Guest Columnist Human Rights Law Law and Politics The Electoral Cave

The Need for the Provision of a Referendum in the Nigerian Constitution – Fowowe A.I

INTRODUCTION

Democracy, according to the popular and acceptable definition of Abraham Lincoln, is the government of the people, by the people and for the people. All around the globe in different countries, democracy has become a principle unto which the governance of a people is abides by. However and sadly, the current happenings in Nigeria as well as her current laws do not in reality portray that the power belong to the people regardless it is written so. Entrenched in the 1999 Constitution of the Federal Republic of Nigeria (As amended), section 14(2)(a) provides thus:

It is hereby, accordingly, declared that:

Sovereignty belongs to the people of Nigeria from whom government through this Constitution derives all its powers and authority.

It is therefore without doubt that the grundnorm of the nation gives the people explicit power over the affairs of their nation. Unfortunately, the only means this is practicable is during elections where Nigerians elect their desired representatives to helm the affairs of the nation. It has become such that the destiny and future of Nigeria is solely in the hands of elected representatives. This contributes to the reason why Nigerians resort to other means of airing their views i.e. protests, strikes and so on. Most times, these means, in one way or another, affect lives and proprieties. With reference to the recent and nation-shaking ‘End SARS’ protest of demanding for good governance, the negative effect of this protest can be told by the records of lives lost and properties destroyed across the Federation. This and many other reasons are why there is the need for the country and her laws to enable the citizens have a say in the decision making of their country; a referendum.

WHAT IS A REFERENDUM?

A referendum is a direct and universal vote in which an entire electorate is invited to vote on a particular proposal and can have nationwide or local forms.[1] This may result in the adoption of a new policy or specific law.[2] In essence, a referendum is the practice of subjecting a proposed or already made government policy, decision or law to the people for their approval or rejection. A referendum is one of the truest ways of ensuring citizens take part in the decision making process that shapes the future and fate of their country.

Widely categorized, the practice of a referendum is of two types; the mandatory referendum and the optional referendum.

  1. Mandatory Referendum

A mandatory referendum can be defined as a type of referendum that automatically and must of compulsion take place in certain situations of the country. The eventual outcome of this exercise is usually a binding decision from the public to the government. The Constitution of a country that adopts the use of a referendum provides the requirements or situations in which a mandatory referendum might take place. Instances where this might occur include;

  • Amendment of the Constitution: For any modification or removal of any law in the constitution, some countries utilize a mandatory referendum to this effect. Countries that practice this includes United Kingdom, Canada, France, Australia, Switzerland and so on.
  • International Agreement: Decisions like joining or exiting an international organization are subjected to a referendum which later becomes binding to the country and her government. An example of this is the failed attempt of Switzerland in joining the United Nations in 1986 due to a referendum conducted to that effect.
  • Clashing Decisions of the President and the Legislature: In a presidential system of government, there can not be an oversight of the potential disagreement of the President and the Legislature. In cases as such, a referendum is conducted to know what the people want which later becomes binding.
  • Optional Referendum

An optional referendum is a category of referendum that does not have to be birthed by the provision of a law; it can be initiated by the government or the citizens. The decision of this exercise may and may not be binding. Instances in which an optional referendum might take place include:

  • Gauging the Opinion of the Public: The executive or the legislative of a country might conduct a referendum with the purpose of knowing the public’s stance on a particular matter at hand. In some instances, the government might conduct this due to the pressure mounted upon her by the public. Albeit the outcome of this particular exercise is not totally binding, it might be politically unwise to disregard the outcome.
  • Recall Referendum: This type of referendum is a process where in the public of a particular community seeks to remove an elected or appointed official before the end of their term of office. This type of referendum can be used for Senators, Honourables at the state or federal levels, directors of public organizations and so on.

The inclusion of a referendum in every democratic setting and government has become imperative due to its numerous advantages. However, this is still missing in the Nigerian laws.

THE ABSENCE OF A REFERENDUM IN THE NIGERIAN CONSTITUTION

With a perusal study of the 1999 Constitution of the Federal Republic of Nigeria (As amended), it would be noticed of the absence of an explicit provision for a referendum. Power belongs to the people and accordingly, the people are the sovereign entity in any given country.[3] [If] [t]he Nigerian Constitution bears testimony to the fact that the people are the sovereign power in Nigeria and accordingly, sovereignty lies with the Nigerian people[4], this begs the question on what hinders this fundamental law from playing in the reality.

Over the years in Nigeria, regardless of the existing presence of the grundnorm of all laws; the Constitution, there have still been unconstitutional attempts to make, amend and remove certain laws even without the clear mandate or opinion from the people who are the source and donor of all political powers. This unbecoming trend has become the fuel that drives electorates in airing their voices and opinions through protests; the only language the government understands.

