29 July 2012

Nigeria: Immunity, State Police, LG Autonomy Set Tone for Fresh Constitution Review

Asaba — Coming to terms with the need for a new constitution that would engender good governance, the Senate Committee on Constitution Review recently renewed the process of the amendment of the 1999 Constitution with a retreat in Asaba, Delta State capital.

It rolled out a 16-point agenda, including: devolution of powers, state creation, recognition of the six geo-political zones in the constitution, role of traditional rulers, local government administration, fiscal federalism, immunity clause, Nigeria Police, judiciary, power rotation, gender and special group, mayoral status for the FCT, boundary adjustment, residency/indigene provisions and expulsion of Land Use Act, NYSC Act and Code of Conduct from the constitution.

The chairman of the committee and deputy president of the Senate, Senator Ike Ekweremadu (PDP, Enugu West), noted: "For the National Assembly, constitution review is a continuum. We have, since the last constitution amendment exercise, been guided by the principle of incremental approach. Whereas, the 6th National Assembly had thought it wise and needful to concentrate on areas of relative national consensus and pressing needs, especially the electoral reforms to pave way for an improved electoral system before the 2011 general elections, various cogent submissions by Nigerians and interest groups which could not be attended to were carried over to the 7th National Assembly".

Apparently conscious of the dust the new exercise could raise, Ekweremadu disabused the minds of those fingering a predetermined agenda. "We have no position on any issues except those taken by the Nigerian people through their inputs, whether through their memoranda, contributions at public hearings, and their elected representatives at both National Assembly and State Assemblies. We bear no allegiance to any except that which we owe to the Federal Republic of Nigeria. We have no interest to protect, except that of the generality of the Nigerian people and posterity. We will be driven by the force of superior argument and public will. What we owe our people is leadership, legislative due process, transparency, inclusivity and popular participation. We want to ensure that the generality of Nigerians own and drive the process to be able to take full responsibility of the eventual outcome," deputy senate president said.

Declaring the retreat open, Senate President David Mark described the 1999 Constitution as far from being a perfect document because of its contradictions, lacunae and inconsistencies. He said: "In May, 2009, to give zest to the constitution review process, the 6th Senate inaugurated its committee on the review of the 1999 Constitution. That committee, in embarking on its task of proposing amendments, wisely eschewed the wholesale approach, and focused primarily on electoral reforms. Through the tremendous work of that committee, and of its counterpart in the House of Representatives, the National Assembly was able to make history in 2010. It has not only successfully amended the constitution, but also passed into law the Electoral Act, 2010.

The general elections of 2011, and the elections conducted thereafter, have been the beneficiaries of those legislative efforts. Our elections may not yet have attained the desired degree of perfection, but there is a growing realization that impunity is no longer welcome in our electoral process.

"The 7th Senate inaugurated a fresh committee to continue the unfinished task of constitution review. To ensure continuity, the bulk of its membership is drawn from the old committee. The National Assembly will not foist a fait accompli on Nigerians under the guise of constitution review. No senator harbours any preconceptions as to what is to be inserted into the constitution. The constitution is for all Nigerians and not for senators alone! It is therefore the synthesis of the true will of the Nigerian people that will be reflected in the constitution. But what we will not allow is for a vocal minority to foist its dictates on Nigerians. The Senate will resist any such attempt. We will certainly not permit the thunder of a fraction to drown the voice of the nation! I urge that we jettison the holistic or wholesale approach and focus attention on those areas that compel urgent review. Ours is a complex society in which the forging of a national consensus on borderline issues is an arduous, if not impossible, task".

Mark's fear: "Unless there is an attitudinal change on the part of every citizen, constitution amendment alone can neither guarantee democracy nor end corruption, terrorism and insecurity. Constitution review should therefore not be seen as an end in itself. To run a democratic system successfully, the leaders and the led must show democratic impulses. It is the cultural basis of the democratic project".

