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The review of the 1999 constitution
Since the inception of civil democratic rule in Nigeria. we have witnessed, observed and appreciated certain mischiefs, aberrations, inconsistencies, lack of clarity in our system of Governmentparticularly the untoward effects of certain provisions in 1999 Constitution of Nigeria resulting in conflicts, poverty, disease ,illiteracy, inequality, corruption, hunger, hign infant mortality rates, infrastructural deficiency, etc.
The Judiciary has tried to intervene and interprets certain provisions of the constitution depending on their interpretation, albeit, influenced by monetary inducement from their positions in the structure of our democratic system. Our political system has been monetised to the extent that only the rich, I mean the very rich, can win elections in our country, Nigeria.
So the tendency is for anybody who finds himself/herself in any political position, elected or appointed to as a matter of urgency and compulsion steal as much money as possible. This memorandum will therefore attempt to refer to Supreme Court judgement on certain provisions of the 1999 constitution, particularly as it affects the relationship between the Federal, States and Local Governments of the Federation. I will deal with the topics seriatim. DEVOLUTION OF POWERS Preamble
The Legislative Powers assigned in exclusive and concurrent list confer powers on the National and State assemblies. Therefore, the only issues that must be centrally controlled should be in exclusive legislative list. SECOND SCHEDULE THE LEGISLATIVE POWERS PARTI
(A). EXCLUSIVE LEGISLATIVE LIST ITEM 1- Accounts of the Federal Government and offices, Federal courts etc.
(2) Arms, ammunition and explosives.
(3) Aviation including Airports safety of aircraft and carriage of passenger and goods by air. Add regulation and policies only.
(8) Census, Including the establishment and maintenance of machinery for continuous and universal registration of births and deaths with compulsory registration numbers of births and Nigerians of all ages.
All this must be added to the function of National Population Commission. And it must be made compulsory with identifiable number per birth.
ITEM 10- Delete and transfer to concurrent. Every state must be able to register companies etc.
ITEM 19-Delete move to concurrent
ITEM 21- Delete- move to concurrent
ITEM 23- Evidence- move to concurrent
ITEM 28- Delete and move to concurrent
ITEM 32- Delete and move to concurrent
ITEM 33- Delete and move to concurrent.
Labour- Item 34
Labour can never be the responsibility of the Federal legislature or otherwise of the
Federal Government.
Therefore, every State, Local Government should have unfettered liberty to determine the salaries, wages, condition of service and pensions of any officer employed by them.
Fortunes of states and local governments are different and varied. So they should determine their faith and preference.
The review of the 1999 constitution Ogunlewe
By Senator Adeseye Ogunlewe
ITEM 34- Delete move to concurrent
ITEM 37- Delete move to concurrent.
ITEM 39- Delete and move to concurrent
ITEM 40- Delete move to concurrent.
ITEM 43- Delete move to concurrent
ITEM 44- Delete move to concurrent
ITEM 45- Delete move to concurrent
ITEM 46- Delete move to concurrent
ITEM 48 -Delete and move to concurrent
ITEM 49 -Delete and move concurrent
ITEM 51 -Delete and move to concurrent
ITEM 54 -Delete and move to concurrent
ITEM 55 - delete and move to concurrent
ITEM 58 - delete and move to concurrent
ITEM 59 - delete and move to concurrent
Item 60-Add the following: to promote and enforce the observance of this constitution as a justiceable right of the citizenry.
Move to concurrent the entire Item 60(a)(b)(cXd)(e)
ITEM 61 - Delete and move to concurrent
ITEM 62 -Delete and move to concurrent
ITEM 69 add Generation Transmission of electricity to the national grid system
(B) CONCURRENT LEGISLATIVE LIST.
ITEM 13- ELECTRICITY GENERATION, TRANSMISSION AND DISTRIBUTION
In the Concurrent Legislative list, electric power was mentioned in this word: - The National Assembly may make laws for the Federation or any part thereof. This is the most
destructive and problematic and anti-people provision in the entire 1999 Constitution.
