Amendment of Section 315 of the 1999 Constitution

A BILL FOR AN ACT TO AMEND THE 1999 CONSTITUTION (Section 315):

Background:

Section 274(2) of the 1979 Constitution, following the wording in the earlier Constitution of 1963, empowered the President (or the Governor of a State), by order, "to make such changes in the text of any existing law as he considers necessary or expedient to bring that law into conformity with the provisions of the Constitution". The reference to textual changes indicates the nature and scope of the power, as being limited to clerical or verbal changes, like changing names, titles and designations, substituting appropriate functionaries and so on.
This is exemplified by an order by the Governor of Kaduna State in 1980 under the provision in Section 274(2), whereby the title, Chief Justice, in any existing law of the state, was changed to Chief Judge, Military Governor, Executive Council or Governor in Council to Governor, Minister to Commissioner, Native Authority to Local Government Council, North-Central State to Kaduna State, and Edict to Law.

The provisions of section 274(2) was not intended to authorise changes of substance or policy in the law. Deletion or repeal otherwise than for the purpose of effecting such clerical or verbal changes was thus outside its scope. To make changes in the text of a law - that is, in its wording - presupposes that the law continues in force with all its substantive provisions. If the law or any of its substantive provisions is abrogated, the text will not be there to be adapted to bring it into conformity with the Constitutions.

The 1999 Constitution altered the wording in its corresponding Section 315(2), which empowers the President (or the Governor of a State) to make by order "such modifications in the text of any existing law as (he) considers necessary or expedient to bring that law into conformity with the provisions of this Constitution". The change in wording from "changes" in Section 274(2) of the 1979 Constitution to "modifications" in Section 315(2) of the 1999 Constitution has serious consequences.

It imports into the provision in Section 315(2) the definition of "modifications" in Section 315(4)(c), thereby enabling the President (or Governor) to make changes of substance in all laws existing on May 29, 1999 by "addition", alteration, omission or repeal" as he considers necessary or expedient to bring them into conformity with the provisions of the Constitution. It invests him with the power of substantive legislation derived, not from delegation by the National Assembly, but directly from the Constitution.

Arguments in favour of the Bill:

This Bill seeks to amend section 315 of the Constitution to remove the power of the President and Governors to make modifications to existing laws. This bill has become necessary for the following reasons-

• Subversion of the Exclusive Powers of the Legislature: the change of just one word, from "changes" to "modifications", has, perhaps without intending it, subverted the exclusiveness of the National Assembly's power to make laws for the peace, order and good government of the Federation" an exclusiveness, which the separation of powers contemplates and affirmatively requires.

• Usurpation of Legislative powers: The Government of former President Olusegun Obasanjo had under the cover of section 315, altered the revenue allocation formula of the country. State governors equally have been hiding under the provisions of section 315 to usurp the powers of the legislature.

• Doctrine of Separation of Powers: The doctrine of the separation of powers, was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was, to save the people from autocracy. By the tenets of this doctrine, lawmaking is the traditional function of the legislature and ought not to be duplicated by the executive in order to save the people from autocracy.

• Consistency with Constitutional Democracy: the hallmark of military dictatorship is the rule of men and not of laws which promotes arbitrariness, autocracy and bad government. This is in contradistinction to a constitutional democracy that emphasises, the rule of law and legislative supremacy as limited by the Constitution. Therefore the provision of section 315 of the Constitution is in conflict with section 4 of the same Constitution which grants exclusive legislative powers to the legislature and ought to be amended to be in tandem with section 4 of the Constitution.

• Elimination of Anachronisms: Adaptive legislative powers as contained in the 1960, 1963, 1979 and 1999 Nigerian Constitutions as part of inherited colonial and military practices were necessary during the colonial and military transition era in order to bring certain things in conformity with the Constitution. However, with the lessons learned on constitutional democracy for the past 10 years, it has become expedient that colonial and military conventions should be applied with restraint and, if possible, carefully guided by means of constitutional provisions; that no single individual, howsoever dignified and trusted should be allowed to legislate for the peace, order and good governance of the country.

Conclusion:

Historically, section 315 of the Constitution was necessary in order to bring orderliness and smooth transitions during the colonial and military transition periods. Similar provisions in the 1960 and 1963 Constitutions limited its application to six months and three years respectively. Regrettably the 1999 Constitution did not limit the application period of the section as by the express terms of Section 315(2), it is exercisable "at any time;" thus, it is a continuing power, unlimited as to time and covering the entire body of existing laws. Consequently, the Executive have used the power to usurp the constitutional functions of the legislature which is clearly against the spirit and intendment of the Constitution and the doctrine of separation of powers. The section therefore has become anachronistic and needs to be amended to be in tandem with section 4 of the Constitution.

Presidential Succession Order (Section 145)

Background:

A Presidential Succession Act establishes the line of succession to the powers and duties of office of the President such that whenever a President or Vice President is unable to discharge the powers and duties of the office the next in line in the order takes over and discharges the functions of the office. In the United States, Congressional authority to enact such a law is twofold: Article II, Section 1, Clause 6 of the United States Constitution and Section 3 of the Twentieth Amendment to the United States Constitution.