Due to the languid attitude of the government in listening to public opinions, no substantial effort has been made to introduce a referendum in the Nigerian law. Rather, the government is interested in enacting a ‘Hate Speech’ law in a bid to silence the mouth of critics thereby violating the indisputable right to freedom of speech and expression. These acts are unenviable, catastrophic and detrimental to the future of Nigeria.

[In 2014], President Goodluck Ebele Jonathan had mentioned, while inaugurating the National conference, that the National Assembly was considering introducing referendum to the Nigerian Constitution.[5] Unfortunately, there was nothing of such presented at the table of that conference. Asides this fruitless attempt, there has been no record of another attempt.

Although there is no explicit provision of a referendum in the Nigerian Constitution, Stephen Kola-Balogun in his article; ‘Time to Establish a National Referendum Commission’[6], contends that there is an implied establishment of a National Referendum Commission through the combined interpretation of some provisions of the Constitution. In his article, he states thus:

Chapter 11 of the 1999 Constitution (as amended), which contains the provisions on Fundamental Objectives and Directives of State Policy provides some useful answers. Section 13 of the 1999 Constitution (as amended) states:

13. It shall be duty and responsibility of all organs of government, and of all authorities and persons, exercising legislative, executive or judicial powers, to conform to, observe and apply the provisions of this Chapter of this Constitution.

Furthermore Section 14 provides:

14. (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 power and authority.

Now, if the Constitution states that sovereignty belongs to the people, it stands to reason that the power can be given back to them whenever they ask or require it. The Conundrum however, is that no one seems to know how to go about doing so. A clue can be found in the second schedule of the Constitution which outlines the various items on the exclusive legislative list.

Item 60 provides as follows:

60. The establishment and regulation of authorities for the Federation or any part thereof-

(a) to promote and enforce the observance of the Fundamental Objectives and Directive Principles contained in this Constitution.

The combined effect of Sections 13 and 14 of the 1999 Constitution (as amended), as well as item 60 on the exclusive legislative list under Schedule 2 of the 1999 Constitution (as amended), is that both the executive and legislative arms of government are empowered to establish a National Referendum Commission if deemed necessary for the people of the Federal Republic of Nigeria. I would even further state that they are not only empowered to do so, but tasked with the duty and responsibility to do so as outlined under Section 13 of the 1999 Constitution (as amended) with regard to the Fundamental Objectives and Directive Principles of State Policy.

He further contends that:

Item 67 on the exclusive legislative list also provides that laws can also be made with regard to any other matter with respect to which the National Assembly has power to make laws in accordance with the provisions of this Constitution. Item 68 also states that the National Assembly can also make laws with regard to any matter incidental or supplementary to any matter mentioned elsewhere in the exclusive legislative list. This means that the National Assembly has been granted more than enough powers to sponsor a bill for the establishment of a National Referendum Commission, which could be the precursor to a Referendum leading ultimately to a restructured Federation or a radical new Constitution.

The contentions above are somewhat valid and can be easily subscribed to. Be that as it may, it is advisable for there to be a clear, unambiguous and an explicit provision of a referendum in the Nigerian Constitution.

RECOMMENDATION

  1. The government; both executive and legislature, should make substantive move in entrenching the provision of a referendum in the Constitution.
  2. Where it may appear rigid, time consuming and almost unachievable, the government should combine applicable sections of the Constitution in establishing a National Referendum Commission.

CONCLUSION

In ensuring there is peace and order in the nation, it has become obvious that strikes and protests are not the best ways of achieving this. As such, the government must make means in which electorate can air their voices without necessarily resulting to the loss of lives and properties. As posited in this article, the provision of a referendum is the Nigeria Constitution is one of the best ways of ensuring this.


* Fowowe Adetomiwa Isaac, Undergraduate Law Student, Faculty of Law, Adekunle Ajasin University Akungba-Akoko, Ondo State, Nigeria. Email: fowowe.adetomiwa@gmail.com

[1] Wikipedia, ‘Referendum’ <en.m.wikipedia.org/wiki/Referendum> accessed 11 January 2021

[2] Ibid

[3] Ese Malemi, Administrative Law 4th Edition (2016) p. 136

[4] Ibid

[5] Premium Times, ‘National Conference: No provision for referendum in Nigerian Constitution – Lawmaker’ <https://www.premiumtimesng.com/news/157577-national-conference-provision-referendum-nigerian-constitution-lawmaker.html> accessed 13 January 2021

[6] Stephen Kola-Balogun, ‘Time to Establish a National Referendum Commission’ <https://m.guardian.ng/issue/time-to-establish-a-national-referendum-commission/> accessed 13 January 2021

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