THE ruling by the Court of Appeal sitting in Lagos that the amendment on the 1999 constitution by the National Assembly and state Houses of Assembly was of no effect if the president did not sign it has once again brought to the fore the multiple threats to the conduct of the 2011 elections.

There had been fears over the polls since the chairman of the Independent National Electoral Commission, INEC, Prof. Attahiru Jega raised the alarm that the 2011 elections, which had earlier been scheduled for January was no longer feasible because of the tight time schedule available to the commission and the volume of work to be done within the available time.

Indeed, the amendment of the 1999 constitution by the National Assembly was greeted with euphoria because of the failed attempts by previous legislators after billions of Naira had been expended on the exercise.

But the euphoria that greeted first alteration to the 1999 constitution did not last long as sundry controversies began to dog the process. For many Nigerians, the process of the amendment was incomplete without subjecting it to a presidential assent as other bills. But the chairman of the Senate committee on the review of the constitution, who is also the Senate Deputy President, Senator Ike Ekweremadu, was adamant in his refusal to entertain that contemplation.

According to him, the section of the 1999 constitution that empowers the National Assembly to amend it does not envisage that the president would have to assent to the amendment before it come into effect. His argument is that since members of the National and state legislatures are direct representatives of the over one 150 million Nigerians, who are the custodians of the sovereignty, there was no need for an individual to confer sovereignty on an activity that was already blessed by the people.

Not satisfied with the position of the National Assembly, human rights lawyer, Olisa Agbakoba, sought a judicial interpretation at a Lagos high Court to determine the propriety of the  position adopted by the National Assembly on the amendment to the 1999 constitution.

He had argued that the president’s assent to the amendment of the constitution was sacrosanct for it to come into effect unless such assent was overruled through a vet by two-thirds of members of the National Assembly.

According to him, by the provisions of section 58 of the 1999 constitution, any act of the National Assembly that is not assented to by the president, or a veto by the president overridden by the National Assembly remains null and void. He urged the court to declare that the exclusion of the National Assembly of the presidential assent render the amendment null and void.

As the case progressed in court, the National Assembly was restrained by the court to revert to the status quo ante pending the determination of the substantive suit by Olisa Agbakoba challenging the amendment. Expected, the order of the court was not only rejected by the National Assembly which gave its own interpretation of what constituted the Status Quo Ante in the instant case, but also went ahead to accuse the judiciary of trying to interfere with the constitutional duties of the legislature.

Addressing Senate correspondents after the court injunction, Ekweremadu reiterated the unwavering commitment of the legislature to progress with its constitutional duties without allowing the declarative pronouncement from the bench to interfere with it.

According to him,  since the amendment had been completed and gazetted, the court order relates to only the interpretation being sought as to whether a presidential assent is needed before constitutional amendments would come into effect.

“What is at issue is whether the president will assign the amendment to the constitution or not. It is not whether we have power to amend the constitution. It is not an issue in court. If they are asking for the Status Quo to be maintained, they are simply saying that the position as at today should be sustained and the position as at today is that that law has been gazetted and is in operation, so it cannot stop us from doing our work.

“At any rate, the court knows, as all of us do, that the parliament cannot be stopped from exercising its constitutional functions. If we make laws, all the court can do is to declare null and void what we have done. As far as the lawmaking powers of the parliament is concerned, it is settled in the Supreme Court that the court will not interfere in such a manner as to stop the parliament from exercising its legislative functions. I am sure the judge knows as much as that so he wouldn’t have made an order stopping us from continuing the exercise,” he said.

But such optimism at the discretion of the judge as expressed by the deputy senate president did not sway the judge when delivering judgment in the Agbakoba suit.

According to the judge, ‘having failed to comply with the provisions of section 58 of the constitution, the purported 2010 amended constitution remains inchoate, until it is presented to the president for his assent.’

But the question that comes to mind is with the nullification of the constitutional amendment by the Lagos High Court, what is the fate of the 2011 election whose conduct is to a large extent predicated on some of the amendments to the 1999 constitution? Will this further hamstrung the INEC which is already severely affected by the tight time line it has for the conduct of the elections?

According to an official of the commission, who spoke with Vanguard on the condition of anonymity, the altercation between the judiciary and the legislative arms of government is been keenly followed by the commission ‘but we are not distracted by whatever is happening because we are focused on our assignment.

“We are keenly following the development but as a commission, we are not agitated by the unfolding scenario. As the chairman mentioned in one of his meetings with the European Union delegation, we always have a plan B to every situation and even in this particular case we have a robust response to any eventuality and this case is not different. We are on top of the  situation,’ the official stated.

This confidence is also exuded by the chairman of the Senate committee on Information and Media, Ayogu Eze, who assured Nigerians that the Senate would appeal the judgement and there was no cause for alarm because every judicial avenue would be explored to not only enrich the country’s jurisprudence but also ensure that a positive precedence was set for subsequent amendments to the constitution in the future.

“We are going to appeal because we believe that we were well guided in our decision that the presidential assent was not required and we are governed by not just the provision of the Constitution but also the practice and convention in older democracies we draw from like the United States of America after which our Constitution was patterned. It is also very healthy what is taking place in our polity today because we need to test everything that comes up because at the end of the day our democracy will be healthier and the better for it.

I want to use this opportunity to tell Nigerians that there is no cause for alarm because at no point will there be a vacuum because the court in Lagos has made a declarative judgment, which means the alteration Act stays in abeyance until the determination of the appeal that we are sending in. So if you go by the old Constitution there is no problem because INEC still has enough time.

The determination of the National Assembly, especially the Senate to appeal is very solid. We are going to abide by the declaration of that court that, that alteration is in abeyance until we have appealed. That is the position.”