Prof Auwalu Yadudu’s scare mongering: Why the NASS must ignore him By Mike Ozekhome, SAN


I have just read, to my utmost chagrin and dismay, a release authored by Prof. Auwalu Yadudu and currently trending in the social media. Yadudu titled his piece (which apparently represents his memorandum to the NASS Committee on the Review of the Constitution), “AVOID TAKING THE SLIPPERY SLOPE PATH TO CONSTITUTIONAL REVIEW”.

Although, I have submitted my personal memorandum to the Constitutional Review Committee after my ex tempore interaction with the chairman and members of the Constitutional Review Committee at the International Conference Centre, Abuja, on Friday 4th June, 2021, I have decided to do this rejoinder to Prof Yadudu’s poor treatise to set the records straight.

Prof. Yadudu (Yadudu’s) memo is nothing short of a deliberate subterfuge, red-herring and scare mongering carefully designed to frighten the NASS from critically examining the near descent of Nigeria into a failed state, and retrieving her from the nadir under agreed and negotiated terms of co-existence through the promulgation of a new Constitution.

By this rejoinder, I hereby call on the NASS to maximally reject and ignore Yadudu and his incoherent thesis. His submissions are neither grounded in law, logic nor in morality and constitutionalism. I have not seen any “slippery slope on the current constitutional review exercise, except in Yadudu’s fertile imagination. The NASS should therefore, discard his recommendations in their entirety. They are meant to nurture the current repressive system of unitarism, social injustice and faulty lines of our fumbling, dawdling and groggy country.

If I may ask, why is Yadudu, like some people of his ideological persuasion, afraid of a brand new Constitution and a peoples’ Referendum?

The three important words that appear to frighten them most are “New Constitution” and “Referendum”. Why do these words frighten them? Do you know? I will tell you anon. Let me therefore regretfully announce to Yududu that he cannot run away from these indispensable words if Nigeria must stay indissoluble and indivisible.
Prof. Yadudu, had represented the North West geopolitical Zone at the 2014 National Conference convoked by the then President Dr Goodluck Ebele Jonathan.
Let me shock Nigerians more.

Prof Auwalu Yadudu was not only a North West delegate to the 2014 National Conference (Confab; National Confab), he was indeed the Deputy Chairman of the Committee on Law, Judiciary, Human Rights and Legal Reforms. I also belonged to this Committee. The Hon Justice George Oguntade, Justice of the Supreme Court (rtd) and erstwhile High Commissioner to the UK, was the Chairman of the Committee.


Yadudu specifically presided on the very day when the modus operandi (Legal framework) of operationalising the entire over 600 recommendations of the 2014 National Conference was hotly debated and agreed upon. Justice Oguntade was unavoidably absent on that particular occasion.

I had been appointed to head a compact sub-committee to draft the legal frame work of implementing the entire Confab report. And I did. We debated it. Ideas for ideas. Logic for logic. Wit for wit. We finally arrived at the way forward by proposing a Legal frame work for plenary’s debate and adoption at pages 19 to 20 of our Committee’s report. Pursuant to this, the plenary wholly accepted our committee’s report at pages 230-231 (paragraph 5.8.16) as follows:

“LEGAL FRAME WORK(i) “Policy recommendations arising from the Conference should be implemented by the presidency. (ii) Recommendations requiring abrogation or amendment of existing Laws other than the Constitution should be initiated/carried out by the relevant Authorities, Ministerial Departments and Agencies. (iii) On recommendations requiring amendments to certain Sections of the Constitution or the emergence of an entirely new Constitution, Conference resolved to draft a Bill to that effect for the president to forward to the National Assembly for further actions. In this regard, a form of interface with the National Assembly should be initiated by the President; and (iv) Conference recommendations should be taken to the Court of public opinion/Referendum, if the need arises”. (Underline supplied for emphasis).

In chapter 7 of the Confab Report (at pages 897-898), critical issues bordering on people’s sovereignty, a new Constitution and referendum of the people were further emphasised by the conference report as follows:

“Delivering his Inaugural Address at the National Conference on 17th March, 2014, President Goodluck Jonathan, GCFR, touched on the inter-relationship between constitution-making and referendum in the following words:

Let me at this point thank the National Assembly for introducing the provision for a referendum in the proposed amendment of the Constitution. This should be relevant for this Conference if at the end of the deliberations, the need for a referendum arises. I therefore urge the National Assembly and the State Houses of Assembly to speed up the Constitutional amendment process especially with regard to the subject of referendum.

