Says Constitution review can stop anomaly
JUSTICE SUNDAY A. AKINTAN, a retired Justice of the Supreme Court, is a former member of the Police Service Commission and one-time Legal Adviser in the Federal Ministry of Justice. Akintan, in this piece, offers his perspectives on the ongoing efforts to review the Constitution.
The debate as to what form the Constitution review should take has been very intensive. Some believe that it should be sovereign while some say it should not. Some even believe that such exercise was not necessary or that the matter should be left with the National Assembly as provided for in the present Constitution. While the position of those calling for a sovereign conference is not yet clearly defined, they probably envisage that the outcome of such conference should not be subjected to interference by anybody as was the position in the past.
One thing is however clear.
What is in issue in the present situation goes to the very root or complete existence of the present Constitution. This is because the envisaged review may result in changing the entire system or make a complete deviation from the present way we are governed. It will therefore be unreasonable to expect that the result of the exercise should be submitted to the present National Assembly for approval.
It is thought that that idea should be totally ruled out. It is therefore suggested that the correct position should be to submit the outcome of the deliberation to the entire nation for approval in a referendum since the decision of the entire nation overrides that of any legislative body.
It is however gratifying to note that the proposition of submitting the outcome to a referendum was not ruled out in the guidelines published by the Secretary to the Government of the Federation (SGF). The SGF was reported as saying that” the National Conference shall advise the Government on the legal framework, legal procedures and options for integrating the decisions and outcomes of the National Conference into the
Constitution and laws of the country.”
The statement of the SGF is an improvement on the President’s earlier stand where he was reported as saying that the outcome of the deliberations would be sent to the National Assembly for adoption. The adoption of the President’s stand would either lead to undue delay or eventually kill the entire efforts. It is therefore suggested that the option of recommending the adoption through a referendum should be made at the conference.
The point must however be made clear that the new Constitution should come into force before the national elections in 2015. This is because extending the life span of the present Constitution beyond 2015 could lead to an unhealthy situation. Efforts should therefore be made to ensure that the reviews envisaged are concluded and made into a new Constitution which will be effective before the 2015 elections.
The present Constitution provides for two legislative chambers: the Senate and the House of Representatives.
There is need to consider (i) if we can make do with one house, (ii) whether the members should be full time or part time; and (iii) whether the President should appoint his ministers from among the members of the National Assembly as opposed to the present practice of looking out entirely when making his appointments.
One point we have to consider is that under the present system, our legislators sit, during sessions, for only three days in a week, i e: Tuesdays, Wednesdays and Thursdays. Legislative activities are duplicated in both chambres. There is the need to consider what dangers would arise if the considerations are done in one chambre and the members are made to be on part time as was the practice in the 1963 Constitution.
While the election of the members of the National Assembly could be retained as presently based on each constituency, that of the President should be made nationwide as in the present Constitution. To do otherwise, as was in the 1963 Constitution where the political party with majority of members in the National Assembly picked the Prime Minister, will pose great danger in that a situation could arise whereby a person so imposed by such means would not necessarily need to be known by or care to know anywhere outside the constituency that elected him into the National Assembly.
There is, however, the need to consider the enormous cost of the presidential election and the need to find a way of reducing or pegging it and also fix the number of ministers, advisers, etc the President could appoint with a view to reducing the cost of governance. This idea should also be extended to legislators, Permanent Secretaries and heads of parastatals.
Finally there is need to consider what dangers would arise if the ministers are appointed from among the members of the National assembly whereby such appointees would only be entitled to only additional fixed allowances for the additional duties placed on them as ministers, etc.
The present state and local government structures should be retained but subject to modifications aimed at cutting down costs. It is suggested that the legislators in the state Houses of Assembly and councilors in the local government areas should be on part time and the Governors are made to appoint their Commissioners from among elected members of the State House of Assembly.
The number of advisers the Governor could appoint should also be pegged in the Constitution. At the local government level, only the Chairman could be on full time basis while the councilors should be on part-time basis.
The greatest threat to the nation today is insecurity. There is now almost total breakdown of law and order. Armed robbery, kidnapping and other heinous crimes occur daily in every part of the country. The new additions introduced by religious fanatics – otherwise known as “Boko Haram”- has added a new dimension to insecurity. The question in everyone’s mind is, how did we degenerate to this horrible level and what is the way out?
The main duty of ensuring internal security in the country, as in all other countries of the world, is given exclusively to the Nigeria Police by Sect. 214 of the 1999 Constitution as amended.
The Force is put “under the command of the Inspector General of Police and any contingent of the Nigeria Police Force stationed in a state shall, subject to the authority of the Inspector General of police, be under the command of the Commissioner of Police of that State“ (Sect. 215(2). The direction which the President may give to the Inspector General is specified in Sect. 215 (3) of the Constitution.
