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Senate Review of 1999 constitution: An appraisal

By Udo Jude Ilo

In what will go down in history as unprecedented, the Senate of the Federal Republic of Nigeria
passed about 38 amendments to the 1999 constitution. Whether these amendments will pass the necessary constitutional review requirements to make them law is yet to be seen but the reality remains that this Senate has done what had seemed impossible since 1999.

The rationale behind this move is to strengthen the electoral process, open up democratic space and ensure a credible election process. To what extent, if at all these objectives are achievable within the framework of these amendments affected by the Senate is the focus of this write-up.

Nigeria has had a declining fortune in the conduct of elections. Increasingly the accountability nexus between the people and their elected official which the electoral system represents has been destroyed. The votes do not count and what happens in the polling booths seems not to have any appreciable reflection with the results announced by the election gatekeepers.

This state of affairs has imposed bad and unaccountable leadership class on the country without any political or legal obligation to the electorate. In effect, Nigerians do not in reality have a say in who represents or governs them. This state of affairs as undemocratic as it is has gradually mutated into a norm in the country.

Myriads of reasons have been proffered for this abysmal state of our electoral system. In reality these reasons are germane but a few of them stand out. They include the legal incentive for fraud provided by the electoral framework, the independence and institutional capacity of INEC and the prevailing political culture in the country which views government position as a means for personal enrichment without any obligation to national growth.

This rentier mindset and the insane pecks that are attached to elected offices sustain the desperate attitude in acquiring political positions. The law as it is on electoral matters creates a legal incentive for fraud. In its memorandum to the Electoral Reform Committee, the NBA had argued that the evidentiary burden on petitioners and privileges enjoyed by persons in possession of certificate of Return provide a huge incentive to “win” elections with whatever means.

In effect the legal framework allows for presumption of substantial compliance as long as a candidate is declared a winner in an election. It does not matter whether on the face of it there is no link between the said candidate and the election.

With respect to INEC, the institution suffers a huge credibility deficit because of its apparent lack of independence and massive institutional inadequacies. Any reform of the electoral system especially the current constitutional reform must try to make provisions and provide a framework that will address these problems.

In prioritizing the items for constitutional reform, the National Assembly saw it fit to focus on electoral reform.

Given the nature of the 2007 election, it makes a whole lot of sense to focus on electoral reform and usher in a government that enjoys the mandate of the people and that possesses the necessary ‘legitimacy’ to embark in a massive scale the review of the 1999 constitution. Given the timeframe before the next election, it is most practicable to do a piecemeal review of the constitution and this strategy adopted by the National Assembly is commendable.

The amendments affected by the Senate focused on these key areas: Independent candidature, independence of INEC and qualification and term of office of elected official with respect to annulled elections. The amendment in section 65 allows for independent candidates to run for elections for Senate and House of Representative provided that such a person is nominated by a certain number of people in his or her constituency. Similar provisions were made for the office of the President, governors and State Houses of Assembly.

Acountry where political affiliations are devoid of any disenable political ideology, aspiring candidates may not for obvious reasons align their political belief with any political party and as such the provision for independent candidature affords them the political space to participate in elections. Furthermore, the absence of internal democracy in the political parties has stifled the opportunity of many qualified candidates to contest election. In effect these provisions would open the political space.

However there must be a complimentary sanctity of the ballot to enable a free and fair outcome of voting. More so, it is expected that the question of political finance and funding for candidates would be addressed in the Electoral Act to provide an even playing ground for candidates. Whilst not at this point prescribing any model, it is imperative to highlight the fact that political finance issues must be addressed and framework that protects the system from being corrupted by money and that makes it possible for independents to contest favourable must be evolved.

Interestingly, the practice of using Commissions of Inquiry to disqualify candidates from contesting elections without any reference to the judiciary is removed from the constitution. This ignoble ‘punishment’ was wielded under the Obasanjo regime with active connivance of INEC. It became an instrument of witch hunt targeted against perceived enemies of the government.

