'THE 1999 CONSTITUTION AND THE DILEMMAS OF A NATION IN SEARCH OF RESTORATION' (2)

Being a paper presented by Chief 'Folake Solanke, (SAN), LLD, as a Fellow of the Nigerian Institute of Advanced Legal Studies (NIALS) Fellows' fifth Lecture at NICON Luxury Hotel, Abuja, on Thursday, November 25, 2010. The first part was published on Wednesday January 18, 2011

'In a back page article of The Punch titled 'Minimum Wage: Time to trim overfed bellies,' Yemi Kolapo wrote 'inter alia':-…the Nigerian government must, as a matter of urgency, cushion the harsh effects of the global crisis on workers that have not been swept away by the tide. It is sickening to know that in a nation where each of the 360 members of the House of Representatives takes home a monstrous N9.33 million monthly (apart from salaries), the least-paid ordinary worker is fighting to earn a paltry N18,000.00 Yes, policy makers are in a dilemma as regards right pricing about in an economy that is just recovering from a record financial crisis. But innocent citizens should not be made to suffer for misplaced economic policies. Every Nigerian must bear the brunt, even if it means trimming over-fed public officials' bellies to cater for the teeming grossly under-paid workers.

Of course, the legislators are our brothers and sisters, and like us, they constitute part of the electorate. So as the Bible says, let us ask them to:-Come now, and let us reason together, saith the Lord, though your sins by as scarlet, they shall be as white as snow, though they be red like crimson, they shall be as wool.

Let us discuss the propriety or otherwise of such humongous payments. The regular payment of billions of naira to the legislature is in open conflict with Section 16(2) of Chapter II on 'Fundamental Objectives and Directive Principles of State Policy' which provides thus:-

16(2) The state shall direct its policy towards ensuring:-

• the promotion of a planned and balanced economic development;

• that the material resources of the nation are harnessed and distributed as best as possible to serve the common good;

• that the economic system is not operated in such a manner as to permit the concentration of wealth or the means of production and exchange in the hands of few individuals or a group; and

• that suitable and adequate shelter, suitable and adequate good, reasonable national minimum living wage, old age care and pensions, and unemployment, sick benefits and welfare of the disabled are provided for all citizens.

Certainly, the Executive and the Legislature are two destinct groups of people.

Critics of such payments query whether the Commission approved the monster payments or whether the Legislators awarded sums to themselves which exceed the salaries and allowances determined by the Commission in defiance of Section 70.

That was why the NBA, (my own constituency) conscious of its noble role as a defender of the Constitution and the voice of the voiceless, was obliged to file an Originating Summons in August this year against the officers of the National Assembly, the Revenue Mobilisation Allocation and Fiscal Commission, the Hon. Minister of Finance, the Accountant-General of the Federation and Hon. Attorney-General of the Federation for a determination of the critical issues and questions pertaining to the unprecedented colossal salaries and allowances, including Constituency Allowances which the members of the National Assembly are being paid. And incredible as it may sound, they are asking for more. As my learned daughter and friend - Funke Aboyade wrote in her article in ThisDay (Law & Judiciary section) 'more power, more money, more entitlement, more respect, More, more, more, grab grab grab. They are simply insatiable'. Amazing, Are we on the same planet?.

The answer is blowing in the wind.
It is professionally gratifying for me that the Nigerian Bar Association relied 'inter alia' on one of the provisions of Chapter II of the Constitution particularly Section 16(2) thereof. The matter is now 'sub-judice' and we await the court's adjudication in the interest of all of us, including members of the National Assembly who are also citizens of our beloved country.

By the way, this respected audience may be interested to know that the NBA is also seeking an order directing the members of the National Assembly to refund to the coffers of government all salaries and allowances received by them which have not been determined for them by the Commission under Section 70.

In view of the foregoing, one wonders:
• why the number of senators should not be reduced, perhaps to two senators per state, plus one for Abuja making a total seventy-three (73) senators instead of one hundred and nine (109);

• why the number of members of the House of Representatives should be reduced by half, making a total of one hundred and eighty (180) members instead of three hundred and sixty (360).

Such reductions will drastically bring down the cost of maintaining the National Assembly and save significant amount of money for the national treasury.

The crushing burden of cost of governance is a catastrophic dilemma.

