How State Assemblies Can Handle Key Constitutional Amendments Issues – Obiechina
Former governorship candidate of the People’s Democratic Party (PDP) in the 2011 governorship poll in Enugu state, Dr. Alexander Chukwemeka Obiechina, has commended the National Assembly for voting, among other key issues in the on-going Constitutional Amendment, that all pre-election cases should be determined before the eventual winner in an election assumes office. He pleaded with the State Assemblies in this interview with CELESTINE OKAFOR to equally toe the line of the federal lawmakers.
The Senate and the House of Representatives voted on the amendment of 33 items in the Constitution Review Debate which ended last week at the National Assembly. These amendments have been sent to State Houses of Assembly for a concurrent endorsement. However, one of the key items the lawmakers okayed for amended, is that all pre-election cases must be concluded before the actual winner in an election assumes office. Perhaps it was the controversy that attended pre-election governorship and sundry cases like yours that engendered the quest for this amendment. Is this a case of your prayer answered?
Thank you very much. I feel very happy with the Senate and the House of Representatives. I salute them for a job well done for passing the bills especially on pre-election matters. It is important to, once again, emphasize here that pre-election cases should be dispensed with once and for all before whoever emerges winner assumes office. Why l am so grateful with what the National Assembly lawmakers did is because this is an issue l have been talking about since. In my own case, there is no law in this country that says l cannot continue to pursue my case for four years or after. Pre-election matters are not limited like election tribunals. It is good that such law is upheld. Pre-election matters should be dispensed with within 180 days at the High Court and 90 days at the Supreme Court.
Unless the case is disposed off, no one should assume winner in such disputed election case. But a situation whereby, like in my own case, the 2011 governorship primary election in Enugu state which l won clearly, the wrong candidate is allowed to assume office, that person will definitely use the state funds to obstruct justice against him. He or she will do everything to fight and frustrate that case until four years tenure elapses. But a situation where a law is about being legislated against such practice, thus against the practice that brought state induced injustice to me, makes me happy.
In a sense, l feel very happy and satisfied. I also feel a sense of vindication. I have been preaching for many years that we should have this kind of law to take care of pre-election cases. When l was trying to point out the implications of all that to the Supreme Court and the other courts, they felt l didn’t know what l was saying. My happiness is that the wise men in the National Assembly have seen what l have been saying to the Supreme Court all these years that l have been fighting in the courts to retrieve my pre-election governorship mandate of January 2011. My case, till today, is still very valid and should be determined by the Supreme Court. Pre-election cases are not time-barred. Once someone sues under it, it should be determined no matter how long the courts delay it.
With the law being made now on that, there is limitation. So if they want to determine my case, they should do so because my case is being heard under subsisting constitution and the changes shall not affect it. It shall be tried and completed with the law under which it entered the court. I have written a letter to the Chief Justice of the Federation on that stating all these facts clearly that for governorship pre-election case, there should be no limit of time for it to be determined. Secondly, there is also no time you can not swear in a governor whose case in this circumstance has been determined. The constitution said he shall serve four years from the day he or she was sworn in. The period between the day he won the election or was supposed to have won the election for him to be sworn in is indeterminate in the constitution.
The law is not the same for the Senators and House of Reps members whose tenures, according to the existing law, expire with the life of that particular session of the senate or House of Reps. The law clearly said that the Senate shall be dissolved four years from the day it was inaugurated. Which means that the tenure of four years is given to the senate as an institution and not to the individual senator. So when the four years lapses, the senate is dissolved. One can understand why the senator’s mandate expires with the life of that particular senate era. But for the governor, his tenure starts from the day he is sworn in. That is what has informed governors serving across republics. That is also why in my own case, l can still win my case which is very clear even after five years that the case has been unduly delayed and still be sworn in as governor of Enugu state.
Several well known jurists have emphasized that it is the duty of the legislators to make laws while the judiciary interpreters them. And the judge should not delve into law making, otherwise they shall muddle up the democratic principles of separation of powers and mess up the society. In my case, the judiciary jumped into the job of lawmaking instead of interpreting the law for gubernatorial tenure of office.
Now what is outcome of the letter you recently wrote to the Chief Justice, Walter Onnoghen, urging the Supreme Court to revisit your case?
