There’s no perfect constitution anywhere in the world. As no condition on earth is permanent, so also no constitution is permanent. As new innovations emerge, there may be a need to amend the existing constitution to reflect the new changes in the polity. The constitution is the highest law in the land, against which every other law is null and void, if inconsistent with the provisions of the constitution. This is why the amendment of the constitution is of paramount interest than the amendment of any lower law, as any power and right enshrined in the constitution is protected from incessant tampering by the three branches of the Federal Government. The amendment procedure is cumbersome, as it requires the consent of both the federal and state governments to succeed. The constitution is a document of the federation, not a federal or state government.
President Bola Tinubu
As we embark on our search for a more perfect union, several groups appear on the horizon with the patriotic zeal to offer critical advice on how best Nigeria can come up with an acceptable Constitution that will reflect and recognise our peculiar circumstances as a people and proffer solutions to the myriad of perennial problems which many opine stem from structural imbalances in our system. One of such groups is called “The Patriots”.
This group is of the opinion that our present constitution is illegitimate owing to its root in a decree of the military that promulgated it to existence. This position is a bit odd when the same group plans to submit whatever is the outcome of their deliberation to the authorities constituted by the same constitution that it has denied its legitimacy. Immediately the group submits its deliberations to any of the three arms of the government, it can no longer deny the legitimacy of the 1999 Constitution. Rather than waste precious energy on whether the present constitution is legitimate or not, The Patriots should concentrate on the onerous task of bringing out such important areas for amendment which will enhance our well being in Nigeria.
It’s only a revolution that has the power to bring about the existence of a new legal order in a manner not anticipated by the existing legal order. The case of The Patriots is even more complicated when one remembers that The Patriots are as unelected as the military they claim gave us the constitution, which it is making efforts to illegitimize. It would not be helpful to overlook the very many beautiful recommendations from The Patriots simply because they are unelected by the people, just as it is unhelpful to delegitimise the constitution because its origin stemmed from a military decree.
The truth is that the root of any constitution lies in an undemocratic foundation in which some strong men who are in control of the levers of power come together in any fashion they choose, and initiate any process they choose, and include in a constitution any powers they wish to allocate to any structure of government they choose. They also determine the process by which the resultant constitution will be adopted by the people. Some countries go by the way of referendum, some go by the way of decrees, some go by the way of parliamentary supremacy and so on. The bottom-line of these processes is that every revolution begets its own legality. The Nigeria Constitution has begotten its own legality through the foundation of a military regime that gave birth to the present democratic dispensation.
Some of the best recommendations of the Patriots can be found in the urgency of electoral reforms to guide the conduct of free, fair, credible elections in the 2027 general elections. They recommended among other things that the Bimodal Voter Accreditation System (BVAS) should be enshrined in the Electoral Act; the electronic transmission of results in real time from the polling units to the electronic server to be used for collation should be mandatory, and the conduct of all elections in one day should be adopted in 2027.
It would be foolhardy for any reasonable Nigerian to expect that citizens would travel twice within a space of two weeks to vote for the candidates of their choice in a general election held in two different days. With the security challenges and the morbid fear of Nigerians to travel through land, most travellers will travel by air. The flight ticket from Abuja to Enugu, and from Enugu back to Abuja cost an average of N500, 000.00. It’s unlikely that any citizen would spend one million naira to travel twice in February to vote for his preferred candidates. The time to adopt the electoral reform for all elections to be held in one day is now.
The greatest fraud committed during elections is not usually carried out in the polling units, but in the collation centres. The election riggers simply wait for citizens to complete their voting at the polling units, only to write different results at the collation centres for their preferred candidates. The electronic transmission of results form a bulwark and a check on this collation fraud as the actual results would have been electronically transmitted from the polling units for the whole world to see even before the commencement of collation of results at the collation centres. The unfortunate decision by the courts that INEC has a discretion to electronically transmit or not has destroyed the efficacy of the electronic transmission mandated in the INEC Regulations and Guidelines for the Conduct of Elections, 2022. There is the urgent need to emphatically enshrine this requirement of mandatory electronic transmission of polling units results in the Electoral Act.
The BVAS should also have legal protective cover in the Electoral Act to ensure that the number of accredited voters is secured and the permanent voters card duly certified before any citizen is allowed to vote. This is a shield against over voting which is rampant in our elections.
By far, the most important aspect of the amendment that is urgent is the single-term presidency, or more expansively, the single-term executive tenure in Nigeria. The two-term of four years each has become a source of violence, corruption, frustration, electoral malpractice which snowballs into under development and backwardness for our country. First, the two-term executive undermines the eight-year rotational agreement between North and South. As human beings, the occupants can vacate their offices through death, resignation, removal through impeachment, or through physical incapacity. When such a scenario arises, the power automatically falls on whosoever is the Vice-President or Deputy-Governor, thereby automatically breaching the rotational agreement. History has shown that the beneficiary of the untimely termination of the tenure of the incumbent wants to utilise the remaining time for himself and even usurp the second term of the incumbent for himself.
When President Umaru Yar’Adua died in office, by the concept of rotational agreement which meant that the power should remain in the North for eight years, a Northerner ought to have been allowed to complete the eight-year tenure. Unfortunately, Goodluck Jonathan, Yar’Adua erstwhile Vice President took over the presidency and contested in 2011 and won. He even re-contested in 2015 and would have spent nine years and six months to Yar’Adua’s two and half years before he was stopped by a defeat from the opposition parties. This breach would have been cured by instituting a single term presidency in which no incumbent can succeed himself. The rotational agreement between North and South would be better protected if it’s a single-term of six years each.
A single term presidency would mean that no incumbent President can use the resources of the state to campaign for his re-election, or use the armed forces to corrupt the electoral system for the benefit of himself, or use the coercive apparatuses of the state to intimidate political opponents. History has shown that no President had agreed to sign any electoral reform that will enhance the credibility of our elections in his first term. Even Buhari refused to sign the reforms in his first term. He however signed the reforms in his second and final term when he would no longer re-contest. A single term presidency would remove this hindrance and motivate any incumbent President to sign any electoral reforms in his first term since he would not have the power to re-contest. In order to motivate an incumbent President to sign such constitutional amendment, the incumbent President can be offered the choice of a single-term of six years.
Single term presidency can also serve to settle the problem of the appointment of the INEC Chairman by the President without raising the issue of suspicion of bias in favour of his re-election by his INEC Chairman appointee, as there will be none. The tenure of the INEC Chairman can be for a single term of seven years, meaning that no incumbent President with a six-year single tenure would be able to appoint an INEC Chairman who will supervise his own election. There’s a limit to the risk an incumbent President can take to ensure the election of another person, even if such a person is a member of his political party. A single-term executive tenure will certainly set Nigeria on a path to development and advancement, removing all sorts of inordinate inducement and bribery that the incumbent deploy to enable him win re-election. The time to amend the constitution to reflect this reality is now.
By Kenneth Okonkwo
