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The Oracle: The NASS Cannot Amend the Constitution Through the Back Door

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By Mike Ozekhome

In these trying times of our beleaguered Nation, the NASS should concentrate more on creatively making laws for the peace, order and good government of Nigeria. The recent amendment to the Electoral Act has caused too much needless national hoopla and ruckus. It ought not have been at the centre stage in a sane society. Is barring certain classes of persons from contesting elections simply because they are government appointees Nigeria’s bane at the moment? I think not.

Earlier, the NASS had, by its earlier proposed section 52(3) the amendment bill, sought to strip INEC of its control over elections and subject INEC to the control and supervision of the Nigerian Communications Commission (NCC) on the critical but sore issue of electronic voting and transmission of results.

This fatal step was later reluctantly reversed after Nigerians rose against it. I had spilled buckets of ink and made several television appearances, advocating to get it extirpated, root and branch, from the amendment bill. The NASS had ignored the fact that under section 158 of the 1999 Constitution, INEC “shall not be subject to the direction or control of any other authority or person”. They comfortably forgot that it is INEC and INEC alone that is responsible for organizing and supervising all elections to political offices; registering, monitoring of political parties; and conducting voter and civic education, including promotion of sound democratic processes. See also section 153 (f).

THE ALBATROS IN SECTION 84(12), (13) OF THE AMENDED ELECTORAL ACT

The NASS while amending the Electoral Act inserted subsections 12 and 13 into section 84 which, unlawfully, illegally and unconstitutionally disenfranchised serving political office holders from voting or being voted for at conventions or congresses of political parties. The offensive section 84(12) had provided thus:

“No political appointee at any level shall be voting delegate or to be voted for at the convention or congress of any political party for the purpose of the nomination of candidates for any election”. 

Section 84 (13) drives this home, more pungently, thus:

“Where a political party fails to comply with the provisions of this Act in the conduct of its primaries, its candidate for the election shall not be included in the election for the particular position in issue”.

THE ALARMING OUSTER CLAUSE IN THE AMENDED ELECTORAL ACT

I am surprised that all the critics of the Federal High Court judgement in Umuahia delivered by the Honourable Justice Evelyn Anyadike have not adverted their minds to the more worrisome provision in section 84 (15), which, after granting the Federal High Court jurisdiction in section 84 (14), to entertain cases from “an aspirant who complains that the provisions of this Act and the guidelines of a political party have not been complied with in selection or nomination of a candidate of a political party for election, may apply to the Federal High Court for redress”, went on to oust the jurisdiction of all courts on matters concerning primaries, thus:

“Nothing in this section shall empower the courts to stop the holding of primaries or general elections under this Act pending the determination of a suit”.

Interpreted in another way, section 84(15) is saying:

“Courts, please, allow political parties to first do maximum damage during their primaries and general elections, and subsequently entertain emerging suits thereafter after the wrong candidates would have emerged and after resources, time and energy would have been wasted by individuals, political parties, INEC and the electorate to conduct sham elections”. I am worried by this obnoxious ouster clause.

I believe that the above subsections are totally unconstitutional. They are ultra vires the powers of the NASS. What the NASS intended to do by subsections 12 and 13 of section 84 is to amend the Constitution through the backdoor, without going through the tortuous process prescribed in section 9 thereof; which deals with the mode of altering the provisions of the Constitution.

PRESIDENT BUHARI’S EARLIER OBJECTION

President Muhammadu Buhari had initially kicked and refused to assent to the Electoral Bill as initially amended by the NASS, which contained the above sub section. To escape from the avalanche of criticisms that trailed his initial withholding of assent, Buhari later reluctantly signed the Bill into Law; but with a caveat vide a letter to the NASS, to consider amending section 84(12) subsequently.  He believed that subsection 84(12) imported into the Constitution extraneous matters such as blanket restriction and disqualification of political appointees who ought to be accorded protection. His argument is that a public officer could resign his office, withdraw or retire from service 30 days before the date of election in accordance with section 66(1) (f) of the 1999 Constitution. I think his handlers should have simply done an Executive amendment bill to the NASS; not a mere letter. But, I agree with his serious reservations about section 84(12).

WHY SECTION 84(12) AND (13) ARE OFFENSIVE AND UNCONSTITUTIONAL

QUALIFICATION AND DISQUALIFICATION FOR ELECTION

Sections 66 and 107 of the 1999 Constitution provide for circumstances under which certain public officers are qualified or disqualified from contesting for election.

