March 9, 2014

Constitution Amendment: Why we are stripping president, govs of immunity—Dep Speaker Ihedioha

Ihedioha , Pressure

Imo governor-elect Emeka Ihedioha

State creation process altered
Independent candidacy, electoral offences commission/tribunal okayed
Constitutional role for royal fathers

Deputy Speaker, House of Representatives/Chairman, Ad-Hoc Committee on Constitution Review, Hon. Emeka Ihedioha, in this interview, says 71 Sections of the Constitution have been amended by the House.

Since the House voted on the amendments to the Constitution, expectation has been high that the result of the exercise will be formally released to the public. What is the official position of the House on the amendment?
Let me start with the process adopted by the House to alter the Constitution which has been very painstaking and methodical. It has been done in a most transparent and professional manner. It is perhaps the most inclusive and consultative process ever undertaken by the House of Representatives.

The highlight of the process was the highly acclaimed people’s public sessions held all over the country on November 10, 2012. This was a landmark achievement as Nigerians in their various constituencies had an opportunity to express their views on how they should be governed. The results of the sessions were openly collated with all the major stakeholders participating actively.

The results were published in the media and on the website of the Committee and, to-date, no person has disputed the authenticity of the will of the people expressed during those hearings. We therefore take them as the authentic view of the people on the subjects voted on. On July 24, 2013, the House kept faith with the decisions and wishes of the people as expressed during the public sessions in a historic voting on the various Sections proposed for amendments. On January 30, 2014, the House also voted to alter more Sections.

President Goodluck Jonathan

President Goodluck Jonathan

So what are the key amendments that have now been made to the Constitution by the   House?
The House has amended Section Four to insulate members of the legislature from civil or criminal proceedings in respect of words spoken or written before the House or a Committee.  This is aimed at ensuring that members of the legislature are not made liable for contributions made on the floor.  This will enhance robust legislative debates and is consistent with international best practices.

The House voted to amend Section 7 of the Constitution which states in part that the system of local government by democratically elected local government councils is guaranteed.  This is however observed more in breach as so many states at various times do not have democratically elected local government councils.  To guard against this abuse, the House voted overwhelmingly to grant full financial, administrative, executive and legislative autonomy to local government councils.

By this effort, councils would be made a tier of government having uniform four-year tenure.  Also, any council that does not have democratically elected officials would be denied allocation from the Federation Account and other benefits from the state government. The amendment articulates clearly the structure, organs, personnel, procedures for exercise of powers by the organs and functionaries of the councils.

It replicates to a large extent the presidential system of government at the local government level. It equally consequentially amended Section 285 of the Constitution to establish for each state a local government election tribunal to determine election petitions at the council level.

State creation was a big issue in the process of the amendment of the Constitution. What is the House position?
This has to do with Section 8 which was amended in order to remove ambiguities in the process of creation of new states and boundary adjustment.  The referendum required for a new state shall now be approved by at least two-thirds majority of the ‘registered voters’ of the local government areas where the demand originated from, instead of the current provision of approval by “two-third majority of the people of the area” which is ambiguous and subject to different interpretations.

The referendum will now also be approved by two-third of the states’ Houses of Assembly.
The current provision requires a simple majority of the entire Nigerian voters and a simple majority of the 36 states’ Houses of Assembly sitting together or separately to vote Section 9 was amended which met the 4/5 majority required to amend the Section. The amendment sought to replace an “Act” with a “Bill” thereby enabling the process to proceed without presidential assent.

Section 12(1) was amended to increase the role of the National Assembly in the ratification of treaties. Section 25 was amended to confer on married women the opportunity to elect to acquire indigeneship rights either of their husband’s community or to retain that of their paternal community.  It also confers indigeneship rights of a state to a Nigerian citizen who has resided in a particular community of a state for a continuous period of not less than 10 years.

However, no person shall claim indigeneship of more than one state at a time. The amendment is aimed at accommodating the reality of movement of persons, change of domicile, intermarriages and national integration in modern Nigeria.

Restrained Method of Policing
The House voted to amend Section 33 to redefine the use of reasonable force by law enforcement agents.  It now means that only a commensurate, proportionate or equal force can be used in self-defense by law enforcement officials thus providing for a more restrained method of policing the nation in order to protect the fundamental rights of Nigerians.

