By Ike Ekweremadu
It is my pleasure to be here and to be part of this capacity-building programme for the Research Fellows of the National Institute for Legislative and Democratic Studies (NILDS). I am also pleased to have the opportunity to present a paper on how we could engender a greater involvement of NILDS in the constitution amendment process.
As the African adage says, unless a man understands where he is coming from, he might never really know where he is headed. Thus, I intend to take us on a brief tour of the history and mandate of NILDS. This will guide us in examining the ways NILDS could help in the constitution amendment process.
The Making and Objectives of NILDS
At the time democracy returned in 1999, the legislature was the most underdeveloped arm of government, having been sacked throughout the long military interregnum. While judiciary remained in place, the military not only assumed the executive powers of the Federation, but also expropriated the legislative function through decrees. As such, the Policy Analysis and Research Project (PARP) was established in 2003 to provide capacity building services to the National Assembly with the financial support of the African Capacity Building Foundation (ACBF). And for a period of 7 years, PARP played a pivotal role in provision of research and analytical support to the nascent National Assembly.
As the Chairman of the Joint Steering Committee of PARP from 2007, I had the rare privilege of working with other stakeholders to nurture and transform PARP to the National Institute of Legislative Studies (NILS) through an Act of Parliament in 2011. As the National Institute for Policy and Strategic Studies (NIPSS) caters to the capacity-building needs of the executive arm and the National Judicial Institute (NJI) to the training needs of the judiciary, it became imperative to set up NILS to cater for the legislature.
NILDS, as it is now known since 2018 following the expansion of its mandate, was therefore conceived with the clear objectives of providing training, capacity building, research, policy analysis and extension services to the legislature at all levels of government in Nigeria. It was conceived as a resource bank and a world-class institute for sustenance of a dynamic and effective Legislature at the Federal, State, Local, and sub-regional levels.
The Constitution Amendment Process
Section 4(1) of the Nigerian Constitution vests the legislative powers of the Federal Republic of Nigeria in the National Assembly. Section 4(2) provides that the National Assembly shall have power to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part I of the Second Schedule to the Constitution. Section 4(6) and (7) similarly vest the legislative powers of a State in the House of Assembly of a State.
These powers include the power to alter the Constitution as prescribed by Section 9 of the Constitution. Constitution amendment is the single most important and rigorous lawmaking power of the Nigerian legislature. As a living document, the Constitution, and to a large extent, our constitutional democracy, need to be reviewed from time to time. Just as in our day to day lives, we take stock of the past and plan for the future, so it is with the nation. The Constitution is therefore periodically amended to reflect the dynamism of the society, address deficits in the existing constitution and issues of non-inclusion as well as build and strengthen democratic institutions. In our own case, calls for the review of the constitution have additionally been hinged on issues revolving around system distortion from federalism to a quasi-unitary state as well as issues bothering on structural imbalances and need for electoral reforms.
In reality, however, constitution amendment is not as easy as it appears to some onlookers. I had the rare privilege of piloting the process for 12 years, from the 6th to the 8th Senate, and I can affirm that it is not only rigorous, but enmeshed in convoluted politics, Nigeria being a pluralistic society. It was therefore not surprising that every attempt to amend the Constitution between 1999 and 2007 did not succeed until we took over in the 6th National Assembly.
Among the challenges faced in constitution amendment include:
- Inexperience and lack of template of procedure.
- Crisis of expectation and the temptation to do so much at a time
- Apathy and lack of democratic culture.
- Ethno-religious and sectional politics.
- Lack of political will.
- Lack of independence of critical institutions.
Highlights of Amendments
Notwithstanding the challenges, we were able to break the jinx of unsuccessful constitution amendments in 2010. We adopted an incremental approach. We have since gone on to carry out subsequent successful amendments, although many of them were not assented to by the President.
Below are highlights of our constitution amendment efforts, which I have summarised under three subtitles:
Amendments passed by the National Assembly, approved by the required number of States House of Assembly, and assented by the President:
- Amendments to Sections 145 and 190 of the Constitution to compel the President/Governor to transmit a letter to the National Assembly/State Assembly to enable their Vice or Deputy act whenever they are to proceed on vacation or unable to discharge their functions, failing which the Vice President or Deputy Governor automatically assumes office in acting capacity after 21 days.
