CONSTITUTIONAL AND ELECTORAL REFORMS IN NIGERIA: FRESH PERSPECTIVES

CONSTITUTIONAL AND ELECTORAL REFORMS IN NIGERIA: FRESH PERSPECTIVES

INTRODUCTION
The numerous ethno religious crisis and shambolic elections in Nigeria’s political history has shown that if we do nothing else, we desperately need to review our Constitution and reform our Electoral laws. The conduct of Elections in Nigeria has consistently degenerated into a theatre of the absurd since Nigeria’s independence in 1960 and matters came to a startling dead end in the 2007 General Elections. Since then, attempts have been made at Electoral Reforms. The Electoral Reform panel headed by respected former Chief Justice of the Federation, Justice Mohammed Uwais (Rtd) has since winded up and submitted a comprehensive report recommending far reaching Electoral Reforms to the Federal Government. But the Federal Government is reluctant to accept the report in its entirety. Some of the most important recommendations of the panel have been rejected outright in what is seen by many as a consequence of political expediency.

The National Assembly in recognition of the imperatives for Constitutional Reform and Review set up a Joint Committee of the Legislative Houses to review the 1999 Constitution in 2008. At a January, 2009 meeting of the Joint committee, all hell broke loose over who Chair’s the Committee and since then every attempt to rev the engine of that committee to go on with the task at hand has failed. The 1999 Constitution is no doubt defective and this is not the first time the National Assembly will attempt a wholesale review of that document. May be some if not most of these defects would have been addressed in the attempt at Constitutional Amendment in 2006 were it not for the vaulting ambition of a cluster of political elites/jobbers to remain relevant in the corridors of power forever. They cajoled and convinced then President Olusegun Obasanjo that his fate was inexorably tied with that of Nigeria; the man himself was sure of his place and destiny within the larger historical alchemy of Nigeria. The pro and anti Obasanjo sentiments ran high at the consequent constitutional debates on account of what notoriously became known as the ‘third term saga’. At the end of the horse trading that the Constitution amendment debates of 2006 became, the baby was thrown away with the bathwater as on account of third term alone, the National Assembly aborted the Constitutional review process when in May 2006, the Assembly voted not to continue the constitution review exercise.

HURDLES AT CONSTITUTIONAL AND ELECTORAL REFORMS

This new attempt at Constitutional Reform is not showing any signs of progress from elected representatives who are only too concerned about maintaining their pecuniary advantages. No serious reforms whether Constitutional or Electoral can be effected in a polity where the Centre is as attractive as Nigeria’s as a result of the immense resources concentrated at the centre and the enormous and obscene favours to be dispensed by way of political patronage by whoever controls the centre. In such a situation all efforts and resources are mobilized towards capturing power at the centre and keeping it forever notwithstanding the health or otherwise of the polity.

If the 1999 Constitution is an unworkable document, it was deliberately made so. The Electoral Laws do not work because they were deliberately so designed. Has anyone ever wondered why our Constitution is so verbose and yet covers nothing of importance that could engender nation building? We have tried to cover every conceivable mundane aspect of our National life in a document that is so drawn out without the faintest intention to act in good faith and make it work. The grundnorm is supposed to fashion out minimum rules of engagement while the polity and the judiciary are left to add flesh and then order society. In an attempt to cover everything yet cover nothing, the Constitution of the Federal Republic of Nigeria, 1999 has 320 Sections and schedules enough to fill another volume and yet does not incorporate true federalism in a Federation that is one only in name. In fact, the 1999 Constitution as conceived, drafted and operated is a unitary document. Contrast this with the fact that barring the amendments, the original document that was the Constitution of the United State’s of America adopted in 1776 had only 26 Articles. The Constitution of the Federal Republic of Germany known as the Basic Law of the Federal Republic of Germany adopted upon Unification in 1990 has 146 Articles with the incorporation of Articles 136, 137, 139 and 141 of the Weimar Constitution guaranteeing Religious Freedom. The Constitution of the Socialist Republic of France which was adopted on the 4th of October, 1958 has only 92 Articles even though there had been 18 amendments by the year, 2007.