In Nigeria Presidential and Gubernatorial succession Order is enshrined in sections 145/146 and 190/191 of the 1999 Constitution, for the President and Governors respectively. A cursory look at these provisions to the unlearned mind will appear as if the Constitution has made ample provisions for presidential and gubernatorial succession orders. However, it took almost 3 months indisposition of President Yar’Adua to reveal the inadequacies and the lacuna inherent in the Constitution on presidential succession.

Among all the sections of the constitution dealing with presidential succession in the Constitution, the most volatile and critical is section 145 because of its national security implications. The said section did not clearly provide for what happens if the President is so incapacitated, negligent or bluntly refuses to transmit a written declaration that he is going on medical treatment or vacation as demanded by the section, thereby leading to a vacuum in the leadership of the nation. The implications are numerous including the possibility of a military take over of power since there is no effective Commander-In-Chief to give general directions to the armed forces.

Arguments for the Bill:

This Bill seeks to amend the Constitution of the Federal Republic of Nigeria to ensure that power vacuum is not created whenever the President/Governor is absent or temporarily incapacitated by ill-health or howsoever so called so that the ship of State will not be left rudderless as the Vice President of Deputy Governor automatically steps in as Acting President/Governor respectively. This bill has become necessary for the following reasons:

• National Security Implications: By section 218 of the Constitution the President as commander in chief of the armed forces is empowered to determine the operational use of the armed forces. This power is exclusively exercisable by the President or anybody so authorized by him. In the event of a major military incursion either internally or externally a crisis of command will be engendered if there is nobody acting in place of the President.

• Stagnation of Governance: The President as the Constitutional head of the Executive Arm of government has several constitutional, statutory and ceremonial functions to perform for the smooth running of the government. If his role is not immediately filled in his absence for whatever reason, the smooth running of government will be seriously hampered and impeded.

• Need to avoid future constitutional crisis: The constitutional crisis engendered by the inability of President Yar’Adua to transmit a written declaration to the National Assembly almost led to the breakup of the nation. Before the National Assembly finally contrived a resolution to bring the impasse to a close, there were insinuations in certain quarters that the military were planning to take over power. This bill is necessary in order to avoid similar scenarios in the future.

• Entrenchment of Constitutional Democracy: Section 145 of the Constitution was deliberately couched inelegantly in order to ensure that the then Head of State General Sani Abacha who was terminally ill at the time, will not at any point relinquish power to any of his subordinates. This much was revealed by Chief Ojo Maduekwe; the current minister of foreign affairs and one of the drafters of the Constitution. This Bill will help to eliminate such military anachronisms and further entrench constitutional democracy.

• Clear cut mandate to the National Assembly: The bill gives a clear mandate to the National Assembly to act decisively to fill a power vacuum. This will avoid waiting indefinitely for a recalcitrant or mischievous and irresponsible president who wants to plunge the nation into chaos and anarchy. This is more so in Nigeria where people place personal and ethnic interests far above national interests. President George Bush of the United States did not waste time in handing over power to his Vice President when he was undergoing an operation that will last for barely 2 hours.

Conclusion:

An improperly defined Presidential succession order as contained in the Constitution is an accident waiting to happen. Now is the time to rethink our system of presidential succession, not within or after a succession crisis. Presidential succession provisions are triggered by events that could tear the very core of our nation's political stability as could be seen from President Yar’Adua’s ill-health. Therefore the need for a smooth, lawful, and constitutional transition of power is of utmost importance in our young democracy, and must be addressed before they occur again. We must therefore take this opportunity and instil confidence in the government and our people who solely depend on our good sense of judgment. This Bill therefore is a proper step in that direction.

Points of Order on Constitutional Amendment

Introduction:

The proposed amendment to the 1999 Constitution touch on a wide range of issues that needs to be addressed in order to deepen our democratic experience and ensure the survival of democracy in Nigeria. Issues such as prohibition of interlocutory appeals in election matters, introduction of independent candidates, independence of INEC, jurisdiction of election tribunals and the committees recommendations thereto are quite commendable and ought to be adopted. However, the following issues require further reviews and comments in order to achieve a Constitution that is truly people oriented as well as avoid future constitutional crisis.

Point 1: Age Qualification:

Gerontocracy is defined by the Encarta Pocket Dictionary as Government by Elders, this is against the general tide of events in the world, for instance in the United States the minimum age requirement for a Representative is 25 years while that of the Senator is 30 years. Jacking up the age qualification for members of the House of Representatives and that of the Senate is clearly encouraging gerontocracy and alienating the youths from governance. More so, it has not been proved that the wisdom of Solomon has anything to do with the age of Methuselah. There is virtually no provision in the Constitution for youth participation in governance despite the agitation for youth empowerment. The age requirement ought to be left the way the Constitution have provided for currently to encourage the participation of the youths in governance especially with the educational qualification upgraded to tertiary level.

