58th Commonwealth Parliamentary Association
Conference
Colombo, Sri Lanka 2012
WORKSHOP C
The Politics of Constitution-Making: The Role of
the Parliaments in Relation to the People
OPENING PRESENTATION
By
SENATOR IKE EKWEREMADU, CFR
Discussion Leader (Workshop C)
&
Deputy President of the Senate/
Chairman, Senate Committee on the Review of the 1999
Constitution
National Assembly of the
Federal Republic of Nigeria
Preamble
The Constitution
A constitution is the basic and most fundamental law of a nation-state. It is
the numero uno, grundnorm, and fons et origo of any legal system.
Late South African Chief Justice, Ismail Mahomed:
All constitutions seek to articulate, with differing degrees of intensity
and detail, the shared aspirations of a nation, the values which bind its
people and which discipline its government and its national institutions,
the national ethos which defines and regulates that exercise and the
moral and ethical direction which that nation has indentified for its
future
A Special Report by the United States Institute for Peace in 2003 gives
further insight:
We live in an era of constitution making. Of close to 200 national
constitutions in existence today, more than half have been written or rewritten in the last quarter century.
2. PEOPLE, PARLIAMENT AND CONSTITUTION-MAKING
2.1 The People and Parliamentary Sovereignty:
Many modern constitutions begin with the expression “We the
people”.
This is very symbolic since it underlines the fact that the people are
the ultimate crafters, expositors and guardians of the constitution
The most distinguishing factor between other forms of government
and democracy is that sovereignty belongs to the people.
This sovereignty is however transferred by the people to their elected
representatives through free, fair, and credible electoral processes.
Chapter 1 (1) of the Constitution of the Republic of Ghana, for
instance, states clearly that “The Sovereignty of Ghana resides in the
people of Ghana in whose name and for whose welfare the powers of
government are to be exercised in the manner and within the limits
laid down in this Constitution.”
Among the government structures that exercise this sovereignty on
behalf of the people, the parliament is the most representative of this
sovereignty.
The parliament is thus a capsule of this sovereignty
2.2 Legislative Powers of a Parliament:
This sovereignty is usually exercised on behalf of the people through several
fundamental legislative powers and functions, namely:
•
lawmaking
•
budgetary approval/appropriation
•
oversight
•
confirmation of certain executive and judicial
•
Removal from office of executives
2.3 Constitutional Legislation:
Lawmaking is the highest and most fundamental function of the parliament.
• Constitutional Legislation is the height of lawmaking because every other law
derives its legality/legitimacy from the constitution.
• Since the parliament is a creation of the constitution, the parliamentary powers
and competence in relation to the constitution is naturally limited to
amendments.
• The process for such amendment is usually circumscribed or prescribed by the
constitution.
• This is found in Sections 8 and 9 of the 1999 Constitution of Nigeria; Article V of
the Constitution of the USA; Sections 38-49 of the Constitution Act of Canada,
1982; Chapter 25 of the Constitution of Ghana, 1992.
3. CONSTITUTION AMENDMENT: A WINDOW TO EVOLVING A PEOPLE’S
CONSTITUTION
•
Different constitutions prescribe various modes for altering them.
•
Provisions for constitutional amendment represent a guarantee of a
people’s right to self determination
3.1 How Constitutions Are Amended
•
In general, the process of amending constitutions is more stringent than
that of conventional acts of parliament.
•
It is primarily through parliamentary approval and in some climes an
additional approval in a referendum
3.2 What cannot be amended:
Some constitutions explicitly declare those things considered so fundamental
and sacrosanct to the state that it cannot by any means be amended.
•
The Constitution of Brazil in Article 60 prohibits amendments that would
abolish individual rights or alter the basic frameworks of the nation such as
separation of powers or the Federal Republic.
•
Article 5 of the US Constitution, forbids any amendment that may affect
equal representation of the states in the Senate without their consent.
