The People as the Source and Limitation of Sovereign Powers
G.A. Onuoha *
Abstract
The relativity and geo-stratification of constituent power in a political society is the propeller shaft of the time-honoured concept of popular sovereignty. The people being the principal determinants of the power structure and dynamics in a state decisively impact on the relativity and the geo-strategic exercise of their constituent powers alongside other power blocs and stakeholders such as the Armed Forces, regional bodies and generally, the comity of nations. Against this back drop, the people find themselves in an invidious position of being both the source and limitation of sovereign powers in the state, be it legislative, executive or judicial. This writer unveils the people as both the source and veritable limitation of sovereign powers in the state.
1. Introduction
It must be noted that the idea of the people as a constituent power is only an integral part of the wider concept of the people as the custodian of all sovereignty in the state. Originally, each individual was considered sovereign, especially before the transition from the state of nature to the state of society. It was the aggregation of all the sovereignty resident in the individual in the state of nature that metamorphosed and translated to collective sovereignty of the state when man arrived in an ordered environment or state of society after giving up his individual sovereignty. Thus, original or natural sovereignty had always been with the individual. In Walter Berns’ opinion: “By nature everyone is sovereign with respect to himself, free to do whatever in his judgment is necessary to preserve his own life.”[1]
However, after the metamorphoses of individual sovereignty to state sovereignty, the individual still retained a residual sovereignty or put more appropriately, a residual constituent power which enables him, in community with others, to embark upon a mass action to remove, by revolutionary action as opposed to constitutional means, the very government he has installed through the ballot. The American revolutionaries had in 1776, articulated this point most admirably when they stated, inter alia:
… That whenever any form of government becomes destructive of these ends,[2] it is the right of the people to alter or abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form as to them shall seem most likely to effect their safety and happiness…[3]
The above declaration was restated and reinforced by President Abraham Lincoln in an address to the American people on 4th March, 1861. He had declared:
This country with its institutions, belong to the people who inhabit it. Whenever they shall grow weary of the existing Government, they can exercise their constitutional right of amending it, or their revolutionary right to dismember it.[4]
Having erected a constitutional edifice, the people, especially the civil society have an onerous duty to protect it and present or redress any infraction. The people constitute the ultimate watchdog over the constitution they have enacted and adopted unto themselves. They are the practical and most visible component of limitation of governmental powers. Beyond the electoral mandate to functionaries of state, the people still retain residual constituent power that in practical terms means the residium of their sovereignty or sovereign power given to elected office holders at the polls. Since constituent power must be located within the wider compass of political sovereignty that inheres in the community of individuals within the society, the people remain at all times the locus of that power via residuality of political sovereignty which re-configurates as constituent power[5] after the formal empowerment exercise.
The constituent power, sometimes called the people’s power has, over time, been unleashed to unseat dictators and enemies of democracy and the due process in many parts of the world.[6]In a society with vibrant and articulate citizenry, dictatorship does not find any fertile ground on which to operate. Hunger, poverty, corruption, illiteracy and disunity feed the embers of dictatorship. The dictator capitalizes on the people’s poverty, hunger, illiteracy, disunity and prevalent corruption to enthrone himself and inflict terror on the society.[7]
However, a well-disciplined military establishment in conjunction with law-abiding, decent, constitution-respecting civil society presents the best safeguard against military takeover or the emergence of civilian dictatorship. A good example is India. This huge Asiatic country is poor with largely illiterate and hungry population. Yet, she has never experienced military intervention in Government since her independence from England in 1947. An enlightened and vibrant society in which the people are prepared to fight for the protection of their rights and civil liberties constitute a good check and limitation on the exercise of the powers of government in regard to relevant constitutional provisions.[8] In the 19th century, the French people erected bonfires and barricades across many roads in major French cities in defence of their civil liberties.[9] In England, the Magna Carta had resulted from a revolt by English Barons who protested against burdensome legislation and oppressive or unjust taxation by the English Monarch.[10]
In the North American continent, the American Revolution had resulted from the people’s revolt against “taxation without representation” by the English Parliament and Monarch.[11] Even in modern societies with written, functional constitution, the people remain the vanguard in the fight to limit the powers of government to avoid tyranny and oppression. The issues are – who owns the land? Who determines the power structure in the state? Who empowers state officials – be they elected or appointed? Who determines the power matrix and configuration in terms of primary and secondary political empowerment in the levers of state power? Who is the ultimate judge of political performance in terms of governance of a state? What remedies are available to the people as veritable weapon of political redress in cases of political infraction? In an effort to attempt answers to the above questions.
