ABSTRACT: We the People- the origin of popular sovereignty. This statement which begins the preamble of most democratic constitutions tells us beforehand without reservation, that the People are the creators of fundamental laws. Most democratic constitutions today rest on a theory of popular sovereignty. But who are the sovereign people?, What does popular sovereignty mean? The rise of popular-vote processes such as referendums are mostly understood as Rousseauian instruments of popular sovereignty. There is concern that it could lead to discriminatory results and liberticide.     This article analyzes the idea of "national referendum" and the relationship between citizens and their representatives drawing reference from Philip Pettis’ book titled “On the People’s Terms”.  In most countries, there are no direct provisions for a Referendum in the constitution either at the local, state, and national levels, except by a constitutional amendment and a special statute in the parliament.

Key words: Referendum, Popular Sovereignty, Elected Representatives, Constitution

Background and Introduction

Most political and constitutional scholars have argued that though there may not be any express provision for a national referendum in the constitution, it is more than implied. They argued that there is the legal framework that exists within the constitution that can provide strong tenets for a referendum, in Nigeria Section 13, 14 and as well as item 60 on the Exclusive Legislative list under the Second Schedule of the 1999 Constitution. These sections 13 and 14 are under the Fundamental Objectives and Directive Principles of State policy, and they are unenforceable only at the discretion of the policy makers. Section 14 (2) declares that sovereignty belongs to the people of Nigeria from whom government through this Constitution derives all its power and authority. Nevertheless, the constitution did not empower the people to establish a Referendum, but in item 60 on the Exclusive Legislative list under the Second Schedule of the 1999 Constitution, the executive and legislative are empowered to establish Referendum. This means, according to the constitution, only the Executives and Legislature have the power of change. Thus, there is no guarantee that they will not abuse the power or the outcome of a national referendumby claiming they are acting in the interest of the people through elections.

I am arguing that the concept of popular sovereignty under the atmosphere of periodic elections and democratic institutions is only a myth versus a reality. I will be responding to two questions under this argument, (1) to what extent anational referendum a reflection of popular sovereignty; and (2) Is it normally desirable to have anational referendum?. I will respond to the first question by relying on Philip Pettis’ book titled “On the People’s Terms”. While the second question I will rely on part of Pettit’s work and other available secondary materials.

To what extent is a national referendum a reflection of popular sovereignty?

“Being a free person is synonymous with being sufficiently empowered to stand on equal terms with others, as a citizen among citizens.” (Wirszubski, 1968)

This is the idea of traditional republican thought that citizens could enjoy equal opportunity in the society in which they live without being at the mercy of the rich or powerful in the society. This idea of equal standing and sufficient power spread across ancient, medieval and Renaissance Italy, and across Europe in modern times, causing the English Civil War and the French Revolution and also leading to the world’s first modern democracy.

The concept of equality is that the government could make available a high-standard of living for all its citizens, so that they are not dependent on the mercy of another. They could live with dignity and not shame, live without fear or threat. Philip Pettit in his book, “On the People’s Terms”, argued that the state is a creation of the people and sustained by the people”. Pettit further argued that as the state is duty to guard the people from any form of social injustice, it must also guard itself from any form of public injustice (public domination).

For Pettit, what is needed to prevent the state from public domination is popular control over the state, and this Pettit called a distinctive form of democracy. This distinctive form of democracy is what influenced Pettit’s book, “On the People’s Term.”  It connotes the will of the people and for Pettit, in order to achieve this form of democracy; there must be a form of institutionalization.

Pettit gave a clear exploration of the institutionalization feasibility that the people can have power and control over the state, in a manner that they are not publicly dominated by the state. Pettit argued that the people by virtue of the fact that they live in a state, should not lose their freedom. According to Pettit, control is in two dimensions, influence and direction. When the people are influential in the state, they can exact control on government. That is, the people have a right to enjoy a form of unconditional influence on the government that is equally accessible to them.

Pettit suggests a model called Plenary Assembly. This model of Plenary Assembly will accord the people equal accessibility and influence over government. Because of the challenges that a traditional Plenary Assembly would be confronted with, Pettit further outlines two non-Plenary assembly models, indicative representation and responsive representation. Pettit suggests that the responsive representative would be favorable over the indicative representative. According to Pettit, for the assembly to serve the interest of the people, it must be subjected to periodic imperative amendments. These amendments Pettit argued will help to deliver a form of popular influence that is appropriately individualized, efficacious, and unconditional.