• Article 79 (3) of the German Basic Law bars amendments that intend to
modify the federal nature of Germany.
3.3 Why Amend the Constitution?
a. Non-inclusion:
b. Dynamism of society: Justice Albie Sachs of South Africa describes a
constitution as “an autobiography of a nation”.
c. Deficits and Inelegant drafting and Gray areas
d. Our Political History: Sometimes also, constitutions, especially those
birthed by dictatorships fail to take into cognisance the political history of
a nation.
e. Electoral Issues
f. Institution building Democracies in developing nations often suffer from a
spill-over of weak institutions.
g. Executive immunity
h. Structural imbalances:
i. Guarantee of human, economic, social, and cultural rights
4. CHALLENGES TO EVOLVING A PEOPLE’S CONSTITUTION
a.
b.
c.
d.
e.
f.
g.
Inexperience and lack of template of procedure
Lack of details and explicitness
Crisis of Expectations and temptation to do so much at a time
Apathy and lack of democratic culture
Ethnicity
Lack of political will
Lack of Independence/Autonomy
The Role of the Parliament in Relation to the People
This is situated in the following cardinal principles of constitutionmaking:
a. Inclusivity
b. Participation: Professor Rosen said:
In a society which has limited experience with successful
constitutional governance, and in which the notions of
democracy, constitutionalism, and the rule of law are not well
developed, the drafters must also popularize and educate the
people about these concepts, for a people cannot be wedded to
something which they do not understand.
Dialogue, public debates, and extensive public education on the
process in indigenous local languages should be encouraged
How we do it in Nigeria:
Dialogue, public debates, and extensive public education on the process
in indigenous local languages should be encouraged
How we do it in Nigeria:
• Public hearing at the national and zonal levels.
• Lawmakers return to the nooks and crannies of their
constituencies to engage their people through town hall meetings,
village meetings and consultations with opinion leaders, traditional
institutions, etc.
• More than previously, we are taking our media campaign down to
the grassroots
• We are also engendering feedback mechanisms to extract more
inputs from Nigerians through web presence and opinion poll
through both SMS (text message), etc.
c. Diversity: Diversities of every nation in terms of ethnicity, religion,
gender, language, professional grouping, etc must be well
represented.
d. Autonomy: The parliament or a Committee of it driving the process
should not only be independent of government, party and other
external control, but must be seen to be so.
e.
Transparency/Openness: Constitution-making thrives on the
principle of openness.
•
•
•
Live broadcast of major constitution amendment events
Acknowledgement of memoranda received
Proposals received should be analysed and made public to
show how parliament arrived at important decisions
f.
Accountability: Accountability requires that periodic report on
the constitution-making process is rendered to the entire
parliament and the people.
g.
Legitimacy: When the listed principles/strategies are observed,
legitimacy is naturally conferred on the document.
Much of what I have said and what I believe the parliament’s role should be in
relation to the people in constitution-making is captured in my opening address at
the Retreat of the Nigerian Senate Committee on Constitution Review on the July
20, 2012.
I wish to reassure Nigerians that we will be open and true to them. We have no
position on any issues except those taken by the Nigerian people through
their inputs, whether through their memoranda, contributions at public
hearings, and their elected representatives at both the National and State
Assemblies. We bear no allegiance to any, except that which we owe to the
Federal Republic of Nigeria. We have no interest to protect, except that of the
generality of the Nigerian people and posterity. We will be driven by the force
of superior argument and public will. What we owe our people is leadership,
legislative due process, transparency, inclusivity, and popular participation.
We want to ensure that the generality of Nigerians own and drive the process
to be able to take full responsibility of the eventual outcome.
The reputation and effectiveness of modern constitution depend upon democracy
in its process as well as its outcome.
The people, therefore, have a moral claim to inclusivity and participation,
according to the norms of democracy
It behoves on the national parliaments of the Commonwealth to make it happen.
Thank you for your attention.