Institutions of democracy and recall- By FESTUS OKOYE

Barrister Festus Okoye
Institutions of democracy and recall- By FESTUS OKOYE
There are hanging questions relating to the recall process that must be interrogated. Some of the questions are constitutional, legal and political. And come to think of it, recalling a member of the National or State Assembly is a politically loaded venture that may be intertwined and interwoven with all the trappings of drama, intrigue and sometimes violence.

Who then has the final say or has a role to play in the process of recalling an elected member of the State or National Assembly? Is recall a multi-stakeholder or particularized venture? Are the persons whose names appear on the register of voters for a particular State or Federal Constituency or Senatorial District the only ones permitted to determine the constitutional, legal and political issues in the recall process? Do the courts have a say in matters of recall? In other words, can the courts intervene in the early processes of recall before it gets to the Independent National Electoral Commission (INEC) or they only permitted to intervene after the recall has failed or succeeded? Can the court intervene when the process or procedure of recall is abused by the “recallers”? Can the courts intervene if INEC does not follow the right procedure and channel in carrying out the recall process? What is the role of the National Assembly in the recall process? Can the National Assembly abort a recall process by refusing to “expel” a member of the National Assembly who has been recalled by members of his constituency?

I have previously attempted to look at and analyse the law and politics of recall which is constitutionally provided and rarely activated. The recall process is rarely activated because of the near cumbersome procedure of recalling an elected member of the National and State Assembly. The recall process is rarely activated because it is politically loaded and in a multi-party democracy, a member belonging to a particular political party can be recalled and the seat of the member may be lapped up by a different political party or tendency. The recall process is rarely activated because it involves campaigning to convince the constituents on the desirability of recalling an elected member. The recall process is time consuming and involves individuals, groups and institutions committing a large sum of money as the initiators of recall must go from house to house, interest group to interest group, constituency to constituency and from community to community collecting signatures of registered voters in the constituency. Sometimes, a signature has a price and sometimes contractors, middlemen and consultants play the decisive role in mopping up and warehousing the recall signatures. Recall is a tricky business because of the imperfections of the register of voters in Nigeria, population movements, deaths and the vagaries of weather. It is tricky because the recall process can only get to INEC after more than half of the registered voters in the constituency have signed the recall register. On the basis of the tricky nature of the recall process and procedure, I have previously submitted that recall is a serious constitutional, legal and political process that must be approached and handled cautiously bearing in mind the challenges of our democracy and the tendency for some people to resort to violence at the slightest risk of losing privileges.

It is true that the recall process is an in-between election tool in the hands of the electorate to ensure good governance and accountable representation and is the affirmation of the sovereign power and authority of the electorate.

There are, however, other variables, stakeholders and institutions that impact on the recall process and the role of these institutions must be factored in and interrogated for a holistic picture of the challenges of the recall process. Rather than see the institutions of democracy as interlopers in the recall process, I see them as enhancers and guardians of the recall process. Let me point out that one of the biggest challenges of our democracy is our inability or refusal to trust our institutions of democracy by allowing them to show us the constitutional and legal way of enhancing and sustaining democracy. Let me also point out that our constitutional and legal processes will remain stunted and inchoate if we do not allow the institutions of democracy to resolve seemingly tricky, weighty and sometimes explosive constitutional and legal problems and challenges.

Rather than panic and resort to extra judicial and extra constitutional measures of resolving challenging issues and situations, we should rather allow the judiciary and the apex court which for all intents and purposes is the “guardian of the Constitution” to assist us clear the grass for us to “see clearly”. When we panic, we begin a new process of constitutional alteration and it continues ad-infinitum. Sometimes, the apex court of the land will resolve matters and show us the way and we still run to go and alter the constitution to accommodate what the judiciary has already resolved. Sometimes I understand the thinking of those that believe that everything must enter the constitution because, in Nigeria, cutting corners with and refusal to obey court orders is becoming a way of life especially for those in government. How else can we explain the refusal of some governors to conduct local government elections when the Supreme Court has declared that it is unconstitutional to dissolve elected local governments and run the councils through the instrumentality of caretaker committees?

Who then are the stakeholders and institutions involved in the recall process? Section 69(a) of the Constitution of the Federal Republic of Nigeria provides that a member of the National Assembly can be recalled if there is presented to the Chairman of INEC a petition signed by more than half of the persons registered to vote in that member’s constituency, alleging their loss of confidence in that member, and which signatories are duly verified by INEC.

Section 69(2) of the Constitution also provides that on verification and authentication of the signatory, the petition is thereafter in a referendum conducted by INEC within 90 days of the date of the receipt of the petition, approved by a simple majority of the votes of the persons registered to vote in that member’s constituency.

I agree that a recall process shall be completed within a period of 90 days after the receipt of the recall petitions and it seems to me that the petition lapses if the recall process is not completed within the constitutional timeline and this means that the institutions of democracy must bear this in mind in carrying out their respective mandates in the recall process. There is no doubt that section 6 of the Constitution vests judicial powers in the courts created by the constitution and by section 6(6) of the same constitution, the power extends to all matters between persons, or between government or authority and to any persons in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.

The courts have broad powers in the recall process and what is required is for the courts to balance the right of an aggrieved member of the National or State Assembly with that of the constituents and speedily resolve issues bearing in mind the constitutional role and mandate of INEC that must conform to and align its own role to the solid and immovable timeline erected by section 69(b) of the Constitution.

Although the National and State Assemblies are not specifically mentioned in the recall process, the truth is that the member being recalled is one of their own and the “result” of the recall process must go to them before the member bows out. If the members or the leadership of the National or State Assembly refuses to “expel” a recalled member, it gives rise to another constitutional challenge and the courts will once again intervene and clear the “clouds”. Our democracy will be solidified if the institutions of democracy do their work in accordance with the law and the constitution.

 

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