Host governor, Emmanuel Uduaghan, picked holes in the current constitution as he said that it is fraught with provisions militating against true federalism that could foster national unity and fast track development. His words: "It is the view of the Delta State government and the people of the state that the 1999 Constitution as it stands falls short of our collective expectations in many respects by, for instance, not providing enough autonomy for the government and the people of the state in the control of their natural resources and sufficient legal framework to promote and sustain our socio-economic aspirations. Delta State government believes it has sufficient human and natural resources to create employment, promote development and generate prosperity for her people. However, we are restrained by the overbearing unitary provisions of the constitution which cripples substantially the spirit and letters of federalism upon which this nation was built. It is our view that the constitution needs a radical review to enthrone true federalism and fiscal federalism".

Advocating the independence and autonomy of the federating units, Uduaghan described as inequitable, the principle of fiscal federalism underlying the 1999 Constitution. According to him, the nationalization of the natural resources of states and communities, particularly the Niger Delta, to service the nation's economy is too burdensome, if not oppressive, especially because there is no compensation and corresponding allocation of the proceeds to those areas to address the adverse impacts of oil exploration on the people and environment for the past 40 to 50 years.

Declaring his administration's faith in a constitution that will promote national unity and enhance welfare of all Nigerians based on the principles of freedom, equity and justice as a basis for one indivisible and indissoluble nation, the governor urged the proponents of Sovereign National Conference to submit their proposals to the committee as part of their inputs in building a constitution that would usher in better governance.

The Nigerian Governors' Forum (NGF), through its chairman, who is also the governor of Rivers State, Rotimi Chibuike Amaechi, re-echoed its support for state police and warned against removing the immunity clause from the constitution. Amaechi argued that without immunity, court cases, whether criminal or civil, would distract governors' attention from governance. He said: "Nigerians are discussing the immunity clause because they are frustrated by what those of us in government are doing. We want the National Assembly to tell us one country in the world whose constitution does not provide for immunity clause. What about the issue of implementation of the constitution? What are the consequences for those who refuse to implement the constitution? We need to know if it should be put in the constitution that anybody who refuses to implement the constitution should go for 10 years imprisonment irrespective of whether he/she has the immunity or not".

On state police, Amaechi quizzed: "Why is it that of all the countries in the world, it is only Nigeria that does not have state police while Kenya is already dawn to local government police? The constitution should allow states that have the capacity to build their own police to have it and those that lack the capacity to have state police to continue to rely on the federal police. If I have state police in my state, it is because I want to pursue particular offences. The federal police should also be there to ensure that I don't cross the boundary. In fact, if I were the Federal Government, I would either reduce the number of policemen I have where there are state police and give it to where there are no state police or focus more on states with a high crime rate".

Senators too bared their minds on some of the issues for consideration. Senate President Mark canvassed for state police and allayed the fear that it would be misused by governors, saying "I was once against state police, but I have changed my mind. If the fear is that governors would misuse it, they will leave office at most after eight years". Senate Minority Leader and former Governor of Benue State Senator George Akume (PDP, Benue North-West) wanted the immunity clause removed to put governors on their toes and inspire good governance. Akume, however, feared that state creation would be a serious battle for the committee to accommodate "because everyone wants an additional state while the existing ones are not yet viable".

Former Governor of Anambra State Senator Chris Ngige (ACN, Anambra Central) wanted an additional state created in South-East "because it is the only zone that has five states, while others have six each. On state police, Ngige said: "States can fund police. We knew of a president in this country who took away the police of a governor for one year, and the governor successfully found his own local security".

Senators Olufemi Lanlehin (ACN, Oyo South) and Olusola Adeyeye (ACN, Osun Central) said to forestall abuse of state police, measures should be put in place to safeguard its independence, when created. For Senator Magnus Abe (PDP, Rivers South-East), the essential thing is to empower the states to work. "We need to turn Nigeria from being a sharing entity to a productive nation. It is the states that must work for Nigeria to work", he said.

