,”