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Full text of the letter from The Patriots to Jonathan

By The Rainbow
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Dear Mr. President,
We, The Patriots, wish to begin by recalling our meeting with you on 29 August, 2013 during which we submitted a 30-paragraph Memorandum in support of our long-standing demand, dating back some 15 years, for a National Conference. The fundamental attributes of the type of National Conference we were demanding are two namely -

• a Conference to adopt a suitable new Constitution embodying re-negotiated terms and conditions on which the diverse ethnic groups comprised in Nigeria can live together in peace, security, progress, prosperity, general well-being and unity as one country under a common central government, but NOT a Conference the results of whose deliberations will only be integrated into the existing 1999 Constitution;

• a Conference of the ethnic nationalities making up or composing the Nigerian state as the pivot or focal point, NOT a Conference of individual Nigerians as autonomous entities or of interest groups, although the latter should be given reasonably sizeable representation.

2. These two fundamental attributes of the National Conference being demanded were amplified in six paragraphs of our above-mentioned Memorandum to you, paragraphs 3, 4, 16, 17, 19 and 20, which we crave your permission to reproduce here for ease of reference:

'3. Nigeria is a wobbly state in part because it stands on a very weak foundation, which creates a necessity to transform it. The foundation of a polity or state, that is to say, its super-structure, is its constitution. A polity or state rests on a very weak foundation if the source of authority of its constitution, as the supreme law of the land, is not the people directly, acting in a constituent assembly (or a national conference) and a referendum; that is what characterises a constitution as a democratic one, otherwise called a People's Constitution. It is true to say that, since the democratic revolution that swept across the globe from 1989, most countries of the world, certainly more than 85 per cent of them, Nigeria not included, accept and implement the democratic notion of the people as the source of authority of the constitution as the supreme law of the land.

The source of authority of the constitution, as the supreme law of the land, must be distinguished from its contents and the system of government it establishes, including the territorial structure of the state, the structure of powers and relationships, financial relations, as well as issues of justice to ensure, among other things, that the highest office in the land, the presidency, is not monopolised by 'a few ethnic or other sectional groups' (see the federal character provision in section 14(3) in chapter 2 of the Constitution). These latter, though they need to be addressed by the people in a National Conference, are secondary in importance to the fundamental issue of the constitution's source of authority. Being so fundamental in nature, and because the source of authority of our current Constitution of 1999, as indeed all our previous Constitutions, is not the people, the issue is a primal reason why Nigeria needs a National Conference, which is a form of a Constituent Assembly, to deliberate upon a Constitution for the country, which will then be submitted to a Referendum for approval.'.

The distinction between process and content, which is here implied, is further amplified as follows:

'A democratic constitution is defined more essentially by the process by which it is adopted. It connotes primarily a constitution adopted through the democratic process of a referendum or of a constituent assembly specially elected and specifically mandated in that behalf by the people or a combination of the two. Unless it is adopted through this process, a constitution is not truly a democratic one simply because it establishes a democratic form of government. Democratisation rests on a false and weak foundation if a democratic form of government, as enshrined in the constitution, is not in fact the choice of the people expressed by means of a referendum or an election of a constituent assembly for the purpose. A democratic constitution must thus be distinguished from a democratic form of government. A constitution must both be adopted by a democratic process and establish a democratic frame of government in order to be a truly democratic constitution.

The Constitution of Nigeria is not a democratic Constitution because it was not adopted by the people in a referendum or through a constituent assembly specially elected and specifically mandated in that behalf. It tells a palpable lie about itself to invoke the name of the people in a document in the making of which they had no hand at all, as the 1999 Constitution does in its preamble: 'We the People of the Federal Republic of Nigeria…… Do hereby make, enact and give to ourselves the following Constitution.' The National Conference thus offers an opportunity for us to democratise our Constitution in line with the practice in other countries of the world.'