Why should Federal Government control electricity to states and local Governments in a Federal system of Government? So the entire provision in items 13, 14 in the Concurrent Legislative list should be expunged from the 1999 Constitution. Each state and local governments must be able to generate, transmit and distribute electricity within their area ofjurisdiction.
The Federal Government can manage generation and transmission to any grid established by the Federal Government. This must not and never interfere with the freedom and independence of a State or Local Government to provide electricity for those that voted that Government intopower.
ITEM 13 should read: The National Assembly may make laws for the Federation (or any part thereof with respect to:-
a. Electricity and establishment of electric power stations, add-transmission, generation and distribution of electricity through the National grid to any part of the Federation.
b.The generation and transmission of electricity in or any part of the Federation and from one state to another state.
c. Retain.
d. Retain
e. Retain
f. Delete- the provision is not necessary or desireable.
ITEM 14 A- A House of Assembly may make laws for the state with respect to:-
a. Electricity and the establishment in that states of electric power stations,
b. The generation, transmission and distribution of electricity to any area in the state (delete- not covered by a national grid system within that state)
c. Retain.
ITEM 14 B- Delete and add generation, transmission to all area within the state. ITEM 17. Industrial. commercial or agricultural development.
The National Assembly and states Houses of Assembly may make laws for the Federation, or and state Assembly for the states.
a. Retain.
b. Retain
c. Retain
d. Retain
ITEM 21. Scientific and technological research. The National Assembly and states assembly may make laws to regulate or co-operate scientific and technological research in their states or federation.
I V E STATE of the ITEM 23. Statistic.
The National Assembly and states assembly may make laws to regulate or co-operate
statistic in their states or federation.
( c ) . RESIDUAL LEGISLATIVE LIST.
The Local Government Council shall have powers to make bye-laws in respect of:-
The consideration and the making of recommendations on Economic planning of the
local Government.
a. The economic development of the Local Government.
Transfer all the functions on the fourth schedule to the list.
Add- Urban and Town planning.
Approval of building plans below six floors.
FISCAL FEDERALISM (AJ FUND A MENTAL OBJECTIVES AND DIRECT PRINCIPLES OF POLICY. (Section 13-24 Constitution)
No government in Nigeria is adhering to these principles of state policy; neither is the Programmes of Political Parties adhering to Section 224 of the Constitution. What can we do to enforce these principles of state policy, which emphasise fundamental obligation of Government to the people? Chapter 2 of the constitution is the base of Democracy in Nigeria, which is Government of the people, by the people and for the people.
All these principles musf be enforceable in the Court of Law, as a right for all the citizens i.e. Right of a Nigerian child to education, right to employment and right to allowance or salary in lieu of employment, right to housing, Primary Health Care all at the expense of the States and Federal Government. These rights must be justiceable by all citizens of the Country.
Section (17) (3d) each State and Local Government shall Erovide adequate Primary [ealth Facilities at each Ward in the Local Government Section 18 of the constitution must be altered to include: (18)(3) delete when practicable to read:-Shall provide for all Nigerian children free, compulsory and universal primary education and provide education materials for all children registered in primary schools in each State.
(3b). Free secondary education.
(3c). Free university education.
(d). Free Adult Literacy Education.
(BJ. CONTROL OF MINERAL RESOURCES, OIL AND GAS. Section (44) (3) should be expunged, for proper Fiscal Federalism. Section 44(3) should read as follows: -(1) Notwithstanding the foregoing provisions of these sections, the entire property in and control of all minerals, oil and natural gas that is under or upon any land in Nigeria or is under or upon the territorial waters and the Exclusive Economic Zone of Nigeria shall vest in the Government of the Federation and shall be managed in such manner as may be prescribed by the National Assembly -Transfer oil and gas to the Exclusive Legislative List and (b) Minerals resources other than oil and gas to concurrent.
Note: for proper fiscal federalism, each state must control ad manage Mineral resources in their State except. Oil and gas. (CJ. ESTABLISHMENT OF CERTAIN FEDERAL EXECUTIVE BODIES Section (153) ( 1) NATIONAL JUDICIAL COUNCIL
This is a Federal Executive body that must not and should not interfere in the administration of justice at the state level.
