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.