Well, l am very shocked as l am speaking to you that the Chief Justice of this country has not replied a letter of such magnitude which l wrote to him about my pre-election case. He has not said nor done anything about it to my knowledge. This is a popular political case that has been in the public domain for a long time. A case that has helped to shape the last week’s decision of the National Assembly to move for a Constitutional amendment on pre-election cases in this country.
So you can see what l have suffered in the hands of the judiciary. There is absolutely no reply except the evidence of acknowledgement that the letter reached the CJN’s office. Nothing has been done so far about the letter. Even the letter written the CJN on the same matter by Prof Ben Nwabueze was equally ignored without the courtesy of reply. It is worrisome that my lawyer Prof Ben Nwabueze, SAN, a man who, many constitutional experts acknowledge as the best constitutional lawyer in Africa, brought a presentation to the Supreme Court to explain that governorship mandate, unlike that of national and state assembly members does not lapse until after four years of swearing in. But he was not allowed opportunity to even speak in the Supreme Court. The apex court, instead, struck out the case despite obvious delays in the matter which was caused by the court. It agitates the mind on our hopes in the courts. So the issue is: are we encouraging hard work if we don’t recognize the contributions of people like Prof Ben Nwabueze? When you slight such a man in a constitutional matter in Nigeria and not allow him a voice in the court, then it is terrible.
At any rate, l want to believe that because of me, a law has now been made that brought my case and others like that to the limelight. And l hope that the lawmakers in the various State Houses of Assembly will also pass it. That is one way we can have a refined country and a better legal system.
What would you consider as the possible loopholes or areas of future legal contention on the pre-election bill passed by the National Assembly?
Well, for instance, if you say that the pre-election cases must be dispensed with before the actual winner is sworn in, who then takes over the reigns of power during that period the case is in court and if the term of an incumbent governor for instance expires on say May 29, because there must not be a power lacuna? If another person is not sworn in on May 29 hand over of power, there certainly will be a vacuum. That is one loophole currently evident in this new legislation. So there must be a provision for it and it must be clearer since we have no such provision in our constitution. Therefore, l will suggest to the lawmakers that either the House of Assembly Speaker, the head of the relevant parliament or somebody from the Judiciary should be made to fill that position on temporary capacity.
The law must be specific otherwise, there will be a gap which can trigger off a constitutional crisis in future. However, l must commend the former Senate President, Chief Ken Nnamani, who headed the recent electoral review panel that made far-reaching recommendations to the federal government that started it all, even though government has not issued a white paper on the committee’s report. It was Senator Nnamani who said publicly in January this year that my pre-election case has opened the eyes of Nigerians on this very issue. He said that even if his committee did not achieve anything, the committee will ensure that it recommends that whoever has an election case in court will not be sworn in until the matter is disposed off.
They must give a time limit for the case to be handled. And he made it clear that there is no law in this country preventing me from pursuing my pre-election case in court to its logical end. How the Supreme Court came to the reasoning that my case is now academic without citing any authority or the opposing lawyer citing any one to back her thinking and at the same blocked any opportunity for a vibrant legal contest of opinion on the matter, is very shocking to me. Now the National Assembly lawmakers have changed the tide. So we must thank Senator Ken Nnamani for his brilliance and bravery in coming out to say what he said regarding that issue and inspiring the lawmakers to see the need for this law. The National Assembly however adopted what the Nnamani Committee had in their report in the course of this constitutional review.
An adjunct to the issue of pre-election matter is the issue of candidate’s selection during party primaries. Some candidates who have won the party primary elections are often supplanted or substituted by the party leadership or powers brokers for one reason or another and this has often created a lot of crisis in political parties which often leads to endless legal acrimony like in your own case. Now with the passage of Constitutional amendment bill by the National Assembly which has provided for independent candidacy, would you say the problem has been solved?
It is a very beautiful development. You see, even in the American model of Presidential democracy which we have adopted, there is a provision for independent candidacy in their law book. There will never be perfection in the affairs of human beings. So if you as a political party aspirant to an elective position or as a party candidate for an election feels so cheated at any point, you can still challenge the party through an independent channel and still win the election. So it is a very beautiful modification to what we have.