QUALIFICATION FOR ELECTION

Let us start with sections 65 (1) and (2) and 106 of the Constitution which deal with qualification for election, as a member of Senate and House of Representatives; and House of Assembly respectively. See also sections 137(1) (g) and 182(1) (g) of the 1999 Constitution.

These sections provide that such a person for Senate or House of Representatives or member House of Assembly of a state shall be qualified to contest election if he is a citizen of Nigeria and has attained the age of 35 years (30 years for a House of Representatives members; and 25 years for a House of Assembly member); is educated up to at least school certificate level or its equivalent; and he is a member of a political party and is sponsored by that political party.

DISQUALIFICATION FOR ELECTION

By virtue of sections 66 (1) and 107 (1) respectively any of the above the Constitution, persons also is disqualified if he has voluntarily acquired the citizenship of a country other than Nigeria; adjudged to be a lunatic or a person of unsound mind; is under a sentence of death, imposed on him by a court of competent jurisdiction; or a sentence of imprisonment or fine involving dishonesty or fraud. Such a person is also not qualified if he is an undischarged bankrupt; is a member of any secret society; or he has presented a forged certificate to INEC.

The most critical subsection for our discussion here, is section 66(1) (f) which provides that if such a person is employed in the “Public service of the Federation” or “Public service of a state” and has not resigned, withdrawn or retired from such employment THIRTY DAYS before the date of election for a State, he shall be disqualified from contesting or being voted for.

Sections 107 (1), 147 (4) and 192(3) deal with offices of ministers of the Government of the Federation and Commissioners in a state, respectively. A minister or Commissioner shall be deemed to have “resigned” his membership of the National Assembly or a state House of Assembly upon taking the Oath of office as a minister or Commissioner.

THE EXTANT LAWS

It is therefore clear, per adventure, that aside the circumscribing and inhibiting factors restricting a public appointee from contesting offices as described above, section 84 (12) and 13 are unconstitutional, illegal, null, void and of no effect whatsoever in so far as they import other extraneous disqualifying factors not provided for or envisaged by the Constitution. The NASS cannot import into the Constitution other additional disqualifying factors.

SECTION 84(12) & (13) ALSO CONTRAVENE SECTIONS 40 AND 42 OF THE CONSTITUTION

Section 40 of the 1999 Constitution grants every Nigerian the right to assemble and associate freely with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests. See Motorcycle Transport Union of Nigeria & ors vs. Delta state Motorcyclist Assoc & ors (2010) LPELR 4503 (CA); Lafia LG vs. Executive Governor Nassarawa state & Ors (2012) LPELR 20602 (SC).

In addition to the above, section 42 accords every Nigerian the right to freedom from discrimination. See Okafor & ors vs Ntoka (2017) LPELR – 42794 (CA); NMCN vs Adesina (2016) LPELR – 40610 (CA) The question is, why will any Nigerian be prevented or barred from being “a voting delegate or to be voted for at the convention or Congress of any political party for the nomination of candidates for any election” when the Constitution (the supreme law) has exhaustively outlined factors barring a person from contesting?

SECTIONS 84 AND 318 OF THE CONSTITUTION CONSIDERED

Section 66(1) (8) only provides for “public service” of the federation or the “public service of a state”. Do political appointees such as ministers, commissioners and personal aids qualify to be protected by these sections. I believe so.

Some people have argued that it is only public servants envisaged in section 84 and as defined in section 318 of the Constitution that are covered by the 30 days resignation notice. Political Appointees who hold offices at the pleasure of their appointor are not public servants within the meaning and intendment of sections 84 and 318 of the Constitution, they pontificate.

Specifically, the Court of Appeal in ONI v. FAYEMI & ORS (2019) LPELR-46622(CA) held that:

A Minister, being a mere political appointee, cannot be regarded as an employee in the Public Service of the Federation and is consequently not constitutionally caught by the 30 days resignation rule imposed on employees in the Public Service”.

See also the following apposite cases:

Wilson v. Ag, Bendel state & Ors. (1985) LPELR-3496 (SC); PPA v. PDP & ORS (2009) LPELR-4865(CA); Shitta-Bey v. AG Federation & Anor (1995) LPELR-3055 (SC); Abubakar v. The Executive Governor, Gombe state & Ors (2002) LPELR-1124 (CA); MILITARY GOVERNOR OF ONDO STATE V. ADEWUNMI (1988) 3 NWLR (PT. 82) 280; Ojukwu v. Yar’ Adua (2008) 4NWLR (Pt. 1078/435; AG BENDEL STATE V. AIDEYAN (1989) 4 NWLR (PT. 118) 646; ADAMU V. TAKORI (2010) ALL FWLR (Pt 540) 1387 (CA).