Low qualification of candidates for election
On the qualification of membership of the National Assembly, in addition to the qualification of citizenship of a candidate in Section 65 (1), Section 65(2) of the Constitution provides thus: A persons shall be qualified for election under subsection (1) of this section -

• He has been educated up to at least School Certificate or its equivalent…

I am absolutely astonished and flabbergasted by the vagueness and inadequacy of this provision. The provision is silent on whether or not the candidate sat for the school certificate examination or any equivalent examination. In an education sector with its abysmal failure rates and where pupils are automatically pushed to the next class, whether or not they pass the promotional examination, the provision is scandalously low. It is hereby vigorously advocated that a higher level of education of candidates would raise the intellectual profile of the National Assembly. I am aware that there are some brilliant and highly educated members in the National Assembly. I dare say, however, that the Constitution is a very complex document which is extremely difficult to read and digest.

It is my considered opinion that the level of education of our legislators must inspire the confidence in the electorate that their representatives in the National Assembly will be able to comprehend the intricate language of the Constitution and apply the provisions to their legislative deliberations. With all due respect, I also make bold to say that a mere school certificate holder may find it somewhat perplexing to understand and apply the provisions of the Constitution under which legislators are expected to operate. No one should therefore be surprised that the Constitutional provisions are being subverted. Recently, The Punch newspaper published the appalling news that 79 per cent of candidates (numbering 87,305) failed the English Language section of the June/July 2010 Secondary School Certificate Examination (SSCE). They also woefully failed in Mathematics. The National Examination Council (NECO) also release the woeful results of 615 cases of examination malpractice. I need say no more about the current standard of education. 'Res  ipsa loquitur'.

Still on the qualification for election, the so-called first (1st) Amendment to the 1999 Constitution, the validity of which is being contested in the law courts, has repealed Section 66(1)(h), a situation which would now allow a person who has been indicted under the law for embezzlement or fraud to stand as a candidate for election as a senator or a member of the House of Representatives. That would be patently absurd, particularly in a country like ours where fraud and all manner of fraud and corruption have eaten deep into the fabric of society.

Please be assured that I am fully conscious of the fundamental principles of law that an accused person is presumed innocent until proven guilty. However, the unmitigated reality in our country demands that a person so indicted, should awaited an adjudication by the court on the indictment before presenting himself as a candidate for elective office while the indictment is pending.

It is to be noted that the same low educational qualification for the National Assembly is also prescribed for the president and vice-president.

The low educational qualification for election is a disastrous dilemma.

(5) AGE QUALIFICATION OF A CANDIDATE FOR ELECTION
Section 131 (b) of the Constitution provides thus:-

A person shall be qualified for election to the office of President if:- he has attained the age of forty years.

The same qualification for election to office are prescribed for the vice-president. It is my humble opinion that we need a higher level of maturity for the president and vice-president. Their age qualification should be fixed at forty-five. Similarly, the governor, deputy-governor and members of the National Assembly should have attained the age of forty and not thirty-five as prescribed by S. 178(b) and S.65(1)(a) and (b) respectively.

The inadequate maturity of candidates for election is a worrisome dilemma.

(6) SITTING OF THE NATIONAL ASSEMBLY
Now, the members of the National Assembly, having arrived in office (by foul or fair means), let us now consider the provisions for their sittings to perform their official functions. Section 63 provides:

The Senate and the House of Representatives shall each sit for a period of not less than one hundred and eight-one days in a year.

As we all know, there are 365 days in one year except in a leap year, which has 366 days. The National Assembly may rely on that provision to sit for no more than 181 days in a year. That means, mathematically, that they would sit for less that they would sit for less than half of the days in a year. It would appear therefore that the legislators are on a part-time assignment! However, I am informed that the legislators also undertake 'Constituency Work'. No doubt, although I am yet to see the senator or member of the House of Representatives in my own constituency. And I wait to ask our legislator about our own constituency project, if any.

The situation of the 'sitting' provision is exacerbated by Section 68(1) (f) which states thus: 68 (1) A member of the Senate or of the House of Representatives shall vacate his seat in the House of which he is a member for a period amounting in the aggregate to more than one third of the total member of days during which the House meets in any one year.'

Please take note that there is no sanction for being absent for less than one-third of the total number of days during which the House sits in any one year.