The fact remains that these societies are well run today even though they have what might be considered meager Constitutional provisions compared to what we have because with their history immediately preceding the adoption of the documents (in the case of the United State’s, the breakaway from colonial power and the war of Independence against England, in the case of the Federal Republic of Germany, the dismantling of the Berlin wall, an old relic and reminder of it’s imperialist designs and the plum empire pickings it became instead for the allies and the Soviet Union at the end of the second world war following its defeat, and in the case of France, a compelling necessity to restore pride after the humiliation of a devastating defeat at the hands of Nazi Germany in WWII) their leaders and citizens alike were ready to subject their personal good to the common good recognizing that they were bound by a common destiny – leaders and followers alike.

The tragedy of the Nigerian nation as eminent professor and giant of African literature, Chinua Achebe puts it is the failure of Leadership at all levels.

In suggesting possible areas and an action plan for reform, let us examine two critical areas in constitutional reform and one important aspect of electoral reform which is germane and must be set right if indeed our democracy would survive and deliver on the immense promises democracy offers and which is evident in many countries across the world. Democracy and development are found together. Where the latter does not follow the former, then critical questions ought to be posed. Elections without more do not make a democracy. A democracy means the ability to speak your mind and have a say in how you are governed; confidence in the rule of law and in the equal administration of justice; government that is transparent and does not steal from the people; the freedom to live as you choose. Ultimately democracy must lead to larger freedom and liberty.

Let us then proceed to examine the three issues of concern: fundamental objectives and directive principles of state policy, citizenship and the internal affairs of political parties in a democracy.

FUNDAMENTAL OBJECTIVES AND DIRECTIVE PRINCIPLES OF STATE POLICY AND THE PRESS

Nothing drives the point home more that the Constitution was not designed to work than the obnoxious provisions of Chapter II of the Constitution known as Fundamental Objectives and Directive Principles of State Policy. The Chapter provided that it shall be the duty and responsibility of all organs of Government, and of all authorities and persons, exercising legislative, executive or judicial powers, to conform to, observe and apply the provisions of that Chapter of the Constitution. But in a curious twist, the same Constitution in what an informed commentator has likened to lying against itself in one fall sweep made the provisions non justiciable. Exactly what are these provisions? The Chapter provides for Political, Economic, Social, Educational, Foreign policy and Environmental objectives of state policy. These rights which roughly correlate with the third generation rights now recognized by the United Nations Organisation and espoused in several international documents/instruments are now treated as basic rights which any nation serious about development should incorporate in its constitution and make justiciable because rights such as the one to education and clean water are hardly negotiable any more.

A Constitution is a serious document, these rights should not be contained in it if they are non justiciable and in a tongue in cheek macabre, the Chapter further provided that the press, radio, television and other agencies of the mass media shall at all times be free to uphold the fundamental objectives contained in this Chapter and uphold the responsibility and accountability of the Government to the people. Just how will the mass media fulfill this obligation when this section is non justiciable? The fourth estate of the realm is in no way protected, laws that gag the press abounds and yet the Constitution will not even protect media houses and media practitioners. Whatever informed the non justiciability of this Chapter, it must be borne in mind that if Chapter II of the Constitution is made justiciable, our Law courts will in time rise to the occasion and formulate rules that will checkmate the expected floodgate of cases sifting and identifying deserving ones as a result.

This point is particularly important because the role of the media in a democracy cannot be overemphasized and in the unique case of Nigeria, the media ought to be feted and not fettered because in more ways than one, the press in Nigeria has helped keep hope alive and have continually demanded accountability from those who would rather rule than govern us. Let us not forget that were it not for the courageous media practitioners with great personal and sometimes fatal risk, we would not have democracy today. They fought the Military junta’s of Muhammadu Buhari, Ibrahim Badamosi Babangida, Sanni Abacha and Abdulsalami Abubakar to a standstill. They have kept the memory of June 12 alive to this day. Were it not for the media, the Siemens and Halliburton scandals would since have been trampled underfoot and buried. All hail the press and let us give force to the words of one of America’s founding fathers – Thomas Jefferson – who wrote that, ‘were it left for me to decide whether to have a government without a newspaper or a newspaper without a government, I will not hesitate to choose the latter’. For me, this brilliantly sums up in a poignant way the role and importance of the media especially in an emerging democracy as ours.

