There is no perfect Constitution and that is why every Constitution contains provisions for its amendment . Also I aver that no two Constitutions are identical as Constitutions are supposed to be tailor- made to address issues of individual country.
The difference between Constitutions is beyond types and structures of government ; far from devolution of power within government characterized by the known differences in the principles of devolution of powers of government in the unitary , federalist or con-federalist type.
There are differences in the operations of unitary ,federal and con-federalism from country to country. While unitary government is obviously distinguishable because of its high degree of centralization, the difference between federalism and con-federalism is not that discernable because
federalism and con federalism contains coordinating levels of governments with varying degrees of autonomy.
While the unitary centralist government transmits power to its subordinate levels as it fancies , the central, state and local government in a federalist or confederalist government share power through the Constitution.
The 1787 Constitutional Conference of the founding fathers of America in Philadelphia gave birth to the first so called federalist system in the world, that of the United States.
That Conference was prompted by the need to have a powerful Central government to pool the American States together from the loose association of states later identified as Confederation.
So the difference between federalism and Con-federalism is the lower degree of absorption of power from the coordinating parts to the central in federalism than in the con-federal system where its coordinating parts have higher degree of autonomy.
So power sharing between the Central and its parts have become a recurring decimal in federalism and since Nigeria has settled on federalism , it is this problem of Nigerian federalism that this memorandum is addressed.
I want to assert that the present Nigerian Constitution would pass the litmus test of federalism anywhere . In some cases it has advanced beyond the level of the oldest federalist system, that of United States.
We shall in this memorandum from time to time draw comparison between the Nigerian federalist system and that of the United States when necessary but I want to declare that no two federalisms are the same because each federalism is related to the political past of its country as Alhaji Shagari’s election and Chief Obafemi Awolowo’s challenge of it gave birth to the concept of creating number of states divisible by three in other to put clarity into the provisions of the Constitution requiring candidate to have one quarter of votes in two-third of states in addition to a majority vote to win in other to solve the problem created by the controversial interpretation of 2/3 of nineteen states which Judiciary put as 12 2/3 states instead of common sensical 13 states .
True Federalism
Often , people talk nowadays of true federalism without giving thought to its definition.
Federalism to me is federalism as federalism is a system of government mostly of three levels , central , state or regional and local government where these levels of government co-exist with constitutionally defined powers . Federalisms thereby defer from the manner of power sharing among the levels of government in a way that the Central is not too strong as to endanger the autonomy of its component parts or the regional or state power and local government either in part or in its aggregate do not become too strong as to weaken the Central to its endangerment.
Since resources , both in human and material form, are the hallmark of a nation , the distribution of these resources between the levels of government becomes the yardstick for revenue sharing and thereby the scale of its federalism. Hence resource control and fiscal federalism become popular lexicons in the struggle for sharing the national cake in Nigeria as they become everyday slogan for those who clamor for their undefined concept of true federalism.
A writer has traced the use of “true federalism” to Chief Obafemi Awolowo. This may be true. In fact Chief Obafemi Awolowo can be credited to be the father of Nigerian federalism while Dr. Nnamdi Azikiwe could go for a Unitarian and Sir Ahmadu Bello, a con-federalist.
From his first known book : “Path to Nigerian Freedom “ published in 1947 , Chief Awolowo wrote against the British experimentation of unitary system in Nigeria as he wrote in page 47 of the book that ‘since amalgamation, all efforts of the British government have been devoted to developing the country into a unitary state.’ Instead , he argued that ‘ Experts can propound learned theories as why people having different
languages and cultural backgrounds are unable to live together under a democratic unitary constitution’. He went further to say that… ‘the empirical facts of history are enough to guide us. It has been shown beyond all doubt that the best constitution for such diverse peoples is a federal Constitution.”
The reference to ‘ true federalism’ by Awolowo was during the allocutus of his treasonable felony case in the Court where he referred to his struggle for true federalism. He was very specific in citing the imbalance in the lopsidedness in Nigerian federal structure represented by the composition of the Northern region which comprised of fifty per cent of the population of the federation against that of the Southern region to argue for creation of states in both regions to achieve a political balance as near equilibrium as possible in the distribution of the human resources of the composing states as much as possible . Something akin to what we have now.
But the contemporary advocates of ‘true federalism’ have not given us the benefit of their desire .
But an inkling from the clamor for ‘resource control’ as a means for ‘fiscal federalism’ gives an idea that what they want is the state control of the resources derivable from each state turning the Central government into a beggar to the detriment and weakness of the Centre. We need not belabor ourselves that if for example , the Delta region is allowed to control the oil resources from the region to the detriment of other states and the central , the Nigerian federation will collapse.
Which the brings us to look into the mechanism by which rich states today would not endanger the future of the federation.
Thus, the problem of revenue allocation becomes very important to Nigeria. Suffice to say that revenue allocation is not endemic to federalism. The federal statutory allocation of the nation’s revenue practice in Nigeria has been resisted in the U.S. by the protectors of federal power that what accrues to the central government could not be unconditionally allocated to the states without string attached . Therefore when the federal government in the US allocates certain amount to any state , that allocation must be spent specifically on the projects for which it is allocated with the federal government close monitoring. Whereas in Nigeria , the money allocated to the state by the authority of the constitution would be spent by the state as it fancies subject only to the authority of the state House of Assembly .That is one of the latent powers of the state in Nigeria that makes the state more powerful in Nigeria than that of the US.
I want to quickly mention other areas of latent powers of the state or the state executive in Nigeria which make them more powerful than that of the US.
I want to quickly mention other areas of latent powers of the state or the State executive in Nigeria which make them more powerful than that of an American Governor .
In New York for example , the Governor does not appoint the State Attorney General or State Comptroller which does the job of State Finance Commissioner . These two positions are left for the electorate to decide and they are contested for on party basis at which case either of the positions could be elected from the party other than the party of the Governor resulting in to a situation where the person that would sign the check of all the expenditures of a State Governor could be from a party other than the governor’s. This could be a check mechanism on the New York governor whereas the Governor in Nigeria, subject only to the approval of the State Assembly mostly controlled by the Governor’s party, could possibly appoint his/her cousin , brother or whoever to these positions . Such is the latent power of a Nigerian Governor that the call for true federalism does not put into account.