Consequently, a member can be absent for more than sixty and one third (601/3) days out of the minimum of 181 days because a 'just cause' can always be found to satisfy the Senate President or the Speaker of the House in order to justify such an intolerable absence. Indeed, whenever I accidentally stumble on the televised proceedings of either chamber, I see more unoccupied seats than occupied ones. Mind you, in fairness to the lawmakers, there is never sufficient time to count the number of unoccupied seats. Nevertheless, on one of such occasions, I could not tell whether I was watching legislative proceedings of the House of Representatives or a brawl in a boxing ring or gladiators' contest in an arena in ancient Pompeii in Southern Italy! School children were in attendance on that day to watch legislative proceedings. What kind of exemplary behaviour was that? Enough.

Minimal attendance by members at the sittings of the National Assembly is a scandalous dilemma

PROSPECTIVE CANDIDATES' DEPOSITS
I am constrained to stress that there should be less emphasis on money and more on service. Qualifications for election do not include payment of deposits by candidates. Political parties ought not to inflict an oppressive financial burden of fees on the candidates being tempted to recoup their capital outlay by corrupt means. The imposition of stupendous fees on the aspirants might motivate them to conclude that elective offices are for sale, and thus push them to incur debts from banks and unscrupulous people, which debts they must settle when in office.

Legislators should lead by example, by ensuring the their performance impacts the lives of the people in a meaningful way. The electorate ought to have some confidence that their representatives are serving the common good and not merely themselves and their dependants and political hangers-on. Right now,  I deeply regret that such confidence is lacking among the electorate.

Last September, in Lafia (Nasarawa State), during a national conference on anti-corruption, the chairman of the Independent Corrupt Practices and Other Related Offences Commission (ICPC), the Hon. Justice E.O Ayoola- former Justice of  the Supreme Court, in a statement delivered on his behalf, said 'inter alias'-  The Legislators must do their utmost to dispel the popular belief and perhaps, misconception, that they stultify good governance by making corrupt and selfish demands on the executive in abuse of their powers.

Food for thought for the legislators. And I say: 'verbum sapienti'. The well- being of the citizen must be front and centre of good governance.

The corrupt influence of corrupt money in the political system is a troubling dilemma.

PART IV
MORE DILEMMAS OF THE NATION
FEDERAL CHARACTER
Section 14 of the Constitution contain the words: 'federal character' which must be reflected 'in the composition of the Government of the Federation or any of it agencies…in the conduct of their affairs.'  The level of performance in our government  institutions, where federal character is reflected, demands that a research be conducted  into whether or not merit has been compromised on the altar of 'federal character' to our national discomfiture.

In its editorial on 'Nigeria@ 50', The Guardian newspaper states:

Nigerians must worry about the recruitment process that throws up so much mediocrity in the public space. Nigerians in their individual capacities tend to be more intelligent than their government whose profligacy in the midst of damning poverty is obscene. In Nigeria, there is no linkage between the rulers and the ruled. Fortunately, democracy offers an opportunity to change what they do not like. The question and the challenge is whether Nigerians can rise to the occasion and elect leaders of their choice in 2011…

Nigeria is a nation adrift. The core values of honesty, sincerity, accountability, humility, tolerance and religiosity have all been abandoned. The leadership having failed the people, ordinary Nigerians now think that they are entitled to help themselves anyway they can.

Section 14 is contained in Chapter II of the Constitution - the heart and soul of the Constitution and which Chapter should guarantee the general welfare of the citizenry. A lot of political heat is being generated on 'zoning' about the forth-coming presidential election. It is my view that zoning is an offshoot of 'federal character.' However, there is no manifesto on what each political party intends to accomplish for the common good.

'Federal Character' is certainly reflected in the appointment of Federal Ministers under Section 147 which stipulates that there must be at least one minister from each state. The word 'minister' has been expanded to include 'Minister of State'. This is one of the reasons why we are saddled with a bloated and inordinately expensive government. And to further inflate the size of government and its catastrophic financial consumption, Section 151 provides that:

The President may appoint any person as a Special Adviser to assist him in the performance of his functions;

The number of such Advisers and their remuneration and allowances shall be as prescribed by law or by resolution of the National Assembly'. (Emphasis mine)

I find some of these provisions truly astonishing for the following reasons:

• 'any person' that description of a 'Special Adviser' to the President is too fluid and opaque. There ought to be some qualification attached to the 'person' to be so appointed to that important position.