Therefore, in the Third Schedule part I of the Federal Executive Bodies (Established by section 153). The National Judicial Council is a duplication of the traditional functions of the Federal Judicial Service Commission.
The National judicial council should be expunged and all the function transferred to the Federal Judicial Service commission. Except- section (20) (f) five judges of States to be appointed by the Chief Justice of Nigeria. The states judiciary should be independent Also delete section (21) (c (d)(f). Inthecaseof(21)(e limit to collect, control an( disburse all monies capital and recurrent for the Federal Judiciary, then add to state judicial service commission duties, collect, control and disburse all monies capital and recurrent for the State Judiciary.
Section (8)3 the state judiciary should be deleted from the section. (D). REVENUE MOBILISATION, ALLOCATION AND FISCAL COMMISSION. This is a Federal Agency, so its functions should be limited and not extended to (i) Determine the remuneration appropriate for political office holders at the Federal level, to exclude, Governors, Deputy Governors, commissioners, special Advisers, legislators and any other political office holders.
So we must add a new commission to be known as "State Political Office Holders, Salaries and Wages Commission" to states Executive bodies to take care of the salaries and wages of political office holders at the state level. PART II
(E) HOUSE OF ASSEMBLY
(90) Section (III) a member of the House of Assembly shall receive such salary and other allowances as the State's Political Office Holder Salaries and Wages Commission may determine Section (IV) the pensions, Eayable to the Speaker and the >eputy Speaker, after completion of their tenure of at least 4years, shall be the same as the salaries and wages of the current Speaker and Deputy Speaker and shall be a charge on the Consolidated Revenue Fund of the state.
(F) NATIONAL ASSEMBLY
(70)(2) Add- The pensions payable to the President of the Senate and Speaker of the
House of Representatives after the completion of at least 4years tenure shall be the same as the salaries and wages of the incumbent President of the Senate and Speaker of the House of Representatives and shall be a charge on the Consolidated Revenue fund of the Federal Government.
(G) POWER AND CONTROL OVER PUBLIC FUND. Section 121(1) should read. The Governor shall cause to be prepared and laid before the House of Assembly at least 180 days before the commencement of each financial year, estimate of the revenue and expenditure of the state for the next following financial year. Section (121) should include as what is applicable to The Consolidated Revenue Fund of the federation a provision that:
(121) The Amount standing to the credit of the:
(a) States Independent Electoral Commission.
(b) State House of Assembly. (C) State Judiciary.
CD) State Anti- corruption Commission.
In the Consolidated Revenue Fund of the state shall be paid directly to the said bodies respectively. In the case of the Judiciary to the State Judicial Service Commission for disbursement to the heads of courts established in the states.
ADD another section to state: - They shall be paid to the holders of the offices mentioned in this section such remuneration, salaries and allowances as may be prescribed by the State Assembly.
(2) The remuneration, salaries and allowance payable to the holders of the offices so mentioned shall be a charge upon the Consolidated Revenue Fund of the State. Chief Judge of the State, Judges of the High Court of the State, the Auditor-General of the State, Chairman and members of the State Independent Electoral Commission, State Judicial Service Commission, The Local Government Service Commission.
Also add- Another section. The recurrent expenditure of judicial officers in the state. In addition to salaries and allowances of the judicial officers which shall be a charge upon the Consolidated Revenue Fund of the State.
(b). the recurrent expenditure of the State Independent Electoral Commission shall be a direct charge on the Consolidated Revenue fund of the State.
Section (124) Remove as shall have oeen determined by the Revenue Mobilisation Allocation and Fiscal Commission (a Federal Agency).
Section (124) (4) to include -The Chief Judge of a State High Court, Judges of High Courts of a State, Judges of Magistrate courts of a state, Judges of Customary Court of a state, Grand Khadi of a state, Khadi of a Sharia Court of a state, The Speaker of the State Assembly.
