LEGAL icon and Chairman of The Patriots, Professor Ben Nwabueze (SAN), has dismissed as unfounded comments that he is opposed to President Goodluck Jonathan giving his stance on the on-going National Conference and whether or not the president should seek re-election to drive further his transformation agenda.

Clarifying his position towards President Jonathan, in a four-page paper, yesterday, Nwabueze said he is concerned about the president’s interest and the success of his administration. He endorsed the transformation agenda saying however, that it would be difficult for President Jonathan to pursue a re-election and the transformation agenda at the same time because the two projects are mutually antagonistic.

The paper read:
It has become necessary to make some clarifications in order to dispel the unfounded story in some political quarters that I am opposed to or anti-President Jonathan. Quite the contrary, I have a concern, a sincere concern, for his interest and for the success of his Government.

I want him to be the President who will transform Nigeria into a new, better and united country which, to me, is the highest achievement for any President.

At the same time, I honestly think that the transformation of Nigeria cannot be combined with the ambition for re-election in 2015. For one thing, transforming Nigeria into a new, better and united country and the political ambition for re-election as President in 2015 are mutually antagonistic objects which cannot be successfully combined together.

You have to choose to pursue the one or the other, but not both together at the same time; pursuing both together is like trying to gain the best of two worlds at one and the same time. It is an impossible dream. And I told the President so in writing. I said that, if I were him, I would go for the honour of being the one to transform Nigeria, which would make him the father of modern Nigeria and a national hero invested with immortality. That was an honest, personal advice. An advice as to what I would do if I were him cannot mean that I am opposed to or an enemy of my own interest.

It is the attempt to combine the mutually antagonistic objectives of national rebirth, national greatness and national unity and the political ambition for re-election in 2015 – an adroit political strategy – that has led to the nature and type of the National Conference being muddled up and to its being deprived of the capacity to serve as an instrument for the creation of a new, better and united Nigeria. That is the simple truth which we should frankly admit to ourselves and to our fellow countrymen and women.

Despite the frustration of the objective of national transformation caused by the intrusion of the ambition for re-election in 2015, there can be no question of me calling on Ndigbo, Nigerians or anyone not to vote for President Jonathan in 2015 if he decides to run, which is his constitutional right, a right no one can take away from him.

Yet, I do not understand my sympathy and solicitousness for the President’s interest as requiring me to abandon my role, as constitutional lawyer and analyst of the practice and processes of governance in the country, to criticise, in a constructive manner, errors by him and his government, or to betray my nature and character by compromising truth and principle in order to please anyone.

The analyses and conclusions in my two recent write-ups are based on straightforward truth and principle that nobody has faulted; they stand on their feet, quite independently of support for, or opposition to, the President. I owe the analyses and conclusions in the two write-ups to the Nigerian people and to posterity, and I am content to leave it to them to be the judge.

Ethnic nationalities
The two write-ups are titled: (i) Will the National Conference, as now convoked and constituted by President Jonathan be effective in realizing our aspiration for a new, better and united Nigeria; and (ii) the ethnic nationalities are best suited to negotiate the terms of our unity as well as serve as necessary pillars for building a nation.

It is in the honest discharge of that role that I criticize, constructively, I believe, the muddles in the nature and type of the National Conference that deprive it of the capacity to serve as an instrument for the transformation of Nigeria into a new, better and united country. I am deeply pained that the Conference should have been turned into what it is, but my feeling is simply that of pain and disillusion, not vengefulness or ill-will or even anger towards the President.

But the matter is no longer one of criticism of errors committed in the way the Conference is constituted, however constructive the criticism may be; it is rather how to salvage the Conference and make it serve the objective of transforming Nigeria into a new, better and united country.

I think the Conference can be salvaged even at this stage– by the President summoning the courage to send to the National Assembly an executive bill in terms of the National Conference and Referendum Bill prepared and submitted to him by The Patriots, with such modifications as he may deem necessary. If he does that, he will have played his part, and it will be left to the Nigerian people to mobilise to get the National Assembly to pass the bill into law in the shortest possible time.

Committee deliberations
While the bill is in the National Assembly undergoing the usual processes, the National Conference, after the committee deliberations now going on, should set up a Committee of its members to begin work on the drafting of a new Constitution which, after adoption by the Conference, will be submitted to the people at a referendum for approval.

While the Drafting Committee is working on the draft, the rest of the delegates should go on recess to resume when the Draft Constitution is ready for discussion. Hopefully, by this time the National Conference and Referendum Bill would have been passed by the National Assembly and assented to by the President.

The issue of referendum has become befogged by unnecessary confusion. There are two aspects to the issue, viz (i) the amendment of section 9 of the Constitution by the National Assembly and the State Houses of Assembly to provide for a referendum as a method of either changing the Constitution in its entirety by the adoption of a new

Constitution to replace it or as a method of altering specific provisions in it; (ii) the enactment of a law by the National Assembly, after step (i) above has been accomplished, authorising the holding of a referendum to approve the decisions of the National Conference.

The argument of the National Assembly is that it cannot enact a law under step (ii) above until step (i) above has been accomplished, i.e. until section 9 of the Constitution has been amended by it and the State Houses of Assembly. This argument, which does not take into account the provisions of section 4, purposively interpreted, is open to disputation.

Certainly, the National Assembly has power under section 4, taken together with section 315(1)(a & (4), to abolish the 1999 Constitution by repealing Decree 24 of 1999, to which it (the 1999 Constitution) is annexed as a Schedule. Decree 24 of 1999 is “an existing law” under section 315(1) and, like all existing laws that are within federal legislative competence, is embraced within the National Assembly’s legislative authority to repeal or amend.

 It would be inconceivable and a manifest absurdity that there should be “an existing law”, as defined in section 315(4), which is beyond the power of the legislative authorities, federal or state, of the sovereign state of Nigeria to repeal.

Sovereign state
And once repeal Decree 24, the 1999 Constitution in its entirety, with its section 9 relied on by the National Assembly, disappears completely from existence. The sequence to be followed in the abolition of the 1999 Constitution (through the repeal of Decree 24 to which it is annexed as Schedule) and the adoption of a new Constitution to replace it is explained and elaborated upon in a 5-page write-up I submitted to the President and the National Assembly in 2013.

The President was so excited and taken in by the idea, nodding his head repeatedly, when I spoke on it at The Patriots’ meeting with him on 29 August, 2013, (I was also myself so excited when the idea first came to me) but the write-up was soon thereafter shoved away. I am also deeply pained by this. The President and the National Assembly should put their self-interests aside and put their heads together to find a way to give us a Peoples Constitution that will lead us to a new, better and united Nigeria.

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