Point 2: Introduction of Independent candidates:

This is a very welcome development, but curiously the Independent Presidential Candidate who has the largest constituency requires only nominations from 10 registered voters, whereas his other counterparts with smaller constituencies require more nominations than him. It is rather suggested that the independent presidential candidate should have not less than 60 nominations, at least 10 nominations from each of the 6 geopolitical zones. This is to ensure that independent presidential candidates are people with national outlook and acceptable to the larger Nigerian Society. This will also ensure that the Presidential race is not an all comers affair for ethnic personalities.

Point 3: Indictment for an offence as disqualification for election:

This issue is at variance with Chapter IV of the Constitution dealing with Fundamental Rights. Specifically, section 36 provides that an accused person shall be entitled to a fair hearing by a Court or tribunal constituted in such manner to secure its independence and impartiality. Subsections (5) and (6) of section 36 provides that every person who is charged with a criminal offence shall be presumed to be innocent until the contrary is proved. Such person the Constitution further guarantees must be offered the opportunity to defend himself either personally or by a Legal practitioner of his own choice.

An indictment for all intents and purposes is an accusation of having committed an offence, which accusation have not been tried upon its merits. It is therefore wrong to deprive a person of his right to be voted for on a mere accusation. The position is best stated in section 66(d) of the Constitution that demands for a conviction by an appropriate tribunal.

Paragraph (h) of section 66 ought to be deleted completely for falling short of the constitutional standard for deprivation of liberties and more so for the mischief it has been used for in the past. We all still remember in 2007 when the Government of President Obasanjo decided to exclude certain persons whose faces the President do not like by unilaterally declaring them unfit to contest using the instrumentality of the EFCC to indict them.
The then Vice President was adversely affected. Fortunately the Court ruled that such indictment was not sufficient to deprive the Vice President of his right to contest and be voted for. But before then the damage had already been done. Section 66(h) was the obnoxious section used to perpetuate the most heinous atrocity against democracy in Nigeria.

Point 4: Cross carpeting:

Requiring a person to vacate his seat simply because he became a member of a political party other than the party on whose ticket he was elected is against the provisions of section 40 of the Constitution. That section guarantees the right of every person to freely assemble and associate with other persons and to belong to any political party that guarantees the protection of his interest.

It is often said that in politics there are no permanent friends or foes but only a permanent interest. Consequently, when a political party could no longer guarantee the protection of a person’s interest and that of his constituents. That person has a constitutional right to opt for another political party that will better protect that interest and those that he is representing.

Democratically, once a person is elected, his loyalty lies primarily to his constituents in particular and generally to the nation. Therefore the only set of people that has the right to ask an elected person to vacate his seat are his constituents. Fortunately, ample provisions have been made in section 69 of the Constitution for the recall of any representative that have lost the confidence of his electorates. All that remains to be said is that similar provisions ought to be included for Presidents and Governors, at least to serve as a constant reminder that power actually belongs to the electorates and that their loyalty primarily should be to the people and not to the party.

Therefore, deleting the proviso to subsection 68 as proposed is desirable as it strengthens a person’s freedom of association. However, any proposal requiring vacating a seat for cross carpeting is merely serving party interest and not that of the electorates, this is unacceptable in a constitutional democracy.

Point 5: Presidential Succession:

On this particular issue, all the proposals by the provisions of the Bill, the Committee’s recommendations and the provisions as amended are deficient in solving the problem. A critical assessment of the proposals and extrapolating from our recent constitutional crisis, the amendments suggested does not go to the root of the problem. It must always be borne in mind that this section has critical national security implications, therefore, the following amendments ought to be added:

1. The Clause; “transmits a written declaration” in Section 145(1) as amended should completely be deleted and be replaced with the word; “inform”. We are currently living in the information telecommunication (ICT) age, information could be transmitted in a variety of ways, text messages, email, photographic images, voice messages and the like. This amendment is to allow the Court or the National Assembly wide latitude of interpretation where the President is either so incapacitated that he cannot transmit a written declaration or is recalcitrant in transmitting such written declaration. This very amendment is necessary in order to forestall a repeat of the last constitutional crisis where the Nation was left rudderless for almost 3 months, we were lucky to have escaped a military incursion. Section 145(1) as amended will now read as follows-
“Whenever the President is proceeding on vacation or is otherwise unable to discharge the functions of his office, he shall inform the President of the Senate and the Speaker of the House of Representatives to that effect ...”

2. The Constitution should fix a time frame within which the National Assembly must wait before taking an action where the President is either incapacitated that he cannot transmit a written declaration, unable to perform the functions of his office or recalcitrant in informing the National Assembly that he is going on vacation or medical treatment. This is to avoid waiting indefinitely for the President especially in a situation where he is so seriously incapacitated that he cannot transmit a written declaration or rather recalcitrant in informing the National Assembly.

Therefore the clause; “or is unable to discharge the functions of his office for more than 21 days”, should be inserted immediately after the word “section” in section 145(2) as amended. This time frame is very important in order to guard against opportunists seizing power and frustrating our democracy.

3. The mandate for the National Assembly to act in the above contemplated instance ought to be positively worded and should not be discretionary because we are dealing with National security issue here. The clause; “the National Assembly may” in section 145(2) as amended, should read; “the National Assembly shall...”.

