How the Chilean Plebiscite Methodology, May have Provided President Tinubu with a Constitutional Reform Blueprint 

Overview 

Now that President  Bola Ahmed Tinubu has marked 100 days in office as the 5th  President of the 4th Republic and the PEPT has also confirmed the authenticity of his election (albeit still subject to an appeal to the Supreme Court), critics and analysts have begun assessing how credibly he has performed so far in office. It is fair to say that the President has acquitted himself rather well, since he took up the Presidency on the 29th May, 2023.  To his credit, he has largely embarked so far on an economic transformative agenda, aimed at improving our ailing economy. 

Some of his very first acts were to confirm the removal of subsidy on petroleum motor spirit, and to do away with the two tier foreign exchange system. The President has also reached out to several of our international trading partners, and reassured them that under his watch and leadership, Nigeria will become a safer and a far more attractive place to invest, trade and do business. Although Nigerians are groaning under the impact of these economic initiatives, they have largely been accepted, and even the most sceptical of us have come to terms with the fact that these decisions were a necessity for the overall good. 

One other key area of concern yet to be addressed by the President, is the tricky question of how to restructure our polity. This is not altogether surprising, considering how sensitive and emotive the debate on this issue has become over the years; but, it must nevertheless, be addressed sooner rather than later. In particular, we need to ask ourselves as a nation what implications will constitutional reforms in Nigeria have on sustaining the long term future of our democracy not just from a Nigerian perspective, but also from a West African viewpoint, especially in light of several military coups that have recently taken place amongst our neighbouring Francophone States. Secondly, will President Tinubu’s economic agenda and free market oriented approach be at risk, without a more stable political structure? Is a new Constitution the best path forward in reducing the enormous cost of running government, which is now becoming unsustainable without borrowing? What are the other risks and issues at stake? Some very useful clues on how we can best restructure our polity, rewrite our Constitution and assess the overall and general impact all this could portend, can be garnered from the experience of Chile, a South American country whose checkered political history is identical and mirrors that of Nigeria in so many respects. 

The Chilean Plebiscite 

Although Chile is not as diverse a country as Nigeria, it does at least boast of being the longest and narrowest country in the world. For over 40 years, Chile had been operating under a Constitution that was bequeathed to it by it’s former military dictator, General Augustus Pinochet; but, in recent years they started becoming disgruntled, agitated and intolerant of the imperfections of their Constitution culminating in October 2019 of mass protests, that rocked the Chilean capital of Santiago and many other cities in the country. These strikes were reminiscent in many respects of the #EndSARS movement that engulfed us here in Nigeria just a few years ago. The critical and significant difference being that, the Chilean uprising unlike that of ours here in Nigeria, transformed into a mini-revolution that forced the government to act and organise a national plebiscite, asking whether or not Chileans wanted to rewrite their existing Constitution. The following year on 25th October, 2020 to be precise, the government held the  plebiscite seeking to reform the Constitution dating back from the years of military dictatorship under General Pinochet. The Pinochet military regime (just like that of General Abdulsalam here in Nigeria in 1999), had foisted upon the Chilean people a Constitution of which they had little say or input. The Constitution stood in place, for over 40 years. A simple question was put to them, asking whether or not Chileans wanted to rewrite their Constitution. Proponents of ‘Apruebo’ (I approve) viewed the idea of a new constitution as a means to expand democratic freedoms and participation, as well as overcome deep rooted social inequalities. Those in the opposite camp, ‘Rechazo’ (I reject) were opposed to the drafting of a fundamentally new charter, suggesting that the process could result in the erosion of fundamental democratic principles and open a Pandora’s box of unknown economic and social consequences, just like some of the concerns here. 

A second question on the October ballot, had to do with the mechanism for drafting a new Constitution. At stake were two different procedural models, namely the election of an entirely new Constituent Assembly, or a hybrid model of current legislators in addition to elected citizens. 

It was further agreed that if Chilean citizens did vote to approve a new Constitution, a subsequent vote would be held to choose the representatives who would draft the Constitution. A final vote approving the draft of the new Constitution, was then scheduled to take place later in 2022.

It is worth noting that the 25th of October, 2020 Plebiscite date was itself rescheduled from an earlier date, due to the Covid-19 pandemic. The date of the exit plebiscite, was also modified. It was projected to take place in September of the third quarter of 2022, at the latest. In April 2022, it was announced that the referendum would be held on the 4th of September, 2022. It is important to note that Chileans ultimately voted for the hybrid system in redrafting their Constitution, made up of some existing legislators and others specifically elected into a convention tasked with the responsibility of drafting the new Constitution. The new Constitution as drafted was once again put to the Chilean people for their approval in another plebiscite, but the people rejected it as being too radical. As a consequence, the old Constitution continues to operate until a new draft Constitution is approved. 

In the interim, lawmakers then announced a new process, the “Agreement for Chile” in December 2022, in a second attempt to fashion out a new Constitution with different rules. The agreement states that a group of 50 directly-elected constitutional advisors will draft the Constitution, based on a preliminary draft prepared by a commission of 24 experts appointed by Congress. Additionally, a 14-member body appointed by Congress was to ensure that the proposed text, aligns with the 12 institutional and fundamental principles outlined in the Agreement for Chile. Although the entire process has not been perfect, there can be no doubting the transparency of the Chilean approach, and the determination of the people to ultimately come up with a workable Constitution acceptable to the vast majority of Chileans.

Is there a Legal Framework or Constitutional Basis to be able to Hold a Referendum here in Nigeria?