3. The fundamental attribute of a Conference of ethnic nationalities is amplified as follows in paragraphs 16, 17, 19 and 20 of our Memorandum to you:

'16.The character of the ethnic groups in Nigeria, and in the rest of Africa, as different peoples or different nationalities, is an important respect in which the society of the state in Africa differs fundamentally from that of the state in the United States of America and Europe. Whilst each of the original thirteen colonies and, even more so, each of the fifty States that make up the United States today, comprises people of different languages, races, religions and cultural backgrounds, each of the different people does not, by and large, inhabit a separate territorial area as to constitute a separate territorial entity; as is the case in Africa. The diverse ethnic groups comprised in the state in Africa, as, for example, the Hausa/Fulani, Yoruba, the Igbo, the Ijaws, the Urhobos, the Itsekiris, the Efiks, the Ibibios and other ethnic groups in Nigeria, inhabit each a separate territorial area, which constitutes them a separate territorial entity. Creating a nation out of a diversity of peoples each inhabiting a separate territorial area and constituting a separate territorial entity confronts a problem fundamentally different in nature and character from that faced by the Americans since 1787.

17. Therefore any drive in this country towards building or creating a New Society, a New Nigeria, would be sheer self-delusion if it did not recognize the character of the ethnic groups as separate nationalities or if it tried to obliterate them completely. In any drive towards the creation of a nation out of a diversity of ethnic groups existing as separate territorial entities, the existence of such groups should be openly and frankly recognised as a social reality that can no more be wished away or banished than we can disregard our own individuality. 'For most of us,' writes Professor Claude Ake, 'these social formations and group identities are not externalities but the core of our being; it is by these identities that most of us define our individuality'. For most Africans, Alan Merriam also says, 'the reality….is not the centralised state, but rather a mixing of the political with the social structure in a formulation which rests upon villages, tribes and, at the most, regions.' 'Rather than consider ethnicity and  nationalism as contradictory and opposed,' Professor Ade Ajayi has suggested, 'it is better to think of a gradation of loyalties from family to community, to linguistic group or state, and to the nation.' In the African context, a nation in which the ethnic groups have no part can only be, in Robin Luckam's apt expression, a 'seamless' one, and therefore liable, sooner or later, to break apart into its several component parts.

19. So when we speak of the People (or the people of Nigeria) in a democracy, the concept has a somewhat more complex connotation in Africa than in the United States, Europe and some other parts of the world. It connotes not only the people as autonomous individuals but also the people as members of ethnic groups constituting separate territorial entities. Accordingly, a crucial step in the adoption of a People's Constitution for Nigeria is to bring the ethnic groups together around a conference table, along with civil society organisations, to discuss, negotiate and agree on how to live together in peace, comity and unity as one people and one nation.

20. It follows from the character of the ethnic groups in Nigeria, as in the rest of Africa, that a National Conference in which they (the ethnic groups) do not constitute the pivot or focal point will not be able to address effectively the various issues mentioned in the preceding paragraphs of this Memorandum.'

4. The nature of the Conference, as defined by the above two fundamental attributes, is further expatiated upon in oral presentation in the course of our meeting with you on 29 August, 2013. The existing 1999 Constitution, it was explained, is a constitution only in a loose sense of the word, but not in the strict, generally accepted sense of 'an original act of the people' by which a state and its government are constituted. The existing 1999 Constitution was not made by the people either through a referendum or through a constituent assembly specially elected for the purpose and specifically mandated in that behalf or both. It was made instead by the Federal Military Government (FMG) by way of a schedule to a Decree, Decree 24 of 1999. It was a sheer imposition on the people.

5.  Following the 29 August, 2013 meeting, your Excellency, in what may rightly be described as a singular act of courage, patriotism and statesmanship, and fired, more- over, by an ardent desire and spirit to transform the country, announced in a nation-wide broadcast on Independence Day, October 1, 2013, the setting up of a 13-member Advisory Committee to advise Government on the agenda, structure and modalities, and legal framework for the National Conference, and proceeded to inaugurate the Committee on 7 October, 2013. The Committee, having completed its work, submitted its Report to you on Wednesday 18 December, 2013.

6. The Conference recommended in the Committee's Report, which we have now carefully read, is one totally different, in its object or purpose, from that envisaged in our Memorandum and oral presentation to you, as set out above. We view it as, not only a complete departure from the fundamental attributes of the type of National Conference we envisaged, but also as a complete betrayal of our expectations and aspirations for a National Conference. Reading the Report has created in us a deep feeling of disappointment, disillusion and frustration.