2. Source of Sovereign Powers
The idea of sovereignty in a political society revolves around the people as the ultimate source from which all powers of governance emanate. The Austinian theory was that sovereignty was absolute, indivisible and illimitable. Even Thomas Hobbes and a few scholars of his age held similar views. This gave rise to the idea of absolute monarchy with divine right of rulership over the people. The question here is whether the powers of the monarch are so absolute that they cannot be limited even by the people who gave up these powers in the first place to enjoy the benefits of collective security and ordered environment?
In Nwabueze’s view,[12]
…the issue as to the nature of sovereign power is whether it is not only absolute and unlimited but also unlimitable…This is not merely a theoretical question, but rather one of tremendous practical importance touching upon the whole basis and legitimacy of constitutional limitations upon the supreme organ in the state, the legislature.[13]
We agree completely with Nwabueze. It is certainly incompatible to a supreme authority that wields unlimited and illimitable sovereign power in a state that operates a written constitution. This would tend to negate the very idea of the people as the source of all powers in the state. No legislature ever wields unlimited or illimitable sovereign powers whether the constitution of the realm be written or unwritten. Political, social, economic and cultural factors, and even the possibility of violent public demonstrations should parliament go too far, always act as a check on possible excesses of parliament and even of the Executive. In a federal setting, sovereignty is divisible and limitable amongst the various tiers of government according to the powers assigned to each in the federal constitution.
No parliament elected by the people can afford to be insensitive to public opinion. Thus, illimitability of sovereign powers of parliament or the executive is absolutely anti-thetical to the notion of constitutionalism and responsible government. Owing to the fact that members of parliament are elected by the people, authority of the parliament itself is automatically predicated on the sovereign powers of the people themselves and on the type of legislative agenda which the people want. Manifestoes of legislative office-seekers constitute their legislative agenda for their constituencies upon their election. Thus, the notion of the people as the constituent power in the state is amply reinforced by the act of empowerment of the legislature and periodically, the executive as well. In granting powers of law-making to members of the legislature, the constitution not only defines the functions of the legislative branch as indeed those of the other arms and branches of government and their various functionaries, it also limits the powers granted to each of these organs to avoid tyranny and oppression.[14] Sovereign powers in terms of legislative supremacy therefore translate to no more than powers of law-making granted to parliament by the constitution alongside those granted to cognate institutions of government.