The main restructuring challenge for us in Nigeria today, is simply on how best we can rewrite our existing Constitution or restructure our polity, whilst still having in place the 1999 Constitution (as amended), just like in Chile. When you have an existing Constitution and a system of governance in place, it would be unconstitutional for anyone to attempt to usurp the Constitution, without first receiving a clear mandate from the people. This is because the people are the source and donor of all political power. The government and its organs are created by the 1999 Constitution, and logic suggests that they can only be in possession of the power that is granted to them, by that same instrument from which their power and existence is derived.

There is no direct provision for a referendum in our Constitution, but it is more than implied. We often criticise the 1999 Constitution for being imperfect, but there are several aspects to it that have not been fully explored or understood. What then, is the legal framework that exists within the 1999 Constitution, that can provide ample basis for a future referendum that may ultimately lead to a new and radically changed Constitution, brought about by a people’s plebiscite like is the case in Chile?

The chapter of the 1999 Constitution, which contains the provisions on the Fundamental Objectives and Directive Principles of State Policy provides some useful answers.

Section 13 of the 1999 Constitution provides as follows :

“It shall be duty and responsibility of all organs of government, and of all authorities and persons, exercising legislative, executive or judicial powers, to conform to, observe and apply the provisions of this Chapter of this Constitution”. 

Furthermore Section 14 provides: 

14.(1)  The Federal Republic of Nigeria shall be a State based on the principles of democracy and social justice. 14( 2) It is hereby, accordingly, declared that- (a) Sovereignty belongs to the people of Nigeria from whom government through this Constitution derives all its power and authority. 

Now, if the Constitution states that sovereignty belongs to the people, it also stands to reason that the same power can be given back to them whenever they ask or demand it. The conundrum however, is that no one seems to know or understand how to go about doing this. A clue can be found in the Second Schedule of the Constitution, which outlines the various items on the Exclusive Legislative list.

Item 60 provides for the establishment and regulation of authorities for the Federation or any part thereof- (a) to promote and enforce the observance of the Fundamental Objectives and Directive Principles contained in this Constitution.

Establishing a Referendum Authority under the Control of INEC 

The combined effect of Sections 13 and 14 of the 1999 Constitution, as well as Item 60 on the Exclusive Legislative list under the Second Schedule of the 1999 Constitution, is that both the executive and legislative arms of government are empowered to establish a Referendum Authority, to give effect to the implementation of key parts and aspects of the 1999 Constitution. The Proposed Referendum Authority, does not necessarily have to be set up to be an Independent Statutory Authority. Part I of the Third Schedule to the 1999 Constitution, outlines the Federal Executive Bodies mentioned under Section 153 of the 1999 Constitution. Section 14 of the Third Schedule provides for INEC. Section 15 of the same Schedule outlines the powers of INEC.

Subsection 15(i) provides as follows: (i) Carry out such other functions as may be conferred upon it by an Act of the National Assembly. In other words, INEC could be given additional responsibility by the National Assembly to manage a Referendum Authority within the purview of its responsibilities, without the need to set up a separate entity. INEC will, among other things, determine the criteria and threshold for a National Referendum. It is not unusual, to have electoral bodies and referendum bodies fused together. This is the practice, for example, in Australia. 

In addition to what has been highlighted above, Item 67 of the Exclusive Legislative list also provides that, laws can also be made with regard to any other matter with respect to which the National Assembly has power to make laws in accordance with the provisions of this Constitution. Item 68 further states that, the National Assembly can also make laws with regard to any matter incidental or supplementary to any matter mentioned elsewhere in the Exclusive Legislative list. It is interesting to note that, Section 8(3)(b)(c) and (d) of the 1999 Constitution provides for the use of a Referendum, when there is a proposal to create a new local government area. A Referendum Authority could therefore, also be used at State level whenever there is a request to create a new local government area. We don’t need to wait for such a request, before putting the legal framework in place. In short, a Referendum Authority would provide the mechanism and legal framework for a referendum at both Federal, State and local government level’s of government.

Finally, some might argue that our courts have long decided that Section 6(6)(c) of the 1999 Constitution provides that, except as otherwise provided by the Constitution, any issue or question as to whether any act or omission by any authority or person as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of the Constitution, is not justiciable. It is however, my argument that since Item 60 is on the Exclusive Legislative list, it is clearly spelt out elsewhere in the Constitution and as such Section 6(6)(c) does not apply, and issues relating to Item 60 will serve as an exception to those provisions, and will thus, be justiciable. See Archbishop Okogie v AG Lagos State 1981 2 NCLR 337; AG Ondo State v AG Federation & 35 Ors 2002 9 N.W.L.R. Part 772.

Conclusion 

The Chilean example highlights the fact that, the People must first be consulted in any attempt to rewrite a Constitution. This, to a large extent, was the reason why the 2014 National Conference was not deemed sovereign. It also explains why the deliberations of that National Conference, were unenforceable and archived. The hybrid system voted upon and approved by Chileans, may ultimately prove to be the way forward here. It placates both the People and our elected representatives, who believe they have already earned the trust of their representatives to initiate constitutional reform, but as earlier argued, the People can recall that power whenever they consider it expedient to do so. 

The Chilean experience shows that, constitutional reform does not necessarily impede the day- to-day functioning of government. It operates on the sidelines until perfected, and given a time frame for future implementation. The People can always reject a draft Constitution they deem unacceptable for whatever reason. as was  the case with Chile. 

Now that an Attorney-General is firmly in place and President Tinubu has decided to recall non-career Ambassadors, perhaps, our next Ambassador to Chile should be given the assignment of understudying the Chilean Plebiscite methodology and report back to the President through the Attorney-General, on how the Chilean experience could aid our constitutional reform process here at home. “Mission to Chile” should ideally be undertaken by a Lawyer, and a copy of updates and the final report passed on to the National Assembly through the office of the Attorney-General or the Presidency. Let’s begin the process.