Funmilayo Odude, Legal Practitioner, Damod Law Practice

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Nigerians should also demand performance from the legislature 10 Oct 2019

A view of Nigeria’s National Assembly complex, Abuja

Election tribunals around the country have been delivering judgments in respect of the petitions before them. A number of the cases would be decided finally at the appellate courts. With the elections over and the Federal cabinet as well as the cabinets of a number of states constituted, this administration can now settle into governance. Public criticism of the policies of the executive arm of government is usual. What is uncommon is scrutiny of the legislative arm of government with regard to the quality of the laws of the country.
At the federal level, the policies being introduced by the executive arm of government are already being scrutinized and debated both intellectually and emotionally by the citizenry. The proposed increment of Value Added Tax (VAT) from 5 percent to 7.2 percent and the rollout of the second phase of the Cashless Policy of the Central Bank of Nigeria (CBN) are still subjects of much debate and critique.

The legislative arm of government must equally be put under close scrutiny. The lasting changes we require as a nation would come about when we revamp many of our existing laws, and the responsibility for that lies with the National Assembly and State Houses of Assembly. While the public must not relent in scrutinizing the executive arm of government, we should extend the same, if not more scrutiny, to the performances of our lawmakers across the different tiers of government.

We must go beyond the outcry regarding the huge allowances and non-judicious use of public resources by the federal lawmakers to engaging them with respect to the effectiveness of their constitutional role of making legislation. Two recent events will stress the importance of this point and I would like to discuss them in this article.

The first is the decision of the Presidential Election Petition Tribunal (PEPT) delivered on the 11th of September, 2019. The tribunal, among many other things, held that President Muhammadu Buhari was eligible to contest the 2019 general election and that his failure to attach a certificate to his Form CF001 submitted to the Independent National Electoral Commission (INEC) did not vitiate his candidature. These two positions have been met with great disappointment by a lot of people.

The judiciary did not, however, set the qualification standards for the leaders of our country; we the people, through our Constitution, did. The necessary qualifications for eligibility to run for the office of President are contained in Section 131 of the Constitution. And the Constitution’s provisions for eligibility are: (i) citizenship of Nigeria by birth; (ii) attainment of the age of thirty years (it used to be forty years prior to 31st of May, 2018 when the President signed the Not Too Young to Run Bill into law); (iii) membership of a political party and sponsorship of that political party; and (iv) education of at least School Certificate level or its equivalent.

The same educational requirements are applicable for the offices of the Vice-President (Section 142(2)); Governor and Deputy Governors (Sections 177(d) and 187(2)); Senator and Member of House of Representatives (Section 65(2) (a)); and member of House of Assembly (Section 106(c)).

Section 318 of the Constitution defines “School Certificate or its equivalent” thus:

“(a) a Secondary School Certificate or its equivalent or Grade II Teacher’s Certificate, the City and Guilds Certificate; or
(b) education up to Secondary School Certificate level; or
(c) Primary Six School Leaving Certificate or its equivalent and-
(i) service in the public or private sector in the Federation in any capacity acceptable to the Independent National Electoral Commission for a minimum of ten years, and
(ii) attendance at courses and training in such institutions as may be acceptable to the Independent National Electoral Commission for periods totaling up to a minimum of one year, and
(iii) the ability to read, write, understand and communicate in the English language to the satisfaction of the Independent National Electoral Commission; and
(d) any other qualification acceptable by the Independent National Electoral Commission.”
If Nigerians are thus appalled by the standards set for the country’s topmost position, they should look to their representatives in the National Assembly.
Section 31 of the Electoral Act 2010 (as amended) governs the submission of the list of candidates for elections by political parties. It gives political parties not later than 60 days to the date of the elections to submit their list of candidates, in the prescribed forms, to INEC. Subsection 2 provides that the list or information submitted by each candidate shall be accompanied by an affidavit sworn to by the candidate, indicating that he has fulfilled all the constitutional requirements for election into that office. This is the only document required by the Electoral Act to be submitted along with the forms.

Again, if Nigerians require more documentation from aspirants of political offices, they must look to their representatives in the National Assembly to change the law.

The second recent event I would like to discuss is last month’s constitution of the Economic Advisory Committee (EAC) by the President. The EAC, according to the Presidency, replaced the Economic Management Team (EMT), which was chaired by Vice President Yemi Osinbajo. It is expected to report directly to the President, advising him on “economic policy matters, including fiscal analysis, economic growth and a range of internal and global economic issues.” Buhari’s spokesperson also said the EAC will work with the relevant cabinet members and heads of monetary and fiscal agencies.

Many people have applauded the composition of the Council, chaired by Doyin Salami, a Professor of Economics at the Lagos Business School (LBS). The EAC also includes other notable economists such as Chukwuma Soludo, a former Governor of the CBN and Professor of Economics; and Bismark Rewane, Managing Director/CEO of Lagos-based Financial Derivatives Company Limited.

Other commentators have interpreted the President’s action as a political move to weaken the Vice President. A vast majority, however, expressed confusion at the subsequent sitting of the National Economic Council (NEC), which appears to have similar functions as the newly-inaugurated EAC.

For the avoidance of doubt, the NEC is a constitutional creation that cannot be easily replaced by a presidential directive. Section 153 (1) of the Constitution creates fourteen bodies for the Federation. These bodies include the NEC, whose composition and powers are also provided for in the Constitution – specifically in Part 1 of the Third Schedule.

The NEC, by the provisions of the Constitution, is to be chaired by the Vice President. It comprises all the Governors of the states of the Federation and the Governor of the CBN. Its constitutional power is “to advise the President concerning the economic affairs of the Federation, and in particular on measures necessary for the co-ordination of the economic planning efforts or economic programmes of the various Governments of the Federation.” It is thus clear that while the functions of the NEC and the EAC do not particularly clash, they do overlap.

Except for the Governor of the CBN, the experience and educational qualifications of other members of the NEC do not inspire confidence in terms of their knowledge of economic or fiscal policy matters. While the Constitution does not provide that the President must take the advice put to him by the NEC, the import of its constitutional creation is that it is the body that advises on the nation’s economic blueprint.

While still maintaining the constitutional body, namely the NEC, the President might have found a leeway to create another body comprising of technocrats. This, however, leads to a multiplicity of similar bodies, with the attendant operational costs as well as the obvious usurpation of the powers of the NEC by the EAC. A lasting solution would be to amend the constitutional provision relating to the composition of the NEC to include economists with notable experience, in addition to the relevant government appointees such as the Governor of the CBN, the Minister of Finance, Budget and National Planning, as well as Minister of Industry, Trade and Investment.

Many of our laws are archaic and do not reflect current realities. The situation is even worse at the state level. Both the National Assembly and other State Houses of Assembly should take a leaf from the Lagos State House of Assembly, which carries out periodic reviews of laws in the state.

Despite efforts by the 8th National Assembly to amend the Police Act of 1943 and the Companies and Allied Matters Act of 1990, Nigeria is still governed by these two archaic laws. Nigeria operates a Marriage Act of 1914; a Copyright Act of 1988; a Hire Purchase Act of 1968; and a Labour Act of 1971. These are just examples of some of the laws, which – if amended to reflect the current developments in the world – would positively affect various industries and the society at large.

It is not only the policies and actions taken by the executive arm of government that would drive the change and achieve the positive growth we seek. Our laws need to be reviewed and updated to be in line with today’s realities. Moreover, we must accord as much importance to legislating as we do the enforcement of laws. It’s time to ensure our lawmakers truly earn their keep.