The issue of the sovereignty of the legislature and the due process of its proceedings were quite firmly settled by the Supreme Court in Attorney-General of Bendel State v The Attorney-General of the Federation and 18 others.[15] In this case, the National Assembly of the Federal Republic of Nigeria referred the Allocation of Revenue (Federation Account, etc) Bill for the 1981 fiscal year to the Joint Finance Committee of the Senate and the House of Representatives for vetting and harmonization. Rather than return the harmonized version to the National Assembly in plenary for final debate and approval, the Joint Finance Committee rushed its own harmonized version to the President of the Federation for his assent. As soon as the President signed the document, the Government of Bendel State of Nigeria filed a suit in the Supreme Court, challenging the anomaly, pursuant to section 212 of the 1999 Constitution of the Federal Republic of Nigeria. The Supreme Court, in a unanimous judgment, wasted no time in declaring the Allocation of Revenue (Federation Account, Etc) Act, 1981, null and void. Said the Chief Justice of Nigeria, Atanda Fatai-Williams who delivered the judgment of the Court:
In my view, a legislature which operates a federal written constitution in which the exercise of legislative power and its limits are clearly set out has no power to ignore the conditions of law-making that are imposed by that constitution which itself regulates its power to make law… I am therefore unable to accept the proposition that such National Assembly, once established has some inherent power, derived from the mere fact of its establishment, to delegate or transfer to its joint finance committee, established or appointed only for the purpose of resolving differences which have arisen between the two Houses of that National Assembly during the passage of a money Bill, its exclusive constitutional power to make a valid law… Since this legislative process has not been followed in passing the Allocation of Revenue (Federation Account, Etc) Act, 1981, the Act to my mind is not a valid law. It carries death wound on its face… The assent by the President cannot, in my view, prevent the Court from coming to the conclusion that the Act is a nullity.[16]
In the above judgment, the Supreme Court quite commendably rejected the view that the sovereignty of the legislature even against the backdrop of a written constitution, connotes that any Act of the law-makers is valid regardless of any manifest defect in the procedure adopted to effect its enactment. The sovereignty of the legislature cannot be above the collective will of the people expressed in the social contract. Regardless of the sovereignty of the legislature and the procedure adopted by it in enacting any legislation, the courts, except in recognized exceptions, are duty-bound when properly called upon, to inquire into that procedure to ensure that it complies with constitutional stipulations and limitations.
Thus in the Ceylon case of The Bribery Commissioner v Ranassingbe,[17] the Privy Council held that under a written constitution which has set out a procedure for law-making, the courts are entitled to enquire into every aspect of the procedure adopted, including examination of unofficial or extraneous documents and opinions relevant to the case, and to declare the totality of parliament’s act in the circumstances invalid should it have ground to so determine.
In a similar case of Liyanage v R,[18] the court had earlier decided that the supremacy of the constitution connotes that any claim of sovereignty by the Parliament which results in a procedure of law-making not in consonance with the prescribed manner of law-making enshrined in a written constitution must be declared invalid and of no effect. Thus, sovereignty belongs only to the people who prescribe the manner of its exercise in a written constitution. Even in countries with unwritten constitution, the idea of parliamentary sovereignty that is sacrosanct is only a fiction.
In Israel for instance, which operates an unwritten constitution, parliamentary sovereignty is expressed more in the party system, that is to say, the conflict of interests amongst the over thirty parties in the country, their alliances and coalitions which are driven by public opinion and various conflicting party interests. Any breach of procedure laid down by parliamentary rules and conventions and demanded by due process, the rule of law, fair-hearing and the dictates of equity, justice and good conscience, is invariably voided by the courts.[19]
In England, even the Queen who is the Monarch or Head of State and who therefore is the supreme or absolute political and legislative sovereign, does not have much power in practice. In the 21st century, the English Monarch reigns, but does not rule.[20] The factors we have noted above which operate in Israel also operate in England and other countries with unwritten constitution to rob both the Parliament and Monarch of indivisible or illimitable legislative sovereignty. The situation thus resolves itself on the reality of the idea that the people are always sovereign and that all sovereignty or power comes from them – directly through the ballot box or mass revolution or indirectly where they tolerate or do nothing to dislodge coup plotters from power.[21]
Government thus is limited according to the wishes and practical action or reaction of the people in line with the original terms of the social contract or the historic first constitution. A written constitution defines the functions and powers of various arms of government as well as the limits of these powers. The doctrine of separation of powers also helps to define the latitude and amplitude of powers granted each branch and functionaries of government. The fundamental rights provisions in a written constitution define and limit each right enshrined therein. Any infraction of these provisions either by way of contraction or expansion is visited with appropriate legal sanction in favour of affected individuals or groups. The only exception with regard to courts’ jurisdiction in constitutional matters relates to impeachment of the President, Vice-President, Governor or Deputy-Governor.[22] The relevant constitutional provisions clearly oust the jurisdiction of the courts in proceedings relating to impeachment of these officers. This is obviously part of the constituent intendment of the political society regarding the office and tenure of President and lesser state chief executives such as Governors and Local Government Chairmen. Matters relating to their impeachment constitute a political question deserving only of political solution.