Section (124)(5) does not reflect the same intention as stipulated in section 84(5) So should read "Any person who has held office as Governor or Deputy Governor of state shall be entitled to pension for life at a rate equivalent to the annual salary of the incumbent Governor or Deputy Governor. Add to the provision -Any person who had held office of the Speaker shall be entitled to pension for life at a rate equivalent to the annual salary of the incumbent Speaker of the State House of
Assembly.
Section(128)(2) add
(c) To recommend to the Attorney General of the state for the prosecution of those culpable or found guilty during the investigation
(a) Recommend to the Inspector- General of Police to arrest and prosecute any person, corporate bodies found culpable (a) Recommend to the anti-corruption agencies the prosecution of all persons found culpable. (HI P O WE R TO INVESTIGATE - section 88 and 89
Section (88). Power to conduct investigation Add (c) to recommend to Attorney General of the Federation for the prosecution of those found guilty during the investigation.
(d) Recommend to the Inspector General of Police to arrest and prosecute any person, company or corporate body found culpable during the investigation.
(e) Recommend to Anti-Corruption Agency to prosecute those found culpable after the investigation.
(f) Appoint Independent Prosecutors to try those found culpable after the investigation.
ADD (89) (3)
(a) Appoint Private Investigator to assist in the investigation of any matter.
(b) Appoint Private Prosecutor who must be a Legal Practitioner to prosecute any person, Statutory Corporation or agency of Government which after investigation has been found culpable.
(I) PUBLIC REVENUE -section 162
Public revenue should be divided into two i.e. Revenue from oil and gas and Mineral resources as distinct from internally generated revenue. Public revenue derivable from oil and gas should be common wealth for all Nigerians citizens and should never be utilised for the payment of salaries and allowances for about One Million Nigerian, while the majority wallow in puberty and hunger. Therefore, this common wealth must be utilised for the benefit of all Nigerian.
Secondly, the Question should also be asked, who is to manage the federation Account pool? My submission is to avoid illegal deduction from the federation Account by Federal Government Agencies. Section 162 should read as follows:
Distributable pool account:— The federation shall maintain a special account to be called "the Federation Account" to which shall be paid all revenue collected by the Government of the Federation which shall be manage by Accountant General of the Federation. We must specify the functions and responsibilities of the office as distinct from the Accountant General of the Federal Government. The National Assembly shall make laws to punish any Government official, agency or corporate bodies who divert funds payable to the federation account.
Retain section 162(2) Add-162 (3) Accountant General of the Federal Government shall collect and manage the Portion allocated to the Federal government from the federation account. Reasons:- Why should all revenue from airports. Federal Statutory Bodies and Federal Government Agencies go into the Federation Account coffer? The Federal, States and Local Governments have collected their shares.
Section (162) (5) should read
The amount standing to the credit of Local Government Councils in the Federation Account shall be distributed among the Local Governments on such terms and in such manner as may be prescribed by the National Assembly
Delete- Section (162) (6) Public Prosecution - Section 174
Delete section 174 (b) Delete section 174 (c) Section 174 Add -May be exercised by him in person through officers of his department or any Legal Practitioner appointed by the Attorney General. (195)add-
The Attorney-General of a state shall have power:-To institute and undertake criminal proceeding against any person resident in the state before a court of law of the state, other than a court martial in respect of any offence created by or under any law of the State Assembly.
The powers conferred upon the Attorney General of the state under this section may be exercised by him in person through officers of the department or a private legal
Eractitioner appointed by im. Add- (a) State Anti-Corruption Commission:-
1. Local Government Service Commission
2. State Assembly Service Commission
3. State Anti- Corruption Commission
4. State Code of Conduct and Tribunal Commission.
5. State Registration and Population Commission. LOCAL GOVERNMENT ADMINISTRATION
The system of Local government as a third tier of government is hereby guaranteed.
The Legislative function of the Local Government Council shall be exercised by the Council of Councillors elected for each Council. Each Council shall comprise of at least 15 Councillors. The Council shall have powers to make bye Laws on the Residual Legislative List enumerated in the Constitution. The chairman and Vice-chairman of the Local Government Council shall be elected every 3years by the electorate in each Local Government.
