Monday Quarterbacking
On the Electoral Law 2001, Election Re-Ordering and LG Tenure
By: Mobolaji E. Aluko, PhD
Burtonsville, MD, USA
December 17, 2001
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Abstract
In this essay, I recommend inter-alia that the State Assemblies should positively legislate immediately that effective 2003 all local government elections - which are to be organized, undertaken and supervised by SIECs - will be for four-year tenure of officials.
However, legislation should include language that such elections should be held at a date no later than two weeks before Federal and State elections that are "organized, undertaken and supervised" by INEC.
In the mean time, the SIECs should go ahead to "organize, undertake and supervise" the 2002 elections to close out the current three-year terms of the local governments as mandated by the Constitution. However, the State Assemblies should also legislate immediately that the terms of those new or returned 2002 officials will be for one year only, ending in May 2003.
All of these suggested legislations are within the constitutional power of the State Assemblies, and should serve as a compromise to head off a national fiasco occasioned by the recently passed and controversial 2001 Electoral Law. Advice to the National Assembly is simple: do what is legal, constitutional, and truly in the national interest.
The Order of The Elections: Constitutional Mischief?
President Obasanjo and all the State governors were sworn in Saturday May 29, 1999. The National Assembly members were sworn on Friday, June 4, 1999, after cooling their heels impatiently waiting for the president to do give the green-light for the act. On the other hand, the 36 State Assemblies were sworn on various days during the week beginning Monday June 31, 1999, some EVEN before the National Assembly. This was the same week in which all the local government official took their oaths of office, invariably after EACH State Assembly had been sworn in.
These dates have profound effect on when the elections of 2003 will hold.
With regard to the presidency and the state governors, because of the swearing-in dates AND according to Sections 132 (1)(2); 135(2)(a), 178(1)(2) and 180(2)(a) of the Constitution (see Appendix for a listing of all relevant sections quoted in this essay), and barring all unforeseen circumstances, the dates of the next Presidential and gubernatorial elections MUST fall squarely between March 29 and April 29, 2003 - or more specifically, on the (traditional election-day) Saturdays March 29, April 5, 12, 19 or 26.
On the other hand, Sections 64 (1), 76 (1)(2), 105(1) and 116 (1)(2) put the next election dates of the National Assembly and State Assemblies between April 4 and June 4, 2003 - or more accurately Saturdays April 5, 12, 19, 26 and May 3, 10, 17, 24, 31, 2003.
Implicit in these dates is a clear conclusion: in the year 2003, the National and State Assemblies elections can be held as long as one-and-a-half months AFTER the Presidential and Gubernatorial elections and STILL be CONSISTENT with the Constitution. Consequently, if we ignore the Local government elections for now, the first point to be made here is that re-ordering the elections such that the Federal elections (Presidential and National Assembly) come first before the State (gubernatorial and assemblies) is NOT inconsistent with the 1999 Constitution. Consequently, going to court to challenge that particular gripe will fail. In fact, looking at the dates outlined above, there is wittingly or unwittingly built into the constitution a HINT of the possible order of elections!
There is something strange about the National and State Assemblies stipulations. Unlike the Presidential and gubernatorial elections, the National Assembly and State Assemblies are allowed to delay their elections RIGHT UP TO THE LAST DAY of tenure of the Assembly members! This could cause a legislative fiasco since a vacuum would cannot be created, meaning that the current members would have to continue until the new ones are sworn in.
Luckily, some of these concerns have now been resolved with the new and controversial Electoral Law 2001 which stipulates a separation of two weeks between the Federal Elections, the State Elections and the Local Government elections, in that order. However, that stipulation IMMEDIATELY rules out May 31, 2003 for the Local Government elections, otherwise all of the elections would have to be held in May 2003, which would violate the constitutional requirements for the Presidential and Gubernatorial elections.
In fact the ONLY two sets of dates in 2003 that the new electoral law allows (in order to be consistent with the Constitution) are the following:
April 5 - Federal Elections
April 19 - State Elections
May 3 - Local Government elections
April 12 - Federal Elections
April 26 - State Elections
May 10 - Local Government
Any other dates would be in violation of the 1999 Constitution, but ANY order of the elections WITHIN those dates would NOT be inconsistent with the Constitution - that is if we assume for now that the local government elections should be held in 2003! It is likely that the earlier set of dates would be preferred, to give more time for electoral challenges.
Finally, there is another issue that must be highlighted here: no where in the Constitution or the Electoral Laws is it specified how many days, weeks or months AFTER any successful completion of the elections that the Oath of office of ANY of the positions be administered. Yet this date is paramount in determining when a particular office’s tenure is over. With respect to the National Assembly, we have only the vague provisions in Section 64(3) and 105(3) empowering the President and Governors to determine the first session of the National Assembly and State Assemblies respectively.
