2011; INEC/NASS Logjam‏, an avoidable constitutional crisis

His Excellency
Dr Goodluck Ebele Jonathan
President and Commander-in-Chief of the Armed Forces of the Federal Republic of Nigeria.

Welcome from New York your Excellency after your maiden address on Friday 24th Sept 2010 to the World body, UNGA. As you arrive home, you may consider this proposal as a way out of the Constitutional logjam created by requests by Professor Jega’s INEC and all the political parties for an extension of the time line for holding elections. The World is watching and would shudder to see Africa’s most populous nation, a nation with a seat in UN Security Council, a regional power, a land flowing with human and natural resources slide into the abyss.

Three events happened in quick succession, Jega’s confirmation by Senate, approval of N87 Billion budget for INEC now paid in tranches and your assent to the Electoral Act 2010, an act you performed out of your legendary level head and simplicity.

I have read the new Electoral Act 2010, through and through. Sir, reference to the ‘Constitution’ is defined in the Interpretation section as ‘The Constitution of the Federal Republic of Nigeria’ without more. It did not say the 1999 Constitution or the Amended Constitution. The National Assembly says they amended the 1999 Constitution, yet not a copy is on sale. Government printers are yet to gazette it because of the controversy over its legitimacy:- Should Mr. President assent or not. Surely the legal community is divided along two schools; a school led by Professor Ben Nwabueze SAN has called for presidential assent, the other school led by Professor Itse Sagay SAN says there is no need for your Excellency’s assent.

Sir, I make this humble appeal and proposal independent of what each school thinks because our nation is now at the brink and we all owe our generation and the future a duty to save it from falling off. Hence a way out of this logjam, is to please suggest to both schools and invariably the National Assembly to please suspend the operation of the new Constitution or alternatively insert a future commencement date. E.g May 29, 2011 as the date when any of the amendments would begin to operate. I make this suggestion to allow Professor Jega’s request for a March/April 2011 election date bearing in mind the constraints a January 2011 deadline might pose to INEC, the electoral umpire having espoused that it is capable of threatening our dream for a free, fair and credible election.

To bring all 36 States to thinker on the amended Constitution is not a child’s play. Let us save our national time. The National Assembly could amend the 2010 Electoral Act between the two chambers remove the deadlines they put there and allow March/April date in line with the 1999 Constitution and we will be fine.

Yours respectfully,

C N Ajie
Loyal Citizen


Emmanuel O. Fashakin relied:

Barrister Ajie’s suggestion is brilliant, but in my opinion, would be unconstitutional. By law, the 1999 Constitution became dead the moment it was announced that two-thirds of the States have ratified it, after it has been ratified by two-thirds majority in the National Assembly. Therefore, you cannot legally overstretch the “doctrine of necessity”, and resurrect a dead law.

You cannot read into a constitution what it does not contain: therefore, those clamoring for Presidential assent, before the new Constitution takes effect, are talking through their hats, because the 1999 Constitution did not say that. The folly of that argument becomes apparent because there is no provision for override of a Presidential veto, were the President to withhold his assent. A normal override requires two-thirds majority of the legislature, and here, the Constitution was duly amended by two thirds majority in the House and Senate and the States. If President assent was needed, the Constitution would have provided for an override majority, say three-fourths etc or 100%. In the absence of such provision, applying the letters of the Constitution, the big Document has been amended.

On the issue of the elections, I do not think that they should be postponed. Rather, INEC should make life easier for itself by exercising its powers to de-register all these mushroom parties, which existed only on paper, and have won nothing since the present democracy began. Even a two-year wait cannot guarantee free and fair elections — and I believe that there is still enough time to have credible elections.

I think that we should have respect for the country’s Constitution, because it is the foundation and bedrock of the country. Let’s stop the tinkering and all this “necessity” stuff. Let’s not encourage some stupid “I Colonel Dongoyaro” to come and announce the suspension of the Constitution with martial music blaring in the background. Heaven forbid! There is no emergency here. Let’s not create one.

