Referendum: Practice and Procedure in Nigeria
An essential feature of democracy is the idea that decisions made by the law making body of a state and the implementation thereof by the executive arm, must be a reflection of the will of the people; handed down to the society through their duly elected representatives. With powers of citizens now vested in their representatives, their right to make laws are now exercised indirectly through these representatives. However, under certain circumstances, the Constitution of a state can allow citizens of the state to make; approve or reject laws before they are passed by the legislature. The exercise of this right is referred to as “referendum”.
A referendum is a right reserved to the people to approve or reject an act of the legislature, or the right of the people to approve or reject legislation that has been referred to them by the legislature. It provides the people with a means of expressing their opinion on proposed legislation before it becomes operative as a law. This power however does not permit the people to invalidate a law that is already operative but suspends or annuls a law that has not yet gone into effect. Once passed, the decision derived from a referendum has the same force as a law or an Act. As noted earlier, a referendum is derived solely from a state's constitution and as such the procedure to be followed in exercising same are usually set out in the state's constitution and statutes. It is also important to note that a referendum process is essentially the same in every state.
Generally, the procedure to commence a referendum starts with the petition for the referendum which usually states, among other things, the title and nature of the legislative act the petition seeks to have submitted for referendum. Thereafter, the petition is then circulated for signatures. When the required number of signatures is collected, the petition is filed. If the petition is certified as sufficient, the referendum measure is placed on the election ballot for approval or rejection by the people and where the required numbers of votes, usually a majority of the votes cast, are in favour of the referendum, then the law making body of the state adopts same as a law or an Act.
The above notwithstanding and in a bid to confine the scope of this paper to the applicability and constitutionality of a referendum in Nigeria, it is important to consider instances where a referendum can be conducted under the 1999 Constitution of the Federal Republic of Nigeria as amended CFRN, whether the request by the Biafra to secede from Nigeria can be decided through a referendum and finally, the effect of UN Conventions on the provisions of the Constitution in this regard. Referendum in Nigeria Like every other state, Nigeria in the past has conducted referendum on key issues. The foremost referendum conducted in Nigeria is traceable to November 1959 and 1961 where a “referendum on becoming part of Nigeria” was conducted for the Northern Cameroons to either elect to vote to join Nigeria or not. On the constitutionality of referendum under the 1999 Constitution of the Federal Republic of Nigeria as amended (CFRN), it is important to note that there has been arguments as to whether the Constitution makes provision for the conduct of referendum or not. This is particularly in view of the seeming silence of the Constitution on the applicability of referendum in general. Though the position of those who maintain that a right to referendum is not recognised under the Constitution may appear justifiable, particularly in view of the absence of a provision relating to its applicability in general under the Constitution, it is nevertheless necessary to note that the Constitution in some instances recognizes the applicability of a referendum.
These instances are as follows:
i. creation of new states/local governments – as a condition precedent to create a new state, a proposal to be approved by at least two-third majority of the people in the areas where the demand for creation of the state originated is passed through a referendum. Once the approval is obtained, the result of same is passed into law by a resolution of two-third majority of the National Assembly. This is elaborately provided under Section 8 (1), (b) and (3) of CFRN for creation of state and local government respectively.
ii. Recall of a member of the Senate, House of Representatives or State House of Assembly – as a condition precedent to recall, a petition in a referendum conducted by the Independent National Electoral Commission must be approved by a simple majority of votes cast by persons registered to vote in the member’s constituency. This is provided under Sections 69 (b) and Section 110 (b) CFRN for recall of a member of the Senate/House of Representatives and the State Houses of Assembly respectively. From the above provisions, it is important to note that the right to call for a referendum under the Constitution can only be exercised under circumstances listed above. Being a right derived from the Constitution, the scope of the application of referendum must be confined to the instances provided under the relevant Sections of the Constitution. Determination of Secession by Referendum in Nigeria Secession occurs when persons or groups in a country or state declare their independence from the ruling government. If successful, the group secedes and creates its own form of government in place of the former ruling government. This practice is generally viewed as a serious offence which threatens the peaceful coexistence of a country as same often leads to civil wars and military conflict. The right to referendum as noted earlier is a right derived from the Constitution and as such the scope of its application must be confined to the instances provided under Sections 8(1), (b) and (3), 69 (b) and 110 (b) of the Constitution as opposed to the exercise of the right at large to cover other circumstances such as a movement by an ethnic group seeking to secede from the country.
