Festus Okoye
21 November 2008
It is also in realization of the possibility of ambiguity and mistakes that modern democracies create, empower and invest judicial powers on the courts to adjudicate on matters between individuals and individuals, between individuals and governments and between one arm of government and the other in relation to constitutional issues.
It is also on the basis of human imperfec-tion and the fallibility of the framers of the Constitution that the judiciary uses its interpretative powers to guard the Consti-tution, clear ambiguities and advise the legislature on the direction of future amendments and, or, reform.
However, this guardianship of the Constitution and the interpretative power of the judiciary work in places and nations where the political class play by the rules and are ready to make honest mistakes and take correction by submitting totally to the rule of law and due process.
Unfortunately, in the case of Nigeria, some sections of the political class engage in malicious, deliberate and insidious manipu-lation and violation of the Constitution. They prevent judicial independence and use extra constitutional tactics to undermine the integrity of the courts and the judicial process.
They undermine the letters and spirit of the Constitution and render the fundamental law of the land redundant and useless. In such instances, even daily amendment of the Constitution will not change much. Furthermore, Nigeria has had the big misfortune of constant military intervention that stalled the growth of constitutional democracy and the corpus of constitutional cases.
The military, on coming to power, militarize the polity, extinguish the legislature, rule by Decrees and Edits and in accordance with the dictates of the barrel of the gun. When they are about to go or when they are about to be forced to relinquish power, they use subterfuge and trickery to draw up a Constitution that conforms to their own world outlook and messianic pretensions and claim that the Nigerian people gave themselves such a Constitution.
Despite all the challenges and short-comings identified, the most critical challenge facing Nigeria is how to proceed with the urgent task of governance and the constitutional and legal anchors for such governance.
Should we overlook some of the grey areas of the Constitution and hope that Nigerians will be patient and allow the Constitution to work and the judiciary to do its job of interpretation? Should the Nigerian people trust some elements in the National and State Assemblies with questionable and dubious mandate to reform or amend the fundamental law of the land? Should Nigerians amend those sections of the Constitution with direct bearing on the electoral process and leave other provisions of the Constitution to a more opportune period? Should Nigerians, first, agree on the terms of amendment before looking at the substance?
These are weighty issues and their reso-lution is not as easy as they seem. My take is that trust and sincerity on the part of the National Assembly can break the deadlock plaguing the efforts at constitutional amendment. The members of the National Assembly can carry Nigerians along if they display maturity and make national interest their watchword.
It is a fact that there are some elements, forces and interests that would prefer the country to wobble and remain unstable to pave way for a system of unaccountable government through which some of them lived big. There are other forces in and out of the National Assembly that will rather scuttle the exercise and, or, introduce confusion into the process unless the process and procedure conforms to their whims and caprices.
There are others who are direct beneficiaries of the lacuna and inconsistencies in the constitutional framework that want the status quo to remain while others lack the moral right and legitimacy to reform or amend the Constitu-tion as they are products of illegality and illegitimacy.
No matter the divide, what is important is that reforming or amending the Constitution and the electoral framework is not an act of optional charity. It is not as if Nigeria has a choice in this project as there are sections of the Electoral Act that cannot go through fundamental reforms unless their constitutional anchors are consequentially amended. Nigerians and the National Assembly can agree on some of these and the National Assembly can go ahead and amend these sections and use its Standing Rules to engage in broad consultation with the State Assemblies and the Nigerian people.
I, however, agree that other than these sections, the next most important thing is for the National Assembly, the State Assemblies and the Nigerian people to agree on the terms of engagement in relation to constitutional reform or amendment.
Agreement on terms will enhance the confidence of Nigerians on the process. The Constitution can't be the fundamental law of the land given to Nigerians by themselves when they do not participate in a fundamental manner in the processes leading to its amendment. Sovereignty cannot reside with the Nigerian people when they are stripped of the power to engage the National Assembly on the modalities and processes of constitutional amendment.
For the processes and procedures of constitutional amendment to be legitimate and acceptable, it must, of necessity, give the repositories of power a significant role in its ownership. This is without prejudice to the role of the National and State Assemblies in constitutional amendment embedded in Section 9 of the 1999 Constitution. Even at that, Section 9 of the Constitution is cast in vague, fluid and dry terms and does not, ipso facto, spell out in concrete terms the processes and procedures that incorporate the Nigerian people and the State Assemblies in the process of constitutional amendment.
The fluid and uncertain nature of Section 9 of the Constitution has, unfortunately, given the wrong impression that only the National Assembly can determine the direction of constitutional amendment.
This is not the intention of the framers of the Constitution. The repositories of sovereignty must partake in the process and be the drivers of change. The National Assembly should, therefore, amend those sections of the Constitution with bearing on the electoral process. Thereafter, it should flag off debates and consultation on process led and participatory approach to constitutional reform. The result of the debates and consultations will lead to the amendment of section 9 of the Constitution which gives the impression that the task of constitutional amendment is the exclusive prerogative of the National and State Assemblies.
* Festus Okoye, Executive Director, Human Rights Monitor and Member, Electoral Reform Committee
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