It is important to note that the question of constitutionality of the promulgation of a new constitution consists of both the procedural and the substantive aspects.

The procedural aspect consists of the minimum requirements laid down by the constitution for the promulgation of a new constitution. On the other hand the substantial aspect consists of the basic concerns of necessity, beneficialness, and practicability. In other words, when we put this debate into the ordinary man`s language, there are two issues that we must grapple with: the procedural issue of constitutionality; and the substantive issue of policy.

Of much concern is the procedural issue and especially with regard to the necessary quorum in the national referendum. In view of the above Mr. Augustino Neto (Saturday Standard, 1st May 2010) touched on both the procedural and the substantial. On the procedural, he noted with a lot of concern the absence of the referendum law (which can only be introduced by ordinary legislation). The import of threshold is such that it gives the majority of eligible voters the impression that if that minimum requirement is not achieved, their opinion is not taken into account and therefore the referendum exercise is null and void. Individual countries are therefore expected to come up with clear, unequivocal, and straightforward legislation to guide their national referendums.

It is also important to note that countries have to decide whether a referendum on a single issue has the same weight with that of the promulgation of a new constitution and therefore both have to be subjected to the same threshold or whether the latter should have a slightly lower threshold. It is worth noting that in many countries, the requirement for the latter is slightly lower. This is deliberately so because many people fear that a higher threshold can block the whole process. They opine that when a higher quorum is provided for, the result of the referendum can be predetermined wide deliberate abstentions. This is obviously a move which is against the constitutional purpose of the referendum. Indeed, it is very possible that the naysayers can call for a countrywide boycott in the hope of defeating a constitutional referendum by abstention despite being in a minority.

Respective countries must therefore have the foresight to prevent such a scenario. I would for instance be frightened at the prospects of parliament passing a legislation that would require a 60% turnout of eligible voters and a 50% plus one as the minimum requirement for the promulgation of a constitution. But unlike Augustino Neto, I may be comfortable with a legislation that states that “a referendum’s decision “shall be considered effective and binding if at least 40% of the total number of eligible voters participate in the vote and if 50% plus one of them voted in favour of the decision. (It is instrumental to note that eligible voters herein refer only to registered voters and not anybody who has attained the age of 18 years.). This is because I do not anticipate voter turn-out to hit an all time low of 40% even with the ongoing debilitation by the naysayers kingpins.

TOME FRANCIS,

BUMULA.

http://twitter.com/tomefrancis