I still want to mention interesting features about another subject which are generally mentioned as inimical to “true federalism” – The control of the police by the federal government. In looking at this subject seriously, you will discover that more or less the power of dispensation of justice in Nigeria is balanced by the control of the federal law enforcement agents (the Police) and the power of persecution held by the State. The power to allow the State to control the police clamored for by some state governor will tilt the balance in favor of the state giving the state government absolute power which is said to corrupt absolutely. But I believe that there is a need to amend the constitution to make the Governor have a better voice on the control of the federal police . I will do this in this memorandum as I look into the specifics of the relevant provisions of the Constitution on the police.
An area of my special interest is the principle of sharing powers in regard to local government structure ,functions and establishment. The nature of allocation of revenue allocation as presently stated in the Constitution has given room to the state to interfere unfairly with the local government funds. The local government should really be the agent of the federal and state government for execution of projects because it is the government that touches the people at the grass root as the people , the recipients of the acts of commission and omission of government are on the ground , and not at the level of the state government and should not be left at the mercy of the state or tied to its apron even though it is closer to the state than the federal government.
I shall like to make my comments chapter by chapter for the purpose of clarity.
Chapter 1 Part I
Section (1) and Subsection (1-3)deals with the supremacy of the Constitution which to me is ok.
Sections 2 and 3 to me is ok.
Chapter 1 Part II
Sections 4 and 5 deal with the power of the Federal and State
Governments and the limitation of the State power vis-Ã -vis the federal functions and this is agreeable too for running a federal structure especially that there is a protection of judicial functions in Section subsection (8).
Section 6 : I do not have any comment on Section 6 except to add that it should be made mandatory to allow the Federal Attorney General to initiate proceeding and prosecute cases on federal offences. A situation where the State prosecutes federal offences is not judicious. There should be a compelling provision for the National Assembly
to make law to initiate the trial of a federal case in a federal High Court which should be located in all state capitals.
Section (7) Subsection (1) The system of government by democratically elected local government councils is under this Constitution guaranteed ; and accordingly, the Government of every state shall, subject to section 8 of this Constitution, ensure their existence under a Law which provides for the establishment , structure , composition , finance and functions of such councils.
Since the names of existing Local Governments are clearly stated in the First Schedule Part I, States of the Federation, there is no doubt that creation of new local government council and state is subjected to Section 9 of the Constitution which stipulates that “The National Assembly may, subject to the provision of this section, alter any provision of this Constitution .
In Subsection (2) of Section 9 an Act of the National Assembly besides matters in Section 8 of the Constitution requires votes of not less two-thirds of all members of the National Assembly thus: An Act of the National for the alteration of this Constitution, not being an Act to which section 8 of this Constitution applies , shall not be passed in either House of the National Assembly unless the proposal is supported by the votes of not less than two-third majority of all the members of that House and approved by resolution of the House of Assembly not less than two-thirds of all the States.
Whereas an Act of the National Assembly for the alteration of the Constitution regarding matters relating to section 8 in subsection (3) of section 9 requires higher demand of four-fifths of the votes of the National Assembly members thus :
An Act of the National Assembly for the purpose of altering the provisions of this section, section 8 or Chapter IV of this Constitution shall not be passed by either House of the National Assembly unless the proposal is approved by the votes of not less than four fifths majority of all the members of each House, and also approved by resolution of the Houses of Assembly of not less than two-thirds of all the States.
Section 8 of the Constitution has to do with procedure for creating States ,Local government council, and boundary adjustment which we will examine critically later. For now, I want to further emphasis the importance attached to creation States and Local Government by the Constitution by referring to subsection (4) of Section 9 which makes a higher premium on the subject than other alteration by demanding for the sitting of a full House membership of the National Assembly thus:
For the purposes of this section 8 of this Constitution and of subsections (2) and (3) of this section, the number of members of each House of the National Assembly shall, notwithstanding any vacancy, be deemed to be the number of members specified in sections 48 and 49 of this Constitution,
Whereas in the normal business of the House two-third majority of each House of the National Assembly is required to pass a Bill in to Law. See Quorum in Section 54 Subsection (1) thus:
The quorum of the Senate or of the House of Representatives shall be one-third of all the members of the legislative house concerned.
After the State must have made law in accordance with Sections 7 and 8
with subsections (5) and (6) of Section 8, the concluding task of the creation is in Section 9 as stated above.
Interestingly, let’s look at the provisions of subsections 5 and 6 of Section 8.
Subsection 5 : An Act of the National Assembly passed in accordance with this section shall make consequential provisions with respect to the names and headquarters of States or local government areas as provided in Section 3 of this Constitution and in parts I and II of the First Schedule to this Constitution.
Subsection 6 : For the purpose of enabling the National Assembly to exercise the powers conferred upon it by subsection (5) of this section, each House of Assembly shall , after the creation of more local government areas pursuant to subsection (3) of this section, make adequate returns to each House of the National Assembly.
We have above demonstrated how important this consequential provisions
are as illustrated in Section 9 and for anyone to take it for granted as a mandatory duty or obligation on National Assembly without regards to the provisional demand for an approval of the votes in at least two-third of the Houses of Assembly as orchestrated by Lagos State is a gross violation of our Constitution. And to continue to act in operation of the unconstitutional 57 local governments after the Supreme Court has pronounced the creation of the local government councils inchoate and a High Court of Lagos has pronounced an action of a chairman of the one of additional local Councils null on the basis of constitutional non existence of the council is an act of anarchy by Lagos State . It shows the level of levity by which our constitution is held by those who have sworn to uphold it.
Causes of Conflict
Section 7 subsection (6) (a) of the Constitution stipulates that the National Assembly shall make provisions for the statutory allocation of public revenue to local government councils in the Federation; subsection (b) says the House of Assembly of a State shall make provisions for statutory allocation of public revenue to local government councils within the state.
The concurrency of the National Assembly and the State Assembly in making provisions for the statutory allocation to local government becomes an issue.
Ordinarily it could be resolved on the side of the National as Section 4 subsection (5) says : If any Law enacted by the House of Assembly of a State is inconsistent with any law made by the National Assembly, the law made by the National Assembly shall prevail, and that other law shall to the extent of the inconsistency be void.
The allocation formula made by the National Assembly allocated for each local government should go to the local government directly under the law made by the National Assembly . This should not be subject for statutory allocation to which the state shall make provisions. On the other hand , the National Assembly should be limited to making general laws regulating what share of internal revenue allocation of the state and derivation funds of the state that should go to the local government in such a way that protects the interest of the local government without infringing on the power of the state in performing its constitutional functions.
