The Nation Newspaper

Tag: 1999 Constitution

  • WHAT 1999 CONSTITUTION SAYS

    Permanent incapacity of Governor or Deputy Governor

    SECTION 189:

    (1) The Governor of Deputy Governor of a State shall cease to hold office if –

     

    (a) by a resolution passed by two-thirds majority of all

    members of the executive council of the State, it is

    declared that the Governor or Deputy Governor is

    incapable of discharging the functions of his office; and

     

    (b) the declaration in paragraph (a) of this subsection is verified, after such medical examination as may be

    necessary, by a medical panel established under

    subsection (4) of this section in its report to the

    Speaker of the House of Assembly.

     

    (2) Where the medical panel certifies in its report that in its opinion the Governor or Deputy Governor is suffering from such infirmity of body or mind as renders him permanently incapable of discharging the functions of his office, a notice thereof signed by the Speaker of the House of Assembly shall be published in the Official Gazette of the Government of the State.

     

    (3) The Governor or Deputy Governor shall cease to hold office as from the date of publication of the notice of the medical report pursuant to subsection (2) of this section.

     

    (4) The medical panel to which this section relates shall be appointed by the Speaker of the House of Assembly of the State, and shall comprise five medical practitioners in Nigeria –

     

    (a) one of whom shall be the personal physician of the

    holder of the office concerned; and

     

    (b) four other medical practitioners who have, in the opinion

    of the Speaker of the House of Assembly, attained a high

    degree of eminence in the field of medicine relative to the

    nature of the examination to be conducted in accordance

    with the foregoing provisions of this section.

     

    (5) In this section, the reference to “executive council of the State” is a reference to the body of Commissioners of the Government of the State, howsoever called, established by the Governor and charged with such responsibilities for the functions of Government as the Governor may direct.

    Acting Governor during temporarys absence of Governor

    SECTION 190:

     

    Whenever the Governor transmits to the Speaker of the House of Assembly a written declaration that he is proceeding on vacation or that he is otherwise unable to discharge the functions of his office, until he transmits to the Speaker of the House of Assembly a written declaration to the contrary such functions shall be discharged by the Deputy Governor as Acting Governor.

     

  • David Mark’s theory on constitution without citizenry

    David Mark’s theory on constitution without citizenry

    What Nigeria’s lawmakers elected on the platform of the 1999 Constitution need to do is to listen to citizens whose votes brought them to the national assembly.

    David Mark’s recent pontification on the need to have a constitution that shuns people’s wishes is not new to politics in our country. The military ruled Nigeria for decades without a constitution. Even the 1999 Constitution that David Mark holds to heart as sacred enough not to need any referendum that involves those for whom the constitution is ostensibly written was crafted by former military colleagues of the Senate President. It is not Senator Mark’s militaristic notion of constitutions that should surprise citizens. It is his conviction as an elected senator by citizens that creating a constitutional process cannot be determined by citizens once there is a ‘constitution’ on ground, regardless of how citizens feel about the constitution.

    The fear of citizens inherent in Senator Mark’s effort to avoid citizens in efforts to create acceptable constitutions can be likened to what Mohammed bin Rashid Al Maktoum of the United Arab Emirates, one of the youngest federations in the world, said about his vision for Dubai’s development: The real crisis is rather one of leadership, management and perennial egotism. This is the kind of crisis that is bound to happen when lust for power prevails over granting people the love and care they deserve, and when the interests and destiny of one individual (or a small group of individuals as in the case of Nigeria’s National Assembly) become more important than those of a whole nation.

    Writing further about the transformation of Dubai within a federation, Mohammed bin Rashid Al Maktoum said: Our distinctive development experience in the UAE is a good example of what can be done when God blesses a country with an unselfish leadership that strives for the good of its people and not its own. Good leadership puts the interests of the community as a whole before those of any specific group….There is a world of difference between a leadership that is based on love and respect, and one that is based on fear.

    I am quoting Rashid Al Maktoum extensively to underscore that Senator Mark’s view that the process of making a constitution, captured in provisions of a constitution that citizens believe is an imposition on the country by military dictators, smacks not of respect for Nigerians but of fear of Nigerians by those that happen to occupy positions of legislative leadership. Insisting, as the Senate President has done, that the legalistic aspect of the 1999 Constitution is the matter at stake is to miss the point of the essence of constitutions. Constitutions become embodiment of laws that must be respected and obeyed only after they have been created by a process that has the blessing and consent of the people whose political behaviours constitutions are created to regulate.

    What Nigeria’s lawmakers elected on the platform of the 1999 Constitution need to do is to listen to citizens whose votes brought them to the national assembly. Millions of citizens are saying that the 1999 Constitution was not created with their consent and that the desire of citizens to participate in the 1999 election to move the country from military autocracy to electoral democracy does not and should not constitute a sufficient condition for the post-military political leadership to assume that citizens accept that the only thing to do with the 1999 Constitution is to ‘panel beat’ the document in whatever manner lawmakers believe in, without involving citizens in the process.