• Regarding their 'number' and 'remuneration and allowances': it is curious that these important financial matters are to be determined 'as prescribed by law or by resolution of the National Assembly'. It is a nebulous provision. There ought to be certainty about who is to make such a decision. It certainly ought not to be a situation of 'either or'.

As the provision stands, the electorate have no idea how much a Special Adviser earns in total or how, and by whom, the quantum is determined. There ought to be more transparency in governance particularly in financial matters to minimise the profligacy which is now the norm in governance.

And I would have thought that the number of ministers should suffice to advise the President on national affairs. I do not know how many Special Advisers there are, but we do have)

Ministers
Ministers of state
Personal Assistant to Ministers
Personal Assistants to the Ministers of State
Special Advisers
Personal Assistants to Special Advisers
Assistant to Personal Assistants
And perhaps, Assistants to Assistants!
Pray thee, how many of them do we need? And the President has only two ears like any human being. The same scenario is enacted and multiplied in the States. Section 192 states that:-

There shall be such offices of Commissioners of the Government of a State as may be established  by the Governor of the State.

This provision bestows an unreasonable latitude on a governor. There must be a way to limit the number of commissioners. In addition, to as many commissioners as may be appointed by the governor, Section 196 also empowers the governor to appoint special advisers under the same condition to wit: 'any person' for special advisers to the president.

Recently, on the back page of ThisDay the article: 'Stop Blowing Our Money, Ijeoma Nwogwugwu declared as follows:

As it stands, we have too many ministries, departments and agencies, not including countless useless committees, that add no value other than serve as a drain on the treasury. Several of these government departments, committees and officials that man them duplicate each others' functions. All that is required is the political will to merge and/or scrap several of such departs to save resources.

The multiplicity in the appointment of Ministers and the latitude in the appointment of Commissioner, Special Advisers 'ad infinitum' constitute a costly dilemma.

LACK OF CONSTITUTIONAL AWARENESS
The lack of awareness of the provisions of the constitutions by the populace is worrisome. If the people are ignorant of their rights, government and its agents can and will trample on such rights by committing breaches of the Constitution with impunity. It is imperative that a programme of constitutional awareness of the people be evolved because there is a huge disconnect  between the people and the provisions of the Constitution. Perhaps such a programmes can be integrated into the National Youth Service Corps agenda of new lawyers - 'the new wigs' - for the communities in which they serve. Government should also include the programme in the agenda of orientation courses and 'Retreats' held for ministers, commissioners, special advisers, permanent secretaries, et al. Such courses will add real value to the agenda of 'Retreats.' Government officials needs to be familiar with the provisions of the Constitution so that they can perform their functions within its parameters. Such an orientation will  also encourage them to seek legal advise whenever necessary before they act, and not after the deed is done, and a dispute has arisen. Please, let it be understood than I am not soliciting for briefs!

Lack of constitutional awareness is a dangerous national dilemma.

THE MONSTER CALLED CORRUPTION
It is trite to say that there is pervasive corruption in all segments of the policy.  Thus I will not bore the assembly here present with a long discourse on corruption. I leave that to Transparency International.

Suffice it to state, however, that one of the worst days of my professional life (which now spans only a period of forty- seven years- twenty-nine out of which at the Inner Bar) was the day. I saw and read the cover story of the Tell Magazine with the banner headline:

'Justice For Sale'
Oh ye gods! I nearly collapsed. I agonised over the chilling reality that the situation had descended to such a lamentable state that a news magazine would have the audacity to publish that story on the judiciary and Reuben Abati in The Guardian under the debilitating caption: 'Nigeria: A cripple at 50' wrote 'inter alia':- The root of the country's misfortune is systemic and widespread corruption. Over a third of the country's total revenue from 1960 has been looted by conscienceless leaders at all levels. Public officials are internally corrupt: they go into office, poor and haggard looking, modest and enthusiastic; they return with bigger bellies, fresher faces, fatter bank accounts, arrogant and contemptuous. Their lives change, the people remain at the same spot, or their circumstances worsen. Yet a few after leaving office they become ordinary and become desperate to get back again, hence the growing number of recycled public office holders- why? Because political office remains the most viable business for survival in the country, not the business of service to the people and the state.

