Guardian

In his appraisal of the nation’s democratic experience, a renowned constitutional lawyer and a Senior Advocate of Nigeria (SAN), Mike Ahamba, believes the current Nigeria’s socio-political problems do not arise from the content of the 1999 Constitution, but the failure to apply them, or the misapplication of the Constitution’s content by the three arms of government. The well-known lawyer, who only last week submitted a memorandum entitled: “Getting it Right” to the National Assembly on the proposed alteration of the 1999 Constitution of the Federal Republic of Nigeria, spoke on reason behind the memo and some amendments in the constitution that can help move the nation forward.

ASKED to comment on the memorandum, Ahamba said it was a private citizen’s personal views and suggestions on the current effort at making changes in the Constitution that would help in the forward movement of the Nigerian polity.

“The memorandum covered six topics. I expect it will generate substantial and objective dialogue on some very relevant aspects of our Constitution.

“It is based on my personal experience as a practising court room lawyer for more than 38 years with special interest in Constitutional Law development, an interest that remains unabated.

“I also had the privilege and opportunity of sitting in the Imo State House of Assembly (1979-83) during which time I published in 1983 a book entitled: Thinking Aloud (on The 1999 Constitution). Regrettably, that book, which anticipated most of the political and social problems we are encountering today, had to be withdrawn from circulation as a result of the military intervention of December 31, 1983.

On the assertion that the 1999 Constitution was an imposition by the military, the constitutional lawyer said: “The 1999 Constitution was promulgated into existence by Decree (No 24) of 1999 wherein the Constitution is the Schedule thereto and it came into force on May 29, 1999.

“Under the Constitution as promulgated, all existing institutions of democracy operational in Nigeria today were established.

“But times without number, persons who operate these institutions, including the fundamental ones namely: the Legislature, the Executive and the Judiciary, and a substantial proportion of the citizenry, have been known to describe the constitution as a fraud on the people. Most vocal in calling the 1999 Constitution a fraud on the people are the civil society organisations. The reason for calling the Constitution a fraud is that in the preamble the expression: “We the people of the Federal Republic of Nigeria” was used when, in fact, the Constitution was brought into existence by the Federal Military Government through the Provisional Ruling Council.

“For one, this is much ado about nothing because it is trite law that the preamble to a legislation or document is not part of the legislation, and becomes relevant in the interpretation of a statute or document only if there is ambiguity in any of the operative parts of the statute or document. In any case, the 1998-1999 elections were conducted under a military decree, the Transition to Civil Rule (Political Programme) Decree 1998. These elections brought into existence our present political structures and the1998/1999 occupancy of those offices. Nobody complained that the Electoral Laws were made by the Provisional Ruling Council (PRC).

“Let us, therefore, forget how the 1999 Constitution was made, whether by ‘we the people of Nigeria’ or we Nigerian soldiers on behalf of Nigerians, accepted and condoned by the people of Nigeria as representing them, and patriotically apply its content. This can only be done by the operators of the three arms of government turning their backs on selfish subjectivism and embracing selfless patriotic objectivism. The expression ‘we the people of Nigeria’ has done no harm to the polity; but the operators of the constitution have.

That is not to say that the 1999 Constitution was a perfect document on inception. Nothing done by man is absolutely perfect, particularly as what is good today might not be tomorrow, and the possibility of inadvertent omissions. It is as a result of these possibilities that lawmaking must distance itself from mundane, parochial considerations of the present, and embrace objectivity that makes a law, particularly a constitution, applicable to more generations than the present.

It was also in recognition of this possibility of human errors or inadvertence that the Constitution allowed for change of its provisions by way of alteration.

Asked if the National Assembly could give Nigerians a brand new constitution, the revered lawyer said: “An alteration, which is inconsistent with any existing provisions of the constitution is submitted with respect, dead on arrival, that is, null and void.

It is noteworthy and equally instructive that Section 9 of the Constitution authorised alteration, not amendment or review of provisions of the Constitution. This authority to alter is being confused with ‘amendment’ or ‘review’ of the Constitution. Although these words all portend change, they are, in detail, not the same.