    What is implicit in Senator Mark’s theory about the current constitution not having a space for sovereign national conference is the conviction that Nigeria is about promoting statism, rather than creating a country or community of interests held by human beings. Statism refers to a notion that a country should be run as a bureaucracy, with emphasis on what those charged to run the bureaucracy prefer to do, rather than what citizens prefer to have. Our lawmakers need to realise that our country is in a process of democratisation and that real democracy is likely to be elusive until a people’s constitution is adopted to guide the country’s political culture. This should not be anything too difficult for our legislators to get in a country that went into election in 1999 without seeing a copy of the constitution that has now become untouchable to citizens.

    Holding briefs for authors of the 1999 Constitution and promoting the constitution as a sacred document that is available only to elected lawmakers to review without any substantial input from citizens is a dangerous thing to do. Our lawmakers who have chosen to amend a constitution that citizens prefer to be replaced need to know that for a constitution to be acceptable and respectable to people, citizens must believe in the transparency of the process that leads to the making of the constitution. Citizens had gone to court to challenge the claim in and by the 1999 Constitution that it was authored by the people of Nigeria. Late Biodun Oki spent the last years of his life to prove in court that the 1999 Constitution is not a constitution created with the consent of the people.

    Senator Mark’s worry: Where will the Sovereign National Conference be deriving its sovereigntyfrom, and under what framework? How will the conference be convoked and by whom and under what terms?” indicates the Senate President’s preference for statism as an approach to solving a fundamental political problem about the welfare and wellbeing of citizens of a country. These are questions that citizens should be given the opportunity to answer. Each constituency can prepare a handbook for its lawmaker to take to the national assembly on how to convoke a national conference. But this will be possible only in a context in which lawmakers see themselves as representatives of citizens, and not as their masters.

    Nigerians calling for a sovereign national conference are doing so for an obvious reason: demilitarising the Nigerian polity by replacing a constitution imposed on the country by a group of military dictators with a constitution negotiated freely by citizens. Callers for a people’s constitution believe that the military must have had a hidden agenda behind the 1999 Constitution, more so that the constitution did not see the light of day until after the election of 1999. Lawmakers who subscribe to the tenets of democracy need not act in a way to suggest that they also accept the hidden agenda behind a constitution imposed on Nigerians by departing military dictators. Senator Mark’s recent quibbling about sovereignty and sovereign national conference gives the impression that the national assembly is averse to referendum, because it is afraid of coming to terms with the real feelings of millions of Nigerians about the current constitution. If Nigeria is going to get its economics and development right, it is, asDaronAcemoglu and James A. Robinson, authors of WhyNations Fail have observed, necessary to get its politics right. Getting our country’s politics right requires a transparent process of creating a constitution that is acceptable to the generality of the people. And lawmakers should act on the side of citizens on how to bring about a constitution that is acceptable primarily to citizens, and not just to lawmakers.

  • Should immunity for president, others be retained ?

    Should immunity for president, others be retained ?

    Will Section 308 of the 1999 Constitution (as amended), which prevents the President, the Vice President, governors and deputy governors from facing trial while in office be amended by the National Assembly – in line with the wishes of Nigerians? Adebisi Onanuga asks.

    IF the National Assembly goes with the public, the president, vice president, governors and deputy governors may lose their immunity against trial, while in office. At the public sessions held by the House of Representatives, Adhoc Committee on Constitution Review, Nigerians voted against “full” executive immunity. The committee said in its report that Nigerians voted for immunity for the president, the vice president, governors and deputy governor on civil proceedings.

    The report reflected the wishes of Nigerians as collated during the exercise held on November 10, last year.

    The committee presented the result of the 43 items voted on by the constituencies.

    On the immunity clause, 225 constituencies voted for Section 308 to be amended, to the effect that the president, vice president, governors and deputy governors be covered by immunity in civil proceedings alone while in office. About 132 opposed the removal of the clause; three others did not vote. The section does not protect any sitting member of the National Assembly from facing criminal or civil trial.

    Nigeria is not the only country with immunity clause in its constitution to protect the president, vice president, governors and deputy governors from being distracted by claim that they have litigation while in office. Globally, immunity for public officers is a constitutional issue. Most democracies claim that they have the immunity clause in their constitutions to allow the executive do its job unfettered.

    Analysts have different views on whether or not the immunity clause which protects public office holders from criminal prosecution should be removed from the Constitution.

    Those who believe the clause should be removed cite what they call the high level of corruption since the return to democracy about 14 years ago. It has prevented Nigerians from benefiting from the dividends of democracy. To them, the removal of immunity will prevent the president, vice president, governors and deputy governors from acts that would undermine their office and the Constitution.

