Nigeria not ready for constitutional court –Hon

Sebastine Hon SAN


From Godwin Tse, DAILYSUN Newspaper

Mr. Sebastine Hon (SAN) bares his mind on some controversial issues in the nation’s Judiciary as regard the debate for the establishment of a constitutional court and the separation of the headship of Su­preme Court from that of the Chairman of the National Judicial Council (NJC). Excerpts:

What is your take on the calls for the es­tablishment of a constitutional court to deal with recurring issues among Component units of government like government autonomy, joint accounts, resource control?

We have to do historical, empirical and comparative analysis to arrive at an answer. “Historically, Australia was the first country in the whole world to establish a consti­tutional court; and this was in 1919, even though pro-USA legal historians argue that the US Supreme Court remains the first constitutional court, being the first court to invalidate a law on the ground of unconstitu­tionality. This, according to the protagonists of this theory, was in the case of Marbury vs. Madison (1803). Today, we have 49 countries in the world that have separate con­stitutional courts; and out of these, only five are African countries – Angola, Democratic Republic of Congo, Egypt, South Africa and Uganda.

Nigeria’s first attempt to establish a consti­tutional court was made in 1998, during the regime of the late General Sani Abacha, but this did not take off. The recently-concluded Constitutional Conference also recommend­ed the establishment of constitutional courts, but as you can see, the report of the Confer­ence is still gathering dust in Aso Rock.

The issue of the desirability of establish­ment of constitutional courts is, therefore, a mixed grill and it depends largely on the peculiarities of each country. That is why of all the countries of the world, only 49 so far have constitutional courts; and in Africa, only five countries have this court.

After crossing the first hurdle, one is again confronted with the issue of jurisdiction vis-a-vis other courts, especially the Supreme Court. For instance, the South African Constitution has made the decision of that country’s constitutional court on the matters it deals with final. I think this can be found in section 167 of that country’s Constitu­tion. On the other hand, section 107(2) of the Constitution of South Korea, 1948, has made decisions of the constitutional court subject to those of the Supreme Court of that country. In other words, the decisions of the Supreme Court of South Korea on constitutional issues are final.

Back home in Nigeria, any attempt to establish the constitutional court will entail an overhaul of the entire Constitution; because presently, all courts in Nigeria apply and enforce all the provisions of the Constitu­tion, save Chapter II, which is enforceable only upon certain conditions being fulfilled. Presently, the cost of embarking on another round of constitutional amendment, since the ongoing process has not included the establishment of constitutional courts, will definitely be costly. So, I may be supporting the establishment of such court in future only on the condition that it follows the South Ko­rean model whereby its decisions are subject to the jurisdiction of the Supreme Court.

What is your position on the need to separate the headship of the National Judicial Council (NJC) from the headship of Supreme Court as being argued that the Chief Justice of Nigeria (CJN), as a judicial officer, whose conduct is subject to the supervision of the NJC, should not be made the head of the Council?

I will first of all debunk any insinuation that for the reason of his headship of the National Judicial Council (NJC), the CJN is in such an untouchable position that he or she cannot be disciplined by the Council. I also wish to forcefully debunk the insinuation that Justice Katsina-Alu’s headship of the NJC gave him some advantage over Justice Ayo Salami. We should not be fickle but remember the widely-reported stepping aside of Justice Alu, to pave way for the Deputy Chairman of the NJC to preside when the NW was deliberat­ing on the Salami’s matter. This is the most civilized conduct anybody can exhibit in the circumstance.

In most countries of the world, it is the Chief Justice that heads the regulatory body of the Judiciary. This, in my humble judg­ment, is good practice; since he should at all times be held responsible for the actions and inaction of the Judiciary. For instance, section 85(1) of the Namibian Constitution of 1990 has established the Judicial Service Com­mission, headed by the Chief Justice of that country. Similar provisions can be found in the South African Constitution of 1997.

Now, is it in dispute that the Senate President, constitutionally and statutorily, is the head of the National Assembly? Does the Constitution not allow the same Senators over which the Senate President is presiding to remove him? Is the President of Nigeria not the head of the Federal Executive Council? Why must the CJN’s case be different?

I therefore do not subscribe to the Constitu­tion being amended to remove the ON from the headship of the NJC. It makes no sense to me, with due respect

The country is in another election year and very soon the courts would be flooded with election petitions from aggrieved con­testants, do you think the electoral laws are enough to address post-election cases?

Well, we still have the 1999 Constitution as amended by the 3rd Alteration Act We also have the Electoral Act as amended up to 2011. These are the basic statutory instill-meats that have been regulating the electoral process since 2011. As I speak to you, both the Constitution and the Electoral Act are in the stream of further amendments but the processes of amendment have not been completed. Now, all our politicians are cam­paigning all over the country. I wonder if they will have time to conclude those amendment processes, since we have just about a month to the general elections.

I personally spoke against the interpreta­tion given by the Supreme Court on section 285(6), (7) and (8) with respect to the 180 and 60 days’ limitation periods within which election disputes should be determined. The National Assembly proposed to cause amend­ment of these provisions in the still-born 4th Alteration Act to the Constitution. As we speak, this problem remains unsolved. I hope and pray Nigerians will not embark on do-or-die election, bearing in mind that the Judiciary will still hold onto to its strict interpretation of the above-named sections.

There are many other shortcomings in the Constitution and the Electoral Act that if suc­cessfully amended would have greatly aided the electoral process. This unfortunately is not to be. May God intervene more in the affairs of Nigeria from February 14, 2015.

The courts in the country were under lock and key recently by judicial workers. What do you think was the implication of the strike, especially as regard pending political cases?

You have said it all. The closure defi­nitely has negative effects on the pre-election disputes filed and intended to be filed. Worse of it is that there are certain disputes that can only be pre-election in nature and which can vest aggrieved persons with locus standi to sue during the pre-election period only. For instance, an aspirant who is complaining of ir­regularities in the nomination of his colleague in the same party cannot sue after elections have been conducted and his said colleague wins the election. This then means such aggrieved person is deprived permanently of ventilating his grievances in any lawful or legal way.

Mind you, too, that the timelines in the Electoral Act depend on the timelines in the Constitution, which cannot in any way be extended! I can only pity those caught in this quagmire.

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