Guardian
March 11, 2005

Agbakoba tasks delegates on constitutional democracy
By Clifford Ndujihe

AS delegates to the on-going National Political Reforms Conference (NPRC) ends week-two sitting today, Mr. Olisa Agbakoba (SAN) has urged the conferees to come up with recommendations that would make the constitution strong and inviolable.

One way of doing this is strengthening the supremacy clause and national institutions that support constitutional democracy, he said in a two-part memorandum he sent to the Secretary of the NPRC, Rev. father Matthew Hassan Kukah.

The first part of his proposals sought a new enforcement clause and suggestions on how to strengthen the supremacy clause made under Chapter 1 of the 1999 Constitution.

The second part sets out national institutions like the Judiciary, Office of the Auditor General, INEC and Office of the Accountant General that are vital to governance and administration of the public service and proposes insulation from political influence to enable them function seamlessly and efficiently.

"One of the key requirements for democratic consolidation in Nigeria is a strong constitution. This proposal recommends a strong supremacy and enforcement clause to ensure that the constitution is at all times inviolable," he said in the memorandum titled: "Supremacy Clause and National Institutions That Support Constitutional democracy."

On supremacy and enforcement clause of the constitution, he said: "The people make the constitution. The Supremacy clause guarantees that the will of the people will not be subverted. It also guarantees that the constitution is inviolable and stands above government. Chapter One of the 1999 Constitution of Nigeria provides a Supremacy clause.

"We need to add an Enforcement Clause. The constitution and not the courts should make a Declaration of Invalidity of laws and conduct of public officials. This is a duty too important to be left solely in the hands of the courts. Nigerians should be able to institute proceedings to safeguard the constitution. The courts will have collateral power to make declarations of inconsistency. But it is the constitution itself that declares invalidity."

Towards this end, Agbakoba suggested that the following clauses should be made:

Supremacy Clause:

'The Sovereignty of Nigeria resides in the people of Nigeria in whose name and for whose welfare the powers of the government are to be exercised in the manner and within the limits laid down in this constitution.'

'This Constitution is the supreme Law of Nigeria and Conduct or law inconsistent with its provisions is hereby declared invalid, null void and of no effect.' And that:

Enforcement Clause:

'A person who alleges that - (a) An enactment or anything contained in or done under the authority of that or any other enactment; or (b) any act or omission of any person; is inconsistent with, or is in contravention of a provision of this constitution may bring an action in the Supreme Court.' And that:

'The Supreme Court in the exercise of constitutional jurisdiction shall make a declaration of inconsistency or invalidity of such laws and conduct. And a declaration of inconsistency or invalidity shall render invalid null and void and of no effect all conduct and law so declared invalid by this constitution.'

On national institutions that support constitutional democracy, he said according to governance scholars there are two kinds of government-Technical and Political. "The political government is the government in power.

The technical government is the public service composed of various national institutions. This is the governance structure that must function seamlessly and efficiently at all times. The technical government requires to be fully insulated from political influence being institutions that support constitutional democracy."

Such institutions he said are provided for in Section 153 of the 1999 Constitution. They include the Judiciary, the National Human Rights Commission, the Office of the Public Protector, Independent National Electoral Commission, Office of Inspector General of Police, Office of the Accountant General of the Federation, Office of the Auditor General of the Federation, and the Code of Conduct Bureau. "The new constitution should secure the tenure and guarantee the funding of these national institutions."

As an example, he cited Chapter 9 of the South African Constitution, which allocates power to appoint officers of national institutions and their removal to different political processes, in a way that guarantees freedom from interference. "There is also secured funding of national agencies whose budgets are charged to special funds beyond control of political office holders.

"If the constitution is respected and there is a perception that those ignore it will be severely punished, public impunity will be constrained. National institutions in like manner will feel free to work without hindrance by any person or authority. Constitutional democracy will be enhanced substantially," Agbakoba stated.