7. Nowhere in its 68-page Report did the Committee affirmatively recommend that the adoption of a new Constitution for Nigeria is the primal purpose or object of the Conference or that a new Constitution so adopted shall be submitted to the people in a referendum for approval. Its recommendation on this all-important issue is to advise that it be left to the National Conference itself to decide the 'legal procedures and options for integrating the decisions and outcomes of its deliberations into the Constitution and the Laws of the nation.' This assumes the continued existence of the 1999 Constitution. The adoption by the Conference of a new Constitution to be thereafter submitted to the people in a referendum for approval is thus ruled out as a concern of the Conference.

8. As if what is said in paragraph 7 above is not frustrating enough, under the system recommended by the Committee, the unit of representation at the Conference is the individual Nigerian as an autonomous entity, not the individual as a member of an ethnic nationality; the choice of delegates is by direct election based on universal adult suffrage; the representation is for a federal constituency, as delimited by the Independent National Electoral Commission (INEC), not for the ethnic nationalities comprised within the federal constituency. In the result, the ethnic nationalities are completely relegated and sidelined, although, according to the Committee in paragraph 5. 11 of its Report, the ethnic nationalities may be one of the interest groups to be asked to nominate a few delegates to the Conference. The Conference is thus clearly not a Conference of ethnic nationalities, as envisaged in the Memorandum submitted to you by The Patriots. In order not to leave the matter in any doubt, the Committee emphatically affirmed in paragraph 5.13 of its Report that 'the National Conference and its associated processes shall be owned and driven by the Nigerian people.' It is hoped that this emphatic statement is not meant to imply or suggest that the ethnic nationalities and their members are less a part of the 'Nigerian people' than the autonomous individual Nigerians.

9.Indeed, although a proposal was made to, and strongly canvassed before, the Committee for 'equal ethnic representation in such a way that each ethnic nationality is represented by one (1) delegate each', the Committee completely excluded the proposal from the list of four options - tagged Options A, B, C and D - it considered and chose from. The proposal and the compelling rationale for it were thus not given any consideration at all by the Committee in its Report.

10.Far from being a Conference of ethnic nationalities for the adoption of a new Constitution for Nigeria, the Conference is conceived by the Committee simply as a means to bring Nigerians together to talk and talk about the multifarious problems facing the country, with no clear specification of the result the talking is intended to achieve. Five hundred or so people are to sit together for three months or so and talk and talk. There is, no doubt, something - however difficult it may be to quantify it where the object is not the adoption of a new Constitution - to be gained from bringing people together to talk about our common problems, but that can hardly be the primal object or purpose why a National Conference is being demanded. Does that really provide sufficient justification for the exercise, for which, according to newspaper report, N700 million is being budgeted?

11. The Committee recommended 38 main matters and some 50 subsidiary ones which the Conference is to talk about. They range from political federalism and forms of democratic governance to environmental degradation and climate change; from corruption and other issues of good governance to Land Use Act and National Youth Service Corps (NYSC); from poverty, wealth creation, productivity and youth unemployment to physically challenged persons and revisiting Bakassi; from oil and other mineral resources management, sharing mechanism and revenue generation and mobilisation to investment in sports; from national security and security challenges, education, health, science and technology to gender issues; etc. Such is the Agenda recommended by the Committee for the National Conference under item 1 of its Terms of Reference which requires it to draw up 'a feasible agenda for the proposed national dialogue/conference.'

12. The beguiling philosophy behind the Committee's conception of a National Conference seems to be to provide a forum for a talking engagement. Engage Nigerians in talking for 3 months, and our problems will recede to the background - not solved of course. The result of the talking is not to form the basis of a new Constitution but is to be 'integrated into the Constitution and Laws of the nation'.