4. Finally, the requirement for a joint sitting of the National Assembly should be jettisoned; we have all seen how difficult it could be for the National Assembly to sit in a joint session as demonstrated during the last budget presentation. Ideally the House of Representatives should be given the responsibility to act due to its numerical supremacy and the latitude of its representation. However in order to ensure the balance of power between the two chambers, the National Assembly should act independently in such a situation and where there is no compromise a conference should be requisitioned to resolve the impasse.

Taking all the amendments together section 145(2) as amended will now read as follows-

“In the event that the President is unable to inform the National Assembly as mentioned in subsection 1 of this section, or is unable to discharge the functions of his office for more than 21 days, the National Assembly shall by a simple majority of the votes of members present in either chambers of the National Assembly mandate the Vice President to perform the functions of the office of the President, as Acting President ...”

Point 6: Independence of INEC/ Resident Electoral Commissioners:

The appointment of the Chairman of INEC and Resident Electoral Commissioners who are appointed unilaterally by the President, present an interesting problem. While it is desirable to have the National Judicial Council advertise the position for the INEC Chairman as well as screening the applicants, it is strongly suggested that there should be no nominations of any kind; this is to avoid nominating candidates loyal to the nominators. Again the President should not have any hand in the appointment of the INEC Chairman/RECs so as to avoid the President influencing their performance. Even the requirement for the Senate to confirm the applicants/nominees is also unacceptable because players in a game do not nominate or appoint the umpire in order to avoid bias and crisis of loyalty.

The best way to have a truly independent INEC Chairman is for the already screened applicants to face election by the Nigerian electorates. That way, you will have a truly neutral INEC Chairman whose loyalty lies to the Nigerian people. The same goes for Resident Electoral Commissioners because they equally play critical roles in the conduct of elections in the 36 States of the Federation. After all in the US, ordinary District Attorneys are elected, so having an INEC Chairman/RECs who are elected by the Nigerian people is the best approach to kick start a free and fair conduct of elections.

Federal Road Safety Commission (Establishment) Act Amendment Bill 2010

A BILL FOR AN ACT TO AMEND THE FEDERAL ROAD SAFETY COMMISSION (ESTABLISHMENT) ACT 2007 TO MAKE SPECIAL PROVISIONS FOR LICENCING PROCEDURE FOR PERSONS AUTHORISED TO DRIVE MOTOR VEHICLES AND FOR OTHER RELATED MATTERS 2010.

Sponsor: Hon. Christopher S. Eta.

BE IT ENACTED by the National Assembly of the Federal Republic of Nigeria as follows:-
1. The Federal Road Safety Commission (Establishment) Act 2007 hereinafter referred to as the Principal Act is amended as set out below:-
Section 10 of the Principal Act is amended by inserting immediately after subsection (1) the following new subsection (2) and re-arranging the subsequent subsections accordingly.
(2) Notwithstanding the provisions of any other enactment, the Corps shall to the exclusion of any other authority be the sole authority responsible for:
(a) issuing driver’s licence of all categories,
(b) developing the curriculum for drivers’ education,
(c) testing of applicants for driver’s licence,
(d) testing applicant’s visual and hearing acuity;
(e) capturing applicants digital photographic image;
(f) processing all matters necessary and incidental to granting an application for a driver’s licence.
2. The Principal Act is amended by inserting immediately after section 10 the following new section 11 and re-arranging the subsequent sections accordingly.
11. (1) An applicant for a driver’s licence shall be required to:-

(a) undertake a compulsory driver education in an accredited and approved driving school to provide the applicant with sufficient education to guarantee that he possesses the necessary attitudes, knowledge and abilities as may be specified the in the driving curriculum;

(b) pass the theoretical and practical test conducted by a duly authorised officer of the Corps to verify that the applicant has attained the level of competence specified in the driving curriculum;

(2) without prejudice to the power of the Commission to make regulations under this Act, the compulsory driver education, practical and theoretical tests specified in this section shall be in substantial compliance with the provisions of the third schedule to this Act.

(3) The Corps shall not issue a driver’s licence to an applicant unless the applicant further undertakes the following tests conducted by a duly authorised officer of the Corps:

(a) vision acuity test;
(b) hearing acuity test;
(c) general medical fitness test.
(4) The Corps shall duly certify any applicant that passes any of the tests conducted by a duly authorised officer of the Corps pursuant to this section.
(5) The minimum requirement for a driver’s licence shall be the first school leaving certificate or its equivalent.
(6) The Corp shall maintain a driving record of all drivers duly issued with a driver’s licence.
(7) Nothing in this Act shall be construed as empowering the Corps to establish driving schools.
3. Section 11 of the Principal Act is amended by inserting immediately after subsection (1) the following new subsection (2) and re-arranging the subsequent subsection accordingly.
(2)The Corps shall for the purposes of this Act engage the services of qualified medical practitioners and such other officers necessary to carry into effect the provisions of this Act.
4. Section 23 of the Principal Act is amended by inserting immediately after subsection (2) the following new subsection (3) and (4):-
(3) No officer of the Corps shall issue a driver’s licence to an applicant unless the applicant furnishes:
(a) evidence of training at an approved driving school;
(b) driving test certificate;
(c) hearing acuity test certificate;
(d) visual acuity test certificate;
(e) certificate of general medical fitness;
(f) first school leaving certificate or its equivalent.
(4) Any officer of the Corps who violates the provisions of subsection 3 of this section shall on conviction be liable to 3 years imprisonment.
5. Section 25 of the Principal Act is amended by inserting immediately after subsection (1) the following new subsection (2), (3) and (4) and re-arranging the subsequent subsections accordingly:-
(2) The Corp shall within 30 days of the occurrence of a road accident publish a report as to the circumstances that lead to the accident.
(3) Where a holder of a driver’s licence duly issued by the Corps is involved in an accident, the accident report shall contain a report as to the validity or otherwise of the said driver’s licence and the driving record of the said driver.
(4) Where an accident report indicates that a driver’s licence was not issued in compliance with the provisions of Section 11 of this Act, the officer who authorised the issuance of the licence shall be prosecuted in accordance with the provisions of this Act.
6. Section 28 of the Principal Act is amended by inserting immediately after subsection (2) a new subsection (3) as follows:-
(3) Where the driving record of a driver shows that he has been involved in certain number of minor or major accidents, and other traffic violations which in the opinion of the Corps Marshall constitutes potential danger to other road users, the driver’s licence may be revoked permanently or withdrawn for such length of period as may be determined by the Corps Marshall.
7. Section 30 of the Principal Act is amended by adding the following new definition:-
“first school leaving certificate or its equivalent”, for the purposes of this Act shall include the ability to understand and communicate in English language to the satisfaction of the Corps or any other certificate acceptable to the Corps”;
8. This Bill may be cited as the Road Safety Commission (Establishment) Act (Amendment) Bill 2010.

THIRD SCHEDULE
Part I Compulsory Driver Education:

1. (1) The applicant must have a thorough knowledge of the Highway Code and motoring laws as well as a thorough understanding of the responsibilities of a driver. This means that the student must have real concern for the safety of him-/herself, pedestrians and other road users. The applicant is also informed to make sure that the instructor fully covers the curriculum. Listed below are the eight items that the student needs to attend to and show that he or she is able to perform in order to pass the practical test.

(a) Car controls, equipment and components
The applicant must understand the function of the accelerator, clutch, gears, footbrake, handbrake and steering. The applicant must also be able to use these competently, understand the meaning of the gauges and other displays on the instrumental panel and know the function of other controls and switches in the car that have a bearing on road safety and use them competently. Further the applicant must be able to carry out routine safety checks concerning oil and coolant levels, tyre pressure, steering and brakes.

(b) Road user behaviour
i. The applicant must know the most common causes of accidents; know which road users are most at risk and how to reduce that risk. The applicant must also know the rules, risks and effects of drinking and driving and know the effect of fatigue, illness and drugs on driving performance.

ii. The applicant must also be aware of any age-related problems among other road users, especially among children, teenagers and the elderly. In addition he or she has to be alert and able to anticipate the likely actions of other road users and be able to take appropriate precautions and be aware that courtesy and consideration towards other road users are essential for safe driving.

(c) Vehicle characteristics
i. The applicant must know the important principles concerning braking distance and road holding under various road and weather conditions

ii. The applicant must also know the handling characteristics of other vehicles with regard to stability, speed, braking and manoeuvrability. In addition the applicant must be able to assess the risks caused by the characteristics of other vehicles and suggest precautions that can be taken and know that some vehicles are less easily seen than others.

(d)Road and weather conditions
i. The applicant must know the particular hazards in both daylight and the dark and on different types of roads. It’s important that the applicant gains driving experience on urban and higher speed roads (not on highways) in both daylight and the dark and know which road surfaces provide the better or poorer grip when braking.

ii. The applicant must also know the hazards caused by bad weather and be able to assess the risks caused by road and traffic conditions, be aware of how the conditions may cause others to drive unsafely, and be able to take appropriate precautions.

(e)Traffic signs, rules and regulations
The applicant must have sound knowledge of the meaning of traffic signs and road markings, for example speed limits, parking restrictions and zebra and pelican crossings.

(f) Car control and road procedure
The applicant must have the knowledge and skills to carry out the following tasks safely and competently practising the proper use of mirrors, observation and signals:

i. Take the necessary precautions before getting in or out of the vehicle.
ii. Before starting the engine, carry out safety checks on doors, seat and head restraints, seat belts and mirrors.
iii. Start the engine and move off.
iv. Select the correct road position for normal driving.
v. Use proper observation in all traffic conditions.
vi. Drive at speed suitable for road and traffic conditions.
vii. Change gear promptly to all risks.
viii. Change traffic lanes.
ix. Pass stationary vehicles.
x. Meet, overtake and cross the path of other vehicles.
xi. Turn right and left at junctions, including crossroads and roundabouts.
xii. Drive ahead at crossroads and roundabouts.
xiii. Keep a safe separation distance when following other traffic.
xiv. Act correctly at pedestrian crossings.
xv. Show proper regard for the safety of other road users with particular care towards the most vulnerable.
xvi. Drive on both urban and rural roads, and where possible on dual carriageways, keeping up with the flow of the traffic where it is safe and proper to do so.
xvii. Comply with traffic regulations and traffic signals given by the police, traffic wardens and other road users.
xviii. Stop the vehicle safely, normally and in an emergency, without locking the wheels.
xix. Turn the vehicle in the road to face the opposite way using the forward and reverse gears.
xx. Reverse the vehicle into a side road keeping reasonably close to the kerb.
xxi. Parallel parking while driving in a reverse gear.
xxii. Park the vehicle in a multi-storey car park or other parking bay, on the level, uphill and downhill, both in forward and reverse directions.
xxiii. Cross all types of railway crossings.