The Plenary Assembly was supported by two philosophers, Jean Bodin and Thomas Hobbes. Both Bodin and Hobbes argued that law is the highest body that coordinates the relationship between individuals and communities. According to Bodin and Hobbes these laws do not have enforcers. Both thinkers also argued that there has to be a single commander and single will; that is, there should be a sovereign individual or a sovereign body.

Both Bodin and Hobbes expressed that there are three types of government::monarchy, aristocracy, and democracy. According to Bodin and Hobbes, democracy is a type of government in which “laws are imposed by a sovereign committee of the many.” For Pettit, Bodin and Hobbes did not support monarchy nor aristocratic government, they undermined it, because they do not create a single commander or law giver and these is detrimental to the purpose of state, ensuring peace and order and social justice.

The idea of Plenary Assembly was first introduced by Bodin and Hobbes, but Jean Jacques Rousseau expanded on their work. Rousseau (1997) argued contrary to the idea of a mixed constitution without a single law-giver. He rejected the concept of aristocratic and monarchical states, arguing that it will return the state into “disparate pieces” (ibid). This argument was born out of his conviction that no one individual should have to live in subjection to another. This is a classical republican idea of the state.

According to Rousseau, the people should assemble from time to time in a free manner and discuss existing laws, and then the power to implement those laws would be transferred to an appointed authority. Following Hobbes’ idea of social contract, Rousseau expressed that discussion should be taken by a majority, despite the consensus of the contract of a political society. Rousseau argued that members of the assembly must vote on the basis of common good.

There has been the argument if the people take control of government, they could cause a discursive dilemma. What is a discursive dilemma? Discursive dilemma is one challenge that the Plenary Assembly may encounter in the process. Rousseau (1997), Immanuel Kant (1996) and James Mill (Lively & Rees, 1978) respectively acknowledge that the size of the citizenry may pose a problem during voting, and this could lead to inconsistency in voting. According to Pettit, consistency in the law is the most primary factor in any lawmaking assembly (Pettit p.205). According to Pettit, the challenge with the Plenary Assembly is that while there is consistency among the citizens on issues, citizens may be inconsistent in producing a unified vote if they rely on majority voting. For Pettit, majority voting should produce a corporate decision that is responsive to the decision of the individual citizens. However, Pettit suggests that inconsistency can be avoided or overcome by adopting straw-vote procedure. Under this method, a majority vote that supportsa decision will be considered irrelevant until the vote is scrutinized and shown to be consistent with decisions previously supported. But if the vote fails, then it will be rejected alongside other votes (List & Pettit, 2011). What this procedure means is that to make consistency in a Plenary Assembly, the assembly must access feedback on the positions for which the citizens are casting their vote. When those positions the citizens are casting their votes for are inconsistent, it must introduceprocedures that will restore the positions of citizens or cut off any factors that may be causing the inconsistency.

The Indicative Assembly, according to Pettit, is a non-Plenary Assembly, having the likeness of citizens that engages in satisfying the people. Decisions decided by this assembly are considered fit and right for the people.

The Indicative Assembly is regarded as a community with the characteristic qualities of the larger population. During the responsive assembly, the citizens would choose from a range of interested volunteers that would serve on behalf of the people. These appointees will serve for a timeframe in lawmaking. Members are selected to office based on their ideas and promises.

How to Gain Influence Over the State

The French Revolution was supported largely by most populists and they attributed Rousseau’s ideas as the inspiration behind the success of the revolution with the perception that any representative must be elected. However, the electoral body must be comprised of the body of the population, which could also be a microcosm of the whole population. According to Pettit, it is not enough for the citizen to have only control of those in power, it is important to have influence over those in power in order to avoid dominating forces on their lives from the state. Pettit asked the question whether an electoral system could give all citizens the same share in determining the impact of the influence it mediates. For Pettit, in a system where there is collective influence, the average contributions of citizens that make the same efforts are likely to be the same.

