Why Jonathan can’t propose new Constitution - El-Sudi Barrister Ibrahim Tukur El-Sudi represents Gashaka/Kurmi/Sardauna Federal Constituency of Taraba State. A constitutional lawyer and former state Attorney General, he says the President cannot have both
Federal legislators have expressed reservations about the National Conference, but the National Assembly has approved the N7 billion allocated for the conference. How do you reconcile that?
As you rightly pointed out, majority of the members of the National Assembly are against the National Conference, however, it should be clearly understood that there are certain lee ways in the budget left for the president to take control of certain activities, even if they are not budgeted for. We believe it is with this spirit that the National Assembly gave the president this N7 billion, because it was not in the budget.
There are special sub headings where the president is given recognition to conduct certain things that are not within the contemplation of anyone. I believe this is what happened.
What is your take on the bill that sought to grant the President powers to propose a new constitution?
The president is trying to use the powers of the legislators. Section 9 of the 1999 Constitution is very unambiguous, that the powers to alter, vary or modify the Constitution lie with the legislature. The particular wording there is “alteration” and alteration here includes amendment. An amendment, if you go into various definitions, as encapsulated in various dictionaries, includes wholesome change or replacing an old one with a new one.
By implication it means the National Assembly, can change the constitution completely. This does not stop the President from requesting us to endorse it, because 70 percent of the legislation at the federal level comes from the executive arm. Therefore nothing stops the president from requesting that or presenting a brand new constitution for our consideration, because the Supreme court as far back as 1964 in the case of the Attorney-General of the Eastern region of Nigeria and the AttorneyGeneral of the federation, decided on that. And that is the locus classico, the case that is reigning unless the Supreme Court reverses itself.
So, are you now saying that there was no need for that bill to have been tabled in the Senate since the President can propose same under the extant provisions?
There was no need for that in the first place. In fact, both the Senate and the House of Reps, through private bills by individuals, members of the National Assembly have even questioned the powers conferred on the President under section 315, which says the President can by order alter or modify provisions of any law to be in conformity with the Constitution. Now we said ‘no.’ you cannot have executive as well as legislative powers.
But this proposed alteration did not come from the President, rather it came from a presiding officer of the National Assembly...
As presiding officers, they are first among equals. They have their own pedigree, they have their own dispositions, so they can bring issues, either national or local, but it is not the general opinion. In fact even on the floor of the Senate it was vehemently opposed to by the majority of the members, and at the end of the day, it was also dropped.
Members of the legislature seem willing tools in the hands of the executive in coming up with legislation that are endangering the institution. Are you not concerned about this?
I am very much concerned. Obviously in any organisation, you can never rule out the existence of some Judas and therefore to any general rule, there are exceptions and these are the few that crop up from time to time in an institution like the legislature. It is very disturbing and you can never stop that. It happens everywhere.
There are those that are preeminently pro-executive. I am not saying that you should be antagonistic to the executive. We are all working towards the same government under the democratic system we are practicing. But the bottom-line is that we should not be seen to be promoting things that are antithetical or anti-democratic in nature.
Many believe the conference was primarily convoked to address the agitation for the resource control and for tenure elongation.?
Only God knows the motive behind the convocation of this conference. But I want to say that there is semblance of the accusation or the allegation peddled on the issues rumored round that this might be the case because of the passion some people come out to speak on this issue.
Do you support the idea of resource control?
It all depends on how you look at the whole issue. The issue of resource control is a new issue in Nigeria. However, I want to make abundantly clear and I believe many Nigerians know that under section 44 (3) of the 1999 Constitution, the issue of mineral resources, whether solid or liquid, lies squarely with the Federal Government and I want to quote verbatim, so that I would not be quoted out of context. I says “notwithstanding the foregoing of this section, the entire property in and control and all minerals oil and natural gas in, on or under any part of Nigeria or under or upon the territorial waters and exclusive economic of Nigeria should vest in the federal republic of Nigeria and be managed in such manner as may be prescribed by the National Assembly.’ We are handling the issue of Petroleum Industry Bill, which when subsequently passed, will become a Petroleum Industry Act. The question is: as Nigerians, are we not in support of the control of mineral resources as encapsulated in the section 44 (3) of the 1999 constitution? Majority of Nigerians are very comfortable. The most annoying issue of it is that people have completely forgotten history.
I have heard our southern brothers castigating, abusing, using very unprintable words that we are parasitic, we don’t contribute anything to the economy and they should be given the opportunity to control their resources 100 percent. When you go into various definitions, most oil producing countries, the places where these mineral resources come, do not agitate the way this our southern counterpart do. This is not a new issue.
Now, going back into historical lane, there is a book written by Adebayo Adedeji, he captioned it ‘Nigerian federal finance’, in page 60, I just want to recap some of the issues he raised: the northern region received substantially, that is in the 1960s, much less allocation than its derivative share. Eastern region received substantially much more. The western region, at first, received much less allocation than its derivative share, although the gap the between its derivative share and the actual allocation diminished over the years, from 5.9 percent from 1948-1949 to 0.9 percent in 1951. So the East remained consistently a deficit region while the North and to some extent the west remained the surplus region. And the East at the time comprised the present NigerDelta.
Sir Richard expressed the situation then as thus: ‘I found that the North which pays its taxes almost as obediently as people do in England and which contribute more than any other section of Nigeria to the general revenue is the part of Nigeria which has the least spent on it by the central government. The eastern provinces, which comprised the South-East and the South-South today, the part of Nigeria which is most vocal and which clamours and calls for more education, more of everything is the part which least contributes to the other two regions on the general revenue of the country. It is also the part upon which government spent much. This is a book not written by a northerner but a southwesterner Adebayo Adedeji. And this was written in 1969 and some people are telling us that we have never contributed to the peaceful co-existence of this country.
What then could be reasonable?
What is reasonable is what is obtainable now, because look at the budget. Look at what is embedded in the Niger-Delta Development Commission, the ministry of Niger-Delta, the amnesty program. In fact so many things embedded in the budget, with so many nomenclatures, with different coinages. It is enough for them to develop. Let them blame their leaders. The southern part should blame their leaders.