“According to section 14(2)(a) of the 1999 Constitution of the Federal Republic of Nigeria, sovereignty belongs to the people. The conduct of a referendum, if the need arises, on the Resolutions of the National Conference can only serve to obtain the approval or endorsement (imprimatur) of the entire citizenry of Nigeria. Notable examples of referendums in Africa include South Africa (1992), Tunisia (2002), Kenya (2005) and Egypt (2011)”.

“In the course of determining the modalities for the implementation of Conference Resolutions, different shades of opinion emerged from the Delegates, to wit:
(a) Amendments to the Constitution which are proposed by the Conference should be embedded into the 1999 Constitution and the resultant document should be regarded as the 1999 Constitution (as amended):
(b) The Volume of Amendments embedded in the 1999 Constitution would make it a new document which should be regarded as making it a new constitution.

“If Conference decides that it is a 1999 Constitution (as amended), then the process of bringing it into being will be through the normal constitutional process as envisaged in the 1999 Constitution.

“However, if Conference decides that the resultant document is a brand new constitution, then to bring it into existence will necessitate a referendum.

Conference is still to take a decision on whether it will be a 1999 Constitution (as amended) or a brand new Constitution at the close of plenary on Thursday, 10th July, 2014.” (Underline supplied for emphasis).
Consequent upon its very volatile nature, the above matter was therefore pushed to the NASS whose critical role in the birthing of a new Constitution has never been doubted by me, or any reasonable person. From the foregoing, how could Yadudu so unfairly claim that some “separatist” elements or “some clever chaps” “surreptitiously cooked” up and called for “the adoption of a new Constitution”? Haba!

Indeed, pursuant to paragraph 7.2.2 of plenary decision as stated above, the Conference adopted an annexure titled “The Nigeria charter for Nation Reconciliation and Integration”.
This could be found at pages, 716-721 of the Conference report. Article 18, page 720 of this Conference report Charter provides, “The consent to live together in unity and harmony and the principles and purpose of our national co-existence stated heretofore in this charter shall be incorporated into our Constitution upon adoption by the Nigerian people through a referendum”. (Underline supplied for emphasis).

There were 492 delegates at this Conference, specially elected or selected by their own people drawn from across Nigeria. Such delegates were put forward directly by the various ethnic nationalities, youth, students, traditional rulers, market women and men, Religious leaders, members of the Military and Police and other security agencies (serving and retired); FIDA, civil society, labour, Diplomatic corps, Nigerians in Diaspora, professional bodies, Elder Statesmen and women, people living with disabilities, private sector, the media, the Academia, State Governments, Social political and cultural groups, geopolitical zones, Federal Government, the Judiciary, present and former political office holders, former LG Chairmen, Political parties, Retired Civil Servants, etc.

Yadudu was only one of these distinguished Nigerians. I was also one of them. We all agreed with the above Confab recommendations. These eminent Nigerians converged in Abuja for the Confab which was presided over by late Hon. Justice Idris Legbo Kutigi (a Northerner like Yadudu), who now fights so unfairly diminish the Confab by terming it a “confab whose members lack popular mandate and whose composition is undemocratic having been assembled in a very skewed manner by the use of a template of dubious legal or constitutional basis”.

How unfair and immoral? The Deputy Chairman was renowned Diplomat, Prof Bolaji Akinyemi; with Dr (Mrs) Valerie Azinge, SAN, the Secretary. Yadudu did not object to their positions.

It is most heart-rending that Yadudu could question the validity and legitimacy, not only of the 2014 Conference itself, but also its very outcome and recommendations as clearly stated above.
In questioning the legitimacy and legality of the 2014 Confab representatives, Yadudu said, inter alia:

“While we are it, one needs not be reminded that the National Conference comprised unelected members – however dignified or experienced they may be in their individual capacities – and, consequently, it lacked the powers of a constituent assembly, in the exercise of which it may propose or adopt a new constitution. In other words, the Confab, being unelected, does not derive its mandate from the sovereign will of the people and cannot claim to be speaking for them.