- Amendments to enable a person sworn in as President or Governor to complete the term of an elected President or Governor, but disqualified from election to the same office for more than one more term.
- Sections 135 and 180 of the constitution were also amended to consolidate the term of office of a President/Governor, who won a rerun election to include the period already spent in office.
- Sections 81, 84, and 160 of the Constitution were amended to make the Independent National Electoral Commission, INEC, financially and administratively independent. Section 160 now expressly states that in the case of INEC, its “powers to make its own rules or otherwise regulate its own procedure shall not be subject to the approval of the President”.
- Section 156 of the Constitution was amended to remove membership of a political party as a qualification for appointment into INEC, thereby insulating members from partisan politics.
- Amendments to Section 285 (5) to (8) to set time limits for the filing, hearing and disposal of election petition to ensure speedy dispensation of justice.
- Sections 76, 116, 132, and 178 to provide for a wider timeframe for the conduct of elections.
- Amendments to Section 285 and the Sixth Schedule of the 1999 Constitution to reduce the composition of Tribunals to a Chairman and two Members and the quorum to just a Chairman and a member.
- Amendments to Sections 66(h), 137(i), and 182(i) to delete the disqualification of persons indicted by an Administrative Panel from contesting an election.
- Stipulation of timeframes for filing, adjudication, and disposal of pre-election lawsuits.
- Reduction of age qualification for political offices (Not Too Young to Run Amendment).
- Amendments to Sections 134, 179, and 225 of the Constitution to extend from seven to 21 days the period within which INEC shall conduct run-off elections in presidential/gubernatorial contests.
- Insertion of Section 225A to stipulate the conditions and process for deregistration of political parties.
- Financial autonomy to the National Assembly and State Assemblies to enhance their independence and to promote accountability.
- Amendments to Sections 6, 84, 240, 243, 287, 289, 292, 294, 295, 216, 318, the Third Schedule and Seventh Schedule to the Constitution and insertion of a new Section 254 to make the National Industrial Court a Court of superior record and equal in status with the Federal High Court.
Amendments passed by the National Assembly, approved by the required number of State Assemblies, but not assented by the President:
- Devolution of powers by reorganising the Legislative Lists to move Railway, Aviation, Power, Stamp Duty etc. from Exclusive List to Concurrent List.
- Separation of the Office of the Attorney General of the Federation/State from the Office of Minister/Commissioner for Justice. Office of the Attorney-General was granted financial autonomy and security of tenure to insulate it from political control.
- Inclusion of basic education and primary healthcare in fundamental and justiciable human rights.
- Independent candidates for elections.
- Inclusion of electoral offences as grounds to disqualify candidates from future election.
- Mandatory presentation of yearly State of the Nation address to a joint session of National Assembly by the President.
- Straightening the processes for state creation to make them less cumbersome.
- Removal of presidential assent to constitution amendment Bills as is the case in the US.
- Financial autonomy for Office of the Auditor-General of the Federation to make it more independent.
- Amendments to Section 59 compelling the President/Governor to transmit assent/veto of a Bill to parliament within 30 days (it is 10 days in the US), failing which such Bill becomes law automatically. Where override is necessary, parliament must exercise such power within seven days.
- Provision for sanction for disobeying legislative summons.
- Inclusion of all former Presidents of the Senate and Speakers of the House of Representatives in the membership of the National Council of State as former heads of the other two arms (CJN and President/Head of State) are already included.
- Creation of Office of the Accountant-General of Federal Government different from Accountant-General of the Federation to promote transparency and accountability.
- Prohibition of courts/tribunals from granting a stay of proceedings on account of interlocutory appeals in electoral matters.
- Conferment of criminal jurisdiction for electoral offences on the Federal High Court.
- Pension for former presiding officers of the legislature as is the case with heads and deputy heads of the executive and the judiciary.
- Compulsory presentation of budget estimates by President/Governor latest September and passing of same latest December 31 of the same year.
- Reduction of the period the President/Governor could approve expenditure from the federal/state treasury based on previous year’s budget (in the absence of a new budget) from six to three months.
- Timeframe for submission of ministerial nominees, which must also be accompanied with their respective portfolios.
- Compulsory savings of a defined percentage of oil revenues for rainy days.
- Provisions to protect and enhance the rights and wellbeing of people living with disability.