It is restricted to “such lawful directions with respect to the maintenance and security of public safety and public order as he may consider necessary…..” The Governor of a State is also empowered to give similar “lawful directions with respect to the maintenance and securing of public safety and public order within the State” to the Commissioner of Police in his State.
The 1999 Constitution created two executive bodies to deal with police matters. They are (i) the Nigeria Police Council, and (ii) the Police Service Commission (3rd Schedule Sections 27 and 29 respectively). During the military administrations prior to the coming into force of the 1999 Constitution, appointments, promotions, etc. into the Nigeria Police were made without any laid down principles.
The Force was by that means heavily distorted in that merit and competence were not strictly followed. The effects of such deficiencies include indiscipline and low morale in the Force.
But only the Police Service Commission was constituted and made functional since the coming into force of the 1999 Constitution.
The Police Council created by the 1999 Constitution was not constituted as envisaged in the Constitution and as such the opportunity opened to the State Governors for inputs is not available to them. All efforts made by the Police Service Commission to fully correct the rots and defects in the Force while there was no Commission met a brick wall; a large number of incompetent officers who had been promoted to very senior positions could not be removed by the Commission without running into serious political implications that would be read it.
Many Governors, particularly from the South, were also dissatisfied with the fact that Commissioners of Police posted to their states were mainly from the North. The Police Service Commission could not do much to correct the glaring anomaly in that promotions had to be mainly on seniority which had been distorted in favour of some zones in the country.
However, a situation where the Commissioner of Police of a State is in open disagreement with the State Governor cannot be blamed on the President since he is not constitutionally responsible for appointing him for the State but the Police Service Commission who could re-deploy him if necessary.
Way Out of Insecurity
State Police should be ruled out as a possible solution to the problem of insecurity in the country. This is because doing that could lead to the breakup of the country. Although the Constitution is clear that only the Nigeria Police should be the sole police organization permitted in the country, the provision of the Constitution has been breached by the Federal Government and some state governments under different guises.
On the federal side, the setting up of the Civil Defence Corps who are now armed and without any defined roles given to them in the Constitution is not only illegal but also constitutes unnecessary proliferation of fire-arms. Some states have also set up illegal bodies and give them different names but made to perform some of the duties of the police. In some states, they are even made to enforce arbitrary religious laws.
There is need to examine whatever defects that are in the operations of the Nigeria Police that led to the calls for state police. The most glaring defect is in the over centralization of the command structure of the Force.
The present system of posting Commissioners of Police, other officers and ranks to the States from the centre makes the Governors uncomfortable and feel insecure.
In many cases, policemen posted to a state do not speak the local languages in the area where they are to operate. Their ability to fully interact with the people therefore becomes an uphill task and that massively affects their effectiveness. Although they are not being given the opportunity of playing their constitutional roles as members of the Police Council, the Governors are now major contributors to the needs of the police units within their states while the votes of the police provided for by the National Assembly are wrongly passed on to dissipate exclusively by ‘Ministry of Police Affairs’ (instead of the Police Council) – a body not known or provided for in the Constitution, and without any input by the Governors.
The idea of state police should never be pursued as doing so will be very detrimental to the corporate existence of the country. An example of the arbitrary roles now being played on some of our highways by some state or local government revenue taskforce officials despite directives barring them from carrying out such roles can be imagined if state police are constitutionally constituted.
Again the point must be clearly made that it is doubtful if any of the states as presently constituted is financially strong enough to set up and maintain an efficient police organization. The solution therefore is to decentralize the present Nigeria Police. The Civil Defence Corps should also be merged with the police. The most appropriate way of carrying out the decentralization is by recognizing the present six zones in the new Constitution.
The police should then be deployed on zonal basis in such a way that the officers and rank and file in each zone should come from each zone. Each Zonal Command should be under the command of a DIG who should also come from the zone.
The present constitutional roles of the Police Service Commission should be retained but with modification whereby that body should also be decentralized in such a way that each zone should have a sub-unit of the Commission which should be responsible for the recruitment, promotion, discipline, etc of the police in its zone.
The Police Council should be made to play its constitutional roles while the Governors in each zone should be constituted into a Zonal Body of the Council whereby they could meet to discuss matters relating to the police units in their zone and chairmanship of such zonal council rotated among the Governors.
The appointment of zonal DIGs should be made by the Central Police Service Commission but must be in consultation/recommendation with each zonal body while the promotions/appointments and postings of Commissioners of Police to each state should be made by the Zonal Police Service Commission in consultation with the Central Body.
Apart from the roles which zones are to play in police matters, it is also necessary to transfer some of the powers now being exercised at the federal level to the zones so as to reduce the over concentration of powers at the federal level.