13. A Conference for the purpose of adopting a new Constitution for Nigeria to be thereafter submitted to the people in a referendum for approval is certainly further ruled out by the Committee's recommendation that, as an alternative to an enabling law enacted by the National Assembly to 'give the National Conference legal backing', 'the President may exercise his inherent powers under Section 5 of the Constitution of the Federal Republic of Nigeria and convene the Conference'. This is a staggering recommendation. Inherent power refers to an action by the Executive not authorized by, or not based on, an enabling law made by the legislative assembly. Certainly, no known theory of inherent power enables the President to convene and establish (i.e. set up) a National Conference with power to adopt a new Constitution which is thereafter to be submitted to the people in a referendum for approval. A Conference with such power is thus excluded from the contemplation of the Committee, since such power in the National Conference can only be granted by law enacted by the National Assembly. People cannot just troop out to vote in a referendum without a law authorising it, providing for its conduct, and giving effect to its outcome.

14. Also no known theory of inherent power - the literature on the matter is quite vast, the classic formulation of it being that of President Theodore Roosevelt of the United States in his Autobiography - enables our President to convene and establish a National Conference with even the limited object or purpose recommended by the Committee. The power of the President, based on section 5 of the 1999 Constitution, to execute the government is subject to the fundamental principle, which is a pre-supposition of our constitutional system of government, founded on the Rule of Law, that, in the absence of authorisation by law, validly made by the legislative authority of the state, the Executive has no inherent power to interfere with the private rights and freedoms of the individual recognised and protected by law. The principle was affirmed in unequivocal terms in a landmark decision of the Judicial Committee of the Privy Council in Eshugbayi Eleko (Oba of Lagos) v. Government of Nigeria [1931] A.C. 662, per Lord Atken, which rejected the claim by the colonial governor of Nigeria, as the Executive, of an inherent power to do whatever he considered necessary or expedient in the execution of the government, even when his action involved interference with the private rights of an individual, as in the Eshugbayi Eleko Case itself, without authorisation by law. The principle has been applied by our courts to invalidate certain actions of State Governors which interfered with private rights of individuals, based on a claim of inherent power, but which are not backed by an enabling law : see, for example, Jideonwu & Others v. Governor, Bendel State & Others [1981] 1 NCLR 4; Orisakwe v. Governor, Imo State & Others [1982] 3 NCLR 743; Archbishop Okogie & Others v. Att-Gen, Lagos State & Others [1981] 1 NCLR 218; [1981] 2 NCLR 337 (FCA). Above all, the principle is impliedly acknowledged by the Constitution itself by the explicit affirmation that its section 5 is 'subject to the provisions of this Constitution', among the most important of such provisions being those in chapter 4 guaranteeing the fundamental rights of the individual.

15. The convening and establishment of a National Conference by the President without an enabling law to back it up will involve, and may interfere with, the rights of individuals to contest elections to the National Conference based on universal adult suffrage, to have the election conducted in a free, fair and credible manner, and to question the fairness or propriety of 'Representation on the Basis of Equality of Constituencies of House of representatives' - the Committee's Option C. Whether constituencies, as delimited, are equal in population, in territorial area, etc is a legally justiciable question that has been litigated and pronounced upon by the courts in the United States as touching upon the right of the individual to equality before the law or 'equal protection'. Mr President will be well-advised to convene the National Conference ONLY on the authority of an enabling law made by the National Assembly, but NOT by the use of his so-called inherent power under section 5 of the 1999 Constitution, as that may open the door for anarchy in the country. There are, admittedly, a lot of executive actions or measures the President can take by means of his inherent power under section 5 of the 1999 Constitution ('inherent' meaning without specific authorisation by an enabling law), but not when the action in question interferes or may interfere with the private rights and freedoms of individuals, such as the rights mentioned above.

16. We, The Patriots, pray you, Mr President, not to act on the aspects of the Committee's Report noted in paragraphs 7 - 15 of this letter. We and millions of other Nigerians across the country look up to you to convene for them a National Conference whose primal object or purpose, in addition to talking about the 90 or so matters listed in paragraph 4 1 of the Advisory Committee's Report, is to adopt a new Constitution for Nigeria, which will be submitted to the people in a referendum for approval. You owe it to Nigerians as a historic duty to give them such a Constitution. Such a Peoples Constitution is their birthright as a sovereign people, a birthright of which they have long been denied, first, by our British colonial masters, then, by our military masters, and, now, by our democratic rulers in the Executive and the National Assembly.

Assuring you of our continued support, esteem and regards.

Yours faithfully,
• Professor Ben Nwabueze
For and on behalf of THE PATRIOTS