For Pettit, democracy of popular influence cannot be said to be democracy of popular control. Influence may not position the government directly under the control of the people, but creates an undominated status of the people. Pettit said that the government even under the influence of the people can still dominate in particular decisions.For most theorists of democracy, the common idea of democracy is that of popular influence and not control. And this kind of influence need not be strongly regulatory. According to Joseph Schumpeter (1942) while democratic government depends largely on the people’s votes and support, such vote or influence do not give any directive or control over the government. For Schumpeter, such a vote or influence that emanates during an election period is not meaningful in the decision-making process, and does not amount to any result after the voting process (Schumpeter, 1984) The people do not form any systematic views or control that might impose on political leaders. In Schumpeter words "under the influence of popular pressure and party propaganda, they display only ‘anindeterminate bundle of vague impulses loosely playing about given slogans and mistaken impression" (Schumpeter 1984, 253). This means even in a situation where the people form a view, they lack the power to impose that view under the popular democratic system. In Schumpeter’s expression, political party leaders are committed to winning elections and holding offices, they do not work in the interest of the people but in the interest of the party, that is, they are not guided by any popular principles, and no matter the effort or support from the people, the party management and concept will always deliver whatever serve best in 'the competitive struggle for political power' (Schumpeter 1984, 283). During anelection period, the people always choose between which party to vote for and those choices do not have any effect on the political leadership of the party (ibid).

In view of this understanding, Schumpeter was convinced to define democracy based on its functions and purpose as "that institutional arrangement for arriving at political decisions in which individuals acquire the power to decide by means of a competitive struggle for the people’s vote (1984: 260). According to Przeworksi, Schumpeter’s definition of democracy is a working definition that clearly explains the working functionality of democracy in a descriptive characterization of regimes (Przeworksi 1999).

Pettit further argued that the people must endorse the purpose that they want the state to do for them, if theyreally want to participate in a system of influence on the government. Pettit called this "the intentional direction of government.” And in order to achieve the desired purpose, the people must articulate with better understanding the outcome of their desired purpose. In understanding the purpose, appropriate steps that are purposeful must be taken in advancing their purpose. This step wasagreed upon by Rousseau, because he expressed that members of his assembly should take these steps with purpose; they will give their support on the understanding that "it is purposeful to the government as well" and not to a particular political party or sets of individuals. This shows that the intentional-control approach of popular control has close relations with the general-will approach. According to Schumpeter(1984) this model of popular control can function in a representative regime, where the people choose a "representative" who will see that their desire is carried out. What this means is the people will come out with policies that are deemed suitable for the people and government, and then advance to choose people to carry out those policies. Montesquieu (1989) has a very refined opinion on this matter, as he argued that the people's first responsibility will be to elect representatives on the basis of intelligence, reliability and dignity, who they believe is capable of making positive opinion in the interest of the general will of the people.

The definition of democracy offered by Abraham Lincoln is widely accepted by most students of political science. Lincoln’s definition shapes other definitions offered by political scholars. According to Lincoln, Democracy is “the government of the people, by the people and for the people” (U.S. President Abraham Lincoln, The Gettysburg Address, November 19, 1863). The possible and quick interpretation of this definition is that government will be for the people, responding to the needs and wishes of the people; government will be by the people, it indicates that the government will be formed by the people via representatives; government will be for the people, this means that insofar as the citizens are in control; they do not rely on the willingness of any other authority for support in other to influence the government that they live under.

Pettit developed the dual-aspect model of democracy, which explains Lincoln’s definition of democracy that government interference on the will of the people is not meant to control the people nor subject them to domination. Pettit argued that the people can gain control of the government under two conditions:the citizens must deliberately impose their need on the government, and to act in a manner that has the unintended but welcome effect of imposing a certain directive. Pettit also discussed the intentional model of popular control over government. Under this approach, the citizen can formulate a view that is of public interest and then pressure the government to act on it. According to Pettit, this view must be of interest to the public, and it is interpreted to be what the people need since they are meant to live on equal terms with other people. Pettit identified one challenge with this approach, and it is that the approach may fail if there is no motivated will from the people and those representing the people. However, James Mills has argued that the non-intentional model could also face some challenges of utmost utilization from those in power. According to James Mills, if the citizens vote for their private choices, and if representatives have to answer for how they serve those private interests in every election then those in power will tend to maximize gains.