The guest speaker at the retreat, professor emeritus of Political Science, Isawa Eliagwu, recommended a single five-year term for all chief executives at every tier of government, with an emphasis that none of the incumbents should benefit from such a constitutional provision. According to him, it seems that a single term for chief executives produces less political acrimony, more time to concentrate on service delivery, less forms of democratic deficits, less pressure on public treasury and greater stability. "A single six or seven-year term for chief executives seems too long for many Nigerians. Any leader who cannot deliver on his/her promises in five years is inept", he declared.

Eliagwu described the argument against state creation because of lack of financial autonomy as untenable, maintaining that states could be created where there are intractable sources of democratic deficits, especially in terms of prevention of effective participation in decisions affecting the lives of a sizeable group in the current state. But he cautioned: "Let us always keep in mind that the creation of states leads to the emergence of new majorities and new minorities, and may inadvertently increase power of the centre vis-à-vis the state. However, it must also be accepted that additional states have led to new opportunities and the emergence of new centres of growth and development. Can we check the size of political and administrative structure of states constitutionally? Can we stipulate that a state should only employ nine to 12 commissioners and only six advisers?

On the immunity clause, Eliagwu recommended that chief executives of all tiers of government be immune against civil cases to prevent them from spending most of their valuable time in court over matters that would never have amounted to gross misconduct in any case. "However, these chief executives should have no immunity against criminal matters. If investigated and subsequently impeached, such a chief executive should be tried in a court of law. Criminal matters may amount to gross misconduct and cannot be left till the end of such executive's tenure of office", he said.

He also wanted the Presidency stripped of the power to control the Independent National Electoral Commission (INEC), saying it does not matter whether the president appoints INEC chairman. According to him, what matters is to enact laws that would ensure the chairman's neutrality and independence. "It is suggested that once confirmed, the chairman shall be directly accountable to the National Assembly. INEC must submit quarterly reports to the president and National Assembly.

INEC's financial independence is important for its neutrality", he insisted. Eliagwu further suggested that elected officials should not be sworn-in before courts rule on petitions against them, saying "What we have had in the past is one in which pretenders usurp positions to which they are not elected. It is unwieldy".

Two panelists at the retreat, Catholic Bishop of Sokoto Diocese Mathew Kukah and Professor Mrs. Amaeze Guobadia warned the Senate against giving constitutional roles to traditional rulers. While the latter feared that giving them constitutional roles would amount to denigrating the sacredness of their responsibilities as custodians of cultures; the former raised the alarm that constitutional roles would taint the monarchs' integrity because it would become difficult to insulate the traditional institution from politics.

At the conclusion of the retreat, Senate Leader Victor Ndoma-Egba noted that there would be no communiqué so that the committee would not be seen to have taken any position on the constitution review exercise, stressing that some key issues were just identified around which a national consensus could be built.

These issues which, according to him, were suggested to the committee, were: one term of five years for the president, vice president, governors and deputy governors; devolution of powers for true federalism, indigenship and section 42 of the constitution; financial autonomy for State Houses of Assembly to strengthen them; creation of one state for the South-East zone for equity and fairness; necessity for creation of state police; revisiting immunity clause and judicial reform.

According to him, in moving forward, the committee will engage in public hearings to be conducted in the various zones of the country, involving stakeholders like governors, State Houses of Assembly as well as generate sufficient national conversation around the identified issues and others that are of interest to Nigerians.

Consciously or unconsciously, the committee may have stirred the hornet's nest by describing the agitation for Sovereign National Conference as unsustainable. Rounding off the retreat, the committee, through Ndoma-Egba, said: "We call on all proponents of a conference by whatever name called to feel free to submit their views to the committee. The committee reiterates the fact that there can be no other sovereignty that can be derived from the constitution.

While the Senate recognizes the right of Nigerians to hold opinions and freely associate, and will encourage them to discuss the future of our dear country, the insistence by certain quarters for Sovereign National Conference is untenable as there can only be one sovereignty."

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