Number of Senators from States Should be Based on Population
By Usman Umar Fari, Esq.
Being text of a memoranda submitted to the North-West Zone National Assembly Constitutional Review Committee Sitting on the 2nd and 3rd of June, 2021 at Bristol Hotel, Kano
In response to the ongoing move by the National Assembly to amend the Constitution of the Federal Republic of Nigeria,1999, I present my modest contribution, drawing attention on some of the areas that I think should be amended. I ignore some other areas which I feel some other contributors have dealt with.
The procedure for amending the constitution is cumbersome. It makes the constitution rigid. Adherence to the procedure, which is a condition precedent for amendment, causes delay in the process and causes the government to spend more resources.
In UK, Parliament can alter constitutional principles and define new baselines for government action through ordinary legislative process. In Canada the Constitution grants the legislature some limited ability to amend the Constitution by legislation
ENFORCEABILITY OF ACTIONS IN RESPECT OF FUNDAMENTAL OBJECTIVES AND DIRECTIVE PRINCIPLES OF STATE POLICY
Section 6(6)(c) of 1999 Constitution provides:
“The judicial powers vested in accordance with foregoing provisions of this section
(c) Shall not, except as otherwise provided by this constitution, extend to any issue or question as to whether any act or omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principle of State Policy set out in chapter II of this constitution”
I suggest that section 6(6)(c) of the 1999 Constitution be altered. The section is immunity clause in favour of the unfavourable conducts of government officials to the extent that no one is allowed to institute an action pertaining to fundamental objectives and directive principles of state policy.
This has, to a certain extent, encouraged our leaders not to concentrate on good governance and has of course encouraged corruption while meaningful projects, good laws and policies promulgated for good governance end up unimplemented.
However, section 6(6)(c) disallows any court in Nigeria to entertain any matter that questions any action of government pertaining to fundamental objectives and directive principles of state policy. I therefore suggest that section 6(6)(c) of 1999 Constitution be amended or alternatively, some relaxation be introduced.
FUNDAMENTAL HUMAN RIGHTS
I suggest that the following should be considered and inserted in chapter IV of the Constitution:
Time limit within which a fundamental human right case should be heard and determined be stipulated in the constitution.
Fundamental Human Right’s judgment must be an absolute judgment that should be enforced without delay and no need to obtain consent of any party or authority.
Right to be free from corrupt society which should include right to institute civil and criminal actions against corrupt practices be part of the fundamental human right.
Right to education.
NUMBER OF MEMBERS OF THE NATIONAL ASSEMBLY
Section 48 of the Constitution should be amended and be similar to section 49, i.e the number of senators from each state should be according to population. The advantages of this are as follows:
- To avoid an inequitable distribution of seats; it is clear and apparent inequitable distribution of Senate membership for both Bayelsa and Kano to have equal representatives in the Senate. Kano has over 15 million people while Bayelsa on the other hand, has no more than 3 million.
- To create ability to delete or increase the number of members whenever the need for that arises without constitutional constraints. For instance, section 73 empowers INEC to review the division of states of the Federation into senatorial districts and Federal constituencies at intervals of not less than 10 years, but such alteration could only have little or no difference as the INEC can not add or reduce the number of Senators constitutionally allocated to each state of the federation; nor could it add the number in the House of Representative membership to exceed 360 as constitutionally stipulated.
Impeachment procedures are nowadays being abused by the legislators who openly perform impeachment process at the whims and caprices of the executive or god-fathers. Legislators at the states level appear to be non-independent.
Impeachment of elected politicians is a very serious matter and should be seriously protected by the constitution. The purpose is to set aside the will of the electorate as expressed at the polls.
It has implication for the impeached as well as the electorate who reposed their confidence on him. We are quite aware of some elected politicians such as Joshua Dariye, Ladoja and Abubakar Danladi who were impeached by the legislature without following the due process. Some of them were removed by the state legislatures from hotel rooms.
The non-credibility of States Houses of Assembly impeachment process is no longer in doubt. For instance, in the case of Governor Dariye only 8 out 24 members of the State House of Assembly initiated and carried out the impeachment process.
The procedure in the impeachment of Abubakar Danladi was not better than that adopted in the impeachment of Dariye, and as a result of that the Supreme Court of Nigeria advised that the procedure should not be left to the whims and caprices of politicians and their kangaroo panels.
