A FEDERAL High Court decision that annulled amendments to the 1999 Constitution may be the initial descent to constitutional anarchy, unless parties to the dispute abide by a judicial ruling on processes for amending the Constitution.
Justice Okechukwu Okeke ruled on Monday that the purported amendment of the Constitution was incomplete, null and void until the President assents to it.
The Senate had been strident about its position that no court could have a say on its decision that the President’s signature was not required to complete amendment of the Constitution.
In a strong statement after the ruling it rejected the judgement and said it will appeal the decision of the court.
“We wish to state that it is within the jurisdiction of the court to reach the decision it did on the matter. However, we disagree with that judgment,” Ayogu Eze, the Senate spokesman said in Abuja.
“As a law-abiding institution and one charged with the function of making laws for the good governance of the country, we shall appeal against the judgment.”
Senator Eze continued: “We believe that the 1999 Constitution did not envisage that any single individual should sign the alteration after the people have spoken through the exercise of their sovereign.
“We believe we were right in reaching the decision we did. We were also guided by practice and conventions of other older democracies. The USA passed through the same argument after the Congress passed the bill of rights, but the Supreme Court in that country ruled that the assent of the president was not required to alter the Constitution.”
Olisa Agbakoba, former President of the Nigerian Bar Association, NBA, filed the case, to challenge the refusal of the National Assembly and the Attorney-General, Bello Adoke, to forward the amended Constitution to the President for his assent.
Agbakoba has been widely criticised by those, who say the move was a ploy that can stall the 2011 elections, since amendments to the Electoral Act, to grant the Independent Electoral Commission, INEC, an extension of time to prepare for the elections, cannot be made without first easing constitutional hurdles that stipulate time frames INEC can no longer meet.
With appeals that can see the case all the way to the Supreme Court, uncertainties around the organisation of the elections will grow unless the cases get accelerated hearing. Lagos lawyer, Bamidele Aturu has another undecided case on the same issue.
The National Assembly was to send a clean copy of the second amendment to the 1999 Constitution to State Houses of Assembly for their endorsement. According to it, once 24 State Houses of Assembly endorse, the constitutionally required two-thirds for an amendment, Nigeria will have the 2010 Constitution. Legal cynicism greets this position.
All the haste to amend the Constitution rode on the demands of timelines INEC missed for reasons that ranged from funding to non-availability of machines for registration of voters now planned for January. The machines are still not available and the orientation of those to use them cannot be done in their absence.
The elections are impossible without amendments to the Constitution. The danger is larger if the elections are held with ambiguous laws, meaning the cases in court can annul them, throwing the country into a constitutional crisis.
Suggestions that if the National Assembly files an appeal and INEC can assume there is a law for the elections and proceed apace, are dangerous angles to the promised free and fair elections.
The framework of the forthcoming general elections is largely built around the various amendments the first alteration bill made to the 1999 Constitution.
Section 4 (8) of the Constitution states: “Save as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of courts of law and of judicial tribunals established by law, and accordingly, the National Assembly or a House of Assembly shall not enact any law, that ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law.”
This provision nullifies some attempts by the National Assembly to state that the position of the court fringes on its legislative duties.
President Goodluck Jonathan quickly signed the 2010 Electoral Act, which drew its powers from the purported amendment of the Constitution while the controversy on the Constitution was at its height. Why did he sign when the National Assembly says he will not sign the amended Constitution, the originating law for the electoral law?
Controversies have been part of the amendment, starting in 2008 when members of the National Assembly wasted time wrangling over leadership of a joint committee on the amendment. More than six months were lost to this contest for supremacy.
Last year in Kaduna, at a pre-public hearing retreat, Deputy Senate President, who heads the Senate ad hoc committee on the amendment of the Constitution, Ikechukwu Ekweremadu, hinted that the amended Constitution would not require the President’s assent. Tayo Oyetibo, a Senior Advocate of Nigeria, disagreed with him at the event.
Now that the court has ruled, the Constitution and the elections are stepping into another critical phase. Some lawyers guess that if the case makes its way to the Supreme Court, as is expected, it stands no chance of a hearing before February 2010 — three months to the 29 May expiration of government — and elections may not be possible.
There may be no cause for alarm; after all, this is the country that within days applied the document of necessity to navigate out of the political cul de sac President Umaru Yar’Adua’s illness caused.
A major concern is that when the National Assembly embarks on an ego flight, it hardly stops even if it is heading for a crash. The constitutional crisis is real unless good reason applies and the time to apply the brakes is now.