The provision of the 1999 Constitution on the obligation of the mass media is one provision that must be removed from Chapter II and made justiciable so the mass media can properly fulfill its assigned Constitutional role if we will not make Chapter II of the Constitution justiciable.


THE RIGHT CONCEPT OF CITIZENSHIP

What exactly is Citizenship? A right concept of citizenship should solve most if not all issues that have to do with patriotism and communal living. Our leaders know this and most commentators do but it is surprising no one has really made an issue of the point. The right concept of Citizenship will foster harmony, self esteem/worth, unity and coherence of the Nigerian state, regardless of our estimated 250 ethnic nationalities and 513 linguistic groupings and their divergent group interests.

The 1999 Constitution in Chapter III provides for Citizenship and what do we find in its provisions. It merely prescribes how Nigerian citizenship may be acquired, exercised and renounced. It did not in any way make any telling provision on how these citizens shall live in the space they choose within the larger Nigerian society. The only provision that come close to this is again contained in the non justiciable provisions of Chapter II thus ‘it shall be the duty of every citizen to respect the dignity of other citizens and the rights and legitimate interests of others and live in unity and harmony and in the spirit of common brotherhood; make positive and useful contributions to the advancement, progress and wellbeing of the community where he resides’.

Again much ado about nothing. How is the average Nigerian expected to live out these ideals in a community where he resides and is seen as a ‘stranger’, a ‘non native’, a ‘non indigene’, and a ‘bird of passage’, taking it to the extreme if you like. If we are all citizens of Nigeria, why is it so difficult for the various ethnic nationalities in Jos to live together in peace and harmony? Why are there so much ethnic flash points across the length and breadth of this country? Again the answer is simple, the Constitution was deliberately made weak and unworkable so those who have access to power and who know how to exploit the little differences and the insignificant issues that make for disunity can continue to keep their privileges and forever. No one should deceive us; the things that should unite us are far greater than those that divide us if only the generality of the people who bear the brunt of the mismanagement of this country were any wiser. As President Barack Obama said in his recent Cairo address to the Muslim world, ‘so long as our relationship is defined by our differences, we will empower those who sow hatred rather than peace, those who promote conflict rather than the cooperation that can help all of our people achieve justice and prosperity’. We have sacrificed merit on the alter of Federal Character in this country, entrenching ineptitude and mediocrity under the guise of balancing the equilibrium. What equilibrium? As if Nigerian’s care who their Leaders are if this country is run properly.

In 1992 when Bill Clinton was sworn in as President of the United State’s, his Vice President, Albert Gore was from a neighbouring Southern State. Who cared? No one. President George Bush was Governor of Texas before he became President of the United State’s in the year 2000 and while he was President; his younger brother, Jeb Bush, was Governor of Florida. Again who cared? No one. Rodham Hillary Clinton was first lady at Little Rock when Bill Clinton was Governor of Arkansas and when it was time for her senate seat run; she ran from New York and thus represented New Yorkers in the Senate until recently when she was appointed Secretary of State by President Barack Obama. Now, this is the example of a nation which is serious about Citizenship, Patriotism and Unity. Just what are the examples we have here?

How did the United State’s achieve this? Simple, the Fourteenth Amendment to the Constitution of the United State’s solved the problem of ethnicity, indigeneship in one simple sentence when while extending Citizen rights to all Americans (Black, White, Hispanic, Caucasian, and Indian) provided that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”. Brilliant you might say. So it does not matter where an American was born or where he resides, for where ever he is/lives in the United State’s at any point in time, he is a citizen of that place so questions of ‘indigeneship’, ‘stranger’, ‘non native’ or whatever which has led to violence and avoidable deaths in this clime will never arise.