A clear demonstration of the people’s constituent power is the 2004 presidential election in Ukraine. In November, 2004, a presidential election took place in that country between the erstwhile incumbent Prime Minister, Victor Yanukovich and a former Prime Minister and opposition candidate, Victor Yushencko. The result which declared the government and pro-Russian candidate, Yanukovich winner was rejected by the opposition as massively rigged. Consequent upon this deadlock, hundreds of thousands of people poured into the streets of Kiev, the Ukrainian Capital, and other cities in protest against vote-fraud and manipulation of election result. Political, economic and social activities in the country were paralyzed. A sea of human heads was shown on international television networks on a daily basis for several weeks.[23]
This dogged determination of the civil society to stand by their mandate to the opposition candidate forced the Ukrainian Parliament to reject the election results which declared the government candidate winner. A few days later, the Ukrainian Supreme Court annulled the election results. This forced the country’s electoral Commission to set a 26th December, 2004 date for a new Presidential election, an election which the opposition candidate won by a landslide margin. This is a practical demonstration of the people’s constituent power. It is a re-enactment of the fact that the people constitute the source of power in a political society. It also demonstrates that it is the people’s wish as far as the terms of the social contract are concerned that holds sway. This social contract invariably translates to a constitution that spells out and necessarily limits the powers of government and its functionaries.
Any constitution that merely sets out a frame of government however impressive or popular without effective limitation upon its powers is merely a recipe for political crises and tyranny in all its hideous forms. It translates to this: responsibility without restraint amounts to abuse and in the present circumstances, amounts to invitation to tyranny. No responsible constitution worth the paper on which it is written would fall into this fundamental error. No conscious or serious-minded political society can agree to legislate its own destruction via such a fundamental constitutive document.
Thus, the fact that a majority of Ukrainian voters jammed the streets of Kiev and other cities and effectively paralyzed politico-social and economic activities in the country with favourable outcome in relation to the November/December, 2004 Ukrainian Presidential elections demonstrates the degree of the people’s power in regard to their extra-legal right to rebel against vote fraud and government manipulation of election results. Here, the constituent power of the Ukrainian people radically transformed in the face of perceived injustice, to an unstoppable revolutionary force that eventually forced the authorities – the government, the Electoral Commission, the Parliament and the Supreme Court – to annul the controversial result and schedule a fresh presidential election which the opposition candidate eventually won. Thus, de facto or de jure, the people’s power is unstoppable but not unlimited.[24] Any constitution resulting from a Constituent Assembly instituted by the people ought to create a government that is limited much as in its operational frame and fundamental dynamics as in the powers of its functionaries and cognate officers of state.[25]
* LL.B (Hons.) Ife, Ph.D (Nig.) Lecturer, Department of International Law and Jurisprudence, Faculty of Law, University of Nigeria, Enugu Campus; e-mail: gaonuoha@yahoo.com.
[1] Walter Berns, “Do We Have A Living Constitution?” National Forum, The Phi Kappa Phi Journal, Fall 1984, Vol. LXIV, No. 4, p. 31.
[2] i.e. Life, Liberty and the Pursuit of Happiness.
[3] Text of the Declaration cited in Marian Irish and James Prothro, The Politics of American Democracy (New Jersey: Prentice-Hall, Inc., 1965) pp.694-695.
[4] To be found at the United States’ Library of Congress, Washington D.C.
[5] G.A. Onuoha, Constitution-Making in a Developing Society: Nigeria as a Case Study, being a Ph.D Thesis submitted to the Faculty of Law, University of Nigeria, 2006, pp. 305 – 311.