I earnestly believe the attention of these courts was NEVER specifically drawn to the definition of “Public Service of the Federation” and “Public Service of a State”. The definition of “Public Service” of the Federation means the service of the Federation in any capacity in respect of the Government of the Federation and includes…….”. The definition of “Public Service of the State” means the service of the State “in any capacity in respect of the Government of the state and includes service as …..”.

Thus, in both cases, the clause “any capacity” is used for both the Federal and State governments. Can anyone  plausably argue that ministers, commissioners and other appointees of Mr president or a Governor of a State who draw their salaries, allowances and other perquisites of office from the Federal or State treasury are not engaged in “any capacity” in “respect of the Government of the Federation and State Government”? The other offices lined up in this interpretation section of 318 are merely in addition to, as the section specifically states that the specie of public officers outlined therein is merely in addition to those employed in “any capacity” in both the Federal and state Governments. (To be continued next week)

THE WORLD WE LIVE IN

“If you want to achieve something, you have to forget the boundaries that people create. No one knows your capabilities more than you” – (Anonymous).

THOUGHT FOR THE WEEK

“The illegal we do immediately. The unconstitutional takes a little longer.” (Henry Kissinger).

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Opinion

Masquerade of Excellence: Celebrating Prof Mike Ozekhome’s Remarkable Journey @ 67

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By CDS Omon-Irabor Esq

Chief Prof. Dr. Mike A.A. Ozekhome SAN,
the only masquerade that dances in the farm without cutting a single reed of the yam tendrils.

The Gadfly is climbing the 67th rung on the ladder. From the hills of Agenebode down to the plains of the Iviukwe, the celestials, the principalities and the gods of Weppa and Wano Kingdoms are celebrating this colossus, who came in disguise as a little rough village boy; but very comely and handsome, his divine intelligence surpasses those of his peers.

Taking a sudden flight through primary and secondary schools casaded him into the land of Oduduwa. He anchored his life voyage at the ancestral home of the Yorubas, Ile-ife. Here his projenitors believed to have a temporary abode before sending the last born of the Ogisos Ile-ife (I ran and I became rich, Benin translation). Omonoyan (wrongly called Oromiyan) was sent to go to the land of Igodomigodo where today Chief Mike Ozekhome holds the title of Enobakhare of Benin Kingdom.

This great man had all his trappings, equipped himself and became a lawyer, taking abode in the Delphic Oracle (that is what we called the Chambers of Chief Gani Fawehim). There he became the Aristostle, tampering with the Apologia left at the eye of euroba.

He journeyed on, for no destiny, no chance, no faith, nor circumstance could hinder, control or circumvent the firm resolve of a determined soul in Chief Mike Agbedor Abu Ozekhome as epitomised or postulated.

The great learned Senior Advocate of the masses grudges on, defending the most vulnerable and giving voice to the voiceless and muscle to the powerless.

The Okporokpo of Oleh kingdom, Delta State; the Aimotekpe of Okpeland, the Agbamofin of Ijanikinland, Lagos; the Ohamadike1 of Obibi Ochasi, Imo State; the Ada Idaha of Efik land and the great Akpakpa Vighi Vighi of Edo Land, the land of my ancestors, I salute you for it is morning yet.

There is no space here,for my ink is running dry; but before I drop, I remember your words to me while I was in the dock of the Warri High Court on the 12th day of July, 2013, “Omon, you look worried; mind you, those who think that they can cover the shinning sun with their palms will soon find the heat unbearable”.

Those who stopped you from becoming our Governor in 2003 indirectly made you Governor of all Governors.

In all these odyssey you traversed, behind the dìm unknown standeth God, watching over you, His own.

Obokhian, amonghon, iyare iyare, mooooooh.

CDS Omon-Irabor Esq writes from the hill and the cave of Ebudinland

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Opinion

Mr. President: Affordable Fuel is Possible at Zero Subsidy

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By Dr. Aliyu U. Tilde

Yesterday evening, I listened attentively to a panel of experts and stakeholders on the BBC program Ra’ayi Riga, anchored by Umaima Sani Abdulmumin. The program ended with a big doubt in my mind regarding a matter purported to be a provision of OPEC and crucial to the price of petrol in Nigeria.

