The phrase “we the people” is the first statement in the Nigerian Constitution,1999 as amended. It is the commencement of the preamble to the Constitution. A lot of controversies have arisen as to the actual meaning of the phrase. Some call the phrase a fraud because according to them, it is a lie told by the promulgaters of the Constitution, who wanted the world to believe that the Nigerian Constitution was written by the Nigerian people. Some argue that it misrepresents the fact that the Nigerian Constitution is not autochthonous. Some, however, do not have any qualms with the phrase.
Preliminarily, a preamble to the Constitution is a brief introductory statement of the Constitution’s fundamental purposes and guiding principles. Courts have referred to it as reliable evidence of the founding fathers’ intentions regarding the Constitution’s meaning and what they hoped the Constitution would achieve. The preamble serves solely as an introduction, and does not assign powers to the different tiers or organs of government, nor does it provide specific limitations on government action. Due to the preamble’s limited nature, courts do not usually use it as a decisive factor in case adjudication. The preamble to the United States Constitution, beginning with the words “We the people”, was placed in the Constitution during the last days of the Constitutional Convention by the Committee on Style, which wrote its final draft. It was not proposed or discussed on the floor of the convention beforehand. The preamble, therefore, is not reflective of who wrote the Constitution, rather it reveals the purpose and guiding principles of the Constitution.
The preamble to the Nigerian Constitution states: “We the people of the Federal Republic of Nigeria, Having firmly and solemnly resolved, to live in unity and harmony as one indivisible and indissoluble sovereign nation under God, dedicated to the promotion of inter-African solidarity, world peace, international co-operation and understanding; and to provide for a Constitution for the purpose of promoting the good government and welfare of all persons in our country, on the principles of freedom, equality and justice, and for the purpose of consolidating the unity of our people. Do hereby make, enact and give to ourselves the following Constitution”. The purpose of the Nigerian Constitution is very clear from the preamble which is unity, peace, good government and welfare of all persons in our country based on the principles of freedom, equality and justice and above all based on the recognition of the supreme authority of the Almighty God over Nigeria. The concept of freedom, equality and justice symbolise democracy which cedes sovereignty to the people.
Nigerian Constitution in Section 14 recognizes that The Federal Republic of Nigeria shall be a State based on the principles of democracy and social justice. It also provides that sovereignty belongs to the people of Nigeria from whom government through this Constitution derives all its powers and authority and makes the security and welfare of the people the primary purpose of government. Democracy is defined as the government of the people, by the people and for the people. The phrase “we the people” in the preamble of the Constitution simply indicates that the country is a democratic country where power belongs to the people. It does not appear as if this phrase has much to do with the autochthony of the Constitution. Autochthony is a word that is a synonym for native or indigenous. Autochthony, in the words of Peter C. Oliver, a public law scholar of Oxford, refers to the fact that a constitution is, legally speaking, home grown or rooted in native soil. By this it is meant that the constitution owes its validity and authority to local legal factors, rather than to the fact of enactment by a foreign legal process. Autochthony was especially important to countries which achieved independence from the former British Empire, because most of their Constitutions, including the Nigeria Independence Constitution of 1960, owes its existence to enactment by the British Government.
Autochthony does not necessarily mean that the people are the original writers of the Constitution, it simply means that the Constitution derived its validity from indigenous legal order. The Nigeria Constitution of 1963 is acclaimed as autochthonous, not because the people of Nigeria were afforded, as individuals, the opportunity to discuss and make input, neither was the final draft subjected to a referendum for final adoption by the people, but because the Constitution made Nigeria a republic, the implication being that all the constitutional links and influences of the British Government were severed and extinguished. The Republican Constitution of 1963 was made and adopted by the parliament, comprising only of Nigerians, elected for that purpose by the people of Nigeria. In the present Nigeria, this would be akin to the National Assembly. It was merely a re-enactment of the Independence Constitution with few amendments, which included: the abolition of the requirement of the Queen’s consent before a bill is assented to by the President. The abolition of appeal to the Privy Council and the establishment of a Supreme Court of Nigeria as the court of last resort and provision for the supremacy of the constitution, instead of Her Imperial Majesty.
