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.