AGAINST ALL ODDS, NATIONAL ASSEMBLY DELIVERS ON 1999 CONSTITUTION AMENDMENT
David Mark & Bankole
Former President of the United States, George Washington once said in his Farewell Address on September 17, 1796 that, 'If in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the constitution designates, but let there be no change by usurpation.'
That Nigerians took more than passing interest in the efforts to amend the 1999 Constitution is understandable, taking into consideration the barrage of criticism and fretfulness that trailed the operation of the 1999 Constitution as a body of laws handed over to Nigerians by the former military regime of General Abdulsalami Abubakar.
The document was foisted on the nation at a time when Nigeria was just emerging from an era of military dictatorship to a political dispensation that allows for freedoms.
Such criticisms of the Constitution and concerns of Nigerians were not far fetched owing to the fact that the document was a product of the military, thus did not take the civil society organizations in the country more than thirty one days after the ushering and inauguration of democratic governance on May 31, 1999 to host a national conference on constitution to help fashion out a sustainable future for democracy in Nigeria.
Part of the observations made was that the 1999 Constitution was written in a haste by the General Abdusalami's regime that was in a hurry to usher in democracy, thus the Constitution lacked inputs, participation, and autonomy in addition to other basic principles and tenets required for Constitution making process in a democratic environment.
Furthermore, the 1999 Constitution is perceived by many as being unmindful of Nigeria's political history; that it did not take cognizance of the fact that Nigeria was conceived as a federal state.
The Constitution is therefore seen as having weaved the nation into a unitary state, thus making it look as if the abrogation of the General Aguiyi-Ironsi's Unification Decree was only on paper as devolution of power to the federating ethnic units that make up the amalgam, Nigeria remains a mirage.
Accordingly, the 1999 Constitution was seen as basically lacking legitimacy, as a result of inherent contradictions in the document.
Taking a cue from here, it would be safe to insist that a Constitution by its very nature should not be seen or perceived as a mere set of rules and laws regulating society and government but far more than a social contract. It can be said that the review of the 1999 Constitution is not essentially because Nigeria has the worst Constitution but for the need to make progress from what exists today.
Before now, even though there were compelling needs for a critical review of the 1999 Constitution, several attempts made both by the executive and legislative arms of government at achieving amendments were inconclusive in some instances while others failed. However, in spite of the inconclusive and or unsuccessful attempts, the efforts cannot be written off owing to lessons drawn from the attempts, particularly because of the ground work they succeeded in laying that eventually formed part of what the current National Assembly drew from in order to break what appears to be a jinx in the quest to review the 1999 Constitution.
Taking a cue from Justice Albie Sachs of South Africa is definition or description of Constitution in which he said is an 'autobiography of a nation,' a nexus can therefore be deduced from the mode adopted in the review of the 1999 Constitution by the current National Assembly in its determination to ensure growth and stability of Nigeria's democracy by putting in place a body of laws that are more acceptable to the generality of the people which they can truly call their own laws..
It is therefore, no gainsaying to state that the success recorded in the process of the amendment of the Constitution is to say the least a clear indication that the interest of Nigerians in the quest for Constitution review and electoral reforms cuts across all divides of the society. Thus rather than allow some few people with undefined agenda to dismiss the entire exercise, the efforts of the Senate and the House of Representatives to ensure the final passage of the Constitution into law has further rekindled the interest of the people in harnessing the gains of democracy.
The die not spirit that propelled the sixth National Assembly particularly the Senate to adopt incremental approach to the amendment of the Constitution as well as the push for electoral reform is worthy of note. Even though the National Assembly was conscious of the critical areas requiring review in the Constitution, it however ensured that it delivered the needed electoral reform before the 2011 elections in keeping with its promise to Nigerians in 2007.
The basic thrusts therefore of the amended sections of the constitution are aimed at strengthening and deepening the nation's democratic cultures as well as liberalize the political space through the provision for independent candidates in elections in addition to making the election management body, INEC, more financially and administratively independent thereby insulating it from partisan politics in addition to the review addressing the need to speed up the processes of electoral adjudications.
Having outlined the basic thrust of the review process, it needs no restating that one of the most critical issues on the front burner in the quest for constitution review is the noticeable deficiencies in the nation's electoral laws which were contained in the Constitution and the Electoral Act. It was against this backdrop that the crave for electoral reforms can be said to have assumed the number one issue bothering virtually every Nigerian. The grave deficits and weaknesses of our electoral processes were most conspicuous during the 2007 general elections.
In all, the National Assembly altered about 70 sections and sub-sections of the Constitution with particular focus on electoral reforms, internal party discipline, elections in addition to item 56 in the Exclusive Legislative list in the second schedule to allow for laws to be made for the formation and regulation of political parties
As part of the reforms, some noticeable ambiguities and contradictions were detected in the document. Such contradictions include the qualification for the chairmanship and membership of the Independent National Electoral Commission which stipulates in Section 156 that the candidate must possess the same qualifications as a candidate aspiring to the House of Representatives just as it was stipulated in Sections 65 and 66. However, the required qualifications equally include the membership of a political party.
In the wisdom of the Senate Committee on the Review of the Constitution, it reasoned that the provision definitely could not have been the intendment of the Constitution for members of the INEC charged with the task of organizing and supervising free and fair elections to be card carrying members of political parties.
Similarly, as a means of further deepening democracy, the Senate Committee felt that there was the need to have institutions such as the legislature, the states judiciary, the Independent National Electoral Commission, INEC, as well as the States Independent Electoral Commissions, SIEC to be totally independent from the executive arm of government administratively and or financially.
Without the independence of the listed institutions, the Senate believes, it would not allow for checks and balance in the case of the legislature and states judiciary just as it was noted that it is not a good arrangement by any standards for electoral bodies to be dependent on the executive arm of government.
