Agbakoba writes NASS Law Review Committee, seeks independent judiciary

A Senior Advocate of Nigeria and former President of the Nigeria Bar Association, (NBA), Dr. Olisa Agbakoba has sent suggestions to the National Assembly joint Committees on Constitution Review for the (Fourth Alteration) Bill under consideration at the National Assembly.

Agbakoba, senior counsel at Human Right Law Service (HURILAWS), in his contribution is seeking the introduction of a Declaration of Nullity Clause, clarification of appropriation procedure for the judiciary, clarification of Jurisdiction of the Federal High Court and the strengthening of National institutions.

The letter dated March 7, 2016, to Senator Ike Ekwerenmadu, the Chairman, Senate Committee on Constitution Review indicated that Section 1 of the Constitution makes a proclamation of supremacy, which he said is not enough.

“The section should contain a Declaration of Nullity Clause i.e. the Constitution shall declare unconstitutional acts null and void. It is not enough for the Courts alone to declare nullity. Evidence of violation of constitutional provisions should be enough for acts to be considered null and void. The Courts would only play a narrow role of declaring invalid, any breach of the constitution. Section 1 of the principal Act should be altered by inserting immediately after subsection (3), a new Subsection “1(4)”, he said.

The new subsection being proposed by Agbakoba stipulates that, “If any act is inconsistent with the Constitution, that act shall be null and void.”

He further asked for a clarification based on Section 81 (1) & (2) of the Constitution which gives the impression that budget estimates of the Judiciary is part of the Appropriation Bill.

He is proposing an insertion that reads, “81 (2) (A) Notwithstanding Subsection (2), estimates of the revenues and expenditures of the Judiciary are not part of the Appropriation Bill”

“81 2 (B) The National Judicial Council shall cause to be prepared and laid before each House of the National Assembly at any anytime in each financial year estimates of the revenues and expenditures of the Judiciary.”

His request is that the Federal High Court and specialized administrative tribunals like the Investment and Securities Tribunal and Tax Appeal Tribunal seem to share jurisdiction on some subjects, adding that although this has been contested up to the Supreme Court because of the provision of S 251 (1) of the Constitution. The Constitution needs to clarify the jurisdiction of the Federal High Court and these specialized tribunals to avoid conflicts.

According to him, “the international best practice is to encourage specialized administrative tribunals because they have technical expertise, flexibility and speed. The regular courts tend to lack skills and are overcrowded. We propose two options:

“Option 1 – make jurisdiction of the Federal High Court in s 251 (1) concurrent. Section 251 (1) of the principal Act is altered by deleting from Section 251 (1) the words “to the exclusion of any other court and Option 2 – clearly delineate jurisdiction of the Federal High in relation to specialized tribunals. This will require alteration of Section 251 (1) (a)-(s) of the principal Act.”

In his proposal, he stated that Section 153 of the Constitution establishes National Institutions that by nature are like executive agencies and some of these institutions include the Code of Conduct Bureau, Independent National Electoral Commission, Nigeria Police Council, Police Service Commission, Revenue Mobilization and Fiscal Commission etc.

“They have no practical constitutional guarantees for independence and effective functioning. There is no security of tenure, guaranteed funding, insulation from political interference etc. It is of absolute importance that there should be some guarantees that make them independent and free from interference. We should borrow a leaf from Chapter 9 of the Constitution of South Africa titled – “Institutions Consolidating Democracy”. It is suggested that Chapter 9 of the South African Constitution should replace our Section 153 or our Section 153 should be amended to strengthen INEC, Police, ICPC, Accountant General, Attorney General, CBN, National Human Rights Commission, EFCC, Public Defender and Code of Conduct Bureau. They should be recognized and made vital National Institutions. They should be entitled to first charge on the federation account and other necessary guarantees by the constitution,” he said.