Is it Normatively Desirable to Have a National Referendum

Despite much academic and political discourse on referendum, in national-level politics of most countries especially in Europe, referendum is still an exceptional event (Setala, 2006). Since1940, government initiated referendums have increased and are relatively steady. However, most referendums initiated by government are usually decision-controlling referendum, but government remains reluctant to adopt other forms of referendums which are beyond their control, for example, decision-controlling referendum initiated by citizens.

Most scholars of political science have argued that citizen’s direct involvement in national-level politics could complicate traditional forms of representative democracy especially on issues of referendum (cf.  Barber, 1984;  IRI  Europe, 2005;  see also  Budge, I., 1996). There is an increase debate on democratic reforms, these reforms have been ignited by empirical reports which showthat citizens are becoming indifferent with traditionalforms of political participation, voting especially Dalton, et. Al.  2001; Dalton  2004).

However, there is resistance from those defending traditional representative democracy to reform the traditional democratic system.One of their main reasons is that the citizens do not possess the knowledge and political capacity for decision-making (Setala, supra). According to evidence gathered by Dalton, those that support these reforms are those that are ignorant of politics (Dalton et al. 2001).

According to Suksi, referendums can be classified into two types, binding and advisory referendum(Suksi 1993). For Suksi, a binding referendum is the final stage of the decision making, while an advisory referendum allows another high political authority to havethe final decision. There are two ways of initiatinga referendum, either constitutional or facultative approach (Setala, supra). Constitutional referendums relate certain matters as stipulated in the constitution,while a law making, the president, or even a group of citizens signing a petition can initiate facultative referendum.

In countries like Norway and Britain, the use of referendum is based on ad hoc laws. This is because there are no express constitutional rules on the use of referendums. In Britain and Norway there are very few standing rules on when referendums are to be held (Sargeant, 2017; aceproject, 2012). This means in theory, that referendum could be held on any issue within parliament's legislative competence and no restrictions on matter that a referendum may be held on. Finland and Sweden, provide a constitutional provision for parliamentary procedures of moving for referendum. However, most of the referendums moved by parliament are not binding, they are only advisory. No different decision has been made by parliament after the referendum.

According to Setala  (2006), decision-promoting referendums are usually initiated by the citizens. In European countries such as Switzerland, popular initiatives are used at the national level, where 100,000 signatures are required to initiate a referendum. Since 2003, Swiss nationals have had the right to initiate a referendum on issues but not on normal laws or constitutional amendments. In western Europe, both the Italian and Swiss constitution have a provision for citizens to initiate areferendum at the national level (Setala, supra).InAsian countries like Japan, there are no provision for a referendum at the national level, except by a constitutional amendement and a special statute in national parliament. While in Africa (for example, Nigeria), there are no express provisions for a Referendum in the constitution.

The different roles played by the use of referendums in democratic systems has resulted in the compulsory constitutional referendum in Ireland and Denmark. And this was precipitated by the principle of popular sovereignty. Abrigative and rejective referendums are empower to protect the interest minorities in a society. According to Svensson (1996), the rights of parliamentary minorities in Denmark were protected through the rejective referendum. In recent years now, there has been the the growth of popular initiatives that citizen movements should have a space to influence political agenda, this is evidenced in the Green Party in Germany (Dalton et al. 2001).

There is a similarity between the argument by democratic theorists and that of constitutional debates. Like Barber (1984) has argued, citizen-initiated decision-controlling referendums should be initiated so that it could challenge laws passed and this will give citizens the right to influence the political agenda by way of popular initiatives. According to (Setala, supra), government initiated referendum is considered to be problematic, because they are often regarded as seeking to weaken the representative democratic process.

In conclusion, with the rising globalization of politics, law and culture, the scope of popular sovereignty has narrowed. Over time, citizens have become increasingly indifferent to political matters. However, direct democracy may be a good method of brining the people to politics, but popular national referendum can help empower the people in the event that representatives abuse the power they got through voting. The utmost expectation for representatives is to integrate the people’s diverse interests into a working legal framework that is operational.

Ikenna Emmanuel Nwachukwu is a PhD Student at Near East University, Cyprus

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