Hot SourceThis article by Stephen Kola-Balogun discusses the National Summit on The Future of Nigeria’s Constitutional Democracy recently convened by The Patriots, on the need to redraw a new Constitution for Nigeria after 25 years of the 1999 Constitution which was foisted on us by the Military, and how to go about making this a reality. The author emphasises the fact that the People of Nigeria must be consulted before and throughout the process, since sovereignty belongs to them, and goes further to explain how this can be achieved through the establishment of a Referendum Authority created under the Independent National Electoral Commission (INEC). He highlights the Chilean example, which can be used as a guide for this process
Introduction
Barely a fortnight ago, a National Summit on The Future of Nigeria’s Constitutional Democracy was convened by The Patriots, (Nigeria’s foremost group of elder statesmen and women, intellectuals and civic leaders) under the distinguished leadership of Chief Emeka Anyaoku, GCON, former Secretary-General of the Commonwealth, in collaboration with the Nigerian Political Summit Group (NPSG).
The Summit, which was held in Abuja between 16th and 17th July, 2025 respectively, examined the deep-rooted and systemic challenges confronting Nigeria and its diverse peoples. The Patriots, before the Summit itself, had undertaken some zonal consultations through Town Hall meetings and memoranda from all the six geopolitical zones of the country. Consultative meetings were also held by diaspora, socio-cultural groups (Afenifere, Arewa, Pande, Middlebelt Forum, Ohaneze Indigbo, women, youths, labour, persons living with disability, students leaders, professional bodies, market men/women, traditional rulers, religious leaders, elder statesmen/women, security experts, etc. All these generated a mass movement and a consensus of views reflected in the Patriots’ resolutions. These resolutions therefore, represent a thoughtful and deliberate synthesis of the consensus reached at the Summit, offering clear, constructive and principled solutions to the Nation’s constitutional and governance crisis. At the end of the deliberations, a Communiqué was issued, recommending in summary the following:
*An Urgent Need for a New Constitutional Order
*A Constituent Assembly to draft a New Constitution
*’A Referendum to approve the draft Constitution
*Materials to be considered by the Constituent Assembly would include the 1960, 1979, 1999 Constitutions and the deliberations of the 2014 National Conference.
Although the Patriots ought to be commended for their efforts, there is still the danger that the approach they are recommending and want adopted is not lawful, in that a vital step necessary to initiate the process has once again been sadly, and perhaps, even deliberately overlooked – how to legitimise and constitutionally initiate the restructuring process, before setting up a Constituent Assembly.
The main restructuring challenge for us in Nigeria today, is simply a question of how best we can rewrite our existing Constitution or restructure our polity, whilst still having in place the 1999 Constitution (as amended). If, as in our case here in Nigeria, an existing Constitutional order and a system of governance is already in place, it would be unconstitutional for anyone to attempt to usurp the Constitution without first receiving a clear mandate from the people. This is absolutely essential in my view. It can’t be abrogated, compromised or ignored. This is because the people are the source and donor of all political power. They voted in our present crop of elective representatives. The Government and its organs are equally created by the 1999 Constitution, and logic suggests that as our elected representatives, they preside over how we are governed, limited only by the power that has been granted to them, by that same instrument from which their powers and existence is derived, namely the 1999 Constitution.
We have long ago passed the stage in Nigeria where a select or handful group of leaders, can think they can impose their views on us. No person or group of people can do that. This, in many respects, is why the deliberations of the National Conference in 2014 were archived and not acted upon. There must first be a consultation process by which you obtain peoples views, like what the Patriots have just done. Thereafter, you test the acceptance or rejection of those views in a national referendum.
In short, even if we are to adopt and restructure along the lines suggested by the Patriots, how can we know for certain that the majority of the people buy into and accept those ideas? Besides, the system of government in Nigeria today which they want jettisoned, has been operational now for over a quarter of a century. There is an implied and deemed acceptance, of the constitutional order which we have in place.
It is therefore, my argument that the people Must be consulted in a national referendum first, in order to give legal backing to what the Patriots seek to achieve. If you don’t obtain the consent of the people first, then any attempt to replace the Constitution would be akin to a civilian coup, because there is no legitimacy for doing so. Yes it may be difficult to get the desired approval at the onset, but it’s a necessity that can’t be ignored.