Tyranny

I could not fathom how particularly the representatives of NNPC and IPMAN stressed that Nigerians will be at the mercy of two variables: the international market and the price of the US Dollar in Nigeria. They said OPEC agreement compels member countries to sell allocated domestic crude at international rate even if refined locally. One of them even said the Iran-Israel conflict can cause domestic price of petrol in Nigeria to rise.

So we should expect higher fuel prices anytime the rate of the dollar appreciates in Nigeria and also when, for any reason, there is a rise in the cost of crude in the international market. It is the rule, according to them. Our fate, they claim, is sealed, regardless of our OPEC membership and Dangote refinery. Nigerians will no longer have a stable fuel price.

Trust me, in Nigeria, the equation will be simultaneous. At any given moment, a reason will be found to use either or both parameters to increase pump price. The target of government is to extract more revenue from citizens while the businessmen in Dangote, Major Marketers, NNPCL and IPMAN continue to feed their greed for endless profit with our blood.

One would wonder why OPEC would be so oppressive in inflicting such tyranny on the citizens of its members. Senator Ndume, who was in the panel, said if he cannot understand why, how would they expect a commoner sitting under the tree to do so?

The truth

The truth is that there is no provision like that in OPEC agreements. In fact, the very idea of domestic crude quota arose in realization that citizens of member countries may need to enjoy cheaper oil than the international market price. That is why those citizens have been enjoying cheaper fuel for the past five decades in different countries. Many still do. Why not Nigerians?

If you ask ChatGPT whether OPEC agreement compels member countries to sell crude for domestic consumption at international market price only, this is the answer you get:

“OPEC (Organization of the Petroleum Exporting Countries) does not directly compel member countries to sell crude oil for domestic consumption at international market prices. OPEC’s primary role is to coordinate and unify petroleum policies among member countries to stabilize oil markets and secure a steady supply of oil.

“However, OPEC’s production quotas, agreements on output levels, and policies can indirectly influence domestic oil pricing. In practice, many OPEC members choose to sell crude oil domestically at subsidized rates or prices lower than the international market. This decision is made at the discretion of individual member countries, often as part of national energy policies aimed at supporting domestic economies and industries. Nonetheless, these policies may vary from one member country to another depending on domestic priorities and economic strategies.

“There is no formal OPEC rule that requires domestic sales to match international prices, though it can be influenced by international agreements and market pressures.”

The Truth

The truth is that the President and Minister of Petroleum can sell our 445,000 barrels a day to Dangote at even N50,000/barrel after taking into consideration the cost of extraction and OPEC will not raise any eyebrow. Dangote can charge the cost of refining, add his profit and sell to NNPCL and IPMAN at, say, N300/litre. On their part the marketers will add their cost of transportation, storage, profit, etc., and sell it to Nigerians at N400/litre. And—boom—we all will be happy.

It is entirely the discretion of the President and his government. So whoever wants to sell our locally produced fuel by that simultaneous equation is on his own. There is no OPEC in the equation.

The Squeeze

Also, among those who would fight against Nigerians enjoying affordable fuel rates are the IMF, World Bank and the West generally. They want the government to squeeze us the more such that we can service our debts and collect more loans from the Shylock. The age long philosophy is: our poverty, their wealth; our pain, their joy.

Added to these are local liberal economists who believe in high taxation, claiming that the blood money will be used to develop our infrastructure, health, education, etc. It is just the same old bunkum selling since 1986 at the debut of Naira devaluation while our infrastructure, hospitals and schools continue to deteriorate in rebuttal of that thesis.

A Call

I call on the President to consider the low income status of our citizen. Only affordable fuel price will hold together our social fabric, ensure our prosperity and guarantee our security. It is zero subsidy because we are not buying it from anyone. It is our oil.

The President must keep in mind that the IMF and oil magnates are not his partners in 2027. He is on his own. They will be there to outlive him and work with the next President. Let this sink into his psyche. Tam!

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Opinion

Happy 64th Independence Day!

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By Oyinkansola Badejo-Okusanya

From July 2011 to May 2015, it was my honour to serve the government and people of Lagos State as General Counsel to His Excellency, Mr. Babatunde Raji Fashola, SAN CON, the Governor of Lagos State. As one of my tasks, I had the honour of being the Governor’s speechwriter, and early this morning, as the clock chimed midnight, ushering in yet another October 1, I found myself reflecting on how far we have come as a nation. “Does our progress reflect our age?”, I asked myself. I really don’t know. My thoughts then turned to 10 years ago and I remembered the Governor’s 54th Independence Day speech, the 1st draft of which I was privileged to pen. The Governor’s words on October 1, 2014, ring as true today as they did then and I thought it was worth sharing excerpts from his speech. Happy reading!