Nothing compels the President or the Governor not to delay for one week, one month or even six months to call the first session, which in the future could easily throw the constitutionally-mandated electoral calendar out of kilter. [President Obasanjo used this power to keep the legislature waiting for about a week back in June 1999 while politicking for who would become the President of the Senate and the Speaker of the House.]
Consequently, based on the above discussion, on the whole, it would appear wise for the Electoral Law to include the following clause:
"The General Elections [Federal and State] shall commence on the First Saturday of April of the fourth year after the last General Elections, starting with the Federal Elections and the State Elections [I prefer "State Elections then Federal"] two weeks afterwards.
Swearing of Oath of Newly Elected Officials shall be done on the last day of term of the outgoing officials."
There would thus be no need to wait for proclamation by the president or the governor to inaugurate the National Assembly and local forums.
One thing is sure: There needs to start once and for all constitutional and immutable order in our national life, starting with some firm dates.
Changing The Tenure of The Local Governments: A Power Grab?
In the recently enacted Electoral Law 2001, the National Assembly with the assent of the president has sought to achieve two arguably laudable aims:
- to make the tenure of the local government officials to be four years, in order to be the same as all other publicly elected officials in the country
- to align the start of their tenures with that of all those others that will be renewed in the year 2003.
In achieving both in one fell swoop, it extended the tenure of the local government by one year, from 2002 to 2003. The (dubious) claim of the National Assembly is that it was simply fixing a previously unspecified term to four years and applying it to the current holders of the office.
About the tenure of the current local government councilors, everyone agrees that the Constitution is eerily silent. However, some politicians and pundits and legal experts claim that a three-year tenure is specified by the extant clause of the Electoral Act of 1982, and hence believe that any attempt to extend their tenure is constitutionally repugnant. Others claim that that act was abolished by decree, meaning arithmetically that their tenure is anywhere from zero to infinity years, including even only up to time served to date!
So who indeed determines the term: the National Assembly (NA), the State Assemblies or the Supreme Court (SC)? If it is the State Assemblies, then the National Assembly is in a power grab. Would the SC be right to award it to the NA if the case came before it? Suppose the SC "adjourn, adjourn" until the case itself became moot?
We begin the careful journey to answer these questions in the Exclusive and Concurrent Legislative Lists of the 1999 Constitution. It is pretty clear that while Section 22 of Part I of those lists explicitly excludes the National Assembly from legislating with respect to the LGs, Section 11 of Part II restores some concurrency with respect to the narrow provisions of WHO votes and HOW they vote, but does not extend it to WHEN.
Looking next at the Third Schedule of the Constitution, the Independent National Electoral Commission INEC’s role in local government elections is limited to who votes, while the State Independent Electoral Commission SIECs have quite broad powers to "organize, undertake and supervise" all such elections, as well as to advise INEC in its limited role. Note that the phrase "organize, undertake and supervise" is also used to describe INEC’s role with respect to those Federal and state elections under its purview.
If we read the Constitution to see what it might mean by "to organize, undertake and supervise" by INEC as stated by Sections 76(1), 116(1) and 132(1), we will discover the pervasive phrase:
"Elections [……….] shall be held on a date to be appointed by the Independent National Electoral Commission"
It is therefore clear that fixing a date is an important function of the INEC for those elections for which it is charged. Any act of the National Assembly certainly cannot deny that same function to the SIEC with respect to the local government elections which are under SIEC’s sole purview with respect to "organization, undertaking and supervision". Any other action would be a power grab by the National Assembly and INEC.
If any act of the National Assembly denies the SIEC of that date-setting role, it cannot be done cavalierly, because one cannot fail to note that the whole 1999 constitution, despite its many shortcomings, is suffused with a laudable spirit which protects the Local Government from the over-reaching influence of the federal level. One must admit that the influence of the State government becomes in itself rather over-reaching. For example, an inspection of Sections 1(3), 7(1)(3)(4)(6) and 8(3)(4)(5)(6) reveals pretty determined provisions which make the umbilical cord between the local governments and the state governments so much stronger than between them and the Federal level.
Outside the listing of the local government in the Constitution, and statutory revenue allocations to the local government from the Federal and state levels etc., the states are seen to wield a strong supervisory role over the local governments. Thus, the spirit of the Constitution is such that if there is contention about the tenure of the local government, whether it be three years or infinite number of years, it should be resolved in favor of the State Assemblies’ interpretation, and not that of the National Assembly.
Now suppose the term of the Local Government councillors is indeed three years. Under what conditions can that tenure be extended? Examples in the Constitution do not give much hope in that department: only instances of war can tenure be extended as can be read from Sections 64(2), 105 (2) and 135(3)!
Thus the Constitution frowns at the extension of tenure just for the mere administrative convenience of aligning with other offices: it makes room for that only as a result of war.
