What a time for change

By Awa Kalu, SAN
As is now very well known, Nigerians trooped to the polls on the March 28, 2015 for the purpose of electing their president as well as those who will represent them in the hallowed Chambers of the National Assembly.

With regard to the office of President, the Peoples Democratic Party (PDP), Africa’s largest political party fielded the incumbent President, Goodluck Ebele Jonathan, GCFR, as its Candidate. The All Progressives Congress (APC), on the other hand, was the sponsor of General Muhammadu Buhari GCFR, (the title ‘General’ will cease on the May 29, 2015) who won the election and will on Democracy Day resume afresh as President having had experience in that office as a Military Head of State.
This is the beauty of democracy – the capacity of the ordinary voter to select those who manage their affairs. “No man”, as is attributed to Abraham Lincoln (US Statesman 1809-65) in a speech in 1854, “is good enough to govern another man without that other’s consent”. Possibly, Nigerians withheld their comment from allowing the incumbent to continue his ‘good works’ because he is not good enough to govern them. His transformation agenda, presumably, was not impressive enough to earn him another term of office. After all continuity, just like promotion, has to be earned in order to put this matter in context. General Buhari promised ‘change’ for the electorate and it is that mantra that propelled his victory. Just before the anticipated change, the deterioration of affairs has demonstrated the truth that “Man’s capacity for evil makes democracy necessary and man’s capacity for good makes democracy possible”.

