Constitution Review: Matters arising

on   /   in Law & Human Rights 12:00 am   /   Comments

By UGONNIA PAT ANYADUBALU

Introduction

Recently, the National Assembly embarked on further amendment of the  Constitution of the Federal Republic of Nigeria 1999.

We indeed need to further amend our constitution. It is a notorious fact that no constitution is perfect but the present constitution ab initio is flawed. It started on a faulty note, with a lie if  you like by saying that “ we the people of the Federal Republic of Nigeria..” Ironically, the same constitution that claimed that “ we the people of Federal Republic” was decreed into existence through Decree No. 24 of 1999 promulgated by the military administration of General Abdulsalam Abubakar.

Again, even though the constitution has been hurriedly amended, there are still some areas that require amendment which was dropped because of the obnoxious quest for third term. The following areas need to be commented upon.

Immunity Clause Section 308:

Section 308 of 1999 constitution as Amended exempts the President, Vice President, Governor and Deputy Governor from civil and criminal proceedings while in Office. Many political pundits have called for deletion of this section so that the office holders mentioned thereon will no longer be immuned from civil and criminal proceedings.

I personally do not subscribe to the removal of immunity clause from the constitution. The office holders mentioned therein need all the concentration to enable them discharge their functions without hindrance or harassment.

It is also dangerous for our fledgling democracy to subject such office holders especially to criminal proceedings as that will create an avenue for intimidation and removal of such office holders from office by the Federal Government or presidency. We all witnessed the illegal impeachment of some Governors during President Obasanjo’s administration with fingers being pointed at the presidency as the mastermind of such actions.

Will it not amount to trivialization of the hallowed office of the Governor that a commissioner of police who is an appointee of the federal government has power to arrest a Governor, charge him with commission of a heinous crime and clamp him into jail pending probably for advise from the Attorney – General.

Let us take a cue from what happened to former senate President, Adolphus Wabara. He was accused of corruption, removed from office and was discharged and acquitted by the court but he lost his exalted position and humiliated out of office. Similar treatment will be meted out to such office holders if immunity is removed.

I do not agree with those who argue that corruption will be checked if immunity clause is abolished because it is extremely difficult to successfully prosecute a sitting Governor. I ask the question, who will have the audacity to testify against a sitting Governor?

Let us not forget that the Attorney- General who is an appointee of the Governor has power to enter a nolle prosequi thereby stopping any prosecution against the Governor. I believe that it is easier to prosecute a Governor when he had left office than when he is still in office.

We need to strengthen the House of Assembly so that the members can perform their   assigned legislative and oversight functions effectively. Today, most member Houses of Assembly are merely Governors stooges that lack the will power to question the governor.

Proclamation of state of emergency: Section 305

Section 305 of the 1999 Constitution as amended provides for proclamation of state of emergency and further provides that the president has power to issue a proclamation of a state of emergency only when the Federation is at war, Federation is in imminent danger of invasion or involvement in a state of war, breakdown of public order and public safety in the federation or any part therefore requiring extraordinary measures to avert such danger etc.

There is no place in the entire section 305 that allows the president to decapitate the elected office holders yet we witnessed during president Obasanjo’s administration the removal from office of some Governors like Governor Joshua Dariye of Plateau State, Ayo Fayose of Ekiti because of proclamation  of state of emergency.

The basic principle of interpretation is that you do not read into a document what is not in the document. Today, the bad precedence has been laid and it is regrettable that attempt to correct this bad precedence through judicial pronouncement was frustrated as in the case of Plateau. State v. A.G. Federation (2006)25 WRN 1.

We now need an amendment to expressly add that the proclamation of a State of emergency does not empower the president to remove the Governor or any of elected office holder unless as provided by the constitution.

If this is not done, I bet you that tomorrow, a president may rise, declare a state of emergency in a State and remove the elected office holders in that State citing what President Obasanjo did as precedence.

State Police Part 1, item 45 of exclusive legislative list

Part 1, item 45 of the Exclusive legislative list makes the police exclusively under the control of the Federal Government. Recently, there is a renewed agitation that states should be empowered to establish their own police.

I do not support creation of State Police, the situation is not yet ripe for establishment of State of Police. It is also interesting that most states that survive on monthly handout from the Federal Government, are calling for increased expenditure through establishment of State Police.

The country is still polarized based on ethnic sentiments. It is in this country that a State sacked all the civil servants who have been working in the State because they are not from the state. It is in this country that a judge was initially denied elevation to higher bench just because she is not from the State. We are all guilty of ethnic jingoism therefore a State Police will no doubt operate in that line of ethnic sentimentalism and emotionalism with it attendant hostilities to the non indigenes .

As an Igbo, I will not support a State Police because we are the most peripathetic and gregarious ethnic group in Nigeria therefore a State Police will be akin to release of Alsatian dog to your us. We shall be at receiving end of the excesses of state police.

Our politicians will also use State Police against their perceived political opponents even intimidate the electorate during voting.

Another reason, I am against the State Police is because it will engender disintegration of the country since States will now have their Police and equip them with arms. The Federal Government cannot regulate the amount and nature of arms that will be among the people.

This will also lead to proliferation of arms and increase in violent crimes rather than check crime. Today, arms are easily smuggled into the country; you can then imagine when more arms are in the hands of more people through State Police. The existing para-military bodies is pointer to what the State Police will look like.

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