The National Assembly are elected as our representatives, under the 1999 Constitution. They are saddled with the responsibility of amending it whenever necessary; but, if you want to replace the 1999 Constitution completely (the very constitutional document that gives them their authority), then even they don’t have that power to do so without first consulting the people. They would therefore, have to return to the people and ask them this question. They must get their consent to change the grundnorm. Nothing else can suffice, because such an act would be unconstitutional.
Is there a Legal Framework or Constitutional Basis to be able to hold a Referendum in Nigeria?
There is no direct provision for a referendum in our Constitution, but it is more than implied. We often criticise the 1999 Constitution for being imperfect, but there are several aspects to it that have not been fully explored or understood. What then, is the legal framework that exists within the 1999 Constitution, that can provide ample basis for a future referendum at the onset that may ultimately lead to a new and radically changed Constitution, brought about by a people’s plebiscite or referendum?
The Chapter of the 1999 Constitution which contains the provisions on the Fundamental Objectives and Directive Principles of State Policy, provides some useful answers.
Section 14 of the 1999 Constitution provides as follows :
Section 14 (1)
“The Federal Republic of Nigeria shall be a State based on the principles of democracy and social justice.”
Section 14( 2) further provides
“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 also stands to reason that the same power can be given back to the people whenever they ask, demand or need it. The conundrum however, is that no one seems to know or understand how to go about doing this. 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 for 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.
Establishing a Referendum Authority Under the Control of INEC
The combined effect of Section 14 of the 1999 Constitution, as well as Item 60 on the Exclusive Legislative list in the Second Schedule of the 1999 Constitution, is that both the Executive and Legislative arms of Government are empowered to establish a Referendum Authority, to give effect to the implementation of key parts and aspects of the 1999 Constitution, such as the need for a referendum. The Proposed Referendum Authority, does not necessarily have to be set up to be an Independent Statutory Authority. Part I of the Third Schedule to the 1999 Constitution, outlines the Federal Executive Bodies mentioned under Section 153 of the 1999 Constitution. Section 14 of the Third Schedule provides for INEC. Section 15 of the same Schedule outlines the powers of INEC.
Subsection 15(i) provides as follows: (i) Carry out such other functions as may be conferred upon it by an Act of the National Assembly. In other words, INEC could be given additional responsibility by the National Assembly, to manage a Referendum Authority within the purview of its responsibilities, without the need to set up a separate entity. INEC will, among other things, determine the criteria and threshold for a National Referendum. It is not unusual, to have electoral bodies and referendum bodies fused together. This is the practice, for example, in Australia.
In addition to what has been highlighted above, Item 67 of 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 further 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.
It is interesting to note that, Section 8(3)(b)(c) and (d) of the 1999 Constitution provides for the use of a Referendum, when there is a proposal to create a new local government area. A Referendum Authority could therefore, also be used at State level whenever there is a request to create a new local government area. We don’t need to wait for such a request before putting the legal framework in place. In short, a Referendum Authority under INEC would provide the mechanism and legal framework for a referendum at both Federal, State and local government level’s of government.
Finally, some might argue that our courts have long decided that Section 6(6)(c) of the 1999 Constitution provides that, except as otherwise provided by the Constitution, any issue or question as to whether any act or omission by any authority or person as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of the Constitution, is not justiciable. It is however, my argument that, since Item 60 is on the Exclusive Legislative list, it is clearly spelt out elsewhere in the Constitution, and, as such, Section 6(6)(c) does not apply. And, issues relating to Item 60 will serve as an exception to those provisions, and will thus, be justiciable. See Archbishop Okogie v AG Lagos State 1981 2 NCLR 337; AG Ondo State v AG Federation & 35 Ors 2002 9 N.W.L.R. Part 772.
The Chilean Plebiscite as a Guide
The Patriots have themselves made recommendations for a referendum, but their suggestions are for the referendum to take place after the deliberations of a Constituent Assembly, instead of having two referendums, the first taking place at the onset. The first referendum would therefore, serve to initiate and legitimise the restructuring process, while a second referendum would approve the deliberations and draft Constitution of a Constituent Assembly
There is precedent for this sort of approach, in far away Chile.
