By Ikechukwu Nnochiri
Chief Amechi Nwaiwu, SAN, is an Abuja based legal practitioner. In this interview, he bared his mind on several national issues, ranging from the controversies that has continued to trail the amendments effected on the 1999 constitution, as well as the propriety or otherwise of government’s keeping Nigerian students at home during the first two weeks of the Independent National Electoral Commission, INEC, voters registration for the April general elections.
How will you describe the initial contention by members of the National Assembly that the 1999 constitution could be deemed amended even without presidential assent?
I was so disappointed that our so called lawmakers manifestly bared their ignorance to such magnitude. It still baffles me that despite the fact that majority of them have legal background, yet they allowed the entire House to progress in error for such a long time.
Our legislators should be properly guided on such matters next time. They should have a league of lawyers or an in-house legal council they can consult for proper directions and guidance before they do some of these things instead of staying at their supposedly hallowed chambers to argue blindly.
Are you saying that they were wrong all along?
Yes, they were totally wrong in their argument. They patently exhibited their ignorance on constitutional matters when they insisted that the 1999 constitution was duly amended even without the requisite presidential assent as stipulated in section 58 of the constitution.
The controversy over whether or not the provision of section 9 of the constitution, which stipulated the process for altering the constitution, could be read to also include the procedure specified for passage of ordinary bills into law as provided in section 58, was totally uncalled for. It is a thing of joy that the two chambers of the National Assembly finally realised their error and did the right thing.
What you are saying in essence is that your brother, Mr Olisa Agbakooba, SAN, was right all along?
Absolutely. He was totally right. What happened at the end of the day? Has it not been proved that Mr Agbakooba was right? The subsequent action of the lawmakers in re-tracing their steps equally justified the judgment of the Federal High Court judge, Lagos, who had ab-initio declared the purported amendments on the constitution a nullity without presidential assent.
As parliamentarians, they should learn to read the constitution as a whole rather than in part. If the position of the law is that the president must sign it, if he doesn’t do so, then the entire process is null and void, there is no short-cut to it.
Now that the constitution was purportedly amended in 2010, while the presidential assent was secured in 2011, what is the legal implication?
I will really appreciate it if people don’t over-flog that issue. What should concern us is that we have at least succeeded in amending the constitution not to dig unnecessary with a view to raising more controversy that will not portend good for our polity. The truth of the matter is that it is as if nothing happened in 2010 because the validity of the amendment according to the law starts from the day the assent was secured.
It was a mere document in 2010, it only became law and operational this year.
Then what happens to some of the decisions that were taken in 2010 on the basis of the purported amended constitution?
What decisions are you talking about? It is imperative that we stepped aside from the realm of rhetoric and controversies and look at the holistic picture. There was need for an amendment, now that the process has passed through the due process, what are we going to gain by making mountain out of hills.
Was the Electoral Act 2010 not an offspring of the 1999 constitution as amended?
As I said earlier, it is necessary that we concentrate on more progressive debates than to dwell on the propriety or otherwise of either the Electoral Act or the amended constitution as it is presently, that the lawmakers initially progressed in error does not mean that all the decisions hitherto taken on the basis of the un-assented constitution as it then was, were void, No. There is what is called existing laws, moreover, it was only some portions of the old constitution that was varied, other portions, remained the same in terms of content.
Though the National Assembly erred in their arguments, we should also give them some credit. This is the first time since the 2nd Republic, 1979, that we are amending the constitution under a democratic set-up. Even the 1999 constitution that was amended is a creation of the military. This is why it was so rigid to amend.
Check the issue of state creation for instance, almost all the states that we have today were created under the military rule. Why do you think that the recent clamour for new states failed to yield any positive result? It is because of the rigidity of our current constitution. This is why it is imperative that we got our first attempt at amending the constitution right because we still have many more amendments to do in the nearest future.
We should congratulate ourselves that finally we have been able to amend the constitution. The presidential assent gave it the requisite legitimacy; it will, however, be a distraction to go back to court again to challenge the propriety of the amendments.
What we should concern ourselves now is ensuring that we have another democratic transition of government. We are not there yet, but we will get there.