It was in the case of DANLADI V. DANGIRI (2014) MJSC 10-11 MJSC PAGE 112 AT 185 where the Court held as follows;
“Impeachment of elected politicians is a very serious matter and should not be conducted as a matter of course. The purpose is to set aside the will of the electorate as expressed at the polls. It has implication for the impeached as well as the electorate who bestowed the mandate on him. Whether it takes one day or the three months prescribed by law, the rules of due process must be strictly followed. If the matter is left at the whims and caprices of politicians and their panels, a state, or even the entire country could be reduced to the status of a banana republic. The procedure for impeachment and removal must be guarded jealously by the courts.”
To avoid mis-use and abuse of power in impeachment process, I suggest that section 188 be altered and the power be transferred to Judicial arm of government.
In United States, one of the functions of the Chief Justice of the country is to preside over impeachment trials.
Jurisdiction is the power donated to courts by enabling statutes or Constitution to exercise powers or adjudicate over matters or proceedings.
Jurisdiction is the blood that gives life to the survival of an action in a court of law without which, the action will be like an animal drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it would be an exercise in futility.
I therefore suggest that the following courts’ jurisdiction be revisited:
Sharia Court of Appeal:
Section 277 of 1999 Constitution limited the jurisdiction of Sharia Court of Appeal to Islamic personal law involving marriage, divorce, custody of an infant or person of unsound mind, will, succession and Waqf.
Altering the provision of S.277 and empowering the Sharia Court of Appeal to entertain all civil causes and matters will help in the decongestion of States’ High Courts of bulky cases they entertain.
For instance, in Kano State, all appeals other than those of Islamic personal matters shall constitutionally lie to Kano State High Court. This means appeals from Magistrates’ Courts, Hajj Tribunal, District Courts, Rent Tribunal and Sharia Courts in non-Islamic personal matters lie to State High Court.
This is apart from Local Government Election Appeal Tribunals which are being presided by Judges of the High Court. Apart from the above, State High Courts exercise original jurisdiction.
This congests our High Courts and creates burdens and unnecessary delays which could only be curtailed if jurisdiction of the Sharia Court of Appeal is extended to include other civil causes and matters.
I suggest that the Jurisdiction of Sharia Court of Appeal be extended to entertain criminal and civil causes and matters other than Islamic personal matters.
Of course, it is unwise idea to constitute a superior court only to entertain issues pertaining to family matters while at the same time, cases are flooding to various States High Courts and remaining unattended to, due to the large number of cases being entertained by the High Courts.
There is a need to establish special criminal court that should entertain some designated offences such as kidnaping, robbery, economic and financial crimes among others. This is in order to minimize the attendant delays in prosecuting criminal cases more particularly corruption related cases.
(C) SUPREME COURT
I suggest that the number of Supreme Justices should be left to the National Assembly to determine. Consequently, the clause not exceeding twenty-one, contained in section 230(2)(b), should be altered.
As the present, the constitution stipulates the number of Justices of the Supreme Court. The Court will be unable to dispense with cases before it within reasonable time. The Supreme Court is duly constituted if it consists of 5 Justices of the Court presiding over a case or matter.
Where a cause or matter pertains to the interpretation of the constitution, the court is duly constituted if it consists of 7 Justices.
Arithmetically, if 21 is divided by 7, 3 is derived. With the present constitutional provision, one will only have 3 or 4 sessions of the Supreme Court at a time depending on the subject matter to be entertained by the court. If the determination of the number of Justices of the Supreme Court is left to the National Assembly, the Parliament will be at ease to increase the number whenever the need for that arises.
(6) IMMUNITY CLAUSE
I suggest that section 308 of the 1999 Constitution be retained as far as criminal trial is concerned. This is to avoid a situation where baseless, frivolous and vexatious charges might be preferred against the Executive. I should however, suggest that a relaxation be introduced in favour of civil proceedings against the executive.
(7) EXCLUSIVE LEGISLATIVE LIST
I respectfully suggest that the following items should be transferred to concurrent legislative list:
Drugs and poisons: This is to enable the respective state governments to make rules and laws that could regulate and eradicate the menace of substandard or fake drugs. At the moment the agencies created under the Laws of National Assembly fail to tackle this serious problem effectively.
Evidence: In the Constitution of the First Republic, it was within the powers of Regional Parliaments to make laws regarding evidence.
Item 62(d): This provides the establishment of a Body to prescribe and impose standard of goods and commodities offered for sale. I suggest that this provision be transferred to concurrent legislative list or an exclusive power be given to State Houses of Assembly.
Finally, I wish the Committee a successful public session here in Kano and I pray for members’ safe journey back to Abuja.
May Allah bless you.
USMAN UMAR FARI ESQ
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