So the local government must be made to be strong and viable and that is ,to my mind, is the reason why the constitutional framers find it necessary to tie the hands of the state government from reckless restructuring of the local government system which is capable of weakening the third tier government.
The Supreme Court was right in describing the 57 local government in Lagos State as inchoate and yet the Lagos State continues to run this unconstitutional system. This is a subject to which the Constitutional Review should address and should not gloss over it because if our system gives room for this open abuse , we would not have constitution at the end of the day and all efforts at constitution making would be futile.
Despite the clear provision of Section 118 says: The registration of voters and the conduct of elections shall be subject to the direction and supervision of the Independent National Electoral Commission (INEC) The INEC is said to have observed these unconstitutional elections where elections was said to have been held in 20 Local Governments and 37 Local Government Development Councils. This is not a mere political matter but a constitutional issue and studying it will help you understand the enormity of the task before you.
To my mind the requirement for consequential provisions is a very serious issue because the Local Government gets allocation from the national purse so any Local Government created will be subjected to political consideration and debate against other states that might want local governments created in their states.
So the National Assembly is not duty bound or obliged to consider consequential provisions in isolation of other requests. People play down this issue on the notion that after all Lagos State is not getting more than the allocations of the 20 Local Goverments listed in the Constitution. But it makes nonsense of the Local Government system in Lagos State and Nigeria, since a simple question of how many Local Governments there are in Lagos State or the nation will generate an unending debate. This is bad for our Constitution. Not only that ,the people of Lagos State is worse for it since they are made to pay for political office holders for 57 local governments whereas the state gets allocation for 20 local governments from the federal making the politicians only the beneficiaries of this anarchy.
If all other states misbehave like Lagos State, like Kano State operating the 87 Local Governments it proposed without due process, there will be national chaos and anarchy in the third-tie government and destruction in our political system.
I will then propose that Section 7 (1) should be reviewed to include emphasis on section 9 thus : (1) The system of Local Government Councils is under this Constitution guaranteed, and accordingly Government of every State shall , subject to Section 8 and Section 9 of this Constitution, ensure their existence under a Law which provides for the establishment, structure, composition ,finance and functions of such councils ,thereby focusing the importance of Section 9.
Another aspect of the Constitution I would like to address is the manner of referendum in creating local government and State .
I was in Lagos when the proceedings for the creation of local government was consummated and there was no referendum conducted anywhere .
Ordinarily Section118 would have be enough to cover referendum for which the INEC would have responsible for ,I will then like to propose that Section 118 be amended to include referendum thus : The registration of voters and the conduct of elections and referendum shall be subject to the direction and supervision of the Independent National Electoral Commission because referendum is really a very important election.
One more point on Lagos State Government and I am done. Ask the Chairman of INEC what voters’ registration list the Lagos State Election Commission used for delineating Bariga Development Council, for instance, from Somolu Local Government and how was the election for Somolu Local government which is supposed to be a constituency in the Constitution comprising Somolu and Bariga areas conducted .
And when similar inquiry is made on the 20 Local Governments and the 37 new additional councils you will appreciate the degree of contempt and abuse people are subjected to in Lagos State.
How can we account for additional wards of councilors created in Somolu or elsewhere in the INEC voters register.
The answers to this inquiries would open our eyes on how easily provisions of the constitutions can be manipulated to make you recommend safeguards.
In other to clarify the possible conflicts derivable and from the concurrency of Section 7 subsection (6) (a) and (b) I will advise that the two provisions be amended as follows :
6 (a) The National Assembly shall make provisions for statutory allocation of public revenue to local government Councils regarding the revenue accruable from the Federal Consolidated Accounts and guard line on internally generated revenue of the State and revenue from derivation accounts of the state to the local government.
6 (b) the House of Assembly of a State shall make provisions for statutory allocation of internally generated revenue of the State subject to the provisions of Section 7 subsection 6 ( a) of the Constitution.
This way the National Assembly will be limited in making general law as to the proportion of internally revenue of the State that will go to the local governments and leave the State Assembly with the power to go into making laws into the specific without dabbling into the federally allocated revenue to the local government .
In view of the complexity of the nature of creating States and Local and boundary adjustment mostly caused by the politics of revenue allocation, there is a necessity for the creation of a Commission of representatives from all states that would review the bases for creation of states and local governments and make recommendation to the National Assembly for action.
The provisions for creation of local governments and states as embodied in the Constitution in Section 7 and Section 8 give the impression that local government and states are there for the asking.
But the politics of creation of more states and local governments should involve negotiation and consultations among all stake holders from all states and zones since the more the states and local governments the more funds from the federal fund would go to the areas where they are created.
The politics of creation of state or local government is therefore too cumbersome to be left to the National Assembly alone. The creation of an Independent Commission to look into different demands for states and local governments in relation with the polity of the nation will lighten the burden of creation of States.
The function of the Commission will be to look into the demerits of all the cases for creation of local governments and recommend the number of local government it may deem feasible for each state from time to time. Each state will thereby mend its demand in line with the number of local governments recommended for the states based on the principles of population, geographical spread, contiguity, landmark, administrative convenience, human and natural resources.
The position of the provisions of Sections 7 and 8 tend to give an impression that state and local government can be created as demanded it should be amended because it is capable of encouraging frivolous demands for creation of states and local governments to satisfy the whims and caprices of the politicians in power .
So, instead of the process starting from Section 8 (3) with ‘ a request supported by at least two-thirds majority of members ( representing the area demanding the creation of new local government ) in each of the ………The demand should go to the Commission which would in ‘national interest’ aggregate the totality of demand for local government in the nation and recommend number of new local governments desirable to each state from time to time considering population, geographical spread, contiguity, landmark administrative convenience ,,human and natural resources . It then becomes the duty of the state to re-structure its local governments on the basis of the number of local governments allocated to the state.
For creation of State , the Commission would recommend the creation of State with a view to balancing the geopolitical zones in the nation,
Therefore Section 7 and Section8 should be redrafted to reflect this top to bottom allocations of States and local governments rather than bottom\up system which proliferates the demands making the exercise practically impossible.