The American constitution that we are emulating has been in existence for over 200 years, it has passed through series of amendments and that does not reduce the validity of the rights, privileges or responsibilities contained therein, it is the prevailing situation at any point in time that occasions the amendments, but it still remains the American constitution. We are still transiting but we will get there.
What do you think should be done to avert the kind of erroneous posture that was initially adopted by members of the National Assembly over this issue?
This is a pertinent question. It is my position that the constitution should be amended in such a way that members of the two chambers of the legislature will have more time to spend in the parliament before handing over to another set of lawmakers, this will help to cultivate the democratic culture in them.
A situation where new set of legislators come on board after every four years does not augur well for our constitutional development. Not only does it occasion inconsistencies, it drains our economic resources. Imagine a situation where all this pending bills will become a nullity at the expiration of this administration. There are so many very important bills pending before the present legislature, the Freedom of Information Bill and the Petroleum Industry Bill, PIB are some of them.
Now that so many of them have lost their return tickets to the legislature, the implication is that the new set of legislators who will replace them, will start conducting fresh public hearings, waste valuable time again arguing to and fro over the same bills that were argued by their predecessors. We should borrow a leave from some of the advanced countries like America. Some of the lawmakers’ there have stayed in the parliament for as long as 32 years. This makes them professionals in constitutional matters.
Not here where majority of them for the sake that they had the money to project themselves during campaigns, enter there only to spend about two years of their tenure learning the procedure and then spend the remaining year practicing the rules and the final year fighting to retain their sit. This is wrong.
It is high time we made legislative business in Nigeria a part time job, and this should be followed by a drastic reduction of the current jumbo pay they are collecting. They should only convene when there is a serious bill to be passed or an amendment to be made, not a situation that they gather there everyday with little or no result to show for it.
For instance, how many bills did this set of lawmakers pass, looking at it critically, vis-a-vis the heavy salaries they collected, you will see that it was not worth it. Some of them just go there and sit from day to day without even standing up one day to move a motion or canvass a point. This is bad and should be looked into as a matter of urgency.
Aside from the issue of constitutional amendment, the general elections is already starring us in the face, and plethora of complaints have continued to trail the ongoing voters’ registration exercise with regard to the initial hitches associated with the operations of the Direct Data Capturing Machine, DDC. Is this a fore taste to the failure of INEC?
I think that it is still very early to pass vote of no confidence on INEC. One thing that is in short supply in this country is patience. Nigeria is still a developing nation and it is not out of place to experience such teething problems. You are bound to have initial technical hitches that will be overcome with continuity and determination.
Do you share the view that lack of computer expertise by Corps members used as ad-hoc staff by the INEC contributed immensely to the initial hitches?
I don’t share such sentiment. Yes the corps members may not have been perfect at it, but is it not expected? Where they taught computer and how to handle DDC machines in school? Or do we think that few days training was enough to turn them into professionals? Many of them may not have had the opportunity to handle computers before now. We know the kind of educational system we are operating in this country at present. It is garbage-in garbage-out. I don’t see why people are castigating them over the teething problems we have recorded so far with the DDC machines.
Does government have the right to close schools because of the exercise and doesn’t it amount to violation of the constitutional rights of these innocent children?
The price of liberty is essentially that we all have to make sacrifices. There is no doubt that the rights of many Nigerian students have been violated with the temporary closure of their schools to enable INEC to use their premises for the conduct of the ongoing voters’ registration exercise. However, every right must have its corresponding responsibility.
Credible voters register will facilitate credible elections and credible elections will produce credible leadership that will in-turn make far reaching decisions for the betterment of the educational system and welfare of the teeming Nigerian students. Therefore, they must see this period as the sowing time, whatever sacrifice they make now for the sake of their future is worth it.
No body can deny that their right have not been violated but every right has a corresponding duty. We paid dearly to enthrone democracy in this country, we must not always look at things from our own perspective alone. If we don’t close schools to do this registration, who will do it for us or are we going to invite South Africa or Ghana to do it for us? The best thing for the school proprietors and others who have been crying blue murder over the closure is to try and re-adjust their academic calendar to accommodate the syllabus that would be affected by this impromptu vacation period.
INEC should be supported at this point in time so that we will know how to hold them responsible in the event of any failure on their part to give us a credible elections in April.