Prince Tony Momoh
29 August 2008
opinion
In this presentation, you will perhaps discover more journalism than law because the area I am drawing attention to is an area lawyers do not seem to have any obligation to examine, nor do the courts any responsibility to pronounce on. But that is if we ignore the call of the Supreme Court that the Constitution is a composite document which must be examined as a unit.
That being so, this presentation is both law and journalism; and because the subject-matter seems to have been rested as a result of recourse to conventional wisdom, reflected in the unquestionable binding effect which decisions of higher courts have over lower ones, I have no doubt in my mind that I am promoting a perspective that some may find difficult to accommodate. It is as well because this forum being hosted by Lawyers in the Media should provide an opportunity when issues that border more on morality than law have to be resolved through a route that is emphatic that, in the national interest and at our level of development, we cannot accept that the law is an ass.
In other words, we must, in wearing the cap of moderators of the democratic process, be bold enough to demand that our courts make sense of the rules and regulations we have chosen to guide our relationships. The choice of the topic, Non-justiciability of Chapter 2 of the 1999 Constitution and the Implications for the Immunity Clause, should therefore be seen as an opportunity to fly a kite in respect of an area that should be seen more as the other side of the coin of rights, being duties that must be performed to balance the enjoyment of the rights guaranteed, than a mere appendage to the rights side of that coin.
2. The summary of this presentation is that people in society choose or have imposed on them the way they are governed and that in our own case, we have such a way, our Constitution, which is a brief that supersedes every other brief; that everyone who chooses to take public office has a responsibility to perform their chores strictly in accordance with the brief; that there are arrangements to protect those who perform those chores while in office, and that these protective armours are usually provided under conditions that are settled or implied; that even where such protection seems to be iron cast, there must be sought, if abuses will not continue to be perpetuated, a way out of the dilemma; that the straight route where there is any distress call in the polity is always to the courts, but that where there are constraints on the courts, recourse must be had to some other bodies which the document that is the supreme law of the land provides.
3. This presentation is in seven parts. Part 1 is a summary of the national brief we believe the Constitution is. In Part 2, we will draw out the contents of chapter 2 and the role the media must play in fulfilling the dreams contained in them. In Part 3, we will try to establish the non-justiciability of the chapter not because of the reasons given by Nasir, the President of the Court of Appeal in Archbishop Okogie v Attorney-General of Lagos State ( 1981) 2NCLR 332, but because of the direct constitutional provision that the chapter is not justiciable, a provision which gives the press a role in governance. In Part 4, we will discuss section 308 which grants immunity to 74 personages in our arrangement, recall that the Supreme Court has in Gani Fawehinmi v Inspector-General of Police & 2 ors (2002) 23 WRN, 1 ruled that they can be investigated, and draw attention to an area that seems to be ignored in making claims to an iron-cast protective armour which we will argue is clearly not there and can therefore not be forced into there.
In Part 5, we will present a case for handling those who have the protection provided by section 308 but who must be treated in the way provided by sections 172 and 209 of the Constitution being public officers as defined, and therefore subject to the clear provisions of the Fifth Schedule to the Constitution.
In Part 6, we will discuss the role of codes of conduct in the life of professions and their place in the life of the public service. We will show clearly that those listed to be bound by the Code of Conduct under the Fifth Schedule to the Constitution must be so bound and that interpreting the law in any other way is toying with the wish of the people that those they have given the mandate must be servants subject to discipline, not slave masters above the laws of the land. We will therefore call on our courts to fight to be courts of law rather than instruments which those who have accessed political power can manipulate.
Part 7, the concluding part, is a bold call on the media and the courts to work together to save our democracy if we must prevent the predictable outcome of the blatant abuse of public office which past rulings on the protection of those covered by the immunity clause obviously encourages.
Part One
THE CONSTITUTION
The Constitution under reference is the one that came into effect in May, 1999. We are not interested in how it came into effect, whether it was by We the People or They the Military. It was no more and no less than an updating, by the military, of the 1979 Presidential Constitution.
2. Let us look at eight brief statements on the Constitution, and without elaboration. (
1) The Constitution is the supreme law of the land and its provisions have binding force on all authorities and persons throughout the Federal Republic of Nigeria (section 1.1).
2) Every provision of the Constitution is important and must be seen as part and parcel of the Constitution. All the provisions must therefore be read together. In Abraham Adesanya v President of the Federal Republic of Nigeria (1981) 2 NCLR 358, the then Chief Justice of Nigeria, Fatai Williams said at page 374, "...when interpreting the provisions of our 1979 Constitution, not only should the courts look at the constitution as a whole, they should also construe its provisions in such a way as to justify the hopes and aspirations of those who have made the strenuous effort to provide us with "a constitution for the purpose of promoting the good government and welfare of all persons in our country on the principles of freedom, equality and justice and for the purpose of consolidating the unity of our people".
3) Anything anyone in authority does or purports to be doing must be something which the Constitution delegates. This means that the Constitution entrenched Due Process which institutions it created have a responsibility and a duty to accept, embrace and apply in the performance of their duties. Due Process is another name for Rule of Law.
4) The Constitution can be seen in the light of what it imposes as duties on those who perform legislative, executive and judicial duties and how they are to perform these duties on the one part, and on the other, the rights which all citizens are entitled to enjoy as citizens and provisions on ensuring that those rights are protected strongly against abuse. The section on duties is Chapter 2 of the Constitution, and the section on rights is Chapter 4 of the Constitution.
5) There are clear provisions for division of labour in the Constitution -- the body to make law is not the one to execute it; nor is the body to execute law in any way charged with making it; nor indeed is the body that interprets law given the power to make law or execute it. Lawmaking is for the national and state assemblies; law execution is for the president and the governors; and law interpretation is for the courts.
6) An opportunity is provided for in the Constitution for particular actors in the polity to take decisions in establishing bodies which have a duty to perform for the benefit of all and not for the benefit of those making the appointments. Section 153 falls under Chapter 7 which deals with the executive arm of government. But that the President is empowered to constitute the bodies does not mean that he has power to tell them what to do. In fact the Constitution guarantees the independence of bodies like the Code of Conduct Bureau, the National Judicial Council, the Federal Civil Service Commission, the Federal Judicial Service Commission, the Revenue Mobilization, Allocation and Fiscal Commission, the Federal Character Commission, and the Independent National Electoral Commission.
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