Published On: Tue, Dec 4th, 2012

Constitution Review: Matters Arising – By Ugonnia Pat Anyadubalu


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Introduction

Recently, the National Assembly has 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 Alhaji 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 let, 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 treated 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 I, 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 denied elevation to higher bench just because he 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.

LOCAL GOVERNMENT SYSTEM

The country should deliberate whether it intends to retain the local Government system or not. This is because, the Governors have literally destroyed the local Government system by their refusal to organize a local Government election and refusal to release the funds due to the local Government Areas.

If we indeed intend to run an independent local Government system then we should release the local Government system from the strangle hold of the Governors. To do so we then need to amend the following provisions of 1999 constitution

1. Exclusive Legislative List Part 1 item 22 which excludes the conduct of local Government election from the control of Federal Government and by extension INEC. I advocate a full presidential system of government at the Local Government Councils and where their elections will be conducted by INEC like the latter does for House of Assembly, National Assembly etc. we are witnesses to a situation where the Governors bluntly refused to organize a local Government election and where the few hold the election, the fairness of such election is always in doubt. The question that will continue to agitate discerning minds is why parties win elections in a State but when the Local Government election is organized, the same parties hardly win any Local Government seat.

2. To ensure the independence of the Local Government system, section 162(7)(8) of 1999 constitution should be amended to grant financial autonomy to the Local Government councils wherein they will receive their allocations directly from federation account.

The present situation of joint State and Local Government account is very attractive to the Governors who in order to retain the hinge resources meant for all the local Government councils in that states refuse to organize election or run the local Government through care taker committee and appoint their surrogates who cannot question than to run the Local Governments. In a situation like above, the growth of democracy is stultified. Local Government is the closest tier of government to the people and should be promoted. It should also serve as a training ground for budding politicians. Democracy at that level should be encouraged therefore Governors who refuse to conduct local Government election are greatest enemies of democracy.

The third provision is Part II B which creates independent State Electoral Commission should be deleted in view of the transfer of the function to INEC.

CROSS CARPETING

My position is that it is immoral for a person who is elected under a platform to abandon the platform and join another platform without resigning from the position. Section 68 (1)(g) and section 109 (g) prohibit that though they provide a leeway that allows cross-carpeting as a result of a division in the political party of which a parliamentarian was previously a member or of a merger of two or more political parties or factions by one of which he was previously sponsored.

This proviso though commendable but it has been abused. We witness a situation whereby members of legislative House cross-carpet from minority party to a ruling party in the State or Federal Government without any qualms irrespective of whether there is any faction or merger in the party they were previously sponsored.

The only protection is that their new party is the ruling party therefore nobody will ask them to vacate their seats as provided in section 68 (1) and 109 (1) 1999 constitution as amended.

My take therefore is that since we now operate tyranny of the majority in this case, let us delete the proviso so that any member of the Legislative House whether National or State shall vacate the seat if he joins another political party except the party he was elected into the seat.

STATE CREATION

I advocate that the amendment of section 3(1) and or First Schedule of the 1999 constitution to include a State from the South- East. Equity is Equality therefore out all the six Zones in the country, the South-East has the least number of States (5) five as against Six (6) or even seven (7) by other zones.

The same South –East has the least number of Local Government Areas yet the local government system forms part of the distribution of the commonwealth. South – Easterners are being cheated in the distribution of the Federal allocation and other common wealth.

It would be recalled that during President Obasanjo’s regime, a State was approved for South- East but this was scuttled because of the fear of third term.

This is therefore another opportunity for the hallowed Green and Red Chambers to right the wrong by creating a State for South-East

Mr. Anyadubalu, a lawyer cum prolific writer, writes from 129 Okota Road Lagos.

 

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