(2) The applicant must also know the importance of correct tyre pressures, the actions needed to avoid and correct skids and how to drive through floods and flooded areas. The applicant must also know what to do if involved in an accident or breakdown, including the special arrangements for accidents or break-down on a highway etc.

(3) The applicant must gain a sound knowledge of the special rules, regulations and driving techniques for highway driving before taking the driving test. After passing the test, lessons are recommended with an approved driving instructor before driving unsupervised on motorways.

Part II The Theoretical Test:

2. (1) The theoretical test should be divided into two parts. One should be a multiple-choice section, and the test-taker selects the answers. The multiple-choice section should contain at least 35 test items to be answered in 90 minutes. The test-taker must score at least 86% in order to pass this part of the test.

(2) The theoretical test shall include a test of hazard perception skills, and after the multiple-choice section there is a15- minute break before the hazard perception section starts. This should consists of 14 video clips, each lasting about one minute, which feature real road scenes and developing hazards of various types. There should be at least a total of 15 score-able hazards in the test and the student is assessed on the amount of time needed to spot the hazards.

(3) The sooner the test-taker responds, the higher the score will be. The highest possible score is five points. Thirteen of the clips should contain one score-able hazard, and one clip contains two hazards. The test-taker should have only one chance to respond to the hazard perception clips. Those applying for fresh driving license must score at least 75% in order to pass the hazard perception section.



Part III The Practical Test:
3. (1) The main objective is to determine if the applicant is able to drive safely and competently in various road and traffic conditions. If the student fails he or she is encouraged to take more training. If the student passes he or she is provided with a provisional license and the two-year probationary period starts. In order to be allowed to undergo the practical test the applicant must pass the theoretical test.

(2) The practical test should last for approximately 60 minutes and starts with an eyesight test. If the applicant is able to pass this test, i.e. able to read a car number plate in good daylight at 67 feet, approximately 20 metres, he or she is allowed to undergo the driving test. Then the applicant is required to drive around one of a number of set driving test routes which incorporate a range of different hazards and driving situations, generally representative of normal driving conditions. During the test the examiner should direct the applicant around the route whilst assessing and marking all aspects of the applicant’s performance. Each examiner is required to use one of a number of sets and approved driving test routes. Each test centre normally should use about 20 test routes and examiners are required to use each of those in equal proportion to the rest.
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(3) Driving instructors are encouraged to accompany their students on the test or to listen to the examiner’s debriefing at the end of the session. Apart from general driving, the applicant will be asked to carry out two of the following manoeuvres during the test.

a) Reversing around a corner
b) Turning in the road
c) Reverse parking
(4) The applicant may also be asked to carry out an emergency stop exercise. If the test-taker commits a number of different faults, he or she should fail the test.

(5)There are three categories of fault:

a) Dangerous fault – involving actual danger
b) Serious fault – potentially dangerous or serious errors
c) Driving fault – a significant error in driving technique or incorrect reaction to a situation not assessed as serious

(6)If the applicant commits one dangerous fault, one serious fault or more than 15 driving faults, this should result in failure. If the test-taker passes the test he or she shall be on probation for two years. If the driver gets six or more penalty points during this time, he or she shall lose the license. Then he or she has to re-apply for a provisional license and take all of the tests again.

(7) The test-taker should receive the test results and feedback information within 30 minutes after having finished the test. Feedback is given on any multiple-choice items answered incorrectly. In order to be approved the test-taker has to pass both parts of the test. If approved the test-taker will receive a Theory Test Pass certificate that is valid for two years. If the test-taker has not passed the practical test within these two years, he or she will have to retake the theoretical test.

Explanatory Memorandum:
This Bill seeks to amend the Federal Road Safety Commission (Establishment) Act to grant exclusive powers to the Federal Road Safety Corps to issue driver’s licences as well as make special provisions for the licensing of persons authorised to drive motor vehicles in order to ensure safety of lives on the highways and for other connected matters.

Need to Review Diver's Licensing Procedure in the Country

Background:
Road traffic accident remains a leading cause of trauma and admissions to the accidents and emergency units of most hospitals. Road traffic accidents continue to pose a problem in many places worldwide. Injuries and deaths resulting from road traffic accidents are on the rise annually.

Factors that contribute to high occurrences of road traffic accidents are largely preventable and they include bad roads, poor vehicular conditions recklessness on the part of the drivers, and neglect of traffic rules. Ranking high among these factors is the human element. Improperly educated drivers constitute a major road hazard on our roads. Neglect of traffic rules, recklessness, poor vehicular maintenance are all manifestations of inadequate driver education on road safety.