Emmanuel O. Fashakin, M.D.; Esq.
Attorney at Law & President/ Medical Director,

Carol Aijie responds

 I thank you for your intervention Attorney E. Fashakin, but do you know that as we speak there are at least three lawsuits filed at the Federal High Courts Lagos and Abuja challenging the amended Constitution? one was filed by Olisa Agbakoba SAN, the second filed by Femi Falana Esq and the third suit was filed by the Nigerian Bar Association, all the suits argue that the ‘big document’ is not law until there is presidential assent. The National Assembly claims to have passed it as law but do you know that not all sections of the 1999 Constitution was amended? a great deal of it was saved by the legislative arm which is why they tagged it the First Amendment. How can you now pronounce the entire document ie 199 Constitution dead in your treatise when even the lawmakers did not do that?. The 3-centuries old US Constitution has undergone 27 amendments, the last was in May 1992, both the amended and the unamended parts remain law, right?. Right. These had been published and made accessible to all and sundry as valid legal operating instruments.
Point 2, the amended part of the Nigerian Constitution as claimed by the National Assembly and the State Houses of Assembly is not available to the public.  You read me when I said you cannot  find it anywhere to even purchase a copy, NOT gazzetted, what to do with a law NOT gazzetted? It does not exist, trite.
Point 3, the only law that has passed following the purported amendment of the Nigerian Constitution 1999 is the Electoral Act 2010, this statute does not refer to the amended Constitution. Ask RotFash to get a hard copy and mail it to you in US. I could but for courier costs. It is sold at N1,500 shipping is something else.
Point 4, you are a proud member of this linkserv and each time I read you, am so proud also, you became my Minister of Health from day one, remember. You know my views about Jega’s request for time shif, I gave him knocks right here, I called for his resignation. You did not say I agree with Barrister Ajie on this. I started to wonder, had ALL by conduct agreed with Jega and the 62 political parties on their request?. I am just reading you, vibrant as you are that you think time shift is a bad idea, ONLY now. As I cannot speculate on your reason for so doing, I took it that you ALL had acquiesced. Was my motion to stand alone? No.
Point 5, my essay was not aimed at building on a crisis situation but to trap it through acceding to Jega & co’s request using the practicable legitimate tools at our disposal, ie a plausible legislative pronouncement on the commencement date of the amended constitution to allow for new dates for a free, fair and credible election as Professor Attahiru Jega put it and to move away from unduly overheating the polity. I dont like him very much you know but as a responsible member of the Nigerian society and an associate of the United States Institute of Peace, in D.C., they tell us to always look for policies and proposals at preventing conflict rather than exacerbate it bearing in mind the import of President Jonathan’s UN address on Friday that the human and material costs of war tear us more apart than “preventive diplomacy”.
Thank you, stay blessed and may God Bless the Federal Republic of Nigeria.

Emmanuel Fashakin reponds 

 Attorney Ajie, and I think that your points are brilliant, once again. I agreed with your disapproval of Jega’s quest for more time, right from the time you wrote it; I am sure that many members of the group also agreed with you. Maybe we should have spoken up, and encouraged you. You are definitely not alone in that opinion. As you well know, people tends to respond usually when they have a beef with the positions articulated, and they want to propose an alternative view.

The problem is that Nigerians do not believe in proper planning and preparations; we always wait for the very last minute to get things done. When did we know that there would be handing over to new Administration on May 29, 2011? Over three years ago, after the conclusion of the last elections! Why wait till the eleventh hour to pass the Electoral Act and amend the Constitution? It is the students’ homework mentality: the better student starts and finishes days before assignments fall due; the average student waits till the night before due date before asking: “Dad, where is the dictionary? the wite-out? the stapler? the toner in the printer is out… etc. Nigerian officials usually fall in the latter category. I am sure that if an extension is granted, INEC would go back to sleep and start doing “kira-kita” (Yoruba: means running helter-skelter) come Feb/March 2011.

And for God’s sake why do you need to have a NEW voters register at each election? Even the rich nations don’t do that. Why can’t INEC have a stable office where newly eligible voters can register by mail, or online, with proof of eligibility, either Birth Certificate and Passport/Driver’s License or other verifiable certification? Voters Register should be kept at Local Government level, and new arrivals should be able to register locally, which registration should lead to automatic deletion from the register by the Local Govt. they emigrated from. That way, we will have a ready-made Register at all times for all general and bye-elections. It is time for us to emerge from the dark ages, and build up a true democracy. We conduct our elections in Nigeria as if we were expecting it to be the very last one, with little or no continuity between one election and the other. Why for God’s sake do we have to use our hard currency to buy new machines for EACH election? Why?

Back to the topic at hand. The law suits against the New Constitution, or the Amended Constitution as you prefer to call it, are irrelevant. The Big Document remains valid until overturned by the highest Court in Nigeria. I pronounce the 1999 Constitution dead because many parts of it were changed in the Amended Document. This is the fundamental difference between the Amendments to the Constitution in the United States of America, and the situation with the Nigerian Constitution. The United States Constitution is a simple document, which entire content remain valid till today, the Twenty-Seven Amendments notwithstanding. The Amendments to the US Constitution were ADDITIONS to the Constitution, addressing areas where the Constitution was silent or inadequate. For example, nowhere did the US Constitution say that slaves can be kept, or that women could not vote, or that people should not be accorded due process, or equal protection of the laws etc; the Amendments were inserted to enshrine these rights which were not included by the original drafters of the Constitution.

In the Nigerian situation, the legislatures in the entire country debated, and passed by a two-thirds majority, major provisions which were at variance with similar clauses in the 1999 Constitution. Therefore, the old Constitution becomes dead in all the areas where it is in conflict with the new one, or the Amended One, or the First Amendment. The effect of the amendment exercise is the same no matter what name you call it. The effect of non-gazetting? It would appear to me that gazetting serves a notice purpose, an administrative or ministerial function which absence cannot annul a valid law. A legislation becomes law the moment it is duly passed by the legislature and signed by the President, unless the law itself intrinsically indicated a different effective date; a legislative veto has the same effect, and becomes law immediately the veto threshold is reached even prior to its publication. A person who contravened an unpublished law may have a notice defense, and not that the law is invalid.

I don’t think that the polity would be overheated by simply keeping to the published dates. If however, the consensus in the country is that INEC be given more time, then we must do it the proper way by amending the current law the constitutional way — the exact way we did it last time. We should not encourage a culture whereby a valid law, the supreme law of the land, Our Constitution, is demeaned and rubbished due to the exigencies of the times. We must enshrine the culture of showing utmost respect for the Big Document, otherwise, we should not complain if some illiterate person packing heat takes over the radio stations and announces its suspension.

Very Respectfully,


Emmanuel O. Fashakin