Three Missing Features In The 1999 Constitution

By Nebo Ike
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The herald of Abuja Area Council elections springs up a lot of issues in the mind of Keen observers topmost of which is election logistics – mobilization, security arrangements, man power, modus operandi of the exercise which has gone digital.

Getting election logistics right and accurate is critical to public confidence in the integrity of the exercise. We are also aware that the electorates’ confidence in the entire process is the most important component of the dynamic consolidation of participatory democracy.

However, the unique feature of Federal Capital Territory (FCT) elections is that no governor’s election or re-election is at stake, so the intention by the governor to deliver the councils to the governor’s party is absent. It is possible that the Minister may be under such tension but certainly there is no votes the minister has to protect.

This is not the first local government elections making headlines. Indeed Local Government Elections have been a controversial issue since the return of democracy in 1999. Presently Nassarawa House of Assembly is in turmoil over appointment of 4 LGA sole administrators which has led to the suspension of six legislators who dared to address the press on the issue without the permission of the Speaker.

That brings to mind the idea of independent candidacy which is one of the three missing features in the 1999 Constitution. The other two are referendum and Constitutional Courts. The relevance of independent candidacy in this contest applies to local/grassroots politics across the nation. One of the reasons why the Supreme Court allowed late Chief Gani Fawehinmi’s appeal against restriction of political parties to only three PDP, ANPP, and AD was concern about stifling political opinions. If independent candidacy was not missing in the Constitution it would have been convenient for politicians not affiliated to any political party or those who have fallen out of grace in their present to vie for position in their localities. That was how Ken Livingstone became the Mayor of London when the Labour Party presented an establishment candidate that could not attract electorates’ votes.

Given the role which the Apex Court played in widening the political space in the 1999 Constitution, Constitutional Court is also critical at this moment considering the congestions at our courts. Elections are about Constitution provisions, the relationship between legislature and the executive; separation of powers; whether the leadership of the legislature requires immunity from prosecution or not. Even the judiciary has been receiving despicable treatment in the past couple of years through budget proposals and criticisms about judgments.

A Constitutional Court will serve as dictionary, Wikipedia and interpretation tool for the Constitution. Both independent candidacy and Constitutional Court were captured by the intellectual minds of the makers of the moribund 1995 Constitution. That was a draft produced by forty five man panel led by eminent retied Justice of the Supreme Courts , Godwin Adolphus Karibi Whyte who distinguished himself as an erudite and Constitutional expert.

The missing feature which is not necessarily relevant to Local Government elections is referendum. It is usually stuck inside the Constitution to enable people to vote on issues that require decision either way. The often use it to determine whether people are carried along in their decisions to establish certain projects / policies or not; but in the case of Constitutions it has proved dangerous as sitting government leaders have elongated their tenures through referenda in Cameron, Zimbabwe, Uganda, Congo DRC etc.

If there were referendum in the 1999 Constitution, the Constitution would have been amended to extend the tenure of the presidency, for instance during former President Obasanjo’s tenure. It would have been easier to amend the Constitution to become people’s Constitution just by seeking the opinions of the people via referendum. Perhaps because of the difficulty in handling LG Councils by some governors there would have been a referendum as whether to scrap it or not.

Even though most governors have despicable view of LG Council elections because of its costs implications as well as potential source of loss of political grip on the councils, nonetheless Local governments remain indispensable unit of every state recognized by the Constitution.

The existence of Local government system was established by s.7 with their functions itemized and set out by the Fourth Schedule of the Constitution, including those to the prescribed by state assemblies. Whereas the creation new LGA shall be by the act of the National Assembly through the procedures stipulated by s. 8. Therefore on the authority of s.7 which guaranteed democratically elected LG Councils, it is a condition precedent for LG’s to receive funds from the Consolidated Revenue Fund. It is probably illegal for unelected LG Council to qualify for disbursement under s.162 of the 1999 Constitution.

The foregoing Constitutional provisions indicates decentralization of government to local communities to empower independently as a third time government. The relationship between LG and other tiers of government in a federalism is supposed to be that of equality and mutual non–interference. But the present practice suggest the opposite. In fact the LG’s seem to operating as agents of National and State government which is devolution of powers. That independence is lacking in the relationship due to the fiscally incapacitated state of the most LGAs. Even if the three missing features are suddenly found in the 1999 Constitution, I doubt if those are enough to cure the physical incapacitation that have crippled the third tier government that have remained political pawn in the hands of equally bankrupt state governments.

Iyke Ozemena
Ikechukwu O. Odoemelam & Co.,
Corporate Attorneys/Consultants

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