Wednesday, November 10, 2010

Nigeria's constitution was amended earlier this year. The amendment process required the participation of all 36 state legislative bodies and governors. Additionally, the 360-member House of Representatives & the 150-member Senate equally wrestled with the contents of the modified document. And in July 2010, an amended Constitution was created. Unfortunately, the final document was not presented to the President for his signature and as a result the validity of the amended constitution became questionable. As such, the former head of the Nigerian Bar Association (NBA), Olisa Agbakoba, sued to force the National Assembly to present the amended constitution to the President in August 2010. The NBA also filed its own suit on similar grounds. On November 8, 2010, a Federal High Court in Lagos declared that the amended Constitution is invalid without the President's signature.

The constitutional amendment was enacted via a bill. Section 58 of Nigeria's 1999 Constitution, the document that was amended, stipulates, in part, that 
"The power of the National Assembly to make laws shall be exercised by bills passed by both the Senate and the House of Representatives and ... assented to by the President."
Based on this clause, Olisa Agbakoba and the NBA argued that Section 58 requires Presidential signature for any bill to become law in Nigeria. Both Agbakoba and the NBA also raised Section 9 of the constitution, which stipulates that an act is necessary to amend the Constitution. Because the constitution was amended via a bill and not the required act, the challengers deemed the amended document unconstitutional. The NBA also relied on the Acts Authentication Act, Cap and argued that that law combined with Sections 9 and 58 of the 1999 constitution, make the amended Constitution illegal.

In response to the Agbakoba challenge, the National Assembly (NASS) argued three points - that Agbakoba had no right to sue; that the court had no right to hear the case and, that the case should not be in Lagos but Abuja. According to the legal representative for NASS, Johnson Usman, only the Attorney General could sue on the matter. Usman also raised the US Constitution as an example, arguing that amendments to that document do not require the signature of a President for validity.

Justice Okechukwu Okeke declared that the only way the amended Constitution can become valid without a Presidential signature is if the President refuses to sign it 30 days after receiving it. Justice Okeke agreed that all constitutional amendments must be carried out via an act in accordance to Section 9. He further explained that because the Constitution came into law through an act, it can only be amended through the same instrument, a NASS act. Okeke distinguished the Nigerian constitution from the American constitution by focusing on the origination. According to the judge, The US Constitution was the result of a proclamation and not an act as was the Nigerian case.

Some NASS members explained that given the process used to update the constitution - the participation of representatives at the state and national level - the 'people's voice' should not require the Presidential stamp of approval. Certain other politicians argued that NASS should let the matter go and not appeal the court's decision. And, Dimeji Bankole, the speaker of the House, stated that NASS will adhere to the court's decision. Despite that, the body reacted to the court decision with a promise to appeal. It immediately kept this promise by filing a notice of appeal the very next day. The document, submitted to the Court of Appeals, reiterated the same arguments made at the Federal High Court and asked that the lower court decision be dismissed.

2010 has been a tumultuous year for Nigerians. What with a President going missing and later dying, kidnappings, election confusion, bomb blasts, Boko Haram killings and MEND's violent activities to name a few. I for one would give almost anything to have a dull political moment.

I wish this matter of the amended constitution would come to a swift conclusion. My reasoning is simple. The longer it takes to validate the constitution, the longer it will take to validate the new Electoral Act which in turn will cause even more delays to the upcoming election season. After much confusion, it is now known that state- and national-level elections will occur sometime in April 2011, just one month before the May 27th handover date. That elections will happen that late is frankly unacceptable as one main reason for amending the Electoral Act was to create a period that would allow all challengers to appeal election decisions within enough time for a President and others to be sworn into office without doubt hanging over their head. Instead, whoever comes into office will likely follow in the steps of President Yar'Adua and others who were weakened by the lack of political consensus and the stain of electoral fraud. As such, the continued delay on the constitution only complicates things.

Despite my selfish desires to have things happen in a neat and orderly fashion, I must acknowledge that nothing is neat and orderly about politics. And, if I am to be very fair, then I must also respect the fact that nothing is ever neat and orderly about Nigeria. In fact, that is what makes the country and everything about it exciting.

That being said, it is of the utmost importance that the legal challenges involving the constitution be allowed to play out to a normal conclusion within the courts. This is because such questions allow Nigeria to experience the reality of democracy in my opinion. The tug-of-war that can only be thrashed out through the slow and grinding legal process. These challenges will, in the long term, allow the country to create a uniquely Nigerian democracy. Therefore, although I worry about how the NASS appeal can hold up the Electoral Act and therefore, the electoral process, this and other legal challenges are a bitter pill that must be swallowed.

Despite my ability to be realistic, the following must also be said. NASS has repeatedly been slow to act and slow to decide matters that could have limited the delays the country is currently facing. A perfect example is how long legislators took to address concerns raised by the nation's election body. The National Assembly, under the leadership of the ruling PDP has repeatedly used stalling tactics to prevent the elections from taking place as originally expected in January. This bad behavior solidifies the concern that these same politicians are using these legal cases to further stall elections. If that is the case, then such will not do. It will therefore be upon Nigerian citizens to watch their representatives closely and put due pressure on them to act in the interest of constituents in a timely manner.

And, alas, Nigerians must again adopt a "wait and see" attitude and let the court cases play out. That, however, does not mean that those with the best intentions for Nigeria's democratic progress must become lazy. In fact, now, more than ever, all must watch very carefully and require that politicians, who are currently up to some amazing tricks, do not negatively interfere with the journey towards a better Nigerian democracy. A system that will allow for better accountability, public participation and national economic development. This constitution is the but one step in a long journey.

From the Archives:
- Nigeria's Elections: Delays & Challenges
- Nigerias's Legislators Aren't Serious About Elections
Nigeria's New Electoral Act & Election Problems

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