I want your committee to take a look at Section 7 subsection (3). It shall be the duty of a local government council within to participate in economic planning and development of the area referred to in subsection (2) of this section and to this end an economic planning board shall be established by Law enacted by the House of the State.
I now want to call your attention to subsection 2 which this subsection 3 refers to :
Section 7 subsection (2) The person authorized by law to prescribe the area over which a local government council may exercise authority shall -
(a) define such area as practicable , and ensure, to the extend to which it may be reasonably justifiable ,that in defining such area regard is paid to
(i) the common interest of the community in the area
(ii) traditional association of the community, and
(iii) administrative convenience.
Section 7(1) of the Constitution clearly gives the Government of a state subject to Section 8, the right to establish, structure, compose a local government which would have been properly prescribed and defined and to now give such power to a ‘ person authorized by law ‘ the same function is totally confusing and gives room for a lacuna since there is no such ‘ person’ in the constitution.
Subsection (2) should then be restructured as follows :
(a) the area over which a local government council may exercise authority shall be defined as clearly as practicable (b) to ensure , to the extent to which it may be reasonably justifiable, that in defining such area regard is paid to
(i) the common interest of the community in the area
(ii) traditional association of the community and
(iii) administrative convenience
The intention of subsection (3) of Section 7 is to rightly incorporate the authority of local government into the economic planning of the State and therefore I am proposing that the subsection be modified as follows : It shall be the duty of the local government councils within the State to participate in the economic planning and development of the state and to this end an Economic Planning Council shall be established by a Law enacted by the House of Assembly of the State comprising of the Governor and all the Chairmen of the Local government chairmen of the State. This will make it necessary for the State Governor to hold meetings with the local government chairmen as the Governor may find necessary for the purpose of economic planning and development.
Part II (E) Electoral Law paragraph (11) says : The National Assembly may make laws for the Federation with respect to the registration of voters and the procedure regulating elections to a local government council.
And paragraph 12 says : Nothing in paragraph 11 hereof shall preclude a House of Assembly from making laws with respect to election to a local government council in addition to but inconsistent with any law made by the National Assembly.
And when you look at PART I Exclusive Legislative List paragraph 22 where the National Assembly has exclusive power you can see a seemingly contradiction where the federal is given exclusive jurisdiction to legislate on :
Election to the offices to the offices of President and Vice President or Governor and Deputy Governor and any other office to which a person may be elected under this Constitution , excluding election to a local government council or any office in such council.
If you look at Part II E paragraph 11 , the National Assembly has the power to make laws ‘ for the federation with respect to the registration of voters and procedure regulating elections to a local government council but paragraph 12 of the exclusive list excludes it from ‘ election to a local government council or any office in such Council’ in its exclusiveness.
I believe the Committee should reconcile this specifically to mean the National Assembly has the power to make laws for registration of voters and the procedures for election for the local government but not specifically ‘ for conduct of local government elections’.
I believe the inadequacy of our Constitution has to do with the inaction of our National Assembly and Houses of Assembly to fill the gap to make necessary laws to complement the Constitution. For instance if the National Assembly had made a law that no local government can operate under any guise unless all the processes of establishment completed , we wont have the situation we have in Lagos State today.
I want to quickly direct your attention to paragraph 32 of the legislative list and request you to remove local government from the list of corporate bodies because local government is not a corporate body. It must be the hand of printers’ devil.
CHAPTER II
FUNDAMENTAL OBJECTIVES AND DIRECTIVE PRINCIPLES OF STATE POLICY.
One hardly has any thing to add to the provisions of Section 13 to Section 24.The idealism of the fundamental objectives and Directive Principles can not be faulted but how realistic are they or how can we make them relevant.
Short of making them ‘ judiciable’ that is subject to judicial challenge which has already been controversial are left plankless and therefore meaningless . To give it some teeth of seriousness, I will now propose that your committee make a provision providing a Commission to monitor and measure the fulfillment of Fundamental Objectives and the Directive Principles of State to ensure targets are met from time to time as for instance
as ‘ The State shall be obliged to measure from time to time the achievements of government regarding these fundamental principles through a Commission established for this purpose.’
CHAPTER III
I want to make some observations and comments of the provision of Section 25 to Section 32 on Citizenship .
I am amazed that people still make abuse of Court proceedings by going to Court to challenge the elections of citizens of Nigeria by birth despite the provisions of Section 25 and Dual Citizenship provisions of Section 28.
For the purpose of clarifying the air on this matter and to foreclose any future frivolous challenge of Nigerian citizens to elective posts, I shall hereby highlight these enabling provisions of Nigeria Citizenship by birth.
Section 25 (1) The following persons are Citizens of Nigeria by birth, namely-
(a) every person born in Nigeria before the date of independence , either of whose parents or any of whose grandparents belongs or belonged to a Community indigenous to Nigeria.
Provided that a person shall not become a Citizen of Nigeria by virtue of this section if neither of his parents nor any of his grandparents was born in Nigeria,
(b) every person born in Nigeria after the date of independence either of whose parents or any of whose grandparents is a Citizen of Nigeria, and
(c) every person born outside Nigeria either of whose parents is a Citizen of Nigeria.
(2) In this section ‘ the date of independence’ means the 1st day of October 1960.
The above provisions is unambiguous as to who is a Nigerian by birth –every person born in Nigeria before or after October 1st, 1960 whose parents or any of his grandparents belonged to a Community indigenous to Nigeria and every person born outside Nigeria either of whose parents is a Citizen of Nigeria.
We shall now go to provisions of Dual Citizenship in Section 28.
Section 28 (1) goes ahead to protect Nigerian Citizen by birth thus:
Subject to other provisions of this section a person shall forfeit forthwith his Nigerian Citizenship if not being a citizen of Nigeria by birth,, if he acquires or retains the Citizenship or nationality of a Country ,other than Nigeria of which he is not a Citizen by birth.
This provision clearly shows that Citizenship of Nigeria by birth which is clearly and unambiguously defined is not negotiable except of course such Nigerian Citizen renounces his Nigerian citizenship in accordance with Section 29 which states : Section 29 (1) Any citizen of Nigeria of Nigeria of full age who wishes to renounce his Nigerian Citizenship shall make a declaration in the prescribed manner for renunciation.
And the matter does not end there until Section 29 (2) that ‘ The President shall cause the declaration made under subsection (1) of this section to be registered and upon such registration , the person who made the declaration shall cease to be a Citizen of Nigeria.
