A Case for a Comprehensive Review (2)

BY ABDULRRAMAN MU’AZU

As constituted now, the constitution has concentrated so much power in the Chief Justice of Nigeria as Chairman of the NJC. He is at the pinnacle of all the judicial institutions, overseeing appointments, promotions, discipline, allocation of resources and appoints Senior Advocates of Nigeria, thus, controlling virtually every aspect of the judiciary.
With the power of discipline vested in the NJC, what happens if the CJN happens to be the one under the search light considering the fact that he appoints about 60% of the members of the council?
In the light of the above, I wish to recommend that section 20 of Third Schedule in part 1 of the constitution be amended in such a way that the CJN ceases to be the head of judicial institutions except the Supreme Court. The NJC should comprise current and retired Chief justices of Nigeria and others with one of the former CJNs as Chairman. This way, the current CJN would have nothing to do with overall control of the body and this will certainly serve the end of justice.
a. Election Tribunals
Section 285(7) in part III of Sixth Schedule in chapter VII provides that:“(7) An appeal from the decision of an election tribunal or Court of Appeal in an election matter shall be heard and disposed of within 60 days from the date of the delivery of judgment of the tribunal or court of appeal”
The above provision as it is, is prone to manipulation as a compromised judicial officer can decide not to do anything until the 60 days expire and hide behind his inaction to deny the petitioner the right to be heard on technical grounds thereby defeating the end of justice. To avoid that kind of a situation, there should be a proviso to that section which will guarantee that a petitioner is heard except, where he sleeps over his right and refused to enforce it within the time limit allowed by law. The mere non-constitution of a panel or the panel not being able to sit for whatever reason without the fault of a petitioner should not be used to deny him justice. There are instances where the courts refuse to sit until after litigants partition NJC which in turn compels the Courts to deliver judgment on or before the expiration of the deadline to ensure that the case remain alive.
C. Appointment of Heads of the Judicial Arm and Other Judges
The executive arm at both levels of government has subjected the constitutional provisions dealing with the appointments of the heads of the judicial arm to abuse whenever there are vacancies owing to retirement, removal or suspension of the heads of the judicial arms of government. Right now there are at least three vacancies – one at the Court of Appeal and the other two in some States in the North-East zone of the country that have not been filled some for more than one year for no just reason other than sheer politics.
To avoid that kind of abuse which is negatively affecting the administration of justice and demoralizing the judicial officers, I wish to recommend that sections 231, 238, 250, 256, 261, 271, 276 and 281 of the constitution dealing with the appointments of the various heads of the judicial arm be amended in such a way that makes it compulsory for the president or the governor as the case may be to fill any vacancy within a maximum of three months, except where there is a pending court case in which case the next most senior justice or judge is appointed in acting capacity until the issue is resolved. There should be no provision for the renewal of the appointment of the person holding the position in acting capacity.
2. The Civil Service
No matter how laudable and well intentioned the programmes of governments are, they cannot be implemented without a professional, effective and efficient civil service made up of career civil servants. Like any organizations, the civil service constitutes the management through which governments realize their goals and objectives which is why it is often said that the civil service is to the nation what the heart is to the body. Unfortunately, today, the civil service has been unduely politicized and bedevilled by corruption. It is regarded as a job for all-comers. That explains why people who know nothing about the running of government especially its rules, regulations procedures and traditions are appointed into sensitive positions with career civil servants relegated to the background as on-lookers. The latest is the super imposition of Diaspora Nigerians on top of public sector institutions without any knowledge of the rudiments of the system. You will agree with me that this provides a fertile ground for mediocrity and the jettisoning of career progression leading to the destabilization of the system with the nation as the loser. We have all seen what happened at the Nigerian Electricity Regulatory Commission with Dr. Owen as the head and what is currently happening at Ms. Aruma Oteh’s Securities and Exchange Commission.
The Civil service commission has been completely hamstrung by politicians in relation to its core functions of recruitment, promotions and discipline of civil servants.
To rectify this anomaly and restore the rightful place of the civil service, it is hereby recommended that an express provision should be made in the constitution insulating the service from politics. Therefore, sections 171(2) (d) and 208(2) (c ) relating to the appointment of permanent secretaries or other chief executive in Ministries or Department of Government of the Federation and state respectively should be amended to restrict such appointments to career civil servants within the service instead of leaving it open which has led to its politicization which is largely responsible for the sorry state it has now found itself.
To insist as sections 171(3) and 208 (3) with respect to the public service of the Federation and that of the state respectively that “An appointment to the office of the Head of Civil Service of ……. shall not be made except from among Permanent Secretaries or equivalent rank in the Civil Service of any state or of the Federation” is meaningless if, as it is today, most of the civil service is populated by Permanent Secretaries who are politicians or non- career civil servants. With the restriction of the appointment of Permanent Secretaries to career civil servants, a situation where a non-career civil servant becomes the Head of the civil service is foreclosed.
3. The Electoral Process
a. Swearing –in of Elected Officers with Pending Cases.