A person shall be qualified for election to the office of the chairman and Vice-Chairman or Councillors of a Local Government if:-
a. He is a citizen of Nigeria by birth.
b. He has attained the age of 50 years
c. He is a member of a political party and is sponsored by the political party.
d. He has been educated up to at least B.Sc. degree or Teacher certificate.
Section 7(5) adjust and include:-
a. The National Assembly shall make provisions for statutory allocation of Public revenue directly to Local government councils in the Federation.
b. The House of Assembly of a state shall make provisions for statutory allocation of internally generated revenue of state to local government councils within the state Section (17) (3d) each State and Local Government shall provide adequate Primary [ealth Facilities at each Ward in the Local Government Section 18 of the constitution must be altered to include: (18^(3) delete when practicable to read:-Shall provide for all Nigerian children free, compulsory and universal primary education and provide education materials for all children registered in primary schools in each State.
(3b). Free secondary education.
(3c). Free university education.
(d). Free Adult Literacy EducationCHAPTERVII THE JUDICIARY THE JUDICATURE PREAMBLE
Since Nigeria is running a Federal system of Government the judiciary should also be arranged in a 3 tier as it exists with the Executive and Legislative. Therefore, there should be separation of courts into Local Government Courts i.e. Customary/Sharia courts. States courts and Federal courts. So in terms of appointment, discipline, salaries, recruitment expenditure and pensions. each tier must assume full responsibilities without interference from the Federal Courts or Federal Agency. Therefore the National Judiciary Council should be expunged from the constitution, and their functions transferred to the Federal Judiciary Service Commission.
Therefore, Appointments, discipline, remuneration and conditions of service of State Judges must be the responsibility of the state Judicial Service Commission. All the functions assigned to the National Judicial Council that interfere with the independence of States Judiciary should be expunged from the constitution and transferred to the state Judicial Service Commission.
Therefore, delete section 271(l)toread:-The appointment of a person to the office of chief Judge of a state shall be made by the Governor of the state on the recommendation of the state Judiciary Service Commission subject to confirmation of the appointment by the House of Assembly of the state. (2)The appointment of a person to the office of a Judge of a High Court of a state shall be made by the Governor of the state acting on the recommendation of the state Judicial Service Commission. The Chief Judge and any Judge of the state Judiciary shall not be removed by the Governor under any pretext or condition Section 271(5)-delete. 271(5) the remunerations. recurrent and capital expenditure and pensions of Judges of a state shall be a First Charge on the consolidated revenue fund of that state.
271(6) the remuneration and salaries of staff of the Judiciary in a state shall be as prescribed by a Law of the State Assembly on the State's Judicial Service Commission. B- States Court of Appeal 275 (1) Establishment of State Court of Appeal (1). There shall be for any state that requires a state court of Appeal for that state. (2). The court of Appeal of the state shall consist of:-
a. A president of Court of Appeal
b. Such number of Judges of State Court of Appeal may be prescribed by the House of Assembly of the state.
276. Appointment of the President.
(1) The appointment of a person to the office of the President/ Chairman of the State Court of Appeal shall be made by the Governor of the state on the recommendation of the state's judicial service commission subject to confirmation of such appointment by the House of Assembly of the state
(2) The appointment of a person to the office of Judge of Court of Appeal of a state shall be made by the Governor of the state on the recommendation of the State Judicial Service Commission. (3). A person shall not be qualified to hold office as a udge of Court of Appeal of a state unless :-
he is a legal practitioner in Nigeria and has been qualified for a period of not less than tenyears. (277) Jurisdiction The court of Appeal of a state shall have jurisdiction to the exclusion of any other court of law in Nigeria to hear and determine appeals from the High court of the state. (2/8) an appeal shall lie from decisions of the high court of a state, in civil or criminal proceeding from the High court of the state.
(279) the remuneration. recurrent and capital and pension expenditure of the state Court of Appeal shall be a First Charge of the consolidated revenue fund of the state
(280) The remuneration. salanes and recurrent and pension of the staff of court of Appeal of a state shall be determined by a law of the State House of Assembly on the recommendation of the State Judicial Service Commission.