Although Chile is not as diverse a country as Nigeria, it does at least boast of being the longest and narrowest country in the world. For over 40 years, Chile had been operating under a Constitution that was bequeathed to it by it’s former military dictator, General Augustus Pinochet; but, in recent years they started becoming disgruntled, agitated and intolerant of the imperfections of their Constitution, culminating in October 2019 of mass protests that rocked the Chilean capital of Santiago and many other cities in the country. These strikes were reminiscent in many respects, of the #EndSARS movement that engulfed us here in Nigeria just a few years ago. The critical and significant difference being that, the Chilean uprising, unlike ours here in Nigeria, transformed into a mini-revolution that forced the Government to act and organise a national plebiscite, asking whether or not Chileans wanted to rewrite their existing Constitution. The following year, on 25th October, 2020 to be precise, the government held the plebiscite seeking to reform the Constitution dating back from the years of military dictatorship under General Pinochet. The Pinochet military regime (just like that of General Abdulsalam here in Nigeria in 1999), had foisted upon the Chilean people, a Constitution of which they had little say or input. The Constitution stood in place, for over 40 years. A simple question was put to them, asking whether or not Chileans wanted to rewrite their Constitution. Proponents of ‘Apruebo’ (I approve) viewed the idea of a new constitution as a means to expand democratic freedoms and participation, as well as overcome deep rooted social inequalities. Those in the opposite camp, ‘Rechazo’ (I reject) were opposed to the drafting of a fundamentally new charter, suggesting that the process could result in the erosion of fundamental democratic principles and open a Pandora’s box of unknown economic and social consequences, just like some of our concerns here.
A second question on the October ballot, had to do with the mechanism for drafting a new Constitution. At stake were two different procedural models, namely the election of an entirely new Constituent Assembly, or a hybrid model of current Legislators in addition to elected citizens. The Patriots didn’t consider this important feature, in writing a new Constitution.
It was further agreed that if Chilean citizens did vote to approve a new Constitution, a subsequent vote would be held to choose the representatives who would draft the Constitution. A final vote approving the draft of the new Constitution, was then scheduled to take place later in 2022.
It is worth noting that, the 25th of October, 2020 Plebiscite date was itself rescheduled from an earlier date, due to the Covid-19 pandemic. The date of the exit Plebiscite was also modified. It was projected to take place in September of the third quarter of 2022, at the latest. In April 2022, it was announced that the referendum would be held on the 4th of September, 2022. It is important to note that, Chileans ultimately voted for the hybrid system in redrafting their Constitution, made up of some existing Legislators and others specifically elected into a Convention tasked with the responsibility of drafting the new Constitution. The new Constitution as drafted, was once again put to the Chilean people for their approval in another plebiscite, but the people rejected it as being too radical. As a consequence, the old Constitution continues to operate until a new draft Constitution is approved.
In the interim, lawmakers then announced a new process, the “Agreement for Chile” in December 2022, in a second attempt to fashion out a new Constitution with different rules. The agreement states that a group of 50 directly-elected constitutional advisors will draft the Constitution, based on a preliminary draft prepared by a Commission of 24 experts appointed by Congress. Additionally, a 14-member body appointed by Congress was to ensure that the proposed text aligns with the 12 institutional and fundamental principles outlined in the Agreement for Chile. Although the entire process has not been perfect, there can be no doubting the transparency of the Chilean approach, and the determination of the people to ultimately come up with a workable Constitution acceptable to the vast majority of Chileans.
Conclusion
The Patriots would do well to study and possibly adopt the Chilean template, while also noting the possible pitfalls that may be encountered along the way. This should be the talking point in the President’s bid for a second term which would secure his legacy, or alternatively, the opposition’s bid to form a new government whichever the case may be; but, let’s keep this fundamental issue of debate on the front burner.
Stephen Kola-Balogun, Legal Practitioner, This Day Lawyer Columnist – “My Brief by SKB”
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