Nigerian Constitution: Fourth Article - Enforcement of Constitution





Nigerians have now had nearly nine years of government under the current Constitution. Many of its shortcomings were noticed as it came into force on the 29th of May 1999. Later, while in operation, a number of other deficiencies have come into view. At the inception of the Constitution, it was assumed that any controversies arising during its operation would be resolved through the judicial process.

Introduction

Nigerians have now had nearly nine years of government under the current Constitution. Many of its shortcomings were noticed as it came into force on the 29th of May 1999. Later, while in operation, a number of other deficiencies have come into view. At the inception of the Constitution, it was assumed that any controversies arising during its operation would be resolved through the judicial process. It was, of course, also realized from the beginning that there were several fundamental issues, such as sectional or ethnic discontent; the over-concentration of governmental powers and functions at the Centre; the sharia within the judicial system; revenue sharing; etc, that would have to be settled through formal constitutional arrangements.

In practice, most of the provisions of the Constitution are, as intended, routinely obeyed by the individuals or implemented by the authorities concerned. Moreover, whenever its powers are duly and properly invoked, the Judiciary has, in most cases, ensured compliance with the provisions of the Constitution through judicial proceedings. Yet, there are other areas of potential controversy that did not seem to have been anticipated, such as the removal from office of the president, or of a state governor, through the process of impeachment.

Like any other set of rules, the Constitution delimits and constricts the freedom of action of those whose role it is to apply its provisions. Nigerian politicians, in their restless search for political advantage in any situation, are for ever striving to break loose from the constricting mould of the Constitution. This they have done most conspicuously by emasculating, nay destroying, a system of local government as envisaged in the Constitution, and also by ruthlessly manipulating the process of removing state governors from office via the process of impeachment.

Politicians have also, in other ways, given the Constitution twists that were not in it as a written document. For example, not many Nigerians could have expected the National Assembly and the Revenue Mobilization, Allocation and Fiscal Commission, between them, to have awarded, as they did in June 2007, (then widely reported in the media) the staggering sum of fifty-three million Naira (N53,000,000) to each of its in-coming Senators as take-off loans and allowances, with lesser, but also large, sums to members of the House of Representatives for the same purposes. No one could have expected a State House of Assembly to meet in a Hotel, and behind the back of the Speaker and his Deputy too, to conduct impeachment proceedings and remove the democratically elected Governor of the State from office, as they did in Oyo State in 2006.

The makers of the Constitution did not envisage that the Legislatures would, as happened in both Oyo and Plateau States, remove elected Governors from office by resorting to “suspending” members of the House of Assembly in order to secure the two-thirds majority of the votes required for an impeachment process or, as in Bayelsa State, that members of the State House of Assembly would meet outside the territory of the State to conduct impeachment proceedings.

Who could have expected the Judiciary, in consort with the National Assembly, to create a high court of record (the National Industrial Court) in obvious contravention of paragraphs (a) to (i) of subsection (5) of section 6 of the Constitution? State Governors have, in flagrant violation of subsection (5) of section 271 of the Constitution, in several instances, refused, neglected or failed to appoint the most senior Judge in a State to perform the functions of the Chief Judge whenever that position has temporarily fallen vacant and, in violation of the same provision, they have retained the same person in that acting capacity for periods in excess of the three or six months allowed by the Constitution.

It is equally hard to see how compliance with the Constitution could have been procured where all the States of the Federation, in open defiance of subsection (i) of section 7 of the Constitution, refused, neglected or failed to hold elections into local government councils when due, or where, in defiance of the same provision, they dissolve democratically elected local government councils and appoint in their place sole administrators and caretaker chairmen and council members.

Now that these and other major infringements have been committed by those elected to operate and protect the Constitution, the guardians of the Constitution, who then will enforce compliance with the Constitution? While it is possible to litigate most issues in dispute under the Constitution, these major infringements usually go unchallenged because “correction lieth in the hands that made the fault that we cannot correct.” This being so, should we then, as Shakespeare would have us do, “put our quarrel to the will of heaven who, when they see the hours ripe on earth, will rain hot vengeance upon offenders’ heads”? Not so. Even if “hot vengeance” would later come from heaven, we ought, here and now, to endeavor to make the Constitution work as satisfactorily as possible. The failure to make this effort would amount to a recipe for any number of political crises, some of which may result in social disorder and bloodshed.

In this article, I examine some of these infringements which (being the handiwork of the Guardians of the Constitution) cannot be easily averted or sanctioned. I am of the view that the damaging effect of these infringements could be reduced by drafting the relevant provisions in such a manner as to make their breach less likely. Secondly, there should be provisions for self-enforcing or easy to enforce sanctions for infringement.

Manipulation of Impeachment Process

The Nigerian constitution itself does not use the word “impeachment”. The Constitution speaks of the “removal” from office of the President or a State Governor. However, the world-wide drama of the former United States President Bill Clinton, impeachment process has, through its media presentation, etched itself in the minds of most Nigerians and led them to believe that the impeachment of the President or a State Governor means his removal from office, which does not necessarily follow.

The impeachment of President Obasanjo in 2002 shook the nation to its core. The National Assembly went about the process in the correct manner, and the political forces having played themselves out, in the National Assembly, the process did not result in the removal of Obasanjo from office. The situation was entirely different in the impeachment processes carried out in four of the country’s 36 states, namely, Anambra, Ekiti, Oyo, and Plateau. The processes were hinged on section 188 of the Constitution.

The political motive in the impeachment process leading to the removal from office on 12 January 2006 of Governor Rasheed Ladoja of Oyo State and of Chief Joshua Dariye of Plateau State in November, 2006 was quite obvious. Section 188 of the Constitution stipulates in 10 subsections the steps to be taken whenever it becomes necessary to remove a serving State governor from office for misconduct defined in subsection (11) as “a grave violation or breach of the provisions of this Constitution or a misconduct of such nature as amounts in [sic] the opinion in the House of Assembly to gross misconduct.”

The Constitution attempts to insulate the process from judicial review and to make it an entirely legislative process by stipulating in subsection (10) of the section that “(10) No proceedings or determination of the Panel or of the House of Assembly or any matter relating to such proceedings or determination shall be entertained or questioned in any Court”.

ABOUT THE AUTHOR: Hon Justice O Oluwadare Aguda
Hon Justice Aguda was up to 2005 Chairman, Ondo State of Nigeria Law Commission and has held different positions throught his career in Nigeria.

Copyright O. Oluwadare Aguda
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.



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