For such a defective Confab to assume such a role or purport to adopt a new constitution, as representatives of the people or under any guise, would amount to the usurpation of powers it does not possess. It cannot discharge or exercise a mandate not conferred on it by law”

What was Yadudu doing at the 2014 conference for six months, earning his fat monthly allowances? I had, on my part, told the whole world that I would not reject my allowances, but would use such earnings to help the less privileged and hoi poloi. And I did just that (see the following links of 24th March, 2014 –;;;

The last time I checked, I was never told that Yadudu returned to government coffers any of his monthly earnings he took during the Confab period. Prof Musa Yakubu, now INEC Chairman, was the Assistant Secretary (Finance Administration) at the Confab. He has not told Nigerians that Yadudu ever returned his earnings.

My personal checks with relevant government departments did not also show that he returned his huge earnings to the Nigerian people. Upon what basis can he then question a Conference that he voluntarily attended, fully participated in, drew income from, and was actually Deputy Chairman of its very strategic spinal cord Committee that designed the roadmap (Legal framework) for implementing the entire Conference recommendations?

If I may ask, who appointed, elected or sponsored Yadudu to represent the North West geopolitical zone State as a Confab delegate? How did he get there? Who was he representing? On what terms was he representing his zone? If he did not believe in the Conference, its representation and the likely usefulness of its outcome, why did he not do what honourable men normally do in such circumstances by simply declining participation? How can he approbate and reprobate? How can he blow hot and cold simultaneously? Yadudu must be reminded of the doctrine of “collective Responsibility”.

If he disagreed, he should have resigned quietly, or even noisily. He also did not, as he was entitled to do, write a minority report as did late cerebral Rights Activist, Oronto Douglas, at the 2005 National Political Reform Conference convoked by the then President, Chief Olusegun Obasanjo.

Yadudu not only participated fully at the 2014 Confab and took its financial benefits, he, actually presided over the debates and recommendations of our sensitive Committee (Law, Judiciary, Human Rights and Legal Reforms). Plenary bought into these critical decisions and based its final recommendations on same. Yadudu does not therefore have the moral, ethical, legal or any other known right howsoever, to publicly denounce and repudiate, through his submission before the Constitutional Review Committee, recommendations he personally facilitated and also helped to midwife and author. It is grossly immoral to do so.

Having said so, let me now tackle him headlong, on some of his fallacious postulations which he adorns with the fake garment of constitutional validity, lest the Constitutional Review Committee gets hoodwinked and misled. I will not bother myself about the issue of State Police and Community Policing, as I believe every Nigerian knows my over four decades of crusading for same. They are not only desirable, but must be provided for immediately in the new constitutional dispensation.


Prof Yadudu in his memo strongly opposed the deletion of LGCs from the Constitution. Why will he not? He knows that section 162(5), (6), (7), and (8) of the 1999 Constitution partly predicate Nigeria’s distributable account (revenue and income) on the number of LGCs in Nigeria.

Yadudu fights to retain the unweildy 774 LGCs under section 3(6) of the Constitution, rather than allow Nigeria to be a two-tier system of government, with the states empowered to merge or create LGCs according to their needs and financial capacity and remove the burden from the Federal Government. After all, there are over 89,000 Local Government Units in America. But, do you know why? I will tell you. Kano State, part of the North West geopolitical zone he represented at the 2014 Confab (a Confab he now surprisingly demonises), has a whopping 44 LGCs and 19 members in the House of Representatives.

Jigawa State alone which was excised from Kano State has 27 LGCs and 11 House of Representatives members. So, as between Jigawa and Kano State (old Kano State), there are 71 LGCs and 40 House of Representatives members at the NASS. This State, while in the old Northern Region (up to January 15, 1966) produced, consumed and sold its famous Kano groundnut pyramids, cotton, hides and skin, according to her needs.