Imagine how much good this singular provision in one sentence will do to our nation if we have the necessary political will to incorporate same into our constitution. Our leaders know this but because they seek to divide us so they can continually exploit us and feather their nest they will not allow it but any genuine effort at constitutional review must provide that anyone born or naturalized in Nigeria is a citizen of Nigeria and of the state wherein he resides and that he is entitled to the equal protection of the laws of the state. This provision will not solve all the problems in one day but it will be a constant reminder to all involved of our resolve to ensure the protection of Nigerian lives and property, our resolve to ensure that every Nigerian who will thrives, find happiness and fulfillment no matter where he resides in the Federal Republic of Nigeria.

POLITICAL PARTIES INTERNAL AFFAIRS AND DEMOCRACY

Any attempt at Electoral reform must critically address the question of internal democracy within our various political parties because with the pervasive lawlessness in the political parties, any party that controls the centre will not be able or be even willing to entrench democracy as the concept of democracy is even then alien to it. The internal politics of political parties in Nigeria has never been a tidy affair especially where it concerns the selection of candidates for the purpose of elections and occupation of political office. The selection process popularly known as primaries has always been fraught with acrimonies most of which the political parties often prove incapable of resolving. Such acrimonies oftentimes snowball into litigations as courts are called upon to decide who carries the parties’ flags at general elections.

With regards to the practice of democracy in the internal affairs of political parties, the Judiciary has thankfully shown the way. Until recently, such aggrieved contestants who went to court thought that they stood little or no chance of success because the established principle has always been that the internal affairs of a political party (including the choice of its flag bearers in an election) is its business. The principle is to the effect that courts have no business intervening in the internal affairs of political parties. The famous case of Onuoha v. Okafor (1983) 14 NSCC 494 had become a locus classicus. This principle worked hardship on members of political parties who were very popular but did not enjoy the support of the powers that be within the parties. They could not understand why the justice system seemed to support political parties that had refused to follow its own laid down rules. This effectively led to the death of internal democracy in most political parties.

The Supreme Court unwittingly strengthened the hands of the political parties without considering the infinite capacity of so called party leaders and “godfathers” to do mischief when it held in the important case of Alhaji Balarabe Musa v. The Peoples Redemption Party that:

“such is the position of voluntary associations, a man who joins a club or society must abide by the WILL of the majority or clear out. It is not unlikely that a person may find himself holding a contrary view to those of others in the association to which he belongs and the others may be altogether wrong or unreasonable. His choice is clear. He either abides with the decision of the OTHERS or he clears out. Any society or association comprising of members who voluntarily join it, is entitled to come to any decision which they like”.

The apex court continued:

“it is in the way of voluntary associations that the MAJORITY decision is binding on all members. If a man finds himself as a member of such and it takes a decision which it does not accept, a decision which could even be contrary to good sense, he has only one course open to him – to get out. It must be said loud and clear, the party to which any person belongs is SUPREME so far as its affairs go. A member has to abide by the decision of the APPROPRIATE AUTHORITY of the party or he should get out as voluntarily as he came in … But, so far as the party is concerned, it is to have the right to DISCIPLINE its members. As a voluntary association it has the right to lay down its own decisions even when they are unreasonable. They should be obeyed, or the member in disobedience is entitled to quit. The party is in its own right SUPREME over its own affairs. This must be said loudly and clearly. UNLESS IT HAS VIOLATED ITS OWN CONSTITUTIONAL PROVISIONS the court would not interfere. The court will not substitute its own will for that of a political party or any other voluntary association. Those who join clubs or associations or political parties must be made aware of the perils of membership. The majority will must prevail whether it is reasonable or unreasonable. The court cannot intervene in a matter such as this.”

It does appear that the power brokers within the various political parties only understood and interpreted this dictum to mean party supremacy without giving due thought to all the operative words used by the Supreme Court. The operative words as I identify them in capital letters are these: WILL, OTHERS, MAJORITY, SUPREME, APPROPRIATE AUTHORITY, DISCIPLINE, and UNLESS IT HAS VIOLATED ITS OWN CONSTITUTIONAL PROVISIONS.