The Senate equally moved from its adoption of the 'doctrine of necessity' to take a critical look at the need for a working constitution to address and meet fresh and unforeseen challenges as they arise. It therefore took a cue from the challenges that arose over the health of late President, Umaru Musa Yar'Adua which culminated in the amendments of Section 145 and 190 of the Constitution, thereby making it mandatory for either a Vice President to become Acting President or a Deputy Governor becoming an Acting Governor in the absence of either the President of Governor from office after 21 days.
Beyond electoral reforms which formed the kernel for the review of the Constitution, there were other concerns and requests for the amendment of other sections of the constitution dealing with the creation of states and local governments, the devolution of powers from the federal government to the federating states as well as from the states to local governments. These were in addition to requests for reviews of sections regarding the legislature, judiciary, gender and disability interests, traditional institutions and the status of the Federal Capital Territory. The committee in its adoption of amendment by incremental approach has forwarded the requests and submissions to the various sub-committees for further consideration and drafting of suitable legislation as may be desirable.
In all, 36 amendments were passed as recommended by the Ekweremadu led Senate Committee.
As a means of guaranteeing the administrative and financial independence of the Independent National Electoral Commission from the executive arm of government, the National Assembly altered Sections 81and 84 of the Constitution to provide for the financial independence of the nation's electoral body, (INEC).
The amendments is to enable INEC to draw its funds directly from the Consolidated Revenue Fund just as Section 160 of the Bill as also amended seeks to free INEC from the administrative grips of the Presidency.
Accordingly, it provides that 'in the case of the Independent National Electoral Commission, its powers to make its own rules or otherwise regulate its own procedure shall not be subject to the approval of the President.'
In the opinion of the legislators, it is awkward for an election management body to permanently depend on and most times go cap-in-hand to the Presidency or its executives for release of funds appropriated by the National Assembly for the discharge of its legitimate functions.
In the same vein, the general notion that State Houses of Assembly are mere appendages of their respective government houses just as the state judiciary is perceived as less than independent due to their direct financial dependence on the state executive were addressed to grant them autonomy. It was in line with this reasoning that Section 121 of the Constitution was amended thereby guaranteeing the two institutions the need to start drawing funds from the first line charges.
Another novel idea introduced to the reviewed constitution is the idea of independent candidacy to further liberalise the political space as well as reduce the contention for party candidacy. In this wise, amendments were made to Sections 65, 106, 117, and 131 of the constitution to bring Nigeria in tandem with other democratic climes whereby credible and acceptable candidates can contest elections without necessarily belonging to political party.
Time frame for conduct of elections:
The 1999 Constitution provides for elections within a time frame of not earlier than sixty days before and not later than 30 days to the date on which the tenure of office expires for the federal legislature, the state legislature, Presidency, and governorship positions just as in cases of filling a vacancy occurring more than three months before the general election, the Constitution stipulates that the election must hold not later than one month after the vacuum.
In reviewing the Constitution, the federal legislature felt that the provision did not afford the electoral agency ample time to prepare and conduct a thorough election thus altered sections 76, 116, 132, and 178 to provide for not earlier than one hundred and fifty days and not later than ninety days for the affected elective offices.
It is believed that with the amendment, INEC now has ample time within which to work to avoid the shoddiness that it has been accused of delivering.
Following the experience of the landmark case of Governor Peter Obi at the Supreme Court over interpretation of tenure, in which the apex court ruled that the tenure of a Governor or President starts to run from the date he was sworn into office which has now been carried over to persons whose elections were annulled, but won the re run elections, the National Assembly amended sections 135 and 180 of the Constitution, by inserting a new sub-paragraph which reads: 'in the determination of the four year term, where a re run election has taken place and the person earlier sworn in wins the rerun election, the time spent in the office before the date the election was annulled, shall be taken into account.'
The development has now put paid to some elected governors that may want to have extended tenure through the back door by cashing in on the loopholes contained in the constitution.
Taking a global view of the changing world in terms of sophistication and the issues that leaders are expected to grapple with and the need for an enhanced capacity, the National Assembly accepted the opinion of the public on the need for the educational benchmark set for certain offices by the 1999 Constitution to be increased to meet demands of leadership.
Accordingly, candidates to the offices of President, Governor, as well as federal and state legislators must hold minimum of tertiary educational certificates.
It noted that already, a lot of resources are being injected worldwide by governments, international organisations, and non governmental organisations to boost the capacity of those in positions of authority to deliver quality leadership.
The National Assembly also went further to address the abuse of indictment of persons using Administrative Tribunals and Panel of Inquiry to disqualify candidates thus reviewed the provisions in various sections of the Constitution such as Sections 66, 137 and 182 barring persons indicted for embezzlement or fraud by a Tribunal or an Administrative Panel or a Judicial Commission of Inquiry from vying for public offices even as it observed that while the provisions were made in good faith, they have been reduced to tools of political witch hunt and arm-twisting. The legislature noted that this was a major source of the hitches that marred the 2007 general elections. In this wise, only a competent court of law can now indict a person for fraud or embezzlement or bar candidates from contesting elections.
One other major amendment effected by the National Assembly is with regards to Section 285 of the Constitution which deals with dispensation of election matters by the election tribunals and Court of Appeal. The reviewed Constitution now stipulates a fixed time span for adjudication of election petitions just as election petitions are now to be filed within twenty one days after the date of the declaration of results of the election. In the same vein, the election petition tribunal is also to deliver judgment within one hundred and eighty days at most, from the date of filing the case while appeal arising from the ruling is also to be dispensed within sixty days from the date of the delivery of the judgment appealed against.