Free Basic Education
Perhaps one of the most revolutionary amendments is the introduction of new section 45A – 45D.  By this, four items currently under Chapter 2 of the Constitution on the fundamental objectives and Directive Principles of State policy were moved to Chapter 4 on the Fundamental Human Rights in order to make them justiciable.  The House voted to provide for a new Section 45A which grants every citizen of Nigeria a right to free basic education to provide for a new Section 45B which grants a right to a favourable environment; and for a new Section 45C which grants a right to free primary and maternal Health Care Services; while it voted to provide for a new section 45D which grants a right to basic housing.

The House voted to amend Sections 50 and 92 to introduce new Sections 50A and 92A to incorporate the National Assembly Service Commission and the State Houses of Assembly Service Commissions in the Constitution. This is a deliberate effort to strengthen the capacity of the legislative institutions and bring them at par with their counterparts like the Federal Judicial Service Commission and the Federal Civil Service Commission which are already constitutional bodies.

Amendment of Section 58 replaces an “Act” of the National Assembly with its legal connotation of a presidential assent, with a “Bill”.  It also specifically dispenses with the requirement of the assent of the President, as it was felt that 2/3 majority votes of the National Assembly and 2/3 of the entire Houses of Assembly were sufficient for the purpose of determining the will of the Nigerian people.

Money Bill
The House voted to amend Section 59 to introduce a new Sub-section 4 to require the President of the Senate to convene a joint session of the National Assembly within seven days to reconsider any money Bill vetoed by the President, thereby removing the lacuna in the current provision.

Independent Candidacy
The House voted overwhelmingly to endorse independent candidacy in elections in order to further open up the political space.  To ensure that the provision is not abused, Section 228 was amended to introduce a new Section 228(e) which states, “The National Assembly may by law provide for procedures, guidelines and qualifications for access to the ballot by political parties and independent candidates”.

The House voted on Section 67 to make it mandatory for the President to attend a joint meeting of the National Assembly once every year to deliver an address on any issue(s) in respect of the State of the Nation in a manner prescribed by the National Assembly. This is aimed at achieving more transparency and accountability in government.

The House voted to amend the Sections 68 and 109 to ensure that a member of a legislature who becomes a member of a parliamentary body or similar bodies by virtue of his office in the legislature does not have to vacate his seat.

Public Funds
The House voted to replace Sections 80(4) and 120(4) with new ones that completely captures appropriation of any form of revenue accruing to or derived by any Fund, Agency, Entity or Department of Government of the Federation or of a State by the National Assembly or a State House of Assembly. This is aimed at bringing some order to the budgetary process and plugging leakages from the Consolidated Revenue Fund and Public Funds of Nigeria by ensuring that no expenditure is made by any organ of government without appropriation.

The House voted to amend Section 81(1) that allows the President to lay a budget before the National Assembly at “anytime” in each financial year to now read “not later than 90 days before the end of each financial year”.
Section 81(2) was amended to introduce “Other Public Funds of the Federation set up for specific purposes” as part of the estimates which the President must lay before the National Assembly for Appropriation.

In order words, the amendment will ensure that the budgeting of such entities as NNPC, NIMASA, Customs and Excise, CBN, et cetera must now belaid before the National Assembly.
The new Section 81(3A) defines the estimate of revenue and expenditure to be introduced by the President to include any form of revenue received or a return on government investment by any Agency of Government.

The House also amended sections 82 and 122 to limit the period during which the Federation or a State may operate without an Appropriation Act in any new financial year to three months rather than six months as is currently the case.

Financial Autonomy for Security Agencies
The House voted to amend Sections 81 and 121 in order to include the National Security Agencies; and the Nigerian Police, alongside the states Houses of Assembly, Attorneys- General, the Auditors-General as bodies to be included in the first line charge of the Consolidated Revenue Fund of the Federation and states.  This shall grant them financial autonomy to enable them carry out their assignments without the hindrance of non-release of their allocations.

The House voted to amend S. 84(5) and S. 124(5) to include the presiding officers of the National Assembly and the states Houses of Assembly to join the President, Vice President, Governors, Deputy Governors and Leadership of the Judicial Arm as persons entitled to pension after leaving office, provided they were not impeached or removed.