It is, therefore, very important that the National Assembly warns itself about the limitation beyond, which it may not go. It has no power, one submits, to amend or review the Constitution; in fact, the National Assembly has no power to give Nigerians a new constitution, or make changes that affect the fundamental structure of this country, desirous as those changes may be.

For example, in one’s opinion, the National Assembly cannot, in exercise of the power of alteration, change our system of government from presidential to parliamentary system, or from state structure to regional structure, or create additional states through an alteration process. Much as one does not like the federal base of our local government system, one does not see the competence of the National Assembly to change it through an alteration procedure. These, like other fundamental provisions, cannot be so changed. What may be accommodated is a safeguard alteration to Section 7 details of which will be discussed later in this memorandum. So is the much-orchestrated removal of immunity provisions from the constitution, or creating of additional beneficiaries of immunity provision doubtful through alteration.

“Therefore, a deletion or substitution process cannot be accommodated by alteration.

“It will be perilous to all and sundry if the Nigerian polity, including the legislators themselves, ignores the limitation to ‘Alteration’ in its desire to see changes made to our constitution, and allows the National Assembly to proceed with amendment or review of the constitution. As our people say, one should not give the monkey water in a cup because of the possibility of the monkey climbing to a tree top with it, as no one would successfully pursue it to that location. The Legislature was, therefore, advisedly limited in its powerful state; and should so remain.

Asked to suggest a way out for a possible radical change in the constitution, he said: “Section 4(2) provides that the National Assembly shall have power to make law for the peace order and good governance of the Federation or any part thereof, with respect to any matters included in the Exclusive Legislative list set out in Part 1 of the Second Schedule to this Constitution”.

This power to make laws is subjected to the provisions of Exclusive legislative list set out in Part 1 of the Second Schedule to the Constitution. Looking at the list, it would seem that the power of legislation has no space for extending beyond the items directly mentioned in that list. But there is item 68, which provides that the National Assembly has the power to make law pertaining to: Any matter incidental or supplementary to any matter mentioned elsewhere in the list.

Item 60 provides for the establishment and regulation of authorities for the federation or any part thereof.

“To promote and enforce the observance of the Fundamental Objectives and Directive Principles contained in this Constitution.”

Under Chapter 11 of the Constitution, that is the Chapter on Fundamental Objectives and Directive Principles of State Policy, it is provided in Section 14(2)(a) as follows: (2) It is hereby, accordingly, declared that sovereignty belongs to the people of Nigeria from whom government, through this constitution derives all its powers and authority.

On the controversial Section 285 concerning election tribunal, Ahamba said, that section with eight (8) subsections in the Alteration Act No.2 has been injected into the constitution as altered even though what was done was in the mould of amendment, which is ultra vires the National Assembly.”

“A provision that rubbishes equality of parties is inconsistent with the said Section 17(1) of the Constitution, and is rendered void ab-initio by Section 1(3) of the Constitution. This creates a very weak block in the foundation of justice in this country”.

The revered lawyer also indentified the need to amend Sections 250(3), 256 (3), 261 (3)(a), 266(3)(a), 271(3)(a), 275(3)(a) and 281 (3)(a), which are provisions on the appointment of judges and khadis of the Federal and State High Courts, Sharia Court of Appeal and Customary Court of Appeal.

Under that provision, a person to be appointed a judge of the High Court must have 10 years’ post-call to Bar, but the learned silk advocated that those sections should be altered by inserting a proviso to read thus:

“Provided that at least five years of the 10 years period for a legal practitioner must have been spent in active courtroom practise of law at the Bar up to at least, the Court of Appeal level, or in academic lecturership”.

To Ahamba, the reason for the suggestion is that since the court is the last hope of the common man, and the Nigerian society is getting more complex, there is need to appoint judicial officers that had the necessary exposure, not learners of the intricacies of judicial proceedings.

He further urged the National Assembly to consider passing an Act to be known as “Legislations (Control of Publication) Act” as a matter of urgency to control the mode of publication of Acts and Laws, sanction those who publish legislations without authorisation, and ensure that the government printer releases new legislations both at Federal and state levels, timeously.

“This will address a situation where we have different versions of the Nigerian Constitution and Electoral Act in circulation in the country, as well as check the dispute over which of the Constitutions or Electoral Acts in the possession of the Bench and the Bar would be applicable”.