There is this strange but wide-spread practice in our electoral system whereby elected officers whose cases are pending in courts are sworn- in and allowed to function normally. This practice which is obtainable only in Nigeria is not only unfair but unjust particularly in a country where governors have unlimited access to the treasury coupled with total lack of accountability which enables them to use state resources unhindered to influence the outcome of elections petition to the disadvantage of their opponents.
With this kind of practice in place, there is no way the nation will ever succeed in its fight against corruption or have a credible, free and fair election. Similarly, getting justice at the election tribunals or courts is a herculean task. To ensure a level playing field, a new provision should be introduced in the constitution prohibiting the National Independent Electoral Commission from issuing a certificate of return to any elected official whose case has not been finalized by the tribunal or court.
Similarly, another provision should be made compelling election tribunal to dispose of elections petition within a maximum of 90days. This is possible because most election tribunals don’t actually sit for more than 60 out of the 180 days allowed them. Moreover, when campaigning for elections, politicians go to all nook and crannies of the state spending days and nights looking for votes, but when it comes to the important stage of ascertaining who actually won an election, they start frustrating the process through unwarranted adjournments. It is possible to dispose of all election cases within 90days even if it means sitting day and night including weekends and public holidays. Governance is serious business. It is worth the sacrifice. That is what happens everywhere around the world. Suffice it to say court cases are bound to reduce considerably with improved electoral process.
b. Sanctions for Electoral Malpractices
There is no express provision either in the constitution or the Electoral Act on who is eligible to contest an election following the annulment of a previous one. The trend has been for the election tribunal or court to order only those candidates including the culprits who contested the annulled election to contest in the fresh election thereby denying those who would have wished to give it a try the opportunity to do so.
This practice will not in any way help in cleansing the system, but has instead contaminated it because no punishment has been meted out for those responsible for the electoral malpractices leading to the annulment of the election.
To serve as a deterrent to would-be election riggers, a brand new provision banning those found to have been responsible for not allowing a credible election to hold along with their parties from not only contesting in the fresh election but for four years in the first instance. Where the person or his political party persists with the criminal and undemocratic practice, they should be banned for 20 years.
c. Election held after annulment of an election should be termed fresh and not re-run election.
The Constitution of the Federal Republic of Nigeria 1999 (as amended) does not envisage a re-run election after annulment of the election of an elected official who has been sworn into office. The only re-run election recognized by the constitution is where an election is inconclusive because none of the candidates has won the required majority votes to be declared an outright winner. Then, in that case, the two candidates with the highest votes are to go for a re-run election within a specified period of time in line with the provisions of section 179 of the constitution of the Federal Republic of Nigeria 1999 (as amended). Once a winner emerges and he is sworn-in, there shouldn’t be anything like annulments talk less of re-run. The constitution therefore does not envisage annulment of election because once a clear winner emerges and is sworn into office after the courts have exhausted the legal process, there wouldn’t be any pending case -from which an annulment will arise.
The issue of re-run election in Nigerian’s electoral system is a recent development which has been caused by not only electoral malpractices but also by the system which encourages the swearing -in of elected officers with questionable mandate first and differing the determination of the real winners by the courts several months or years later instead of ensuring that only real winners of elections whose cases have been disposed of are sworn-in. That is why The Economics of London once described Nigerians’ election as’ “court ordered elections” as against elections where people determine winners directly through the ballot box as obtains in normal and functional democracies.
The only semblance of the recognition of this abnormal situation of re-run election is the provision introduced into the constitution during the last constitutional amendment carried out by the National and the States Houses of Assembly where a new section 180 (2A) which itself is not a new legislation neither is it a recognition of re-run elections, but a clarification of the subsisting section 180 which deals with the tenure of office of governors. The said section 18CT (2A) provides as follows:
“In the determination of the four year term, where a re-run election has taken place and the person earlier wins the re-run election, the time spent in office before the date the election was annulled shall be taken into account”
From the forgoing therefore, it is clearly a misnomer to call an election organized after the annulment of an election in which there is no conclusive proof of a winner a re-run election. Re-run between who and who? There can only be a re-run election where many (actually more than two) candidates have contested an election and all but the first two have been weeded out through the declaration of a credible result which shows clearly and satisfactorily the scores of each candidates which is what determines who are the first two eligible to participate in a run ­off election as provided by section 179 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). But the current practice where once an election is annulled, the courts order the candidates who participated in the annulled election to contest in the so—called re-run: election is unconstitutional because in the eyes of the law there was no conclusive election.

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