    Nigerians are piqued that they have to wait for a suspected corrupt governor to complete his four-year tenure before he could be tried.

    They argue that the clause should not be a cover for unjust acts by those in public office, adding that the provision must be amended or expunged from the Constitution to enthrone transparency in government. To them, amending or removing immunity from the Constitution would not diminish the office of the President nor its powers.

    But the antagonists said the removal of immunity would give opposition parties something to capitalise on to disrupt government. They also argued that, in the event of a sitting President or governor engaging in a criminal act, it would affect the smooth running of government as such a public officer would be made to face trial in court and, if found guilty, removed from office.

    They also posited that, though it encourages corruption, removing immunity is not the solution to corruption. To them, removing immunity to reduce graft would neither work nor make any difference because there are laws and institutions that should have taken up the challenge of tackling corruption in the country.

    Dr Joseph Nwobike, (SAN) said:“I think immunity should be retained as it is at the moment. The truism is that the number of our public officials who are beneficiaries of the immunity clause are very insignificant considering the public officials and civil servants who have unhindered access to public funds and opportunities that may be abused in diverse manners.”

    To Senator Mohammed Ali Ndume, the problem is the lack of strong institutions that prevent criminality. He said with or without the immunity clause, if institutions that prevent criminality are not strengthened, executive lawlessness would persist.

    Ndume suggested that immunity against criminal charges should be removed and such officers be made to face the law for criminal charges while still in office.

    “Immunity should not be used as a cover for unjust acts. I think it is wise to remove the immunity against criminal suits while civil immunity should be left to avoid a disruption in governance by frivolous charges against certain individuals in office.

    “If there is continuous checks and balances as well as good accounting system in this country, it will be difficult for the executive to steal or engage in any criminal act.

    “I strongly believe that our institutions must be strengthened, they are so weak and that is the fundamental problem.”

    He went on:“Government has been privatising removal of immunity, that should not be. Government is public sphere and its activities should be made open and transparent.

    “What is happening in our country today shows that the real culprit making the executive unaccountable for their actions in office is not the immunity clause, but the absence of an efficient, working justice system and a lack of willingness by anti-corruption bodies to pursue cases.

    “We need to strengthen our justice system by making it quick in dispensing justice and concluding cases, and by giving stiff penalties for crimes not mere slaps on the wrist.

    “Additionally, there must be a resolve by prosecuting and investigating agencies to investigate all allegations conclusively and satisfactorily, and also by the executive branch of government to provide political backing to the agencies which will shield them from interference, coercion and harassment by suspects.

    “We should stop dissipating energy in fighting an immunity clause that even without its existence nothing would change, unless we have strong institutions as well as an effective political leadership that is committed to ensuring that the justice system and law prosecuting agencies worked without interference,” Ndume added.

    Mallam Yusuf Ali (SAN) said immunity should not be absolute. “I have always supported limited immunity which will not extend to issues of corruption and misgovernance,” he said.

    Former Chairman, Body of Bencher, Mrs Hairat Balogun, said the immunity clause should be removed.

    “I believe that all men should be equal before the law. “Immunity breeds impunity and recklessness. Equality is equity,” she said.

    Constitutional lawyer Ike Ofuokwu said: “The framers of the 1999 Constitution meant well with the immunity clause. But, unfortunately, it is now an anachronism because, since the inception of our present democracy, the immunity clause in our Constitution has been antithetical to good governance and accountability.

    “It has been flagrantly violated and politically raped by public officials against the wishes of the Nigerian people.

    “It should be jettisoned with speed from our Constitution. It has only served the fraudulent intent of corrupt government officials to the detriment of the Nigerian nation.”

    He said further: “We need not fret about the removal if we are desirous of quality and selfless service to our people. I, therefore, respectfully submit that the disadvantages of the clause far outweigh the advantages, if any. To posit otherwise is reductionist,” Ofuokwu added.

    Executive Director, Access to Justice, Mr Joseph Otteh, said: “For me, immunity allows impunity and that’s mostly how we’ve experienced it in these parts.

    “The immunity clause has been an obstacle to those who are charged with fighting public sector corruption. They see indictable looting going on, but cannot stop the ‘ogas at the top” who sit over them.

    “Immunity has not worked well for Nigeria, and it is open to debate whether it can sit compatibly with any society that truly values transparency and accountability.

    “In Israel, a siting President, Moshe Katsav, was forced to resign as part of a plea bargain over an indictment for rape, but was afterwards prosecuted and convicted for sexual harassment and molestation, while a former Prime Minister, Ehud Olment, was indicted while in office, and subsequently prosecuted and convicted over allegations of corruption.

