By Awa Kalu, SAN
I have raised the above question in the hope that the Supreme Court may reconsider its rather rigid and disturbing stand on certain provisions of the Constitution which the apex court has equated with “Mount Zion” and “the Rock of Gibraltar”.

Based on my feeble understanding of the previous progressive approach of the apex court in the exercise of its interpretative jurisdiction with regard to the due administration of Justice, there is disquiet within the legal profession on account of the assumption by this Court of last resort that a matter of constitutional import may be subjected to asphyxiating analysis to the extent that consecrated principles may be blown away by a whirlwind.

*Court

A convenient starting point would be to refer to late Justice Udo Udoma’s beacon of light projected in his celebrated dictum in the equally celebrated case of Nafiu Rabiu v.

The State [1982] 2 NCLR 293. In matters in which justice rests on the interpretation of the constitution, the late Jurist held that “it is the duty of this court to bear constantly in mind the fact that the present constitution has been proclaimed the Supreme law of the land; that it is a written, organic instrument meant to serve not only the present generation, but also several generations yet unborn; that it was made, enacted and given to themselves by the people of the Federal Republic of Nigeria in Constituent Assembly assembled – for which reason and because it is autochthonous, it, of necessity, claims superiority to and over and above any other Constitution ever devised for the governance of this country- the unwarranted intermeddlesomeness of the military authority with some of its provisions notwithstanding”.

His Lordship emphasized, “that the function of the constitution is to establish a framework and principles of government, broad and general in terms intended to apply to the varying conditions which the development of our several communities must involve, ours being a plural, dynamic society, and therefore, more technical rules of interpretation of statutes are to some extent inadmissible in a way so as to defeat the principles of government enshrined in the constitution.

And where the question is whether the constitution has used an expression in the wider or in the narrower sense, in my view, this court should whenever possible, and in response to the demands of justice, lean to the broader interpretation, unless there is something in the text or in the rest of the Constitution to indicate that the narrower interpretation will best carry out the objects and purposes of the constitution.

Appropriate and instructive for the purpose of this discourse is His Lordship’s view that “the approach of this court to the construction of the constitution should be, and so it has been, one of liberalism… I do not conceive it to be the duty of this court so to construe any of the provisions of the constitution as to depart from the obvious ends the constitution was designed to secure  where another construction equally in accord and consistent with the words and sense of such provisions will serve to enforce and protect such ends”.

I notice that Hon. Justice Udo Udoma’s emphasis was on liberalism and he clearly did not think that any portion or section of the constitution would be so ironclad as to exclude available and alternative construction. It is doubtful whether any constitution known to the democratic corners of the world has erected any rock of Gilbraltar-so immovable, that a Judge would refuse to weigh the damage that a rock-like interpretative position may produce.

It would be nice to concede that our previous attempt to resolve election disputes through courts and tribunals took a toll on the effect to entrench democracy through transparent elections, examined through the judicial prism.

The injustice occasioned by inordinate delay in the hearing and determination of election matters was indeed frustrating and thus qualified as a ‘mischief’ capable of being cured by legislation. In that light, the Yar’Adua Administration hastened, to address the issue and in that connection, the aftermath was the amendments made to the constitution of the Federal Republic of Nigeria, 1999 and the consequential amendment of the Electoral Act, 2010.

It is not our intention to dilate on all the amendments inserted in the constitution and the Electoral Act which were aimed at granting fillip to electoral transparency. It would suffice to refer to the innovations in section 285 of the constitution concerning a limitation in respect of time for the hearing and determination of election petit
ions and appeals arising therefrom.