The highest elective office in Nigeria is the Presidency and Section 131 of the Constitution makes all Nigerians by birth qualified for the post thus :
A person shall be qualified for election to the office of President if among other things-
(a) he is a citizen of Nigeria by birth
and same for the governorship of a State in Section 177 where it says : A person shall be qualified for election to the office of Governor of a State if –
(a) he is a citizen of Nigeria by birth.
The provisions for qualification for elections into the National Assembly and the State Assembly among other things respectively , also protects the Nigerian citizen by birth thus :
Section 66 (1) No person shall be qualified for election to the Senate or House of Representatives if
(a) subject to the provisions of Section 28 of this Constitution , he has voluntarily acquired the Citizenship of a country other than Nigeria or, except in such cases as may be prescribed by the National Assembly, has made a declaration of allegiance to such a country ,
Similarly Section 107 qualifies any candidate for election into the House of Assembly of a State subject to 28 of the Constitution as in the above.
My proposal to the Constitutional Review Committee is to do something to stop the dissipation of energy that we see daily in challenging the constitutionality of Nigerian Citizens by birth which is already settled by the constitution. This is a matter for review because we can not afford to waste time of the judiciary pursuing frivolity while matters of importance are not attended to.
Has noticeable in the Constitution, there three types of Nigerian citizenship : Citizens by birth , Citizens by Registration and Citizens by naturalization. While Citizens by registration and naturalization are through application, citizens by birth have natural affinity to Nigeria. While Citizens by birth are protected by Section 28 only citizens by registration and naturalization could be subject to Section 182 stipulating that such citizens are subject to laws of the National Assembly , ‘he has made a declaration of allegiance to such other country , whereas that of the Citizen by birth is only subject to his renunciation of his citizenship in accordance with section 29 which is concluded with registration of such renunciation by the President.
I therefore propose that the review Committee should give clarity to the intention of the Constitution by making a provision categorically saying : The citizenship of a Nigerian by birth can not be compromised unless he renounces his citizenship in accordance with section 29 of the Constitution. This is important as Section 28 protects the citizenship of Nigerian citizen birth under the provision of dual citizenship until he denounces his citizenship
and the President accepts the renunciation by registering it.
Voters’ registration
At this stage , I want to call the attention of the members of your Committee to Section 117 (2) of the Constitution: Every Citizen of Nigeria ,who has attained the age of eighteen years residing in Nigeria at the time of registration of voters for purpose of election to any legislative house , shall be registered as a voter for that election .
In the first instance , this provision blocks registration against Nigerians abroad unless they came home to register .
As Nigerians leadership talks of registering Nigerian abroad for election purposes I propose that the provisions be reviewed thus : Every citizen of Nigeria , who has attained the age of eighteen years at the time of registration of voters shall be entitled to be registered as a voter for the elections.
This shall only be subject to the legal residential qualification to vote or to be voted for in areas of residence or places of their natural birth for which every Nigerian by birth would be qualified .
CHAPTER IV
FUNDAMENTAL RIGHTS
I have critically looked into chapter iv of the Constitution and found the redundancy of the latter part of Section 40 : Every person shall be entitled to assemble freely and associate with other persons , and in particular he may form or belong to any political party , trade union or any other association for the protection of his interests.
Provided that the provisions of this section shall not derogate from the powers conferred by this Constitution on the Independent National Electoral Commission with respect to political parties to which that Commission does not accord recognition.
I realize that the intention of the Constitution framers might be to protect the rights of the National Electoral Commission against those whose parties were not registered nevertheless if an association is refused a recognition as a political party , it could still remain an association without playing the role of a political party with which the Commission has no business and therefore does not need to be protected from.
Once the National Assembly Electoral Commission has been given enabling power to recognize political parties , the proviso : ‘Provided that the provisions of this section……..’is distasteful to the extent of its redundancy.
I will also comment on the wordings of Section (42) - Right to freedom from discrimination .
Provision of Section 42 (1) (a) and (b) like many provisions in the Constitution are too verbose.
It should be simplified as follows : A citizen of Nigeria shall be free to live in any part of Nigeria enjoying all the privileges of a citizens without discrimination based on his ethnic group , place of origin, sex, religion, or political opinion subject to any law of a state that defines residence status reasonably believed to be in conformity with democratic society,
If this approach is taken on all the provisions of the Constitution , the Constitution will be reader friendly and could be made ready for civil education of the citizenry much more easily.
CHAPTER V
National Assembly
Section 47 to 79 are in tune with the principle of bi-cameralism , necessary in an ideal federalism . The Senate and the House of Representatives complement themselves as the Senate is composed on the principle equality of State to balance the principle of population represented in the House of Representatives . I note however that Section 51 provides for the Clerk of the National Assembly and there is no constitutional provision for the Clerk of the Senate and the House of Representatives .I want to propose that provisions be made for creation of the Office of the Clerk of the Senate and the House of Representatives respectively to denote the bi-cameral nature of our National Assembly. This way , each Chamber would have autonomy of actions and the Clerk of the National Assembly would be relieved to concentrate on issues of the joint actions of the National Assembly whenever there is disagreement between the two Chambers on legislative matters.
The uni-cameral nature of the House of Assembly as in Section 90 should not be absolute and therefore a provision be made to allow each State to have the discretion to have bi-cameral Chambers as it may choose to.
At this stage, I want to suggest that a provision be made in the Constitution to accommodate a State Charter , a sort of State Constitution within the context of Nigerian Constitution .Such State Constitution would give each State , the sense of autonomy and whittle down the sense of alienation that is characteristic of the clamor for true federalism. If Nigeria experiments with this context of State Constitution drafted by all stake holders in the State , you will be surprised at the complexity and diversity of ideas that will be generated which will ultimate enrich the quality of constitutionalism and thereby our polity. Such issues like marriage, role of traditional rulers , primary elections, the place of religion and culture and other matters of local nature would be tackled in a way that the National Assembly could not deal with them.
FEDERAL EXECUTIVE
One of the areas where the Nigeria Constitution has advanced beyond the American Constitution in pursuance of democratic ideal is the election of the President.
Nigerian has settled the matter of reconciling the large State and small State interest in the provision for her Presidential election so much that it is not possible for the election of a candidate without the majority votes or reasonable spread of votes as President.