We must note at this juncture that at the root of every democratic process is an undemocratic foundation. This is the concept of the “founding fathers”. Powerful men get together and agree among themselves on the style of government they wish and impose their will on the entire society. The society gradually evolves to its preferred destination through democratic resolution of conflicts. When America’s Constitution was enacted, the phrase “we the people” did not contemplate the inclusion of women and blacks. These categories had to fight this exclusion through protests, until they were accommodated through the amendment of the Constitution or through litigation. They did not advocate the discarding of the entire Constitution or an unending agitation for sovereign national conference as solution to their exclusion. Rwanda is today touted as a success story. Many have forgotten that Paul Kagame, the current President, shot his way to power and wrote the initial Constitution of Rwanda, probably in his bedroom and imposed it on the people. The initial Constitution was unique in that it arrogated the power of defence to the Vice President, occupied by Kagame, and denied the President then, who was chosen by Kagame from the Hutu tribe to be President, any access to the armed forces. The President voluntarily ran away at a point, fearing for his life. Kagame assumed the position of President and amended the Constitution to restore all powers to the President. With good governance, the people accepted him and his Constitution. We should yearn for good governance and hold our leaders accountable to their manifestos rather than dissipating energies on the content of the preamble to the Constitution. Good leaders can make good of a bad Constitution, while bad leaders can make bad of a good Constitution.
There’s no perfect Constitution anywhere in the world. The letters of the Constitution should reflect the current solution to the current challenges of the people. It is unrealistic for any person to anticipate that a Constitution will commence on a perfect note. No normal child is born running. Normal children are born lying down. Gradually, they learn to sit, crawl, stand, walk before running. This is precisely what the anti 1999 Constitution proponents are doing, using their ill-fated and unfounded argument of the unautochthonous nature of the 1999 Constitution as a defence. Their argument is that because it was a military decree that validated the 1999 Constitution, it is not autochthonous. They forgot that the military decree was a legitimate indigenous legal order as at that time and every revolution begets its own legality. About two thirds of our present laws were military decrees translated to Acts of the National Assembly at the inception of the democratic dispensation by 1999. In any case, who voted or appointed all the anti 1999 Constitution proponents demanding a sovereign national conference, to draft a new Constitution which will be subjected to a referendum. They derived their powers of freedom of speech from the same 1999 Constitution they are tearing apart as fraudulent because they were not part of the drafters of the Constitution.
The sources of a Constitution, according to some Nigerian Scholars, include: Opinions of political and constitutional writers, Constitutions of other countries, Customs and conventions, Previous constitutions, Decisions of a Constituent Assembly, Judicial Precedents etc. All these sources contributed in making and amending the 1999 Constitution to what it is today. It is common knowledge that 1999 Constitution was the re-enactment of the 1979 Constitution with few amendments. The 1979 Constitution was the product of the Constitution Drafting Committee and Constituent Assembly, appointed by the military regime of Obasanjo, to fashion out an acceptable Constitution for the country, which considered the opinions of political and constitutional writers like Prof Ben Nwabueze and Rotimi Williams SAN. It considered the Constitution of other countries like USA where we borrowed the Presidential system of government. It considered previous constitutions and judicial precedents.
Let us be clear, whoever denies the fact that our 1999 Constitution needs emergency amendments is an enemy of Nigeria. We the people of Nigeria demand and deserve security, peace, unity, good governance and the welfare of all persons in our country as promised us by our Constitution. The Constitution must be amended to reflect current realities. We have done it before. When Yar Adua failed to write the National Assembly to transmit power to Jonathan, his Vice, when he embarked on medical vacation, and this created a vacuum in government which threatened the peace of the country, the National Assembly, within weeks, amended Section 145 and cured the anomaly. Today, the National Assembly must rise up, within weeks and amend the Constitution to guarantee state policing, devolution of powers and equitable revenue sharing formula for the different tiers of government based principally on derivation. Most people that are tearing the country apart on the pretext that the 1999 Constitution was not made by Nigerians are merely seeking for relevance not restructuring. Restructuring assumes there is an existing structure that needs to be changed for better performance. Whoever wants the Constitution changed should tell us the sections to be added or amended not latch on a harmless preamble to intimidate and harass others. We the people believe that Nigeria will survive and God will intervene in our situation for better results.