Sadly, the licensing procedure in the country leaves a lot to be desired. Observations indicate that all it takes for a person to acquire a driving licence in Nigeria today are: two passport photographs and the official fees. Once these two requirements are fulfilled the next day an applicant will definitely get a drivers licence, albeit through the back door. Nobody bothers about the driver’s driving ability and skills, hearing and visual acuity, general medical fitness and the ability of the driver to read and understand simple traffic codes which are critical elements in road safety.

Position of the Law on Licensing:
However, this a far cry from what the law provides, the position of the law on the issuance of driver’s licence are as follows:

Section 5 of the Federal Road Safety (Establishment) Act 2007 empowers the FRSC to make regulations as to the establishment, investigation and certification of driving schools, designing and producing driver’s licences among others. Pursuant to the said section the National Road Traffic Regulations 2004 was made.

Regulation 20(1) of the said Regulation empowers the Commission to establish model driving schools in each state of the Federation and the FCT and regulate the establishment and registration of private and government owned driving schools and shall set guidelines for the establishment of such driving schools.

Regulation 20(3) and (4) empowers the Commission to issue permits to such driving schools and to inspect from time to time all registered driving schools to ensure that they conform to standards specified by the Commission.

Regulation 22(2) provides that an applicant for fresh driver’s licence shall furnish evidence of training at an approved driving school and a learner’s permit and shall be accompanied with a certificate of visual acuity test and general medical fitness test as prescribed in Regulation 24(6).

Regulation 23(1) requires that an application for the issue or re-issue of a drivers
licence shall be accompanied by three copies of a recent passport photograph (which shall be printed from the same negative) of the head, full face, and shoulders of the applicant, the copy shall be certified as a true resemblance of the applicant by a Vehicle Inspection Officer.

Regulation 24(1) and 26(1) requires that before issuing a driver’s licence, the applicant must pass a driving test conducted by a Vehicle Inspection Officer, to show that he is capable of fully controlling a motor vehicle of the type and group for which he applied. The Commission shall not issue a driver’s licence to an applicant unless such applicant furnishes certificates of vision acuity and general fitness from any government hospital.

International Best Practices:
A critical analysis of the foregoing provisions of the law indicates that the Federal Road Safety Commission that was mandated by the National Assembly to handle issues of road safety has little or no role to play in the education, testing and issuance of driver’s licence apart from production of the driver’s licence. This constitutes a major hindrance to adequate monitoring and supervision of the issuance of driver’s licence by the Commission and has resulted in flagrant disregard of statutory provisions on licensing.

To correct this anomaly, it is necessary to review what other nations faced with similar challenges has done in the past to reduce the incidence of high accident rates on their highways. In 2002, an initiative was taken to study the quality of driver examination in Finland, Sweden, Norway and Northern Ireland. The preliminary results showed that there are both similarities and differences between the countries regarding the driving-license test. The study however showed that all countries require a candidate to pass a theoretical test before taking the practical test. In addition to this, Finland, Sweden and Norway require a candidate to take certain courses or a minimum number of hours of practical training before taking the driving test.

The main objective of driving tests is concerned with road safety, which means that those who lack the required competence to drive in traffic are not permitted to enter the system. Another function of the driving tests is to influence the training undertaken by learner drivers. The driving-license test is the only way to verify that the test-takers have acquired the knowledge and abilities specified in the curriculum. As a result of the restricted use of compulsory education, the quality of the student evaluation depends solely on the quality of the tests. Thus, the demands on the tests in terms of reliability and validity ought to be high.

The idea behind driver education is to provide the student with sufficient education to guarantee that he or she possesses the necessary attitudes, knowledge and abilities to pass the theoretical and practical test. During the last few years, a number of countries have made attempts to improve the students’ attitudes and capacity for self-evaluation by emphasising such areas in the curriculum. Since it is difficult to evaluate these aspects through testing, the best way for the system owner to affect and evaluate the students’ attitudes is through compulsory education.

Conclusions:
The conclusion of the study was that compulsory driver education combined with a theoretical and practical test of high quality constitutes the optimal approach for the system owners in terms of verifying that the student has reached the level of competence specified in the curriculum.

In order to further reduce the death toll on our highways it becomes imperative that we must equally adopt these international best practices that other countries have employed successfully to keep their accident rates on the highways low. Persons authorised to drive motor vehicles on our highways needs to be adequately educated on the necessary skills, attitudes and abilities they need to acquire before being allowed to drive on the highways.


The Commission should therefore be the sole authority responsible for issuing driver’s licence, developing the curriculum for drivers’ education, testing of applicants for driver’s licence, conducting medical fitness tests and handling everything necessary and incidental to granting an application for a driver’s licence. This must of necessity include capturing the image of the applicant or photograph onto the licence. This aspect incidentally is the main source of non-compliance as applicants are only required to present their passport photographs and the fees payable and a licence is automatically issued. The Commission therefore must be given the opportunity of physical assessment of the applicant before issuing him a driver’s licence.

President's Prolonged Absence: The Way Forward.