Accountant General
The House voted on Sections 84A-84F to split the Office of the Accountant-General of the Federation and introduce a new Office of the Accountant-General of the Federal Government.  Under the proposed new structure, the Accountant-General of the Federation shall have five- year tenure and be charged with handling the disbursement of allocations from the Federation Account to the three tiers of government while the Accountant-General of the Federal Government shall have four-year tenure and charged with administering the accounts of the Federal Government.

The House voted to amend S. 89 to amend S.129 to prescribe civil and/or criminal sanctions for any failure, refusal or neglect to obey the summons issued by a legislative House or any of its Committees.This is aimed at strengthening the oversight functions of the legislature and ensuring that any person summoned to provide any information attends at the pain of a criminal or civil penalty.

Conviction of Sitting President
The House voted to amend S.135 and S.180 which decided that conviction of a sitting President, Vice President, Governor or Deputy Governor is a ground for the person to leave office.

Separating AG from Justice Minister
The House voted to amend S.150, S. 174, S.195 and S. 211 which separate the Offices of the Attorney-General of the Federation and Attorney-General of a State from the Minister of Justice and Commissioner for Justice of a state.  They introduce a new Section 174A – 174L and equivalent Sections for the states.  The proposal is that the Attorney-General shall be a distinguished legal practitioner who has knowledge of the workings of the criminal justice system and shall be independent of any authority or person.

He shall not belong to any political party and will have complete control and authority over public prosecutions.  He shall have five- year fixed term which may be renewed for another five years and no more.  His appointment shall be on the recommendation of the National Judicial Council at the federal level and the state Judicial Service Commission at the state level.  He can only be removed by a 2/3 vote of the Senate or the House of Assembly. The office as already stated shall be on first line charge in order to further guarantee financial and operational independence.

Electoral Offences Commission/Tribunal
The House voted via Section 153 to establish an Electoral Offences Commission as one of the federal bodies in the Constitution.  This is a bold attempt by the House to tackle the hydra-headed problem of electoral integrity and ensure effective sanctions for electoral malpractices. Furthermore, the word “Executive”, in the Section was expunged as it was felt that some of the bodies listed therein, like the National Judicial Council cannot really be called “an executive body”. The House also voted to establish an Electoral Offences Tribunal.

The House voted to amend Section 162 so that the Office of the Accountant-General of the Federation shall be funded from the Federation Account pursuant to an Act of the National Assembly.  The Section was also amended to empower the Revenue Mobilization Allocation and Fiscal Commission (RMAFC) to table proposals for revenue allocation from the Federation Account directly to the National Assembly and not for the President to do so upon receipt of an advice from RMAFC.  This is to avoid the delay and possible interference in the work of the RMAFC so that it could serve the entire nation in a neutral capacity.

State/LG Joint Account
It was further amended to abolish the “State, Joint Local Government Account” and establish instead a “Local Government Council Allocation Account” into which shall be paid directly allocation to each local government council from the Federation Account and from the states governments.  This is to ensure financial autonomy for the local government councils.

SIECs to Go
The House voted on Sections 201 and 202 to abolish the State Independent Electoral Commissions in order that all elections shall be conducted by the Independent National Electoral Commission (INEC). This is to cure the current scandalous situation where the credibility of elections conducted by SIECs has left much to be desired. In any case, and in spite of concerns on issues of federalism, Nigerians voted overwhelmingly during the people’s public sessions in support of this measure.

inec-cartoon2This proposed alteration in Section 228 is to reflect a paradigm shift through the constitutional adoption of independent candidacy in our politics thereby providing for access to ballot by independent candidates and political parties in order to engender efficiency in electoral management and healthy competition for political offices.

The House, relying on the returns of the people’s public sessions which endorsed measures to undertake judicial reforms to ensure quicker dispensation of justice, voted overwhelmingly to amend Section 241 for the reforms.  In one of the most significant amendments of the current process, the House voted for a new Sub-section (3), to wit, “ a court or tribunal shall not stay any proceeding on account of an interlocutory appeal”.  This amendment could impact in a very effective and positive manner on the time spent in court by litigants.

