Constitution amendment: One clause, many troubles

Mark

JOHN ALECHENU writes that the controversy over the Senate’s resolution  on a recommendation by its committee on the Review of the 1999 Constitution appears to have overshadowed the highpoints of the exercise

Since the return of democracy in 1999, there has been a growing clamour for a review of the nation’s constitution.

Some groups have even called for a new constitution.

Those in this school of thought argue that the 1999 constitution is a document crafted and bequeathed to Nigerians by the military.

In a response to various agitations, the 7th National Assembly had set up committees to review the document.

Senators and members of the House of Representatives have both concluded work on the document. What is left is for both chambers to harmonise their positions to produce a final copy which in turn will be forwarded to the state Houses of Assembly.

However, like the third term clause in the attempt to alter the constitution in 2005, one item out of the 31 clauses and 26 sections considered, appears to have set some Nigerians against the Senate.

The Senator Ike Ekweremadu-led committee had recommended that Section 29 (4) (b) should be deleted. The decision, which trailed voting on this item, is threatening to overshadow all that the committee has done.

Section 29 (1) states: “Any citizen of Nigeria of full age who wishes to renounce his Nigerian citizenship shall make a declaration in the prescribed manner for the renunciation.”

It goes on to say in sub-section (4), “for the purposes of sub-section (1) of this section: (a) ‘full age’ means the age of  18 years and above; (b) any  woman who is married shall be  deemed to be of full age.”

Ekweremadu explained that the section was “specifically and unambiguously for the purposes of renunciation of citizenship, not marriage.”

The chairman said, “We considered it gender discriminatory and imbalance to place the man and woman on different scales in matters relating to voting rights, education age, driving  age, and so on; we felt this discrimination was abnormal and, in fact, an inelegant drafting.”

This proposal did not scale through following objections from Muslim Senators.

It is instructive to note that most Senators wanted the removal of this section during the first round of voting.

However, this changed when Senator Ahmed Yerima asked that the issue be revisited.

He argued that removing the sub-section would infringe on the rights of Muslims. Yerima said, “In Islam, a woman who is married is considered to have attained full age.”

Senator Kabiru Marafa expressed the same sentiment. He agreed that the section in question talks about the renunciation of citizenship. He, however, explained that, Section 29 4 (1a) went on to pronounce that full age means 18 years and above.

He said “In part (b), it goes on to say, any married woman is deemed to be of full age. Some of us felt, removing sub-section (b) will infringe on the rights of some Nigerians.

“We felt it shouldn’t be so. What we have in the constitution as it is takes care of everyone in Nigeria.

“Those of us who feel that 18 is the year of maturity or responsibility, they have their 18, those of us Nigerians that feel that 14, 15, 16 or 17 is the age of  maturity, the constitution has taken care of  everybody.

“With due respect to Nigerians, we must learn to understand one another. You cannot define yourself and define others, you cannot. Most Muslims believe this. If you want to keep your daughter in your house for 40 or 50 years, it is entirely your business.”

The issue of religion is a sensitive one especially in northern Nigeria. It is a form of socio-cultural identity for northerners. It does not only define the people, it defines their politics. This informed the decision by 12 out of the 19 northern states to subscribe to the Islamic legal code, Sharia, after Yerima first introduced it in Zamfara State in 2000.

Most Nigerians may not also understand that the political future of a lot of these legislators depends on how they vote on this particular issue. It may have perhaps gone unnoticed like it did during the first round of voting. Yerima’s explanations left his fellow northern Muslim Senators with little or no choice.

This notwithstanding, one of the most outstanding of the proposals made and passed by the Senate, is the procedure for enacting a new constitution. If the proposal survives the legislative process, “the people” will have the final say in the constitution making process.

A preamble to the 1999 Constitution reads: “We the people of the Federal Republic of Nigeria having firmly and solemnly resolved to …do hereby make, enact, and give to ourselves the following Constitution.”

Many Nigerians dismissed this preamble as fraudulent. They contended that “We the people” never really had a say in what became the 1999 Constitution.

This has largely fuelled the agitation for a Sovereign National Conference.

The Senate Committee proposed a total of 31 clauses affecting 26 Sections and the Second Schedule of the 1999 Constitution for alteration. While some clauses were passed in part, others passed in their entirety.

The constitution, as it is today, does not provide for how the people can enact an entirely new document. It is this gap that the Senate committee has proposed to fill.

The new Section 9, Subsection 3(b) to 3(n), as passed by the Senate, provides direct answers to agitations by Nigerians to make direct inputs into the process. It also provides an avenue for addressing basic and structural issues that may arise.

There are a few countries that have succeeded in giving themselves new constitutions to replace the existing ones. These countries include; Kenya, Zimbabwe and Brazil.

The power to initiate and guide the process still resides with the National Assembly. The section reads: “The National Assembly may propose a new constitution for the federation.” Subsection 3(d) provides that: “There shall be a committee of the Senate and House of Representatives to be set up by the President of the Senate in consultation with the Speaker of the House of Representatives to be known as the Joint Constitution Drafting Committee.”

It goes on to explain that the joint committee is to consist of two members from each state of the federation, one from the Senate and the other from the House of Representatives as well as two members representing the Federal Capital, one from the Senate and the other from the House of Representatives.

The joint committee, which will be constituted by the Senate President and the Speaker, shall produce and present a drafted constitution to be made available to the two chambers.

The committee is under obligation to produce a report within three months and if the report is approved by two-thirds of both chambers of the National Assembly, it will be transmitted to the state Houses of Assembly. Thereafter, the draft must receive the blessing of at least a simple majority of the two-thirds of the states Houses of Assembly.

The decisions of the state Houses of Assembly will be vetted by the clerk for compliance before circulating it to each member of the National Assembly and the Independent National Electoral Commission.

The Senate also passed the alteration of Section 9 which stipulates the procedure for constitution amendment. The 1999 Constitution provides for Presidential assent for alterations to become law. Under the proposal passed by the Senate, this will no longer be a requirement.

Ekweremadu expressed optimism that, “If this particular amendment passes through the remaining processes, it means that Nigerians can make, enact, and give themselves an entirely new constitution.

“This amendment also makes provision for a referendum, which addresses the concerns in constitution making processes.”

Some Nigerians however disagree. They refer to provisions of Article 1 Section (7) of the Constitution of the United States, which Nigeria modelled its system after to make their case.

It state, “Every bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a law, be presented to the President of the US; if he approves he shall sign it.”

This is the equivalent of Section 58 of our 1999 Constitution.

What such people fail to realise is that despite the provisions of this section in the US constitution, none of the Presidents has assented to the 27 amendments to the US Constitution.

This was, perhaps a direct result of a 1798 judgment of the Supreme Court of the US. In its ruling in the Hollingsworth v. State of Virginia case, the court held that “the President of the US has no formal role in the process of amending the 15 Constitution.” It further ruled that, “While it is permissible, a presidential signature is unnecessary.” Although the last has yet to be heard about the process, it remains to be seen whether Nigeria’s interest will finally prevail.