Thus, except otherwise provided by the Constitution, which in this case must be by amendment, a referendum cannot be conducted to determine whether an ethnic group can secede or not. A further reason why a referendum for secession cannot be conducted under the Constitution is that, under the Constitution, particularly Section 2(1), Nigeria is one indivisible and indissoluble Sovereign state and as such an attempt to disintegrate its sovereignty is a violation of the Constitution. Hence, since the right to referendum must be derived from the Constitution, it becomes almost impossible for the Constitution to sanction an act or a call which seeks to violate its provisions. Furthermore, under the Nigerian Criminal Justice system, any act undertaken by any person or group of persons geared towards inciting a part/group of Nigeria to secede is a criminal offence, punishable under the various criminal/penal laws of states of the federation. Hence, except where amended, it becomes impossible for the Constitution to confer on people the right to engage in criminal activities. In light of the foregoing, it is safe to conclude that referendum being a right derived from the Constitution cannot be used as a tool to violate the provisions of the same Constitution. Hence, in the absence of a constitutional backing on the exercise of such right to determine secession, same cannot apply. UN Conventions vs. Nigeria Constitution on Secession: the right to secession is recognized under Article 1(2) of the United Nations Charter, which seeks to promote principles of equal rights and self-determination of people and strengthen universal peace. The right to self-determination has been defined as the right to decide on the political status of a people and its place in the international community in relation to other states, including the right to separate [secede] from the existing state of which the group concerned is a part, and to set up a new independent state. This provision has been the basis through which the United Nations initiates support or complete decolonization process through electoral processes or referenda.
Readily examples of UN inventions on the back of Article 1(2) are the referenda conducted by UN in 1999, to decide whether East Timor (a part of Indonesia) would secede from Indonesia or not and the UN proposal for the unification of Cyprus through the UN-organized unification exercise conducted in 2004. It is also needful to note that countries have in the past gained independence through referenda. However, the conduct of these referenda was not without recourse to the Constitutional provisions and internal mechanisms of these countries. Few examples are as seen in cases of Switzerland, Serbia and Montenegro (the Eritrea and East Timor), Canada (re 1980 Quebec province referendum). The rationale for the foregoing is based on the fact that a claim for self-determination is a threat on the territorial integrity of states and as such, based on the principles of sovereignty, an internal matter to be handled by states. This position has been recognized by the Article 2 of the UN Charter and Article 10 Covenant of the League of Nations. The foregoing position of international law is anchored on the fact that a basic feature of an independent state is its ability to exercise sovereignty over its citizens, territories and boundaries without foreign interference. The jurisprudential underpinning of sovereignty is the full right and power of a governing body to govern itself without any interference from outside sources or bodies. The philosophy behind sovereignty of states extends to the supremacy of its laws, particularly its Constitution over any other foreign law, treaty or convention. Accordingly, the 1999 Constitution of the Federal Republic of Nigeria as amended is not silent in this regard as it makes express provisions on its supremacy over any law under Section 1, which provides thus: this Constitution is supreme and its provisions shall have binding force on the authorities and persons throughout the Federal Republic of Nigeria.
From the above provision it is clear that the Nigerian Constitution is the supreme law which binds the activities of any person/authorities and as such no other law, treaty, or convention can be in equal ranking in terms of its applicability in Nigeria. What this means is that, where the Constitution makes provision on a particular subject matter, all other laws, treaties or convention must be in consonance or agreement with the provisions of the Constitution. Hence, where there is an inconsistency between the provisions of the Constitution and any other law, the Constitution shall prevail and such law to the extent of its inconsistency with the Constitution would be void. This position is reinforced under Section 1(3) of CFRN. In relation to the applicability of United Nations Conventions in Nigeria vis-a-vis the supremacy of the Constitution, it important to note that UN Conventions to which Nigeria is a signatory to are generally applicable in Nigeria. However, the effect of such Convention or any other treaty is at best persuasive and not binding unless same, as provided under Section 12(1) of CFRN has been ratified by the National Assembly and enacted as a local law in Nigeria.
The above notwithstanding, under this circumstance (referendum on secession) it is important to note that even if UN Charter and all other related treaties have been ratified as an Act of the National Assembly, its provisions on self-determination will be inconsistent with the provisions of Section 1 of the Constitution and as such, by virtue of subsection 3 of Section 1, will be void and of no effect. In conclusion, having established that a referendum cannot be conducted under the Constitution to determine whether the South-East/South-South can secede from Nigeria, it is clear that no UN Convention can either overrule the position of the Nigerian Constitution on referendum or mandate the country to conduct a referendum on this issue.
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