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.