Regions at that time paid 30% royalty to the Federal Government under section 140 of the 1963 Republican Constitution for minerals, mining, rents, mineral oils, or other resources extracted from the soil of each region. Such payments by the Federalion to regions were charged on the consolidated Revenue Fund. Nigeria at that time practised true fiscal federalism thus, enabling regions own their resources and pay tax to the Federal Government. Meanwhile, the said distributable revenue (sharing formula under the 1999 Unitary Constitution is now based partly on these 71 LGCs from only one state alone. Yet, Kano and Jigawa do not afford Nigerians any revenue to share. They do not care to know how the National cake is baked, they only share from it. This is the kind of federation Yadudu glamourizes!.

Compare and contrast this with Bayelsa State. Poor Bayelsa, one of the few states from which our monolith product (oil and gas) is derived has only 8 LGCs and 5 Representatives at the NASS. Since oil was discovered in 1956, at Oloibiri (in the present day Bayelsa), the state has been held down by more powerful states whose indigenes (like a rampaging Army of conquest) beat their chest arrogantly to proclaim superiority and a divinely-ordained mandate of expansionism and irredentism.

So, while Bayelsa with 8 LGCs takes pittance revenue from the oil she produces, non-product Kano and Jigawa States with 71 LGCs smile to the banks with lion share. Thus, Bayelsa suffers and wallows in self-pity. I cannot remember Kano groundnuts, cotton, hides and skin being shipped through pipelines or trailers to the Niger Delta Region to enhance one Nation. Or, can you? The North today has 19 States, 419 LGCs and 191 Representatives.

The South has 17 States, 357 LGCs and 169 Representatives. So, the South has 62 LGCs and 22 Representatives respectively less than North. The entire geopolitical zone of the South East has 95 LGCs, only 24 more than Kano and Jigawa States alone; and 41 Representatives; only 15 more than Kano and Jigawa alone. Thus, any bill that comes before the NASS, no matter how inequitable and unfair to the South South, will easily be resolved in favour of the North once they so decide. You do not run a Federal system that way.

Yadudu does not mind an inequitable perpetuation of this skewed, roguish and extornist system that is alien to all known principles of federalism, because it benefits him and his people (See “Federal Government”, by K. C. Wheare (1946). He does not approve of a new Constitution that will bring about fresh air, true fiscal federalism, massive devolution of powers, egalitarianism, social justice, equity and fair play.

I am surprised he cannot see anything wrong in a lop-sided unitary system of government where the geese that lay the golden eggs (Southern States) have 357 LGCs, 62 LGCs less than the 419 LGCs (I don’t like this number) of the consumers of the already baked National cake (the Northern States). He is obviously not bothered by this sort of master-servant, Freema-vassal relationship, which a brand new Constitution driven by a people’s referendum desires to address and rectify once and for all.

So, NASS, please, do not listen to his illusory rhetoric. The NASS should outrightly reject Yadudu’s half-baked postulations and discard the behemoth LGCs system in the Constitution through wholesome amendment.

1. To properly restructure, we need a fresh people’s Constitution anchored on a six-zonal federal structure; with the present states, still retained as federating units, thus, having a two-tier system of Government. LGCs shall not be a federating unit. While retaining section 7 which guarantees a system of democratically elected LGCs, sections 3 (6) and 162 (4) – (8) of the Constitution should be amended to scrap the State Joint LG Account and allow each state freedom to merge and collapse existing LGCs, or create fresh LGCs, through State Assemblies legislative action, depending on its peculiar needs and financial capacity.

Such LGCs shall be made fully autonomous and not dependent on the Federal or State Governors. Their funding shall be derived directly from a percentage of the allocations due to them from their internally generated revenue (IGR). This shall be expressly guaranteed by the Constitution and placed on a first line charge, away from the predatory eyes of State Governors. 2. LGCs shall themselves observe strict transparency, accountability and discipline and eschew corruption in their utilization of their constitutionally allocated percentage from their Internally Generated Revenue (IGR).

Let me now give a blow-by-blow account on the making of a new Constitution and involving the Nigerian people through a Referendum.