    “More recently, in the UK, a former Minister and Cabinet member, Chris Huhne was prosecuted in February for obstruction of justice and was forced to resign following the indictment. He has since been convicted and is in prison.

    “In the United States, former Governor of Illinois Rod Blagojevich was, while in office as governor, investigated by the FBI and was arrested in 2008 by federal agents and charged with conspiracy to commit mail and wire fraud and one-count of soliciting bribes. He was convicted and, on Dec 7, 2011, sentenced to 14 years in prison.

    “So, why retain what works so inimically against us, our nation, our children, our future?” he asked.

    A lawyer, Mr Aderemi Adekile, said: “The consideration of whether or not to remove immunity clause from the Constitution, by way of amendment, is a sword. It is in the sense that the makers of the Constitution; the original drafters, the founding fathers of the 1979 Constitution, who thought it fit to insert that clause, were not mad. They were not idiots. May be, what they didn’t see or see properly then, was the corruption that has become pervasive and has now been substituted with the act of governance itself by the political leaders of today.

    “When you look at a typical Prime Minister or President from the Western world, who has spent two to three years in office; if you compare his picture with when he just assumed office, you will see a man or woman that has not only worked, but the office is telling and taking a toll on his looks, personality and everything about him.

    “But, if you reverse the situation and come to, not only Nigeria but other developing and under developed countries, you see a more robust man, with a lot of affluence.

    “May be he was so poor to the extent of having no shoes when he was coming into office. So, that is the problem.

    “Law is a function of the society, which it has been called upon to regulate. So, if you consider all this against the background of corruption, and the height it has reached in the country, you will agree that there is the need to take a critical look at it; to determine whether we should retain immunity in the Constitution.”

    Adekile continued: “But, when you look at governance and the fact that the people we have elected for four years should be allowed to work and not be distracted; because litigation is a major source of distraction, and since the immunity covers them only while in office as they can be prosecuted after their tenures, to that extent, I will say yes, if the focus is only on the business of governance. I think the National Assembly will not be justified by taking the position that the immunity clause should be expunged from the Constitution.

    “But I do not think that if you take a poll in Nigeria today, that position will win. What you are likely going to get is an overwhelming majority voting in favour of the removal of the immunity clause from the Constitution.

    “That position is just a function of what is going on. It is not hinged on any principled consideration of the concept of immunity for the drivers of the business public governance, which is the foundation of the consideration for the inclusion of the clause in the first place.

    “The age when the concept of immunity was conceived and made a constitutional provision in countries other than Nigeria, was when the people loved their leaders, wanted the leaders to succeed, believing that when the leader succeeds, the society will succeed.

    “But, today, in Nigeria, when the leader succeeds; himself, his family and his cronies have succeeded.

    “The way the society is perceiving the immunity clause is that, it is not in the interest of the society to retain it. Our overriding consideration, in taking a final position on this, should be the will of the people.

    “May be if it is possible to arrest and prosecute a serving governor immediately, may he will be discouraged from stealing the money in the first place,” Adekile said.

    As Ihedioha explained while submitting the report of his committee, the House may not agree with the decisions of Nigerians on the questions posed to them during the town hall meetings on constitutional review.

    “We may even have doubts on the practicability and efficacy of the decisions,” he said, stressing that, at this point in time, their duty was to present the response of Nigerians on the various issues, “without doctoring or any form of tinkering or manipulation.”

    The people of Nigeria have expressed their views on what changes they would like to see in the Constitution. Having done this, the nation now awaits the National Assembly to decide on whether or not it would bow to the wish of the people on the immunity clause.

  • Amendment of 1999 Constitution unnecessary – Niger governor

    Amendment of 1999 Constitution unnecessary – Niger governor

    The Chairman of the Northern States Governors’ Forum, Dr. Mu’azu Babangida Aliyu, has described as unnecessary attempts by the National Assembly to amend 1999 constitution.

    Instead of constitution amendment, the Niger State governor, said what the nation needs is judicial interpretation of vexed sections of the document.

    He challenged the judiciary to wake up to its responsibility of interpreting the laws of the country to bring them in tune with present day reality.

    He Spoke at the 39th conference of Chief Judges, Grand Khadis and Presidents, Customary Courts of Appeal of Northern States and the Federal Capital Territory, in Minna, on Wednesday,

    Aliyu noted that constitutions of advanced democracies in the world especially that of the United States had not been amended more than five times since it came into being.

    According to him, ”Judiciary is synonymous to democracy, we need interpretation of the constitution not amendment. The judiciary should wake up to its responsibility to ensure the entrenchment of democracy.”

    He, however, said that for the judiciary to be more vibrant, states without law reforms commission should establish such institutions to make it possible for obsolete legislations to be reviewed.

    Reacting to complain of non-payment of salaries to workers by some state governments in the region, the NGSF Chairman said such action was against the decision taken by the governors in the region.