THE Nigerian people require an unreserved urgent apology from the leadership of the National Assembly for subjecting the nation to this avoidable legislative blunder.

The leadership of the National Assembly knew well in advance that the powers of the legislature to make laws are not unlimitedand that the Constitution has never given any one arm of government absolute prerogative to do things howbeit outside its constitutional limit.

The courts in a democracy have both constitutional and inherent powers to stop the legislature from performing legislative functions if such functions are outside itscompetence, so it is with the executive. The argument by the National Assembly that the Federal High Court has no jurisdiction to strike down its void actions is rather here nor there.

Signing a bill into law is an executive action, which only reverts back to the legislature when there is a refusal to sign within the constitutional 30 days as provided in section 58(4) and (5) of the Constitution.

Thedecisionof the Senate to appeal the judgment, though a constitutional right is onlya face saving approach which may further compound the problems they have exposed the electoral system to. The Senate has a responsibility to rise above self-interest, partisanship, institutional pride and ego and demonstrate patriotism and statesmanship in the resolution of this urgent matter to save the nation from grief.

One therefore sees reason, maturity and wisdom in what may appear to be the stance of the House of Representative as expressed by Hon. ItaEnang, Chairman Committee on Business and Rules.

He said:“It doesn’t matter what we think; the Constitution stand not yet amended… the options open to us now are either we forward the amended Constitution to Mr. President for assent, which we may have to do, or we fall back on the 1999 Constitution to guide the conduct of the 2011 election without any of the amendments proposed”.

It is only the wise man who accepts his mistakes, show remorse and get corrected.

ItaEnang may not have spoken as a politician but as a senior lawyer who is abreast with the legal position that, the posturing by the Senate to appeal the matter cannot serve as a stay as to prevent Mr. President from signing the amendment into law if eventually presented to him.

The Senate suffers no special harm than the Nigerian people who have been exposed to this avoidable embarrassment. After all law is about what the judges say it is until declared otherwise.

The mind-boggling issue is, even when the amended constitution is today assented to, it certainly will not cure the damage already done to the conduct of the 2011 election. The 2011 Electoral Act 2011 was based on the unsigned amended constitution and that some of the provisions in the 1999 Constitution were transferred to the Electoral Act 2011.

The amendment will only become law from the date it was signed. Therefore, whatever step must have taken place based on the thenamended constitution remain null and void. This also includeactions bythe independent National Electoral Commission (INEC).

Which may not be possible for INEC to reverse. After all INEC in September 1, 2010, in an advertorial based more on the supposed amended constitution particularly section 180 (C) announced to the world that governorship polls will hold in January 2011 in the five states of Ekiti,(now out)Bayelsa, Sokoto, Cross River and Adamawa where governorship re-run elections took place.

This unfortunate advertorial resulted to the affected governors challenging same in court. Now that the entire exercise is declared nugatory what happens to the pending suits? This is certainly not the best way to encourage Professor Jega to conduct a free and fair election. As for now which law regulates the activities of Prof. Jega and his INEC? Is it the Electoral Act 2006 and the 1999 unamended constitution or the electoral Act 2010?

Which repealed the the 2006 Act and has itself suffered a set back by reason of annulment of the amendment that gave it life. If the amended constitution is rendered nugatory, can anything earlier founded on it stand? Certainly not.

It will be recalled that the Nigerian Bar Association prepared a draft constitution and electoral bill which it submitted to the National Assembly as its contribution to the development of our democracy.Perhaps more out of ego or showmanship by the leadership of the National Assembly, the good work by NBA was ignored.

As the system licks it wounds, the leadership of the National Assembly is advised to swallow it pride by transmitting the first amendment to Mr. President for his assent.This cannot stop the intended appeal, but is the most reasonable thing to do.

Time is not in anybody’s side. Nigerians must not fail to commend the judiciary for going direct to our young democracy now gone mad and should continue to play it leading role in the proper interpretation of the constitution.

This is the only way our yo ung democracy now in the hands of hawks and desperate do-or-die politician can be protected.

Prof. Jega must know on time the legal framework that regulates the conduct of the much talked about credible elections in 2011. The image of our great country is at stake by this current development. Nigerians must all rise to save the situation either way.

The speed and ease with which our Constitution is amended without presidential assent will soon open up to section 8 of the Constitution regulatory procedure for state creation and state may soon be created from our back without the participation of Mr. President as the Constitution will be amended perhaps for the 3rd time.

Concluded

Mr. Utum ETENG , a lawyer, writes from Calabar, Cross River State.