The only thing again is that even with what they have done by saying that the person who wins but is in court can not be sworn in pre-election matters until it is fully determined, an incumbent governor who discovers that a particular candidate is stronger than him will now resort to lobbying. But if the person wins the incumbent, it now becomes more difficult for the party to supplant the person who won because of the fact that the person may still go to the court and win back that position or retain his mandate. Secondly, it will make an incumbent governor to realize that he should not go and win an election which someone else will be the ultimate beneficiary. So in a sense, it becomes an internal mechanism for checkmating these excesses of the political party leadership.
It will reduce a lot. You know, since after the case of the current Minister of Transport, Mr Chibuike Rotimi Amaechi’s case in Rivers state where a Amaechi was sworn in even when he didn’t participate in the general election, the political party leadership then now realized that there is a limit to supplanting somebody. And this is helped by the fact that with the new pre-election law coming, you can’t even swear somebody in to stay a day in office unless the issue is determined. It will certainly help our democracy. There is nothing more before us than to see that internal democracy is entrenched because anything you do can be reversed. You will gain nothing from it and you will also be humiliated. Nobody will be desperate again to do everything to ensure that he forced his way through into any public office he was not elected or properly elected.
One of the issue state governors have had to contend with is that of local government autonomy. The state’s seem to have completely swallowed this third tier of government. That quest for autonomy has been granted by the National Assembly and we understand that there is currently intense lobby on the part of state governors to get the State Houses of Assembly to reject it. What is your position on this?
Thank you very much. You see, the beauty of the kind of democracy we are practicing is that we have a third tier of government which is nearer to the people and which is the local government. If it is allowed to perform its duties very well, it will very much enhance the political environment. The agitations and frustrations of not enjoying the political dividends will be highly reduced. But the problem is that many of the governors are too greedy. They want to control both the funds due to the state and local governments within their jurisdiction. These governors always impose their people in oppositions so that they can manipulate them at will. If the whole autonomy is allowed as the National Assembly has approved it, that will help our democracy a lot. But my fear, and it’s a strong fear, is that we are likely to witness where the State Assemblies reject this bill because most State Houses of Assemblies are being manipulated at the whims and caprices of the governors. And once the governor from that state feels that local government autonomy is not good for him, the state lawmakers will vote against it. You can imagine what happened the last time when the State Houses of Assembly voted against their own financial autonomy. So the state lawmakers are likely to kill this very one simply because their governors do not like it. It is a disservice to this nation for the state governors to kill something they know will enhance the local government system and make the dividends of democracy reach the people more.
How then do we stop the these overbearing governors from killing the local council autonomy this time?
It’s very simple! The people must rise and take back their democratic power. As they say in a democracy, power belongs to the people. When the people discovers that a governor tampers with the local government autonomy and their rights and privileges, the people’s power should rise against such governor by ensuring that he fails an election. The electorates should frustrate him. The electoral system of this country is not yet perfect, but we are moving gradually towards that perfection. My only fear like l said earlier, is that the quest for local government autonomy is dead on arrival because of this obvious reasons. The last time we had this exercise, the state lawmakers frustrated efforts to include them in the first line charge which would have given them financial autonomy. I only hope the State Houses of Assembly will surprise people like me this time around by giving their approval to the council autonomy.
The National Assembly unfortunately threw away the issue of restructuring by their rejection of Power Devolution to the states. How do you look at that?
It was a very unfortunate development. I don’t see how the National Assembly will be pulling Nigerians back. There is no person who is politically aware in Nigeria that will be happy with that development. Nigeria is like a big egg under strong pressure because of this lack of structuring. The whole problem that we are having now has the capacity to cause a volcanic eruption that will spill over to every part of this country and endanger our unity. The issue of restructuring is at the heart of it. Everybody is saying that the system is wrong and this has been happening for long from the time of Generals Ibrahim Babangida, Abdulsalami Abubakar, Sani Abacha, former President Olusegun Obasanjo, former President Goodluck Jonathan and till this time of President Muhammadu Buhari. The clamour has been for restructuring of this country. There have been several national conferences held over these years but non of them have resolved this issue. How can the National Assembly not be sensitive to this urgent need for a national restructuring. So l think that if we don’t do something about it now, this situation may blow up one day.
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