America has not agreed on how to elect her President on popular ballot as she elects her President based on an electoral college system that is based on the need to ensure spread of votes as votes are allocated to State on the basis of their size thereby allaying the fear of small states, ignoring the need to satisfy the need of the most important ingredient of democratic – majority rule. This archaic system made the election of W. Bush with higher electoral votes possible over Vice President Al Gore with majority votes.
But in Nigeria, Section 134 subsections 1,2,3,4,and 5 are complements to the political sagacity of Nigerian Constitutional making by ensuring that a candidate to be elected as President must have a national widespread acceptability among the states and popular votes , the goal the Americans are still fighting to achieve.
Ordinarily , I would not have a need to comment on Section 144 of the constitution regarding the incapacity of the President if not for the brinkmanship caused by the sickness of President Umar Yar’Adua before he later answered the final call.
In the implementation of a Constitution , maintaining of faith is very important among those placed in position of authority . Sometimes our culture conflicts with the letters of our constitution. In traditional Africa, a king is never replaced until he actually dies because once you swear in his successor , the successor might not want to leave after his principal office older has been cured of his decease hence the secrecy clothed around President Yar’Adua’s sickness.
Section 144 (1) says : The President or Vice President shall cease to hold office, if-
(a) by a resolution passed by two-thirds majority of all the members of the executive council of the Federation, it is declared that the President or Vice President is incapable of discharging the functions of his office, and ………..
From experience , we now know that it is not easy for members of the Executive Council appointed by the President to have the courage to declare that their boss is incapable of discharging the functions of his office, In fact they would not be in a position to do that because the Executive Committee of Ministers are not competent to declare him incapable because it is not a council of medical experts .Therefore the Executive should not be given that responsibility . It should therefore be drafted to require the Executive Council of the Federation to report the President of the Senate if the President is continuously absent from his duty for a ‘ reasonable period of time’ or in the case of the Vice President , the President should be responsible to report to the President of the Senate ,within a reasonable period of time, to be determined in the provision of the Constitution as not more than two weeks .
The President of the Senate shall thereafter be obliged to inquire within a week as to why the President or the Vice-President has been absent from his duty and if found to be on point of medical incapacity , the President of the Senate should then constitute a medical panel in accordance with Section 144 subsection 4 to verify the condition of the President or the Vice –President in accordance with Section 144 subsection (1).
The same thing I would recommend in respect of Section 189 (a) of the Constitution to urge the membership of the Executive Council of the State to report to the Speaker of the House for the Speaker to constitute a medical panel to verify the condition of the Governor if the governor is absent from his post for two weeks and also should be the responsibility of the Governor to report to the Speaker of the House if the Deputy Governor is so absent for the Speaker to determine the cause of absence within one week and if found to be on the basis of illness to establish a panel of medical experts to verify the condition of the Governor or the Deputy Governor .
Let us look in to the provisions of Section 147-Ministers of federal government and Section 192 –Commissioners of State.
Section 147-(1) There shall be such officers of Ministers of the Government of the Federation as may be established by the President.
Similarly Section 192 subsection (1) says : There shall be such offices of Commissioners of the Government of a State as may be established by the Governors.
These two Sections tends to suggest that either the President or the Governor has discretion, to or not to appoint ,in the case of the President , Ministers and the governor, Commissioners.
There is no question as to whether or nor to appoint Ministers and Commissioners. Even under the Military , these positions were filled. We should therefore not give the impression that either the President is free not to appoint Ministers or the Governors, Commissioners.
The present provision is too loose and does not seem to oblige the appointment of Minister or Commissioner such that the present Governor of Osun State did not bother to appoint Commissioners of government until about seven months in to his tenure as he was waiting for the election of a friendly House of Assembly that would rubberstamp his list of Commissioners. That is not the spirit of the Constitution but its lettering gives room for such abnormality.
I therefore propose that Section 147 (1) should read : The President shall appoint persons to the office of Ministers subject to the confirmation of the Senate.
Same goes for Section 192 subsection (1) : The Governor of a state shall establish the offices of the Commissioners of Government of the State.
Section 156
I want to refer your Committee of proven Statesmen to the provisions of Section 156. It is very revealing in its twisting the intention of the Constitution and it is serious.
Section 156 (1) No person shall be qualified for appointment as a member of any of the bodies aforesaid if-
(a) he is not qualified or if he is disqualified for election as a member of the House of Representatives .
Now look at qualification for membership of House of Representatives and Senate Section 65 subsection 2 (b) in addition to Section 65 subsection (1)
(a) and (b) which talks about qualification regarding citizenship
Now subsection (2) ; A person shall be qualified for election under subsection (1) of this section if –
(a) he has been educated up to at least School Certificate level or its equivalent ; and ,look at ‘b’
(b) he is a member of a political party and is sponsored by the party.
And the Bodies in mention in Section 156 (1) are ;
(a) Code of Conduct Bureau
(b) Council of State
(c) Federal Character Commission
(d) Federal Civil Service Commission
(e) Federal Judicial Service Commission
(f) Independent National Election Commission
(g) National Defence Council
(h) National Economic Council
(i) National Judicial Council
(j) National Population Commission
(k) National Security Council
(l) Nigeria Police Council
(m) Police Service Commission Revenue Mobilisation Allocation and Fiscal Commission
Could the Constitution intend that the membership of the Independent National Electoral Commission be like a member of House of Representatives which include qualification like in Section 62 (b) that he/she be member of a political party and sponsored by that party ?
This is against public sentiments and beliefs that the membership of INEC ,for example be apolitical, So also members of a number of Commission mentioned above.
Imagine a petitioner challenging the constitutionality of members of the INEC on the basis that they were not qualified to be members and thereby not constitutional qualified to conduct any election. That probably would have annulled all the elections conducted by the so called non partisan Commission. It is as serious as that .
Even though membership of Election Boards in the US are representatives of the political parties because the US realizes that everybody is a political animal and therefore chooses political party members as representatives of the parties to make forces counter forces in other to get a balance body of interest to conduct truly free and fair elections .But such is not the intention of the Nigerian Constitution.
I therefore propose that Section 156 subsection (1) (a) above be removed from the Constitution.
In the same manner Section 200 (1) (a) concerning qualification for membership of State
(a) Civil Service Commission (b) State Independence Commission and (c) State Judicial Commission be removed because such could not be subjected to the qualification of Section 200 (1) (a) that : No person shall be qualified for appointment as a member of any of the bodies if : he is not qualified or if he is disqualified for election as a member of a House of Assembly.
