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Constitution review exercise : Cracking a very difficult nut

Renewed efforts at Constitution are dredging up unsavoury reactions from unlikely circles.

By Tordue Salem

Abuja – THE Constitution is not a love letter that you continue to change to suit your mood”, the governor of Edo State, Adams Oshiomhole, stated last Wednesday as he appeared at the venue of the ongoing Constitution Review exercise of the House of Representatives.

His missile was directed at the establishment, which he insisted must concentrate on altering long held values that have been the real obstacle to achieving electoral and political reforms in the country. Governor Oshiomhole advised the National Assembly to approach the Constitution in a more sober and visionary manner and avoid quick-fix and slipshod methods that would necessitate another review in the near future. Oshiomhole dedicated his governorship victory at the Appeal Court and to President Umar Yar’Adua’s “kind-hearted and statesmanly” qualities.

The former labour leader however, issued a warning to National Assembly to never again entrust a President nor the National Assembly with the powers to nominate or appoint the chairman of the Electoral Commission.

“For me the National Judicial Council should nominate and appoint the chairman of INEC, as recommended by the Uwais’ panel”. He asked the committee to make it a matter of constitution that until an electoral dispute is resolved by the courts, no party in a dispute should be returned by INEC, nor sworn into office. “Any man whose ‘mandate’ is being disputed, should not assume a position of authority, until the court has ruled on his elections. There are several people whose mandates are being disputed even in my state, but are still in the state House of Assembly and in the National Assembly.”


He recalled that “in the case of Shagari vs Awolowo, the court ruled that until electoral disputes were dispensed with, Shagari could not be sworn in. He insisted that “The Uwais’ report with its recommendations should be accepted. He, however, faulted a clause recommending independent candidature in the political arena. On the surface, the issue of independent candidacy is very attractive, but it is very dangerous to allow for independent candidates, because if you allow for that in the next elections you may have two to 300 candidates running for one position. We may say it is happening in America, but America is not Nigeria.

We have a different political culture. If you allow for individualism in our politics, people will start putting members of their families on the ballot paper to run for elections and the whole process will be a mess.” He also recommended that the tenure of INEC Chairman should be restricted to “four years and not five years, because”, according to him, “if you give INEC five years and the people are not satisfied with the performance of the INEC, they cannot call for his immediate change”.

But in his presentation, the chairman of INEC, Prof. Maurice Iwu, blamed all electoral vices on politicians who he said employed every trick in the bag to win elections. In what could be described as a show of courage, he went ahead to launch a searing attack on the ruling Peoples Democratic Party, PDP, and the 53 opposition parties, blaming the rot in the electoral system on their lack of “internal democracy.”

He blamed the continuing electoral malpractices in the system on lack of stringent laws to punish offenders. He said, though INEC is the electoral umpire, it was not equipped by law to contain violence perpetrated by shameless politicians at the polls. “I am at a loss on how the composition of the Commission can contain this monster (of electoral violence) which has been a major threat to the smooth conduct of every election. The absence of stringent penalty for those convicted of electoral offences remains a major source of difficulty for the conduct of elections in our environment”, he said.

Iwu acknowledged “the challenge really, which is also a test of our seriousness as a people, is to ensure that we reform what truly needs to be reformed and not allow much of the sponsored noise in the spectrum to distract attention from the critical sources of the problems of our aching electoral system.”

He was also quick to re-direct the attention of the panel to the error which seeks to amend the Electoral Act, 2004, an Act which has already ceased to exist. According to him: “I am conscious of the fact that the focus of this public hearing is specific. The attention for this forum as your invitation outlined is the bill for an Act to amend the Independent Electoral Act 2009. I seek your indulgence to make comments and recommendations beyond the specific area of the bill in reference, considering the comprehensive nature of the reform needed in the electoral process.

Bill to amend the INEC Act, CAP 15 LFN 2004, etc: “This Bill seeks not only to amend an Act that has already been repealed but also to alter some provisions of the 1999 Constitution without expressly stating so. Section 165 of the Electoral Act, 2006 repealed amongst others, the INEC Establishment Act No 17 of 1998 (Cap 15 LFN 2004). That Act no longer exists, so cannot be amended.

“Furthermore, several of the provisions of the said Act, including all the provisions which this Bill seeks to amend were in 1999 incorporated and form an integral part of the Constitution. “In as much as the Bill deals with the composition appointment qualification for membership and tenure of the Commission, it runs foul of the Constitution and is therefore null and void, the provision of the Constitution being supreme. (Section 1, 1999 Constitution) its provisions can only be altered or amended in accordance with Section 9 (of the Constitution).”

Professor Iwu, who had so much time, then went ahead to list the problems in the electoral process: “It is our informed view that the fundamental difficulties of the electoral process can be located in the attitude of individuals and groups as well in certain unwholesome practices which have over time become almost a part of our political culture.
It is also instructive that in discussing electoral reforms today very little or nothing at all is said of these issues. In specifics, Honourable members, let it be pointed out that core problems of elections in our society are:

*Electoral violence; *Disqualification of electoral offenders. Indiscipline and crises in political parties; *Functional offices of the parties; *Retention of funds from abroad by parties. Excessive use of money in politics. He also went on to list the following as important:

Proportional representation
*Proportional Representation for legislative Houses election; *staggered elections; *Clear and unambiguous provisions relating to the registration and possible voting by Nigerians in the Diaspora; *Affirmative gender action reserving more position for women and other special interest groups; *Prompt resolution of electoral disputes preferably before swearing in and abolishment of court orders preventing elections; *Increased internal party democracy; *Abolishing all enactments which prohibit or restrict e-voting and the deployment of technological innovation in the electoral process.”