The WILL as used by the court could only mean the will of the MAJORITY members of the political party which in a democracy approximates to the will of the political party and not the will of some faceless powerful clique within the political parties foisted on others and labeled majority will. The MAJORITY will must be the will of the true majority, the will of the OTHERS and not the One or Few according to the Supreme Court. APPROPRIATE AUTHORITY is to be found only where the party constitution locates that authority, a decision of an appropriate authority of the party has to and must emanate from the appropriate authority. Only then, as the Supreme Court contemplates will the member be obliged to obey such decisions. A decision of a powerful party chairman/chief is not a decision from the appropriate authority. A political party can DISCIPLINE members only when they err but discipline as our parties now use it has become a gun boat diplomacy tool - ‘take whatever we give you without complaint or else we expel you’. The Supreme Court then made it unequivocally clear that such decisions must not be in violation of the party’s constitutional provisions, in which case it will become one of such cases in which the court can interfere. Party supremacy cannot be called on to legitimate unjust dealings in a political party which should otherwise be an association of “a body of men united for promoting by their joint endeavours, the national interest upon some particular principle in which they are agreed” in the words of Edmund Burke.

In contemplation of the above scenario, the Electoral Act, 2006 in Section 34 introduced a new provision which requires political parties wishing to substitute candidates after their primaries to give cogent and verifiable reasons for doing so. The first person to test this amendment in the law court was Senator Ifeanyi Ararume, who went to court after he was substituted with Chief Charles Ugwu as the Peoples Democratic Party’s candidate for Imo State gubernatorial race.

In Ugwu v. Ararume (2007) 7 MJSC1, the Supreme Court held that Section 34 (2) of the Electoral Act, 2006 does not invest a political party with an absolute power to substitute a candidate who wins the primary election. The provision makes it mandatory for the political party effecting the substitution to give to the INEC cogent and verifiable reasons for the substitution. According to the apex court, the section clearly imposes a duty on any political party intending to do so by informing the INEC in writing within a specified period of not later than 60 days to the date of the election. The section contains mandatory provisions which any political party intending to effect any change in the list of its candidates submitted to the Commission to contest any election must comply with. The court clearly stated that the Electoral Act and the party constitutions must be seen to be complementing the Constitution in formulating broader rules, regulations and operation mechanisms for the true convenience. Where any of such enactment, rules or policies comes in conflict with any section of the Constitution, that enactment, rule or policy must surrender to the Constitution. Accordingly, the court further held that, there is no rational to permit a political party, once it has given its commitment or mandate to a candidate whom it had already nominated whether wrongly or rightly to bulldoze its way to rescind that mandate for no justifiable cause. Politics is not anarchy. It is not disorderliness. It must be punctuated by justice, fairness and orderliness. The admonition of Muhammad JSC at this stage is very apposite. According to the learned JSC

“…If we still want to instill sanity into our human affairs, if we want to entrench unpolluted democracy in our body polity, the naked truth must permeate through the blood, nerve and brain of each and every one of us. Although credit may not always have its rightful place in politics we should try to blend the two so as to attain a fair, just and egalitarian society where no one is oppressed. Let us call a spade a spade. Let us not give a dog a bad name in order to hang it”.

The above Supreme Court decision opened a floodgate of cases as other aggrieved candidates rushed to the court for redress. Following the judicial principle of (stare decisis) precedent, that is a lower court must follow the decision of higher courts, the Court of Appeal and High Courts have no choice but to follow suit.

When it became obvious that the defence of court’s lack of jurisdiction to interfere in the affairs of political parties had been overridden by the decision of the Supreme Court in Ugwu v. Ararume (supra) as it affects substitution, the parties promptly changed their defence in order to defeat the reasoning of the court and the demands of justice in the Ararume case. The parties raised a new defence to the effect that disputes over party primaries were electoral matters over which only the Election Petition Tribunals can properly adjudicate and as such the regular courts have no jurisdiction over such matters.