Section 197 subsection (3)
In appointing Chairman and members of boards and governing bodies of statutory corporations and companies in which the Government of the State has controlling shares or interests and councils of Universities, Colleges and other institutions of higher learning , the Governor shall conform with the provisions of section 14 (4) of this Constitution.
Confirmation of appointments to positions in 197 (1) is lumped up with the confirmation and appointment to positions in Subsection (3) making it be subject to the provisions of Section 198 ; -Except in the case of ex-officio members or where other provisions are made in this Constitution , the Chairman and members of any of the bodies so established shall, subject to the provisions of this Constitution , be appointed by the Governor of the State and the appointment shall be subject to confirmation by a resolution of the House of Assembly of the State.
I do not think it is the intention of the Constitution framers to lump up the bodies of determined tenure in Part II of Third Schedule with a transient and temporary nature of the Boards and statutory corporations with government financial interests which the State Governor can dissolve at his/her discretion .Such bodies of public corporations do not usually enjoy the security enjoyed by bodies enlisted in third Schedule Part I and II and not subject to legislative confirmation and the tenure of their term does not exceed the tenure of the President or governor and therefore cannot be subject to Section 199 subsection (1) (a) that ; in the case of a person who is a member otherwise than as an ex-officio member or otherwise than by virtue of his having previously held an office , for a period of five years from the date of his appointment.
I am therefore proposing that subsection (3) of Section 197 be removed in its entirety since there is no similar provision on federal corporations suggesting that separate provisions be made for them that is commensurate with their status.
I am sure the Constitution would not give more burden to the State Governor than it would give the President in the appointment of Chairman and members of state corporations where the federal government have controlling shares.
I therefore propose that Section 198 of the Constitution be drafted to read : Except in the case of members of the bodies established in accordance with the provisions of Section 197 subsection (3) and the ex-officials of the bodies established under Section 197 or where other provisions are made in this Constitution, the Chairman and members of any of the bodies so established shall ,subject to the provisions of this Constitution, be appointed by the Governor of the State and the appointment shall be subject to confirmation by a resolution of the House of Assembly of the State.
Section 221
I want to draw attention to Section 221 of the Constitution. The provision of Section 222 has spelt out the criteria for the formation of a political party. But Section 221 before it says : No association, other than a political party, shall canvass for votes for any candidate at any election or contribute to the funds of any political party or to the election expenses of any candidate.
I can not fathom the reason for which this draconic provision is added to the Nigerian Constitution. It is in enforceable and it makes nonsense of our civil liberty for all other associations except political parties to be banned from canvassing for or endorsing a candidate at any election or contribute to the election expenses of any candidate at an election. It should be removed totally as it does not add value to our Constitution but diminishes it.
PUBLIC REVENUE
As I have mentioned earlier, there is need to reform the manner by which the Local Government Council allocation from the Federation Account goes to each Local Government directly . I have pointed out the concurrency of Section 7 (6) (a) and (b) as to the power of the National Assembly and the House of Assembly of a State to legislate on statutory allocation to the Local Government that makes the State Government to abuse the Local Government Fund,
The provisions of Section 162 compounds the problem through subsection (6) which says : Each State shall maintain a special account to be called ‘State Joint Local Government Account into which shall be paid all Local Government Councils of the State from the Federation Account and from the Government of the State and subsection (7)- Each State shall pay to Local Government Councils in its areas of jurisdiction such proportion of its total revenue on such terms and in such manner as may be prescribed by the National Assembly.
And if that is not bad enough , check subsection (8) saying : The amount standing to the credit of Local Government Councils of a State shall be distributed among the Local Government Councils of that State on such terms and in such manner as may be prescribed by the House of Assembly of the State.
I am aware that the Law by the National Assembly is superior to that of the National to the extent of ifs conflict on concurrent issues .
But if the National Assembly fails to act on area of concurrency, the State has a field day to put the allocation of the Local Government in to jeopardy and so I feel a provision be made in the Constitution to safeguard the Local government allocation from the Federal without subjecting it to the State ‘State Joint Account’ by removing the provision of subsection (8) of Section of Section 162 and thereby restrict the State Assembly to making Laws to govern the distribution of the proportion of internally generated fund of the State to the Local Government Councils.
In Nigeria the State takes the totality of personal tax to the exclusion of the Federal. Therefore the National Assembly should have the power to make laws to protect the Local Government in the allocation of personal tax and Value Added Tax (VAT) and derivation allocation in order to benefit the Local Government in accordance with their contribution.
I want to propose that the principle of derivation should not be limited to natural resources but be extended to all resources from the State. Therefore subsection (2) Section 162 should be redrafted as follows:
The President, upon the receipt of advice from the revenue Mobilization Allocation and Fiscal Commission, shall table before the National Assembly proposals for revenue allocation from the Federation Account, and in determining the formula, the National Assembly shall take into account , the allocation principles especially those of population, equality of States, internal revenue generation, land mass , terrain as well as population density.
Provided that the principle of derivation shall be constantly reflected in any approved formula as being not less than thirteen per cent of the revenue accruing to the Federation Account directly from all resources. Instead of ‘natural’ resources.
With all resources included in the derivation principles each state will benefit from all the taxes from its resources relatively including Value Added Taxes , Custom and Excise and taxes on agricultural products and other industries .
I want to air my opinion on the tenure of the President and Governor. I think the question of tenure should remain as it is , four years for both positions. Elongation of tenure could promote idiosyncrasy in the Presidency and the State Executive as tenure could become boring after the first four year tenure; while re-election could recharge and energize the holder of the office and re-assure him of public support which he needs to carry him through the second term . The essence of democracy is election and democrats should not be afraid of elections .If anything is wrong with our electoral proceedings that make it objectionable, we should look into it for reform. The Constitution does not make eight year tenure automatic and it is for Nigerians to decide to re-elect or not to re-elect an office holder. That is the beauty of democracy.
Section 135-Tenure of Office of the President
Section 135 subsection (2) says : Subject to the provisions of subsection (1) of this section, the President shall vacate his office at the expiration of a period of four years commencing from the date , when-
(a) In the case of a person first elected as President under this Constitution , he took the Oath of Allegiance and the oath of office ;
(b) In any other case , the person last elected to that office under this Constitution took the Oath of Allegiance and oath of office or would, but for his death ,have taken such Oaths.