There is a further problem: Can a state body by itself pass on its functions to a federal body? Reading Sections 197 (1), 198 together with in particular 204(2), such a move is expressly prohibited without the approval of the President.
Using Election Performance As The Litmus Test For Further Participation - More Mischief?
The offensiveness of Clause 80 of the new Electoral Law which inter alia requires the use of the results of local government elections, to determine the credibility of a political party in participating in Federal and state elections was compounded by the fact that it made those LG elections last. That shuts out new parties from fully participating in the 2003 elections.
It is alien to the constitution, and only a constitutional amendment, not a mere act of the National Assembly, can let it stand. This is because NONE of the qualification sections 65 (2) (b) (for National Assembly), 106 (d) (for state house of assembly), 131 (c) (for president) and 177(c) (for Governor) requires ANY of the candidates to be a member of a party "which has won any seat in some previous election". That would be a SUBSTANTIVE constitutional stipulation.
Finally, a strong advice: The National Assembly should reverse itself from this unconstitutional move at its earliest convenience when it reconvenes from recess.
So Where Do We Go From Here: Turning the Tables?
There are three conclusions so far:
Due to the order in which the various officers were sworn in back in 1999, there is an in-built hint of order of elections in implicit in the 2003 year.
There is a very narrow window of constitutionally-mandated dates as argued above.
The reversed order of elections by the National Assembly as contained the new Electoral Law - Federal then State - is NOT inconsistent with the Constitution.
With respect to local governments, the 1999 Constitution does not:
- permits any body but the SIEC to fix the date of LG elections;
- permit the National Assembly to legislate on the tenure of the councillors;
- permit the extension of tenures except in the event of war, and even then only for six months at a time.
Conclusion 3 means that the State Assemblies/Governor/SIECs are on firm ground with respect to this constitutional confrontation with the National Assembly and the President. There are those who would argue that they simply hold their grounds and insist on a three-year tenure for the local governments that began back in 1999. Hence they should go ahead and conduct elections in April 2002.
Without respect to what the National Assembly might or might not do following their recess, I propose a rather simple compromise:
State Assemblies that have not already done so should positively legislate a three-year term for their LGs, to end in May 2002. Consequently, they should hold their elections in April 2002.
They should also legislate that the elections held in 2002 will be for officials with a one-year tenure only, till May 2003;
They should legislate that officers elected thereafter in 2003 will have a four-year tenure, to bring terms thereafter in alignment with the other officers.
Finally, the coup-de-grace: Now that the National Assembly has shown its hand, nothing stops the State Assemblies to legislate as follows for eternity:
"Local government elections shall be organized, undertaken and supervised by SIECs, and held on a date no later than two weeks before the Federal or state elections set by INEC."
Now that would be interesting, and would be asserting a good measure of federal autonomy! That would indeed be turning the tables!
Stay tuned. I strongly believe that the National Assembly will meet again soon to reverse some of the more odious provisions of the 2001 Electoral Law. It would have little or no choice, for the sake of the nation.
APPENDIX I
Relevant Excerpts (mostly URLs) From the 1999 Nigerian Constitution quoted in the text are collected here:
Section 1 |
Section 7 |
Section 8 |
Sections 64, 65 |
Section 106 |
Section 116 |
Section 131 |
Section 135 |
Section 177 |
Section 178 |
Section 180 |
Sections 197, 198 |
Section 204 |
Second Schedule - Legislative Powers
Part I - Exclusive legislative list
22. Election to the offices of President and Vice-President or Governor and Deputy Governor and any other office to which a person may be elected under this Constitution, excluding election to a local government council or any office in such council.
Part II - Concurrent Legislative list
11. The National Assembly may make laws for the Federation with respect to the registration of voters and the procedure regulating elections to a local government council.
12. Nothing in paragraph 11 hereof shall preclude a House of Assembly from making laws with respect to a local government council in addition to but not inconsistent with any law made by National Assembly.
Third Schedule
Part I
F - Independent National Electoral Commission
15. The Commission shall have power to -
(a) organise, undertake and supervise all elections to the offices of the President and Vice-President, the Governor and Deputy Governor of a State, and to the membership of the Senate, the House of Representatives and the House of Assembly of each State of the Federation; ……..
(e) arrange and conduct the registration of persons qualified to vote and prepare, maintain and revise the register of voters for the purpose of any election under this Constitution;
Part II
STATES' EXECUTIVE BODIES (ESTABLISHED BY SECTION 197)
B - State Independent Electoral Commission
3. A State Independent Electoral Commission shall comprise the following members -
(a) a Chairman; and (b) not less than five but not more than seven other persons.
4. The Commission shall have power-
(a) to organise, undertake and supervise all elections to local government councils within the State.
(b) to render such advice as it may consider necessary to the Independent National Electoral Commission on the compilation of and the register of voters in so far as that register is applicable to local government elections in the State
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Published with the permission of Dr. Bolaji Aluko
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