Election Petitions
The House voted on Section 285 to cure any injustice that may be occasioned by the requirement on the tribunal or Court of Appeal to deliver judgment within 180 days and 60 days respectively of the filing of election petitions and delivery of judgment by the tribunal.It voted to allow that where a force majeure occurs that makes it impracticable for the court or tribunal to sit, the period of the said force majeure shall not be counted in the computation of the 180 days and 60 days respectively.

Judges Benefits/Discipline
The House voted to amend Section 291 in furtherance of judicial reform and welfare of retired judicial officers by reducing the age of entitlement to retirement benefit from 15 years’ service to 10 years.  This would enable a judge who was appointed before age 55 to enjoy pension benefit before retirement at age 65. The House also voted to enhance the pension entitlements of retired judges by providing for a rate equivalent to the annual salary of the incumbent holder of the office as opposed to the current provision of pension entitlement of his last annual salary.

This will take care of inflation and other cost of living adjustments. The House voted on Section 292 to introduce a provision that before the President or a Governor can act on an address supported by the 2/3 of the Senate or a House of Assembly to remove a judicial officer, the National Judicial Council must have certified that a prima facie case had been made against the judicial officer.

The House voted to vest sole responsibility on the National Judicial Council to suspend, reinstate or exercise any form of disciplinary power over judicial officers.  However, in cases of suspension or disciplinary control, the suspension shall be once and not exceed a cumulative period of more than 90 days.  This is aimed at removing interference from any person or authority on issues of disciplinary actions of judicial officers and vesting it exclusively on the Council.

Section 308
Perhaps one of the most courageous decisions of the House in this exercise is the removal of criminal immunity from the President, Vice President, Governors and Deputy Governors, leaving only immunity against civil proceedings.  This was effected by a vote on Section 308.  Members simply opted to keep faith with the decisions of their constituents at the peoples public sessions.

Section 315
The House voted to delete Section 315(2), 315(4)(a)(i) and (ii), and 315(4)(c) in order to bring to an end the anachronistic position that allows the President or a Governor to function, both in an executive and legislative capacity by way of having the power to repeal or alter, by modifications of any existing law.  The provision was meant to be transitional but there was no time limit placed on its use, unlike in the 1963 Constitution where a similar provision was stipulated to last for only six (6) months before it lapsed.

National Youth Service Corps Act
The House voted to mandate the National Youth Service Corps to insure every corps member against loss of life or serious injury incurred or occasioned while performing official duty or while traveling, seven days preceding the date of commencement of the service period or seven days after the end of the service period, from the place of residence or mobilization to the place of deployment and vice versa.

It also extended the coverage of the Public Officers Protection Act to every corps member and any other person employed under any undertaking or project for the duration of this service.
This provision is aimed at strengthening the Service and ensuring that compensation is paid to the family of any corps member who suffers loss of life in the course of the service.

Role for Traditional Rulers
The House voted to provide for a role for traditional rulers in the Constitution at the national, state and local government levels. At the national level, six traditional rulers reflecting the federal character of Nigeria are to be members of the National Council of State for four-year duration.  At the state level, a State Council of Chiefs is to be established.  A similar provision shall be made at the council level.  Their role shall be mainly advisory.

Second Schedule, Parts 1 and II, Section 4
The House voted to amend the Second Schedule, Part 1 and 11, Section 4 by transferring some items, such as railways, from the Exclusive List to the Concurrent List; and then moving some other items like health and housing from the Residual List to the Concurrent List.

The rationale for moving health and housing, apart from the extensive practical involvement of the Federal Government on both matters, is that the decision to transfer the Right to Primary and Maternal health Care and Basic Housing from Chapter II to Chapter IV as fundamental rights would bring undue pressure on the governments of the states, hence the decision to cast the burden on both the states and the Federal Governments.

71 Alterations
The House carried out alterations on 71 Sections of the Constitution. It has done its best as Representatives of the people. Because we operate a bicameral legislature, the House will have to meet with the Senate to harmonize the two versions of the reports of the two chambers.
To this end, the House will name a Harmonization Committee as soon as we resume plenary. The harmonized report will be subjected to further legislative action before being forwarded to the 36 states Houses of Assembly for their concurrence.