January 14, 2011

Amended Constitution: Fresh litigation looms

THREE days after the controversies regarding whether or not the President should sign the amended 1999 Constitution were laid to rest with President Goodluck Jonathan appending his signature to the document, a fresh litigation that could affect the 2011 polls is looming.

Founder and Presidential Candidate of the National Action Council, NAC, Dr. Olopade Agoro said in the absence of an Electoral Act, the late signing of the amended constitution did not cover the election timetable announced by the Independent National Electoral Commission, INEC, last year. He called on INEC to cancel the election timetable within 48 hours and wait for the new Electoral law or face litigation.

Agoro spoke as two former Senate Presidents, Chiefs Adolphus Wabara and Ken Nnamani differed on the propriety of the President signing the amended grundnorm. While Wabara said the assent was in order, Nnamani said it portended a dangerous precedent for the polity.

In a statement titled: “Dangerous implications of 1999 amended constitution signed into law January 2011,” Agoro said: “The final signing into law by President Goodluck Jonathan on January 10, 2011 of the 1999 Amended Constitution of Federal Republic of Nigeria  portends great constitutional and legal challenges not only to the corporate existence of Nigeria but to the Timetable issued by INEC on 23rd November, 2010 for Elections to be held in 2011 and for the Electoral Act still under construction by the National Assembly.

“First and foremost, how will the Amended Constitution be cited? Will it be 1999 Constitution as Amended 2010 but signed into law 2011? Or will it be 1999 Constitution as Amended 2011?

As well, since something cannot stand on nothing the legal implication to INEC Timetable issued  23rd November 2011 for Elections 2011 is null, void and of no effect, since it was released without Constitutional legal backing and in fact as at date no valid Electoral Act.

“As it is all actions taken by the Federal Government releasing money to INEC to procure actions on Elections 2011, and particularly all actions taken so far by INEC on Elections 2011 are without Constitutional backing and therefore illegal. The best of options now is for INEC to immediately cancel the Timetable released by it  23rd November 2010 and wait for the new Electoral Act to be signed into law before ever issuing any other Timetable.

Unless this is done within the next 48 hours, nothing will stop my humble self approaching the law courts of the Federal Republic to ask for the stoppage of the executive reckless abuse of the rule of law in democracy.”

Speaking on the president’s signing of the amended Constitution,  Nnamani opposed the Presidential assent, saying that it could unleash trouble in the polity in future.

His words: “This is a dangerous precedent. I don’t believe that the amended clauses needed the presidential assent since the clauses were passed by two thirds of the National Assembly and two thirds of the state Houses of Assembly. Why should one person hold the country hostage? Let’s suppose we have a president who is not willing to assent to the amended clauses in the constitution, would the National Assembly override the Presidential non-assent with what? Why should Mr. President be given more powers after the recent crisis caused by Executive failure to transfer power appropriately before proceeding on medical leave? It was not intended that Mr. President’s assent is required for the amended clauses in the constitution.”

Disagreeing with Nnamani, his immediate predecessor at the National Assembly, Wabara said the document ought be signed by the president for ‘completeness’ since it had the imprint of the National Assembly.

His words: “All bills so amended must have the assent of the President, whether it is constitutional or not, it is for completeness, otherwise the National Assembly could sit down and make laws and it goes into effect without the President’s assent. But for completeness, all bills whether fresh or amended always end up at the President’s desk, otherwise that law does not become an act without his assent. Once the National Assembly has a hand in any bill, for the bill’s completeness, the President must assent to it before it becomes a law.”

Former Nigeria Bar Association, NBA President, Mr. Olisa Agbakoba (SAN) had gone to the court to compel the lawmakers to pass the amended code book to the president for assent when the legislators insisted otherwise. He got a judgement and the legislators appealed.

Although the lawmakers are still in court, they said they passed the document to President Jonathan in the interest of the nation and the polity.

Provisions of the amended constitution

Among others, the amendment allows the INEC to conduct elections at least 30 days to the expiration of the tenure of the incumbents. The old  timeline for the holding of elections was not earlier than 150 days and not later than 120 days before the expiration of the tenure of political office holders.

Section 81 of the law_ grants financial autonomy to INEC.

And Section 135 (2) stipulates that “in the event of re_run election, the time spent in the office before the date the election was annulled, shall be taken into account” for the president. This same rule applies to all other political offices.

In other words, governors who won re-run elections after their initial elections were annulled would quit on May 29, 2011 irrespective of their second swearing -in dates.

Section 145 confers on the vice_president the power to act on behalf of the president whenever the latter transmits a written declaration to the Senate President and House of Representatives Speaker that he is proceeding on vacation or is otherwise unable to discharge the functions of his office.

Section 190 also automatically confers the same power on deputy-governor.

The amendment also provides that in case the president or governor is unable to transmit the vacation letter in 21 days, the VP or deputy_governor will be empowered to act as president or governor capacity by a simple majority vote of the Senate and House

Section 233 empowers the Supreme Court to hear governorship election appeal cases. Before now, such cases ended at the Appeal Court.