1. Section 14(2) of the 1999 Constitution provides that sovereignty belongs to the Nigerian people. The present NASS, to abate their fears of being sidelined and rendered irrelevant, shall certainly be involved in igniting and facilitating the process of the emergence of a brand new Constitution and a referendum on same from its present constitutional review exercise. 2. It is true that section 9 allows the NASS to amend the existing 1999 Constitution which provides for the mode of altering its provisions. However, the fundamental challenge here which Yadudu and his school of thought appear oblivious of is that the NASS can only, in futility, employ the said section 9 to amend an inherently illegal, illegitimate and irredeemably incurable militarily-imposed unitary document which falsely masquerades as the present 1999 Constitution. This is because the present Constitution (being merely a Schedule attached to a Military Decree No. 24 of 1999), is not owned by the Nigerian people.

Some people may not want to hear about this; but this is the truth. The 1999 Constitution is illegitimate and thus lacks autochthony, credibility and acceptability of the people. Consequently, no amount of limitless amendments or alterations of this illegitimate document of dubious pedigree through the present exercise can cure it of its “original sin” of illegitimacy and imposition on the people; in the same way that you cannot put something upon nothing and expect it to say.

THE UNDOUBTED ROLE OF THE NASS3. Consequently, for us to create a more viable politically and economically functional country imbued with social justice, equity, unity, mutual respect, egalitarianism and prosperity, the NASS surely, through its present amendment exercise, has a crucial role to play.

It has the power under section 4 to ignite and facilitate the process of having a brand new Constitution that is owned by the people with a specific provision for popular referendum of the people.

How does the NASS do this? Quite simple: the NASS which is already in place shall resort to section 4 of the Constitution to enact a law that creates a Constituent Assembly of the people. Section 4 certainly gives the NASS Assembly power to make laws for the peace, order and good government of Nigeria or any part thereof. Enacting an Act to facilitate the process of having a Constituent Assembly that will midwife a new Constitution after a referendum is such a Law that will remove the present imbalances and mass disaffection in the Nigerian union. 4.

It is this Constituent Assembly thus provided for by an Act of the NASS using section 4 of the Constitution that will debate the collated recommendations of the present Constitutional Review exercise, some acceptable lofty 2014 National Confab recommendations and some relevant provisions of the 1963 Constitution that enthroned true fiscal federalism. 5. This enactment shall also make provisions for a referendum of the people. What the NASS therefore does is to simply make a law that ignites, facilitates and popularizes the entire process of bringing about a Constituent Assembly of the Nigerian people, which will in turn midwife a draft new Constitution, and which draft Constitution will be subjected to a referendum of the Nigerian people.

This is not rocket science. 6. Provisions of a new draft Constitution shall be voted on by Nigerians in the form of “AYES” or “NAYS”, during a popular referendum. The draft thus becomes the outcome of the will of the people. The matters to be voted upon, the questions to be put, the mode of participation and the template of the entire referendum shall be matters of detail that shall be provided for in the law thus enacted by the NASS. 7.

With this credible, transparent and legal process, the new emergent draft Constitution becomes autochthonous, indigenous, legitimate, credible, respectable, believable and owned by the people. 8. All these steps to bring about a people’s new Constitution can be embarked upon and completed within a space of a mere six months. It is known that the NASS had in the past taken drastic steps to carry out first, second and third readings and adoption as law within few days, matters very dear to its heart. 9. The President thereafter PROCLAMS the draft Constitution into law (new Constitution), using his executive powers under section 5 of the 1999 Constitution.

10. With this, the new Constitution can truly proclaim that, ““WE THE PEOPLE OF THE FEDERAL REPUBLIC OF NIGERIA DO HEREBY MAKE AND GIVE TO OURSELVES the following Constitution”. 11. The NASS should therefore eschew fears of being side-lined or marginalized in the emerging scenario. The NASS is actually the main organ that originates, facilitates and drives the entire process of how a Constituent Assembly is birthed; and also how a referendum by the Nigerian people, leading to a brand new Constitution, is achieved.


Kenya (67% of Kenyans, August, 2010); Iraq (2005); South Africa (1999); Morocco (June, 2011); Iran (99.5%, December, 1979); Bangladesh (83.6%, 1991); Egypt (2012); Eritrea (1994); Tunisia (January, 2014); USA (September, 1787). So, dear Professor Auwala Yadudu, having a new Constitution and a referendum driven by the people in Government are not new. It has been done many times over the years. Nigeria also can do it.