But a mild drama ensued: After Iwu’s submission to the Committee, Sen. Ben Obi, a former running mate to Atiku Abubakar, the Presidential Candidate of Action Congress, AC, in the 2007 elections, demanded for the immediate resignation of the INEC bosss.  But the INEC chairman shot back, describing Obi’s outburst as “shameful.” His words: “This is why in Nigeria, people will look at you in the face and tell you blatant lies. That is how you people market Nigeria cheaply abroad. I am ashamed of you as a Senator. People like you are calling for my resignation so that you will appoint somebody that you can manipulate”. He, however, recommended some clauses to be amended in the electoral law so as to address some of the problems bedevilling democracy in Nigeria.

“Clauses 3, 7, 11 and 16 of the 2nd Amendment are appropriate in the circumstances.) The National Assembly may however wish to limit the period for which such persons (electoral offenders) may be disqualified to a period of 10 years, similar to the disqualification of those found guilty of offences involving dishonesty or fraud and contravention of the code of conduct”, he stated.

The Inspector General of Police, Ogbonna Onovo in his submission at the National Assembly on Wednesday, August 12, 2009 requested for more powers for the police to handle election violence at polling booths in the Court. The IGP spoke at public hearing on “A Bill for an Act to Further Amend the Police Act 1967”.The police  chief stated that if empowered by the Act the police can shoot at any citizen who is engaged in violence and electoral subversion by the use of the gun at polling stations.

The subcommittee on the Police Act is headed by the Chief Whip, Emeka Ihedioha:

Mr Onovo also asked for the amendment of the Section 4 (a) of the Police Act by inserting the word “lawfully” in it. The section states that “Police shall while on duty safeguard the security of the lives and property of citizens during the campaign and voting so that citizens will not feel unsafe on account of holding, associating with or expressing a political opinion.”

Onovo also demanded that the police should be empowered to arrest, search and detain any person upon reasonable suspicion of concealment of offensive weapons or electoral materials at the venue of any election or any other place, whatsoever. The police should be empowered to use reasonable force to carry out such duties under the Act; the Police should be empowered to arrest and prosecute any offender before, during and after elections; a reasonable time limit should be spelt.

The Constitution review exercise in the National Assembly had taken off on a tempestuous note. The attorney general of the federation, Michael Kaase Aondoakaa(SAN) had earlier disagreed on the method to overhaul the provisions of the 1999 Constitution. The attorney general’s advice was that “A Bill for An Act to Alter the Provisions of 1999 Constitution” should be considered first, before other Bills, so as not to offend the 1999 Constitution. But the House on the other hand thought otherwise.

Whereas the House insisted on considering five executive bills brought to it, before taking the Bill to Alter the Constitution, the chief law officer of the country, took a different line, insisting that it will be unconstitutional to start “from the tail. “First let me recognise the zeal with which the House is considering the need to amend the 1999 Constitution, but with due respect honourable members, the proposed starting point should be to alter the 1999 Constitution first, before taking the Bills, because if the 1999 Constitution is not amended before the other Bills, it will amount to an illegality”, Aondoakaa said.

States creation:

On this, the House sharply differs with the Senate. Whereas the House through Ubani’s briefing said “There would not be a no-go area, including state creation”, the Chairman of the Constitution review committee in the Senate at an earlier press briefing said the Constitution review will not be part of the agenda of his Committee.

LCDAs: Lagos State vs FG:

Another issue that both Chambers of the National Assembly are likely not going to consider, despite its importance to building Nigeria as true federal state and giving freedom to the people, is to list the newly created 37 Local Governments in the Constitution.

The Chairman House of Representatives Committee on Governmental Affairs, Rep. Leo Ogor (PDP/Isoko-Delta State), in an exclusive interview with Sunday Vanguard urged the Lagos State Government to revert to its 20 local councils recognised by Constitution or risk being left in the cold by the National Assembly. The administration of former governor of Lagos State, Bola Tinubu, had created additional 37 Local Council Development Areas (LCDAs), which though constitutional, is “inchoate” or an incomplete process as ruled by Supreme Court.

“We are not going to list the Local Council Development Areas created by Lagos State in the Constitution. It’s not even the issue of Lagos State having the powers under the constitution to create the LCDAs, it’s about the Rule of Law. The creation of those LCDAs breaches section 162 subsections 7 and 8. What the Lagos State Government is doing at the moment is taking law into its hands.

For example the Government of Lagos is taking the funds meant for 20 local Councils and dividing it between 57 local government councils. That is wrong. The Constitution recognises only 20 local governments in Lagos. The Supreme Court Ruling on this matter, though ordered the Federal Government to release funds meant for Local Government in President Obasanjo’s time, it restricted the ruling to only 20 local governments, not 57”, he argued.  The Lawmaker stressed that “what the Lagos State Government is doing at the moment, is a total breach of the 1999 Constitution.


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