The Supreme Court again rejected this roundabout argument in the case filed by the former Speaker of the Rivers State House of Assembly and now Governor of Rivers State, Mr. Rotimi Amaechi against Mr. Celestine Omehia, the then Governor of Rivers State in Rt. Hon. Chibuike Rotimi Amaechi v. INEC & Ors. Following this decision was the pronouncement of the Court of Appeal in a case seeking to determine who should be the PDP’s candidate for Akwa Ibom North East Constituency between Senator Bob Effiong and Chief Albert Ime. The Court of Appeal, Abuja division held that a case bordering on substitution of candidates by parties after the primaries was not an election matter that must be heard by an Election Petition Tribunal. The court consequently dismissed the objection filed by Ime challenging its (court) jurisdiction to hear an appeal filed by Effiong.

The apex court and the appellate courts clearly showed in the latter cases that the rules and procedures governing the conduct of affairs and internal democracy must be respected in political parties for there to be credible elections.

THE WAY FORWARD

Nigeria no doubt faces enormous challenges in Constitutional and Electoral reforms but these challenges are by no means insurmountable. As we have seen the trouble with Nigeria is not necessarily the absence of laws/rules but the absence of the necessary political will to enforce the inadequate ones we do have. If we do not imbibe the necessary culture to make our country work, then whatever reforms we muster except they are such as is self executory, will not necessarily move our country beyond where we already are. I have canvassed elsewhere that we must learn to do the simple things first and take it one at a time as it is obvious that our innumerable attempts at doing all things at the same time in the past has met with contemptuous failure. Take for example, President Yar Adua’s seven point agenda. Who can sincerely say he understands what has been achieved on any point of the agenda. Supposing he takes one point, tackle it and then move unto the next? Well your guess is as good as mine.

It does appear now that Constitutional Reforms must precede Electoral Reforms judging from the seven bills on Electoral Reforms sent to the National Assembly by the President. The bills are, a Bill for an Act to Amend the Independent National Electoral Commission (INEC) Act, Cap 15, LFN 2004 and other Matters Connected Thereto; a Bill for an Act to Establish the Electoral Offences Commission and for Matters Connected Thereto; a Bill for an Act to Alter Provisions of the Constitution of the Federal Republic of Nigeria, 1999 and for other Matters Connected Thereto (Second Amendment); a Bill for an Act to Establish the Centre for Democratic Studies and other Related Matters; a Bill for an Act to Further Amend the Police Act, 1967, Cap P19 LFN, 2004 and for other Matters Connected Therewith; a Bill for an Act to Establish the Political Parties Registration and Regulatory Commission and for other Matters Connected Thereto; and finally a Bill for an Act to Alter Provisions of the Constitution of the Federal Republic of Nigeria 1999 and for other Matters Connected Thereto (Third Amendment).

Two of the Bills seek to amend the provisions of the Constitution of the Federal Republic of Nigeria 1999. The utility of an Act of the National Assembly amending provisions of a Constitution patently defective in several respects is highly debatable and it may be unrealistic to expect the National Assembly to pass the other Bills in their original form and content. The bills again are not designed to and there is nothing in their provisions to suggest that they will solve Nigeria’s electoral woes. The provisions of the bills are not the exorcist provisions one would expect in a genuine effort at Electoral Reforms. From all indications, a wholesale amendment of the Constitution will not be undertaken soon enough to enable electoral reforms before the 2011 polls which will really be a testy time for our fragile democracy but our country can learn from the examples from abroad. The United States, Germany France and even South Africa have adopted a piecemeal approach to constitutional amendments in their various countries and their countries have not ceased to work. Since the adoption of the German Constitution in 1990, the constitution has been amended over fifty times, by 2007, France had amended its 1958 Constitution eighteen times and South Africa has amended theirs sixteen times since 1996.

What to do is adopt this approach, identify the more pressing issues for address, amend the relevant sections of the Constitution and then pass subsidiary legislation to enhance its social utility and in no distant time the much touted Constitution and the working society we all crave will be with us.


STEPHEN O. OBAJAJA is a Partner at the Lagos Law Firm of Fountain Court Partners.



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