I have read some argument to the effect that the NASS should even invoke the “Doctrine of Necessity” to achieve a new Constitution because of Nigeria’s gradual dangerous slide towards balkanization. Such people mean quite well. As a Constitutional Lawyer, I have written severally on this Doctrine of Necessity over the years. So, I know about it very well.

It was used in January, 1966 and given judicial imprimatur by the Supreme Court to legalize the relinquishment or obdication of powers by Dr Nwafor Orizu, the then Acting President of the Senate, to General J. T. U. Aguiyi Ironsi, from the Prime Minister Abubakar Tafawa Balewa Government (See LEKANMI V. A. G. (WEST) & ANOR (1970) NSCC 143. It was also invoked in February, 2010, to save Nigeria from the precipice by declaring the then Acting President, Dr Goodluck Ebele Jonathan, substantive President, after the then President, Umaru Yar’Adua had travelled to Saudi Arabia on health grounds without properly handing over to Jonathan in accordance with section 145 of the Constitution. See also the Pakistani case of STATE V. DOSSO (1958) 2 P.S.C.R. 289 AT 58; MADZIMBAMUTO V. EARDUER-BURKE (1969) 1 AC. 645; AND UGANDA V. COMMISSION OF PRISONS, EX PARTE MATOVU (1966) EAST ASWO REPORTS (EA). However, the NASS can surely rely on section 5 to under the present circumstances bring about a new Constitution through a people’s referendum.

This extinguishes the existing Constitution; brings about new structures of Government (Legislature, Executive and Judiciary); conduct of fresh elections; introduction of new revenue allocation formula; massive devolution of powers; State ownership of resources and State Police; and indeed a totally new lease of life.

I am not aware of anyone calling for wholesale adoption of the entire provisions of the 1963 Republican Constitution and the over 600 recommendations of the 2014 Confab report as Yadudu postulated. At least, not me. What I understand Nigerians to be saying (which is also my position), is that the best of these two important documents should be taken and merged with fresh thinking of Nigerians under the current Constitutional Review exercise and used as raw materials by an introduced Constituent Assembly. So, Yadudu’s belaboured argument on these two issues is a non-sequitur. He merely made a mountain out of a molehill.


Mercifully, Yadudu agreed that where the NASS is persuaded to use referendum for the future, then
“ an enabling Act to spell out what sort of questions to submit for resolution via referendum, who is invested with power to conduct it, using what voters’ register, who is eligible to participate in it etc”, need to be passed.
This is the point I have been making. The NASS can use section 5 to actualize it.
Surprisingly again, Yadudu, a Professor of Law, turned around and described Nigerians calling for such a referendum on a New Constitution as “separatist” elements. He even lied that “some clever chaps attempted to hoist the idea on the nation, by calling for the adoption of a new Constitution which they surreptitiously cooked during the National Conference of 2014” (underline supplied for emphasis).

I am alarmed by this infamous claim. As I have copiously shown above, this is, with due respect, a fat lie. No “clever chap” ever attempted what he falsely alleged. No one ever “surreptitiously cooked” up anything during the 2014 National Conference. This claim is therefore not only false and baseless, but also most unfortunate and unfair to the loving memory of all the 492 Nigerian patriots who participated at the 2014 Confab, and many of whom are now dead.

May Almighty God rest eternally, the souls of some of these Confab memebers who have since transited to the great beyond- Hon. Justice Idris Legbo Kutigi (Confab Chairman), Prof. Dora Akunyili (former Minister, Hamman Misau, Prof Muhammed Jumare, Magaji Danbatta, Prof Muhammed Nur-Alkali (former VC, University of Maiduguri), Mamman Nasir (former president Court of Appeal), Ibrahim Coomasie (former IGP), Chief Richard Akinjide (Ex Attorney-General of the Federation and Minister of Justice), etc, etc.


I humbly urge the NASS to please take a serious look at the above recommendations which are not merely theoretical, but based on solid practical experiences over the years as drawn from Nigeria and from across the globe. The above have been done before. They can be done again. Now is the time, as you perch on the threshold of history.

May God guide you in your arduous task of restructuring, re-engineering and overhauling the weak fabric of our dear imperiled, wobbly, groggy and fumbling country called Nigeria.


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