Likewise, Section 180 subsection (2) of the Constitution says:
Subject to the provision of subsection (1) of this section, the Governor shall vacate his office at the expiration of a period of four years commencing from the date when-
(a) in the case of a person first elected as Governor under this Constitution , he took the Oath of Allegiance and oath of office ; and
(b) the person last elected to the office took the Oath of Allegiance and oath of office or would , but for his death, have taken such oaths,
I would say court interpretation of this clause in situation where elections were re-held or governor replaced through judicial process, justice has been done, in the spirit of the Constitution,
to ensure that the replacing governor is assured of his full four year tenure but there should be a provision to ensure swift dispensation of justice to avoid a situation where those who were not genuinely elected rule over the people before the dissolution of their election.
The Nigeria Police
Section 214 subsection (1) There shall be a police force for Nigeria which shall be known as the Nigeria Police Force and subject to the provisions of this section no other force shall be established for the Federation or any part thereof.
This provision clearly states that the Nigeria police should be a monolithic institution , being one police force.
But unlike the general belief that the Police is under the monopoly of the federal government , the Constitution does not dictate that. Instead, in the principle of federalism , subsection (2) put the control of the police on the law made by the representatives of the State and the people of Nigeria thus :
(a) the Nigeria Police Force shall be organized and administered in accordance with such provisions as may be prescribed by an Act of the National Assembly.
(b) the members of the Nigeria Police shall have such powers and duties as may be conferred upon them by law ;
(c) the National Assembly may make provisions for branches of the Nigeria Police Force forming part of the armed forces of the federation or for the protection of harbours, waterways ,railways and airfields.
Before I go to the nature of appointment of Inspector- General and Commissioner of Police on the Nigeria Police Force, I shall comment on the nature of the role of the National Assembly on the Police.
I have expressed my fear about the inability of the National Assembly to act to make enabling laws on the Local Government that gave room to the type of chaos we have in Lagos State system. This lack of ability to act is visible at every sphere of Nigeria polity and the vacuum created by it has been responsible for the deficiency of our federalism.
I have mentioned earlier the role of the National Assembly as representatives of the states and people of the States. If the National Assembly is to make laws for the control of the Police in the interest of their various communities in a way to harmonize various aggregates of different communities, the control of the police could be made to reflect the federal nature of our Country. In such laws , the National Assembly would make laws that would give the State a fair share in the control of the police that will whittle down the federal might .
For instance Section 215 subsection (1) (a) gives the power of appointment of the Inspector –General of Police to the President but denies such functions to the State Governors in the case of appointment of State Commissioner of Police which is given to the Police Service Commission whose members are appointed by the President subject to the approval of the Senate, an arm of the National Assembly.
While the President or his/her Minister can give lawful directions for the maintenance and securing of public safety and public order he may consider necessary , the Governor of a State may also may also give his Commissioner lawful directions with respect to the maintenance and securing of public safety and public order for the State . But the Governor’s directive is still subject to clearance from the President or his/her Minister especially if there is a seeming clash of interest between the President and the Governor
Since the Governor has no power of appointment of the State Commissioner of Police or power to give directions to the State Police Commissioner without intervention as the State Police Commissioner has toascertain the feeling of the President or his/her Minister before effecting the directives of the Governor , the Governor can not be said to be in charge of the control of the Police in his/her State.
In order therefore to mitigate the Presidential power over the police , the governor of the State should be given some sense of belonging in the appointment of the Commissioner of police. For instance, the Constitution can be amended to give the power of recommending nominees from his state among indigenes of the State out of which the Police Service Commission would pick one. Such amendment will ensure that a State Police Commissioner is an indigene who knows the State well and whose State Governor has a voice in his/her appointment.
Such condition will give the State and its governor confidence and sense of belonging in the office of the Commissioner of Police and thereby soften the problem of alienation associated with the present federal control of the Police on the part of the State.
We have a Centralized Police System built on our experience with the misuse of Police in the first Republic by the Regional Governments. The matter has been debated through out all the past Constitutional debates and it is clear that Nigerians are not yet ready to entrust the Governors with absolute powers of a State government police. In the U.S. The State has a police command whose function is limited to highway patrol . The day to day watchdog police in the US is in the hands of the Mayor, the Local Government Chief Executive who appoints the Police for his/her County.
The Federal Police in America is the Federal Bureau of Investigation ( FBI) and its functions are towards pursuance of federal offences where it works in collaboration with the local police and other Security Agencies like Central Intelligence Agency (CIA) whose role is to investigate international crimes. They work together in the spirit of co-operative federalism.
CHAPTER VII
I have no comment on Chapter VII on Judicature than to state that the State High Court should be limited to the extent of the Law of the State while the Federal High Court should deal with those accused of federal offences.
The State Prosecutors ,naturally have problems in prosecuting federal cases because they do not easily often lay hands on information regarding the cases. And also for political reasons the State Prosecutors are constrained as sometimes they find themselves unable to extract themselves from politics. Each State should have a federal High Court.
Printer’s Devils
I have four cases of Printer’s devils on my review of the Constitution.
Section 173 subsection (2) and the Third Schedule Part I, paragraph 3 (a)
Section 173 subsection (2) substituting is for in
Any benefit to which a person (in) is entitled in accordance with or under such law as is referred to in subsection (1) of this section shall not be withheld or altered to his discharging except to such extent as is permissible under any law, including the Code of Conduct.
Part I , paragraph 3(a) substituting against for by:
receive declaration ( by) against public officers made under paragraph 12 of Part I of Fifth Schedule to this Constitution.
And looking at the left column of this provision , Part I paragraph 3 (a) the two words Fifth Schedule written have no place there
and can be misleading and should therefore be cleaned off.
So also in Section 178 – in the right column, it is written Governor general . The word general should be deleted as the section refers to election of Governor and not Governor general.
CONCLUSION
As I stated from the beginning, the Nigeria Constitution would pass the litmus test of federalism anywhere .What is lacking is the will to play by the rule.
Secondly the National Assembly should live up to the expectations of the Constitution to fill the necessary gaps necessary to complement the provisions of the Constitution.
By: Bari Adedeji Salau B.A. MPA-IG,
Investigator and Political Oversight Specialist