[6] Thus, there was the Philippine street protests and demonstration of the people’s power in 1986 which drove away President Ferdinand Marcos from power in favour of Corazon Aquino; there was the Cote d‘Ivoire people’s revolt in 2000 against the attempt of the military government of General Robert Guei to steal its election of opposition candidate, Laurent Gbagbo; it is instructive that Laurent Gbagbo himself refused to handover power to the winner of a free and fair democratic election of November, 2010, Mr. Alhassan Quatarra and had to be flushed out by troops loyal to his opponent with the aid of French soldiers in Cote d‘Ivoire; there was also the November/December, 2004 “orange” revolution in Ukraine that prevented Government from stealing the electoral mandate of then opposition candidate, Victor Yushechenko. There are many other examples in history. The American, French, Russian and Chinese revolutions through history also demonstrate this point. Even the recent Arab Spring in which various Arab nations – Tunisia, Egypt, Libya, Bahrain, Syria, Jordan, Morocco, Yemen, Saudi Arabia, etc – have risen against there long term rulers is a more poignant demonstration of this point.
[7] G.A., Onuoha, Constitutionalism and Military Intervention in Nigeria, being a Masters Dissertation, submitted to the Abia State University, Uturu, 1993, pp.3-5.
[8] Ibid.
[9] H.L Peacock, A History of Modern Europe, 1789-1970, (London: Heinemann Educational Books, 1974) pp. 98 – 101.
[10] E.C.S. Wade and G. Phillips, Constitutional and Administrative Laws in A.W. Bradley (ed) (London: Longman Group Ltd., 1978) pp.10-11.
[11] Irish and Prothro, above, note 2 at pp. 3 – 5.
[12] B. O. Nwabueze, Ideas and Facts in Constitution-making, (Ibadan: Spectrum Books Ltd.,) p. 27.
[13] Ibid.
[14] See further: G.A. Onuoha, Constitution-making in a Developing Society, above, note 5 at pp. 305-313.
[15] (1981) 10 SC 1; (1981) 1 All NLR (Pt. 2) 1.
[16] Ibid.
[17] (1965) A.C. 172.
[18] (1957) 1 A.C. 259.
[19] There have been several instances of unjust detention of Palestinians on grounds of terrorism and state security that the Israeli Courts have declared to be unconstitutional and void.
[20] See for instance, J. Harvey and L. Bather, The British Constitution (London: Macmillan, 1974), pp.191-244; F.W. Maitland, The Constitutional History of England (London: Oxford University Press, 1908); D. L. Keir, The Constitutional History of Britain (9th Edn.) (London: A. & C. Black, 1969); G.A. Onuoha, Constitution-making in a Developing Society, above note 5 at pp. 49 – 69; E.C.S. Wade and Phillips G in A.W. Bradley (ed) Constitutional and Administrative Law, (9th Edn.) (London: Longman, 1978), pp. 32 – 76.
[21] G.A. Onuoha, Constitution-making in a Developing Society, ibid, atpp. 673 – 677.
[22] See section 143(10) of the 1999 Constitution of the Federal Republic of Nigeria. See also section 132(10) of the 1979 Constitution of Nigeria. See further article I section 3(6) and (7) of the United States Constitution.
[23] This was reminiscent of political events in Cote d’Ivoire in 2000. The only difference is that there was no re-election. The people simply chased away their then military dictator, Gen. Robert Guei and installed the rightful winner, Laurent Gbagbo as President.
[24] Nwabueze, above, note 13 at p. 30; G.A. Onuoha, Constitution-making in a Developing Society, above, note 5 at chapter 9.
[25] Eshugbayi Eleko v Officer Administering the Government of Nigeria (1931) 6 NLR 73; Aliu Bello & Ors. v Attorney-General of Oyo State (1989) 12 S.C.1; Attorney-General of Bendel State v Attorney-General of the Federation & 18 Ors. (1981) 10 SC 1; Liyanage v R (1957) 1 A.C. 259; The Bribery Commissioner v Ranassingbe (1965) AC. 172; Governor of Lagos State v Chief Emeka Odumegwu Ojukwu & Anor. (1986) 2 S.C. 227; Shugaba Darman v The Minister of Internal Affairs (1981) 3 CLR 915.