As undemocratic as that may sound, it took the intervention of the highest court in the land to rest the matter. It heated up the polity, stifled the political space and compromised the credibility of the election gatekeepers. It is indeed a welcome development to have it expunged from the constitution by the Senate going by the amendment to section 66 and other sister sections.

The issue of cross-carpeting by legislators was also addressed by the Senate in Section 68. In its amendment, they argued that on the grounds of freedom of association, Legislators can move from one party to the other without any qualifications. Curiously no similar amendment was made in section 109 relating to cross carpeting in the State Houses of Assembly. Going by the level of political maturity and obvious cases of cross carpeting on non-ideological grounds but rather on political survival premised on selfish ends, it is too early in the day to remove this provision.

Historically the restrictions on cross carpeting were included in our constitution to address the consequences of irresponsible use of that privilege during the first republic. Given the stature of our politicians, there is every tendency that we may unwittingly slip into a one party state if these restrictions are removed. In another interesting development, section 65 and other sister sections were amended to provide that the minimum educational qualification for legislators, governors and president including their deputies is tertiary education. Against the perennial slide of educational standard in Nigeria, the provision is welcomed.

However the reality of our educational system which the Senate recognized in raising the bar regarding qualification must be addressed. The quality of education in the country no doubt impacts directly and indirectly on our political culture which is identified as one of the banes of our electoral system. Section 69 retains the provision on recall with a slight amendment on verification of signatures. It is interesting to note that no recall process has ever been successfully completed since 1999.

That would not suggest that there have not been Legislators both in the State and Federal level who do not deserve to be recalled. The procedure for recall is herculean and almost unachievable. This is one of the provisions of the law that provide incentive for fraud. Returned candidates know that the law makes it difficult to remove them through the tribunal and through recall. In effect they can do anything to get in knowing that the system protects them as soon as they are declared elected.

There is need to review the recall provisions of the constitution to protect the spirit behind the concept whilst also ensuring that the procedures are not susceptible to abuse. Amendment to section 76 and other sister sections provide that elections shall be conducted not earlier than 150 days and not later than 90 days before inauguration or the dissolution of the House.  Similarly, section 285 provides that election petition process should be exhausted on the first instance within 180 days and on appeal within 60 days.

One would have expected that that the conduct of election should be pegged at 180 days before election to complement the 180 day window for election petitions and ensure that petition processes are concluded before inauguration. Conversely, restricting the court to 180 days to exhaust election petition process raises its own challenges regarding the question of fair hearing and the opportunity offered to candidates to make their cases before the tribunal.

However given the peculiar challenges of the petition process in the past especially with returned candidates keeping the case in court for unduly long time whilst they enjoy the ‘spoils’ of the office, the provision is justifiable. It is important therefore to reform the election petition rules to enhance the expeditious disposal of petitions before the court. The President of the Court of Appeal should be empowered to make such rules. This stance is further buttressed by the success of the Practice Direction issued in 2007 elections by the President of the Court of Appeal especially with respect to reducing instances of delay in the election petition process.

Section 81 was amended to ensure the financial autonomy of INEC by charging the funds accruable to the INEC to the Consolidated Revenue Fund (first line charge). This essentially guarantees that INEC get their funds timely without any interference from the Executive branch. Given the financial blackmail employed by Obasanjo to whip the agency in line during his tenure, this is a very positive development. However, the Senate retained the provision regarding the appointing power of the president of INEC chairman in section 154. One of the reasons adduced by the Senate for this is that in other climes like Ghana, it is the President who appoints the electoral body chairman.

Moreover other appointments made by the National Judicial Council did not necessarily translate in such candidates being above reproach. However I submit that the Senate missed the point in proffering this line of argument.  The Uwais report recommends that the position of INEC Chair and Commissioner are advertised, candidates apply and are shortlisted by the NJC and 3 shortlisted candidates for each position are sent to the National Council of State. The NSC then selects one candidate and sends the name to the Senate for confirmation. It is important to underscore the point that the President presides over the meeting of the NSC.


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