GENERAL Section 140- Declaration of assets and liabilities, oaths of President should read: -A person elected to the office of President and Vice-President shall not begin to perform the function of that office until he has declared his or her Assets and Liabilities which shall be gazetted and published. And also, at the end of the tenure of the terms of his administration. Section 149- Declaration of assets and liabilities by the Minister.
A minister of the Government of the Federation shall not enter upon the duties of his office unless he has declared his assets and liabilities before and after his tenure and published in the Federal gazette as prescribed in the constitution and has subsequently taken and subscribed the oath of allegiance and the oath for the due execution of the duties of his office prescribed in the Seventh Scheduled of the Constitution. Section 185(1)
A person elected to the office ofthe Governor of a state shall not begin to perform the functions of that office until he has declared his assets and liabilities which shall be published in the state Gazette as prescribed in the Constitution and has subsequently taken and subscribed to the Oath of Allegiance and oath of Office prescribed in the Seventh Schedule ofthe Constitution. Section 194
A commissioner of the Government of a state shall not enter upon the duties of his office unless he has declared his assets and liabilities openly and published in the gazette as prescribed in the constitution and has subsequently taken and subscribed to the Oath of Allegiance and the Oath for the due execution ofthe duties of his office prescribed in the Seventh Schedule of the Constitution.
FIFTH SCHEDULE PARTI CODE OF CONDUCT FOR PUBLIC OFFICERS Itemll-Add-
1. Subject to the provision of this Constitution every public officer shall within
2. three months after the coming into force of this Code of Conduct or immediately after taking office and after completing their tenure :-
a. at the end of every four years
b. At the end of his term of office.
Submit to the Code of Conduct Bureau and fublished in official State and ederal gazette, a written declaration of all his properties, assets and liabilities and those of his unmarried children under the age of eighteen years. 2. Any statement in such declaration that is found to be false by any authority or Eerson authorised in that ehalf to verify or by and other Nigerian, shall be declared to be a breach of this code.
NIGERIAN POLICE FORCE
215-(1) There shallbe:-(a) An Inspector- General of Police shall be appointed by the president from among serving members of the Nigerian police on the advice ofthe Ni geria Police Council, to the Council of States subject to the approval ofthe Senate, and shall only be removed on the advice ofthe Police Council subject to the approval ofthe Senate. Section 81 AUTHORISATION OF EXPENDITURE FROM CON SOLIDATED REVENUEFUND
This provision needs to be critically examined and review to allow for better funding of critical projects and determine when those projects will be completed. We note that over 7000 projects worth trillions of naira have been abandoned. Funding of projects has been haphazard to the extent that a project awarded for 300 billion naira will have a budgetary provision of 5bilhon annually.
The present system whereby civil servants prepare the budget, the Federal Executive Council will amend and process the Budget for presentation to the National Assembly. The National Assembly will dissert the Budget, re- arrange it and redistribute the allocations to projects without cognisance to the contract sum of the project. The National Assembly will even add more projects which were not designed, planned and proposed by the Executive. Therefore the Federal Budget sometimes disjointed and distorted without proper focus on the National interest.
This is the reason why for 12years the Federal Government have not been able to complete critical National projects due to distortion of the Federal project.
We are proposing the need for a body to be responsible for National planning of the Economy and infrastructure of the Nation, with appropriate financial provision. All stakeholders, the National Assembly, the Executive and civil society would have submitted their needs and proposal to the National Planning commission. In the end, it is only the Budget submitted by the National planning commission that will be processed and approved by both the Executive and the National Assembly.
Therefore section 81 of the 1999 constitution should read as follows: - 81(1) the president shall lay before each House of the National Assembly at every end of August of each year estimates of the revenue and expenditure of the Federal as prepared by the National planning commission etc.
SENATOR (DR) KINGSLEY ADESEYE OGUNLEWE
OGUNLEWE AND OGUNLEWE & CO (LEGAL PRACTITIONERS)
11, AJOKE OGUNLEWE STREET, OGUDUGRA.