In our present circumstance, it is not difficult to discern man’s capacity for evil. Except the last minute intervention by the National Assembly, the country would have headed to the precipice. As a reminder, the dispute over fuel subsidy led to a nationwide immobility in man and materials. All commercial activities were rendered semi-comatose. Aviation services were nearly nullified and the nation’s air travels needs were only minimally serviced by a few airlines.
Although Telecommunication services retained momentum, there is not a single soul who has not witnessed untold hard ship in one or two facets of daily existence. Overall, the two most important cities (unarguably), Abuja and Lagos, suffered most from fuel scarcity. The scenario painted above makes one recall another celebrated ‘sayings’ of the great Abraham Lincoln. In his first inaugural address, he asserted that “the Country, with its institutions belongs to the people who inhabit it”, “whenever they shall grow weary of the existing government” Lincoln warned, “they can exercise their constitutional right to dismember or overthrow it”. While Nigerians have duly chosen the path of the Constitution to change the existing government, let no one imagine that we the people are not aware of the revolutionary right which Lincoln emphasized several years ago.
The title “what a time for change” serves as a reminder about our current experience as a people.
In popular parlance, a government that is about to depart is a ‘lame duck’. However, the two most powerful props of existing democracies- the executives and legislative branches of government- have in our own system been spewing lava, with no sign of an imminent exit. Take the National for instance which has been attempting at the last minute to amend the constitution.
It is this writer’s considered view that the most important and sacred legislative function, ought to be the amendment of the constitution.This is because the Supreme Court as far back as 1981 while considering the defunct 1979 Constitution in Nafiu Rabiu V the State 1981 [2NCLR] 293 stated specifically and with clarity, Per Udo Udoma JSC, 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: ….for which reason …, it, of necessity, claims superiority to and over and above any other constitution ever devised for the governance of this country….”The apex court also emphasized “that the function of the Constitution is to establish a frame work and principle 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 and society….”
Apparently, the latest attempt by a lame duck parliament to make significant changes to the constitution of the Federal Republic of Nigeria 1999 seems to ignore the characterization of the constitution as the foremost law of the land which ought not to be susceptible to a hurried amendment. Since 1999, the present constitution has undergone three (3) alterations and the current attempt if successful, would be the fourth (4). It is doubtful whether any of the previous alterations achieved any significant amendment that has made the constitution more efficacious. Why then, you may ask, would a retreating legislature seek to fundamentally alter a constitution that is meant to serve generations yet unborn?
Perhaps, this is the reason why the executive branch through the learned Attorney General of the Federation (or is it the President) is locked in tango at the Supreme Court with the National Assembly in a bold challenge to the vires of the National Assembly to impose wholesome changes to the constitution. Notably, the matter will come up before the Supreme Court, once more, on the eve of the transition from Jonathan to Buhari. What a time for change!
While executive power is deemed to inure for the exercise of the incumbent president until the hour of midnight on the 28th of May, 2015 it has never been advisable that such power be exercised on major issues such as appointments, promotion and dismissals when the twilight of government is at hand. What a time for change!
Forget about the federal government for a minute, and think about the goings-on in places such as Ekiti and Rivers States. The Ekiti State Governor, wrestled over impeachment with the state legislature. What followed was inimitable violence which the governor sought to ameliorate with a dusk to dawn curfew. By the way, the impeachment whirlwind seemed to catch the fancy of quite a few other states including Enugu State. One may ask, why was it necessary to seek to impeach governors who had only a few days to conclude their tenure. What a time for change!
The Rivers State situation is one to which attention must be drawn. Our new found vocation-public affairs analysis-has drawn ample attention to the situation in Rivers State. As a reminder, the state judiciary has been troubled for about a year, resulting in the absence of either a Chief Judge of the High Court of the State or a President for the Customary Court of Appeal.By the imprimatur of the Constitution, it is only one of those judicial officers who can administer the oath of office and oath of allegiance on the in-coming governor.
The question that has been on many lips is this: Who will swear in Wike? To cut the long story short, most national Newspapers were awash with reports that the Attorney General of the Federation directed the Chief Judge of Bayelsa State to perform the function i.e the swearing in of the incoming governor of Rivers State. It is useful at this stage to refer to the provision of section 185(2) of the Constitution by virtue of which the Attorney General of the Federation is said to have issued his “instruction”. That section is to the effect that “ the oath of allegiance and the oath of office shall be administered by the Chief Judge of the State or Grand Kadi of the Sharia Court of Appeal of the State if any or President of the Customary Court of Appeal of the State if any, or the Person for the time being respectively appointed to exercise the functions of any of those offices in any state”.
Most Nigerians knowledgeable in the underpinnings of our Federal Constitution were taken aback by the specter of the Attorney General of the Federation bypassing the Attorney General of Rivers State and arguably, the Chief Justice of the Federation (having regard to the circumstances) and issuing instructions to the Chief Judge of Bayelsa State, to go and perform an assignment in Rivers State on a special day on which democracy should not only be practiced but be thoroughly celebrated. Having regard to a plethora of decisions by the Supreme Court, no one should be left in any doubt that having regard to the prescriptions of our constitution, the Attorney General of the Federation cannot find any warrant for the instruction which he issued.
As far back as 1982, the Supreme Court in Attorney General of Ogun State V. Attorney General of the Federation (1982) 13 NSCC 1 affirmed the autonomy of a state government as a cardinal principle of our Federal system. In that case, Udo Udoma JSC, affirmed that, “on the basis of the provisions of the Constitution and having regard to the autonomy of the state, and realizing that the Governor is bound only to enforce all laws conditionally made by the State House of Assembly. … I am satisfied that neither the National Assembly nor the President has the constitutional power to impose any new duty on the Governor of a State. Such an imposition would normally meet with resentment and refusal to perform for the enforcement of which there is no constitutional sanction”. By “new duty”, his lordship meant a duty not imposed by the constitution itself.
If the President of this beautiful country cannot impose any new duty on a State Governor, how would the Attorney General of the Federation impose a duty on a Chief Judge of Bayelsa State (for performance in Rivers State?). You be the judge, but I am reminded about a light hearted story in which a cow was straying. Seven people were pursuing that cow and 14 others were chasing the seven 7 who were after the cow. That is the picture of the Rivers State Imbroglio. What a time for change!

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