Amendments passed by the National Assembly, but rejected by State Assemblies:
*This mainly has to do with reform of local government system, including the infusion of financial autonomy, uniformity of tenure, and better electoral process in the election of Councils.
Proposals not passed by the National Assembly, hence not transmitted to State Assemblies for ratification:
*Procedure for the enactment of an entirely new constitution, which included referendum.
*Decentralization of policing to create state police.
*Single term for President and Governors.
*Revocation of the immunity clause.
*Removal of the Land Use Act from the Constitution.
*Devolution of the Prisons (now known as the Nigerian Correctional Service) to the Concurrent List.
Towards a Greater Involvement of NILDS in the Constitution Amendment Process
- As earlier pointed out, the primary mandate of the NILDS is to serve as the capacity-building arm and resource bank of the National Assembly. Ordinarily, there would have been no need to hire consultants or a technical team to assist the National Assembly in its constitution amendment efforts. NILDS is expected under its mandate to provide technical support to all committees of the National Assembly, including the Constitution Amendment Committees. However, for NILDS to effectively play that critical role, it must first build its capacity, resourcing the institute by attracting, employing, and retaining the brightest and very experienced hands. Unfortunately, what has happened is that NILDS has lost quite a handful of the brightest brains over the years. The DG and Governing Council must, therefore, work hard to reverse the brain drain and also further build the capacity of its staff. It is on this note too that I commend this training programme for the Institute’s Research Fellows.
- Also critical to building the capacity of NILDS is the completion of the permanent site of the Institute. In July 2013, the former President of the Senate, His Excellency, Senator David Mark, laid the foundation of a N51 billion NILDS Village off Airport Road. The complex sitting on more than 80,000 square metres expanse of land includes a convention centre, administrative building, library, lecture theatre, hostel, clinic, residences, and technical buildings. We proposed it to be the hub and one-stop shop for legislative capacity building in Africa and it was supposed to have been completed within 24 months. It was nearing completion as at 2015. Unfortunately, about 7 years after, the complex remains uncompleted, hence not in use. It pains me every time I see the uncompleted complex on my way to or from the airport. I call on the leadership of the National Assembly to see to it that this legislative landmark is completed and put to good use soonest. This will be a great legacy on their part and posterity will never forget them and the annals of our democratic development will also be kind to them.
- However, I believe NILDS could be very relevant to the constitution amendment process in the meantime. For instance, the Constitution has undergone several amendments since 2010. The global best practice is that when a law undergoes so many amendments, you repeal and re-enact it, just as we are currently doing to the Electoral Act. However, the manner the provisions of 1999 Constitution can be altered is already circumscribed in the document and it permits only amendments. It does not provide for how it could be repealed and a new one enacted.
- As I earlier pointed out, we tried in the 7th National Assembly to make provisions for how a new constitution could be brought into being. That proposed amendment included a referendum. That was what countries like Brazil, Kenya, etc. did. Unfortunately, somehow, it didn’t work. It was rejected. However, I think this is a cause NILDS should pursue. It is in a position to lead the advocacy for the streamlining of the provisions of the Constitution by laying foundation for the procedure for creating a new Constitution.
In the meantime, NILDS can:
- Organise training for supporting staff of the Committees on the Review of the Constitution in the Senate, House of Representatives, and State Assemblies to position them to guide and serve the Committees effectively.
- NILDS is also in a position to organise a retreat for the Committee members to build their capacity and also to provide an atmosphere for reflection on the issues to be considered in the amendment.
Now that the process of amending the Constitution is, once more, in progress, I expect NILDS to follow up with the Committees to not only provide technical support as much as it can, but also to work with the Committees to provide a legislative framework for a new Constitution. NILDS can, therefore, take it upon herself to see to the realisation of a new Constitution for Nigeria.
Distinguished ladies and gentlemen, as I said earlier, NILDS was conceived with a clear objective of providing training, capacity building, research, policy analysis, and extension services to the legislature in Nigeria and beyond. It is expected to be a resource bank and a world class Institute for the sustenance of a dynamic and effective legislature at the federal, state, local, and sub-regional levels. Therefore, to whom much is given, much is expected. As I look forward to NILDS playing more constructive and effective roles in the constitutional reform efforts for our nation, I urge you to remain focused in delivering your mandate to justify the dreams and visions of all those that conceived the institution.
Thank you for listening.