“…Today, October 1, 2014, we are once again celebrating the anniversary of our independence from British colonial rule. Today marks 54 years since Nigeria became an independent sovereign nation, following the germination of a seed that had been sown seven years earlier, when in 1953, Anthony Eromosele Enahoro introduced a private member’s bill demanding self-government. When the British “Union Jack” flag was lowered for the last time and the green-white-green Nigerian flag was hoisted in its stead, the crowd went wild with jubilation, filled with high expectations of a greater tomorrow.

We can only imagine the exultant joy felt by our first Prime Minister. Abubakar Tafawa Balewa, when he mounted the podium on October 1, 1960. In his first Independence Day Speech he said:-

“This is a wonderful day, and it is all the more wonderful because we have awaited it with increasing impatience, compelled to watch one country after another overtaking us… when we had so nearly reached our goal.”

Indeed he mirrored the views of millions of Nigerians and echoed their thoughts. Independence Day soon became easily the most significant day in our national life, accorded a pride of place that was difficult to surpass. Independence day became synonymous with sights of the President and the State Governors in open-top vehicles inspecting Guards of Honour, of beautiful parades, exciting fireworks and National Day Award ceremonies. October 1 also became the day on which political batons changed, and elected officials handed over to their successors. A day for inspiring speeches and sober reflection on our growth as a nation.

As a school boy, I remember struggling hard to get selected to march for my school in the National Day Parade, the endless rehearsals, and the keen anticipation of waiting to see if I would be picked. There was no prize given and none was expected. It was enough that your school had participated.

“Left, Right, Left, Right, Eeeyes Right!” And on the sidelines, children cheering us on with their own rhymes – “dem dey look una, make yanga, dem dey look una, make yanga, Left Right, Left Right!

Filled with excitement, we would add more ‘yanga’, trying hard, but not quite suceeding, to match the synchronisation of the armed forces. After it all, bursting with pride, those of us fortunate enough to have been selected to march for our school would milk our success for weeks afterwards, wearing our school uniform with pride, basking in the recognition as we went to and from school in public transportation and displaying a sense of superiority over our “less fortunate” schoolmates. Such was the depth of our civic pride.

Today, sadly, the excitement has waned. October 1 appears to have now become a hollow ritual and regrettably, no more than just another work and school-free day. The flame of our national pride seems to flicker. This is not how it should be.

What is the importance of a day like this? What does it mean to you? What should it mean to you? All over the world, Independence Day anniversaries are celebrated with great fanfare, splendour, respect for the nation and a deep sense of patriotism.bln some countries, festivities leading up to Independence Day start up to three weeks earlier. Some hold Independence Day beauty pageants; some re-enact their independence, others play the National Anthem on the dot of midnight on all radio and TV stations. All put country before self, at least for that day. We should not be any different.

In that historic Independence Day speech, Prime Minister Tafawa Balewa also said:

“Words cannot adequately express my joy and pride at being the Nigerian citizen privileged to accept from Her Royal Highness, these Constitutional Instruments which are the symbols of Nigeria’s independence. It is a unique privilege, which I shall remember forever, and it gives me strength and courage as I dedicate my life to the service of our country.”

Noble words indeed, and the words upon which the foundation of our nation was built. It seems to me that there is no better time to rekindle the flame of Nigeria’s promise than now. We should reflect on Prime Minister Tafawa Balewa’s words and re-dedicate ourselves to the service of Nigeria. In other words, we ought to see October 1 as a day to rekindle our national pride.

Let us patriotically reaffirm in our hearts that, Christian or Muslim, we are one nation under God; that North or South, we are one indivisible people; that whatever our political affiliations, we are all Nigerians, and that what binds us together far outweighs what little divides us.

We will yet attain those great lofty heights we sing so gustily about in the second stanza of our National Anthem. And I pray it will happen in my lifetime.

So help us God.”

Happy 64th Indepencence Day anniversary, dear colleagues. Please spare a prayer for Nigeria on her 64th birthday post independence. May God help us to build a nation where no man is oppressed so that with peace and plenty, Nigeria may be blessed. Amen.

Oyinkansola Badejo-Okusanya, FCIArb,
was General Counsel to the Governor of
Lagos State from July 2011 to May 2015.

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