Introduction:
The prolonged absence of the president from the country has no doubt seriously hampered the inner workings of President Yar’Adua’s administration because many policy decisions which were to get the consent of the president were left unattended to. This was even made more complicated because the president did not hand over properly to his Deputy, Dr. Goodluck Jonathan, before embarking on his latest medical trip to Saudi Arabia.

Going by the spirit of the 1999 Constitution, if President Yar'Adua had written a letter to the National Assembly it would have automatically paved the way for Vice President Jonathan Goodluck to properly take over power as Acting President in line with Section 145 of the 1999 Constitution which says:

"Whenever the President transmits to the President of the Senate and the Speaker of the House of Representatives a written declaration that he is proceeding on vacation or that he is otherwise unable to discharge the functions of his office, until he transmits to them a written declaration to the contrary such functions shall be discharged by the Vice-President as Acting President."

Even though section 145 did not say what happens in a situation where the president fails to transmit such written declaration to the legislature as is presently the case. It is obvious that the formulators of the constitution did not contemplate that the country should be without somebody at the helm of affairs at any time, that is why section 146(1) stated clearly who should hold forth in the absence of the President.

The said section states as follows:
“The Vice-President shall hold the office of President if the office of President becomes vacant by reason of death or resignation, impeachment, permanent incapacity or the removal of the President from office for any other reason in accordance with section 143 of this Constitution”.

The framers of the constitution equally believed that those who would hold such high public office as strategic as the presidency would not ordinarily refuse to hand over power temporarily when they are on vacation or on sickbed knowing fully well that they do not lose such positions for the mere fact that they went on vacation or medical treatment. The framers of the constitution provided for the office of the Vice President in order to forestall the present situation in which we find ourselves as a result of President Yar’Adua’s refusal to hand over power to his deputy. That act in itself is a grave constitutional breach amounting to gross misconduct.

International Best Practice:
In other jurisdictions practising similar model of democracy such as ours, the honourable and most reasonable thing for an ailing President to do is to hand over power temporarily to his deputy when he knows that his health may be a barrier to carrying out his official functions.

For instance, two presidents of the United States (U.S.), found themselves in situations similar to ours. President Ronald Reagan underwent a colonoscopy procedure in July 1985, during which a villous adenoma, a pre-cancerous tumour, was discovered in his body. Before the operation, he told his countrymen that:
“I am about to undergo surgery during which time I will be briefly and temporarily incapable of discharging the constitutional powers and duties of the Office of the President of the United States.”
He then transferred his constitutional powers to then Vice President George Bush, (senior).

Again the second case was that of President George Bush, junior. He was scheduled to undergo a colonoscopy procedure on June 29, 2002, when he was expected to be under light sedation. Bush transferred his constitutional powers to then Vice President Dick Cheney. The U.S. was at war at the time and Bush was quoted as saying,
“I did so because we’re at war and I just want to be super – you know, super cautious.”

Implications of the President’s Absence:
The confusion and the unnecessary heating of the polity could have been avoided if President Yar'Adua's aides had advised him properly on the political implication of his not writing a letter to the National Assembly before jetting out of the country.
Consequently, anarchy is now the order of the day in governance of the country as the Vice President who should ordinarily be in charge of Government by the clear provisions of the Constitution is divested of all authority to call errant ministers to order. In what looked like a test of his authority last month, petroleum minister Rilwanu Lukman defied the vice president’s order to forgo the Christmas holiday and stay behind in Abuja to find a solution to the fuel problem, which surfaced suddenly early last month.

Lukman’s defiance of the vice president is a clear cut indication that the country is on auto pilot, with no one monitoring the actions of ministers, and the machinery of government has indeed grounded to a halt. The only reason the petroleum minister could have told off the vice president is because he knows the Vice President lacks the constitutional power to issue any directive to him, since he is not recognised as the acting president.
Conclusion:

The President’s negligent refusal to properly hand over power to his deputy thereby plunging the country into chaos and anarchy and generally grounding the governance of the country to a halt, with due respect, is a grave violation of the Constitution which tantamount gross misconduct and by the provisions of section 143 of the constitution, is an impeachable offence. Gross misconduct according to section 143(11) means:
"A grave violation or breach of the provisions of this Constitution or a misconduct of such nature as amounts in the opinion of the National Assembly to gross misconduct”.

The omission by the President in concert with the Federal Executive Council, is also an abdication of their constitutional responsibilities which should necessitate the invocation of section 146(1). The National Assembly members that have sworn to protect the Constitution must act decisively and without sentiments in order to resolve the constitutional crisis occasioned by this flagrant disregard of the constitution by the President and his aides.

The way forward clearly are; since the Federal Executive Council have decided not to carry out their constitutional function of passing a resolution on the state of health of the President and allowing the National Assembly to verify the state of health of the President pursuant to section 144(1)(b) of the Constitution. Therefore the National Assembly should either treat this infraction of the Constitution as gross misconduct and impeach the President for abandoning the ship of state rudderless; or, invoke the provisions of section 146(1) and treat the President’s prolonged absence from his constitutional responsibilities due to ill-health as amounting to permanent disability within the context of section 146 of the 1999 Constitution.