Senate Proposes Plan to Subject New Constitution to Referendum

Senate Chambers

• Upper chamber empowers INEC to de-register failed political parties

By Omololu Ogunmade

In what may serve as a major breakthrough for advocates of a new constitution by the people of Nigeria, the Senate will today vote on a fresh proposal to Section 9 of the 1999 Constitution which seeks to empower the Independent National Electoral Commission (INEC) to conduct a referendum on proposals for a new constitution by the National Assembly.

This idea was one of the fresh proposals presented by Deputy Senate President and Chairman of Senate Committee on the Review of the Constitution, Senator Ike Ekweremadu, to the chamber during voting on some proposals relevant to amendments to Electoral Act 2010 yesterday.

If this proposal sails through, it may put paid to protracted condemnation of the 1999 Constitution by a section of the society which insists that the constitution is flawed because it was imposed on the people and not subjected to their decision.

The fresh proposals, which seek to empower INEC to conduct a referendum on a draft for a new constitution produced by the National Assembly, also provide that the draft will only become a new constitution if it is approved by two-thirds of the states of the federation through INEC’s referendum.

During yesterday’s voting, the senators overwhelmingly passed an amendment to Clause 6 of the constitution, seeking to empower INEC to de-register any political party which fails to win an election at the polls, among others.

But the senators deferred voting on proposal for referendum along with other amendments to Section 9 till today. The earlier amendments proposed to the section which were passed by the Senate during voting in July last year had conferred on the National Assembly the exclusive preserve to prepare a new constitution for the country.

A recent proposal by the review committee seeking to empower the president to initiate fresh moves to prepare a new constitution was rejected by senators and consequently withdrawn by the committee.

Sub-section 3D of Section 9 in the proposal, if supported by four-fifths majority of all the members of each house of the National Assembly and approved by the resolution of two-thirds majority of state houses of assembly, empowers the Senate president and Speaker of the House of Representatives to constitute a Joint Constitution Drafting Committee.

Sub-section 3E of the proposed Section 9 also provides that the Joint Constitution Drafting Committee to be set up will comprise two members from each state of the federation, a member each from the Senate and House of Representatives, two members representing FCT and another one from Senate and the House.

In the same vein, sub-section 3I states that the report of each of the two houses shall be forwarded to the state houses of assembly which shall be subjected to approval by two-thirds of the state houses of assembly.

When the draft returns to the National Assembly, the Senate president, according to sub-section 3L, will direct the Clerk of the National Assembly to forward copies of the draft of the new constitution to INEC.

The INEC, according to sub-sections 3M and 3N, will then conduct a referendum within six months of the receipt in all the states of the federation. Unless the draft receives the support of two-thirds of the states, it cannot become a constitution.

“The Independent National Electoral Commission shall within six months of the receipt of the draft constitution, cause a referendum to be conducted to approve the draft constitution. If the draft constitution receives a simple majority of votes cast in two thirds of all states of the federation, it shall come into force as the constitution of the Federal Republic of Nigeria,” the sub-sections stated.

It is believed that this amendment will create room for the subjection of the output of the ongoing national conference to referendum in response to agitation for it from the polity.

But a major difficulty for its passage is that unlike voting on other amendments to the constitution which requires only two-thirds majority of members of the parliament, voting on this section requires four-fifths of the constitution. This implies that for the proposals to sail through, the Senate will require the support of 87 members as against 73 in the case of two-thirds majority.
Besides, sub-section 3A of this Section 9, if supported by required majority today, will strip the president of the power to sign the new constitution.

Briefing journalists on the section, Chairman, Senate Committee on Information, Senator Enyinnaya Abaribe, threw more light on the move.

“Regarding Section 9, actually, I think there was a bit of mis-understanding because of the fact that we had earlier done a voting on Section 9. The voting that was done earlier on Section 9 was to the effect of amending Section 9 as to who has the authority to bring into play a new constitution. That is what is in Section 9 and we voted on it earlier and it was passed, but it was passed with two-thirds but the constitution today requires that in passing such a measure with respect of bringing up a new constitution, we have to pass it with four-fifths and so we needed that number.

“Two-third is 73 and four-fifth is 87 and so, we wanted to take it but we saw that there was a lot of misunderstanding of the import of that section. The section was so clear and the deputy senate president at the end of the session, wanted to make Nigerians know exactly what was inside so that we don’t go out with the wrong impression that there was something that was going on there that Nigerians will not understand.

“Let me clarify it. That Section 9 simply states in 3A that the assent for any alteration in the constitution will not be needed by the President because you know that there is a controversy that is there today. I remember when we passed the amendment that was done in the 1999 Constitution in the sixth Assembly, if you recall, Olisa Agbakoba and few other lawyers went to court and insisted that since it is a bill, the President needed to assent to it,” he said.

Meanwhile, all the proposed amendments voted on yesterday by the senators in relation to amendments to Electoral Act 2010 were overwhelmingly supported and passed by the senators.

Prominent among them were fresh provisions seeking to empower INEC to de-register political parties which fail to win a seat from the states to centre. This move will save INEC from litigations coming from owners of such parties.

The parliament also passed the proposal empowering the Federal High Court to try offences connected to the violation of the Electoral Act and any other election related Act of the National Assembly.
It also passed an amendment which empowers former Senate presidents and speakers of the House of Representatives to become automatic members of the National Council of States.

The Senate also voted in favour of an amendment to Clauses 2 and 3, which mandates the Clerk of the National Assembly as well as clerks of states’ legislatures to notify INEC in writing within seven days of the existence of a vacancy arising from death, resignation or defection of a member of the National Assembly or a House of Assembly.

It also endorsed amendments to Clause 4 of the constitution, seeking to extend the time of the conduct of presidential and governorship run-off elections from seven to 21 days as contained in Clauses 4 and 5.