CONSTITUTION AMENDMENT, SENATE TAKES BULL BY THE HORN

Mark, Jonathan and Ekeweremadu
Last Thursday, March 25, the Senate, Nigeria's upper legislative chamber once again rekindled the people's hope in the nation's fledgling democracy as it successfully amended some provisions of the 1999 Constitution. Just as it saved the nation from drifting after months of confusion following the lingering health crises of President Umaru Yar'Adua and his long absence from duty, it overwhelmingly voted for the amendment of 36 clauses of the 1999 constitution.

History was also made when for the first time since the reintroduction of democracy in Nigeria, the chamber recorded a novel achievement when it put to use its Electronic Voting System. For many, it was a bold statement by the law making body and a further boost to the leadership credentials of the Senate President, David Mark.

Previous attempts to review the document since 1999 had been unsuccessful, owing to disagreements over clauses for amendment. The last attempt to review the constitution failed during the last days of former President Olusegun Obasanjo's administration.

The then Ibrahim Mantu-led Senate Committee on the Review of the Constitution allegedly smuggled the infamous tenure elongation clause into the proposed amendments but Nigerians would have none of that. An attempt to include the tenure matter in the list of clauses to be introduced into the constitution led to the rejection of the entire proposal. As a result, Nigerians had to make do with the 1999 constitution and many believe that part of the problems of the nation's democracy, are caused by the document, which was hurriedly put together by the then outgoing military administration of late Gen Sani Abacha.

The people merely accepted the constitution as a working document to midwife the transition to popular democracy in 1999. But with the enthronement of democratic governance in all tiers of government, the deficiencies of the constitution became apparent. The obvious areas of dispute include the definition and extent of federalism in Nigeria, the relationship between the tiers of government, revenue allocation, the judicial system, the role of religion in society, system of local government administration, political parties and the electoral system, tenure of office for political office holders, human rights and its enforcement, resource control among others.

Based on all those, there was unanimity of opinions on the need for an urgent review of the constitution but since 1999, it had not been possible until last Wednesday when the Senate took the bull by the horns. The following are some of the highlights:

Next year's general election
Part of the amendments is the one that mandates elections to hold not earlier than 150 days before the May 29 handover date and not later than 90 days before the handover date.

The amended section 132 of the constitution reads that, 'Elections shall be held on a date not earlier than 150 days and not later than 90 days before the expiration of the term of office of the last holder of that office'. The implication is that unlike in the past, all litigations ought to be concluded in time to give room to all candidates in the election to exercise their franchise.

Strenghtening INEC
The Senators amended section 160 of the constitution thereby strengthening the Independent National Electoral Commission (INEC) to regulate itself without recourse to the President.

The INEC along with both the National and State Assemblies have been granted financial autonomy in the amendment.

The amended Section 81(3) reads:'The amount standing to the credit of the Independent National Electoral Commission, National Assembly and the Judiciary in the Consolidated Revenue Fund of the Federation shall be paid directly to the said bodies respectively; in the case of the Judiciary, such amount shall be paid to the National Judicial Council for disbursement to the heads of the courts established for the federation and the states under Section 6 of this Constitution.'

By the amendment, the electoral body now has the powers to make its own rules or otherwise regulate its own procedure which shall not be subject to the approval or control of the President. The Senators also removed the appointment of State Resident Electoral Commissioners from the President. The Justice Muhammed Uwais-led Electoral Reform Committee had recommended that the appointment of the INEC chairman be removed from the President and placed under the National Judicial Commission (NJC).

But the Senators rejected the widely considered most important amendment, which would have seen the appointment of the INEC Chairman transferred from the President to the NJC.

Tenure of President or Governor
The Senate also amended section 135 and 180 to ensure that the President or governors do not spend above their four-year tenure especially after having spent part of the tenure before winning a re-run election. The amended section 135 (C) reads: 'In the calculation of the four-year term, where a re-election has taken place and the person earlier sworn in wins the re-eletion, the time spent in the office before the date the election was annulled shall be taken into account'. But before the amendment, the constitution among others states that a person shall hold the office of the governor of a state until when his successor in office takes the oath of that office or he dies holding that office or the date when his resignation from office takes effect or he otherwise ceases to hold office in accordance with the provision of the constitution.

Qualification for election
When the amendments are concluded, qualification would become an issue for those aspiring to contest for some elective positions. The amendments also stipulate that the minimum educational qualification for any election be pegged at tertiary education certificate as reflected in the amended section 65 of the proposed amended constitution. What it means is that in subsequent elections, the race to elective positions would be restricted to those who have obtained certificates from tertiary institutions.

So, sections 65, 131 and 177 dealing with qualifications for election as President, Vice President, Governors, Deputy governors and members of the National Assembly have been altered and raised to a minimum of tertiary institution level or its equivalent.

But reprieve also came the way of individuals, especially former state governors and other public officials, who were barred from holding public office on account of a government White Paper indicting them for fraud and or abuse of office.

This followed the outright cancellation of Section 182 (i) from the constitution.

Under the cancelled section, a person is barred from contesting the governorship election if he/she 'has been indicted for embezzlement or fraud by a Judicial Commission of Enquiry or an Administrative Panel of Enquiry or a Tribunal set up under the Tribunals of Inquiry Act, a Tribunals of Inquiry Law or any other law by the Federal or State Governments which indictment has been accepted to the Federal or State Government.'

Although there had been a clamour for barring public officials indicted for fraud from contesting elections, there had also been allegations of abuse of the use of white paper against political opponents. Also deleted is the provision which states that members of the National Assembly could lose their seats if they decamped to other political parties without a division in the party on whose platform they originally got to the Assembly.

Independent Candidates
After the amendments, there will now be provision for independent candidates to contest elections unlike in the past when only card carrying members of political parties were eligible to vie for elective positions.

Defection to other parties
At the conclusion of its debate on the constitution, the Senate allowed state and federal law makers to dump their parties and move to any other one of their choice for as many times as they like within the tenure of office. The development is a marked difference from the earlier position of the upper chamber that allows cross-carpeting for members but silent on the number of times.

Election petitions
Section 246 dealing with appeals from the Code of Conduct Tribunal and other courts and tribunals has been altered by changing the title of the tribunal from National Assembly Election Tribunals and Governorship and Legislative House Election Tribunal to National Assembly Election Tribunal while three or more tribunals could be established to expedite trial of cases. In the case of the jurisdiction of the Federal High Court, it was recommended that Section 251 dealing with jurisdiction of the Federal High Court has been altered to empower the court to determine any question as to whether the term of office of the governor has ceased or not.