Even the caption: 'Nigeria A cripple at 50' gave me heartache.

In the Sunday Punch Tunde Fagbenle, on 'Fayemi is Governor as Ido-Osi is revisited wrote: The judiciary in Nigeria has been flip-flopping and news of incredible sum demanded and received to make judgement favour the highest bidder on election appeals is common place.

Well, that is damning enough to give anyone bellyache, constipation and insomnia.

In 1963 when I gleefully entered the one and only learned profession with high expectations, a profession which I cherish, there was no rumour or even a whisper of allegation of corruption in the judiciary. With all due respect and with much pain, I state categorically, that over the decades, complaints of corruption began to emerge in the lower courts, gradually in the High Court, Court of Appeal and now, even in the very apex of the hierarchy of the judiciary to wit: the Supreme Court of Nigeria, no less. Indeed, there was a day of infamy, a few years ago, when a lawyer openly and brazenly accused the justices of the Supreme Court of corruption in their own court 'in facie' (in the face of the court).

Now, I ask my self: how did we descend to this abyss of corruption? What is even more painful to me is that the dirty brush of corruption is applied to the entire judiciary as whole, when, in fact, there are many judicial officers who are true to their judicial oath of office to wit: to dispense justice without fear or favour. It is scandalous that some rotten eggs should tarnish the good reputation of the honest judicial officers.

I am constrained to contend that the cause of the endemic corruption in our country is that the corrupt people just ignore the provisions of Chapter II of the Constitution on Fundamental Objective and Directive Principles of State Policy. The Chapter contains a code of conduct for the nation. Specifically, section 15(5) states:-

The state shall abolish all corrupt and abuse of power.

Let us implement that provision.  In that regard it is opportune to state that 'plea bargaining' in the prosecution of corrupt officials is illegal in Nigeria. It is an American criminal law procedure which is not available in our laws. And I have serious reservations about its selective application in our country, although we like to boast of equality before the law.

Corruption in the judiciary is a calamitous dilemma.

(4) ELECTIONS PETITIONS
Nigeria is notorious for election chaos, which has gained us the unenviable stigma of our inability to conduct free, fair and credible elections. The 2007 elections were fundamentally flawed by all kinds of election fraud and crass criminality. Even our late president, Yar'Adua, had to admit that his 'election' was flawed. However, what would really make us a laughing stock to the world is the situation that, in the year 2010, while we are preparing to conduct another set of general elections in 2011, some of the 2007 election petitions have not yet been resolved!!! The Sokoto State gubernatorial is a case in point. So is the Delta State case and many more besides.

After every election, election petition tribunals are inundated with petitions on electoral fraud and other malpractices. On the contrary, in England, last September, an Election Court presided over by two High Court Judges heard an electoral case in which the Liberal Democratic candidate who lost in the May 2010 election sought to have the result in Oldham East Saddleworth constituency declared null and void in order to have a re-run. The case was instituted under Section 106 of the Representation of the People Act. The last time such a case was instituted in the United Kingdom was in the year 1911!!! - one election case in nearly a century. Why? The answer is simple. Elections are conducted in an atmosphere of peace and orderliness without any political violence, rascality or hooliganism. If we are to achieve that level of electoral sanity, the electorate must be free to vote for any candidate of their choice. They must not be intimidated or coerced or bribed to vote for any candidate. And they must not be assaulted or maimed or even killed by political thugs when exercising their constitutional and fundamental right to vote. And the true results must be published without any official chicanery.

It is my hope that we will, in due course, achieve a higher level of electoral sophistication in our own country so that election petitions and appeals are not so many and are finally decided with promptitude without accusation of bribery being levelled against the judges, and within the shortest period of time after the elections. The Electoral Act 2010 has introduced some time limits for the disposition of election petitions and appeals. However, the Act is in a state of flux because of attempts to add more amendments. Let us hope that the time limitations will help to eliminate the current confusion under the 2006 Electoral Act. It was only in October 2010 that the Ekiti gubernatorial election appeal arising from the 2007 election was finally decided. The effect of the late adjudication was that the candidate who was finally adjudged to have won only resumed office as governor about three and half years later. Surely, this constitutes an electoral aberration. That appeal ended in the Court of Appeal.

To be continued