(Vanguard of Sunday, August 28, 2005)
Last week, we looked at what makes the patriot in Nigeria. And anchoring the ingredients is obedience to the rules settled for walking the road chosen. Failure to abide by the rules brings out the unpatriotic, the treacherous, the traitor. Our reference to very few of the matches that have been played will show how many of us have been patriots, and how many of us have subverted the mandate. To have a full picture, just look at what they swore to do and tick off yourself their scores.
Let us look at the instrument that brought everyone into the position they occupy today, from the president to the governor, from the chief justice to the magistrate, from the inspector-general of police to the constable, from the chairman of INEC to the polling clerk, from the Peoples Democratic Party to the Peoples Redemption Party, from the highest-placed to the lowliest. Take the elected person. He was told that the people are the boss. There are rules for coming into office, there are terms to serve, there are procedures for disengagement. There is no doubt about the rules. If they are to be changed, then the changes must be through due process.
Because of what has been happening, I think we must extend the meaning of due process. On the face, everything must be weighted against the supreme law, the Constitution. In this case, we are asserting the letter of the law. But with the experiences we are going through, should we not see Due Process as extending beyond the LETTER of the law, to the SPIRIT of the law? And is the spirit of the law not always to be seen as superior to the letter of the law, if justice must be achieved?
What I am saying is that we must accept a limit to the power of those who have a mandate to make changes in respect of the mandate they have. Although they can change any section of the Constitution in accordance with the provisions of the Constitution, it must be accepted that the people in whom sovereignty resides did not envisage any occasion when an attempt would be made to apply the letters of the Constitution so that sovereignty slips from their hands.
My proposition therefore is that it must be accepted that where there is a question as to the mandate of the people, like the tenure granted being changed or extended, that change or extension hits at the heart of the sovereignty which resides in the people and can therefore not be delegated. Such key or incisive changes must therefore be subjected to a referendum even where there is no provision for it in the Constitution. Otherwise the servant is taking power without due process.
What I am saying is that if we see due process as extending to the spirit of the law and not being restricted to just the letter, the National Assembly cannot pounce on section 14 of the Constitution and amend it to deny the provision that sovereignty belongs to the people of Nigeria and from the Constitution government derives all its power and authority.
What I am saying is that the National Assembly cannot make law cancelling the requirement to take the oath of allegiance and the oath of office before assuming office. That is that our lawmakers, our President and governors cannot work to cancel the oath that they will bear true allegiance to the Federal Republic of Nigeria, or that they will defend the Constitution or that they will obey the laws of the land, or that they will defend the dream anchored in chapter two or that they will be subject to the Fifth Schedule which established the code of conduct which must bind their behaviour.
What I am saying is that the National Assembly cannot amend the Constitution to cancel elections or wipe out the Supreme Court or deny its power to adjudicate between the federal government and the states et al. What I am saying is that the National Assembly cannot tamper with the fundamental rights provisions to enable them shave our heads behind our backs by denying through legislation our right to fair hearing, our right to worship, our right to free speech.
The need to define or explain the limits of powers of officeholders is necessary because on the face, the National Assembly can through literal due process do what they like with the Constitution. But they must know that they cannot change the provision that they cannot terminate the life of a state assembly or make law establishing local councils.
Is it not obvious therefore that those who want to extend their mandate are not patriots but traitors? The tenure of the National Assembly members, of the President and the governors, these are settled and the National Assembly cannot, in the spirit of the Constitution, make law to reduce the tenure or increase it.
I am saying that the proof of the people’s sovereignty is that they delegated the powers being exercised for a period specific and specified. Because this tenure is in the heart of sovereignty which is all that makes the lawmakers and others subject to the people, any proposal to change them must be subject to a referendum.
We the People are We the People even if the constitution was imposed by the military. Specifically on the tenure of public officers, we should not attend to any issue outside the only conditions stipulated for extension of tenure. This is provided for when the country is at war, in which case the National Assembly can extend tenure for six months at a time.
But to provide that the President can serve for four terms strikes at the heart of sovereignty and must be subjected to a referendum. Otherwise, someone is pushing for a civilian equivalent of a coup. And I wonder what difference it would then make to the people whether those in power got there through the ballot or the barrel of a gun as both would have achieved their hearts’ desires by means that are treacherous, unpatriotic and therefore treasonable.
Many are other areas which, if subjected to the promises made by public officers in the oaths they take, will show that most of us are not patriotic. We must therefore strain to build a foundation on which to hang a true Nigeria that is loved by those who by birth and by choice are its citizens.
Published in Vol. 2 of Democracy Watch, A Monitor’s Diary by Tony Momoh, pages 22 – 24; Lagos, 2008).