The Law And Politics Of Recall, By Festus Okoye

To recall a member of the National Assembly, duly, validly and legally elected is a serious constitutional, legal, political, moral and strategic matter. To recall a member of any of the legislative houses combines the element of constitutionality, legality and politics.

 

It is constitutional because the qualification, disqualification, election and tenure of the members of the National Assembly are constitutionally provided and guaranteed. The recall of a member of the National Assembly is in the realm of legality because the Independent National Electoral Commission (INEC) conducts the election in which members are elected based on the provisions of the Electoral Act, 2010 (as amended).

The recall of a member of the National Assembly is political because representation is part of the core functions of a member of the National Assembly. It is also political because the constituents or “political interests” in the constituency or the state must lose confidence in the ability of their member before initiating a recall process.

It is also political because the member is part of a constituent affinity in the State or National Assembly and also a member of a political party and sponsored by that party and the political party must have an interest in the recall or otherwise of their members since a new election must be conducted to fill the vacancy in the case of a successful recall.

To recall a member duly and legally elected is even more serious because on election, the Constitution of the Federal Republic of Nigeria, envisages that a member of the Senate and House of Representatives will remain in office and vacate office when the National Assembly stands dissolved at the expiration of a period of four years commencing from the date of the first sitting of the House. The member so elected, who has made expenses, possibly resigned from a paid employment, or abandoned some other businesses expects to remain in office for the four-year constitutional period.

To ask such a member to “pack and go home” is a serious matter.

Being a member of the National Assembly is a serious constitutional and political issue. There are people that want to contest election to the National Assembly but are constitutionally and legally barred from so doing. This is because section 65 of the Constitution of the Federal Republic of Nigeria, 1999(as amended) provides for the qualification of members of the National Assembly.

It states clearly that one will be qualified to contest election to the Senate if the person is a citizen of Nigeria and has attained the age of 35 years while someone can contest election to represent a federal constituency in the House of Representatives if the person is a citizen of the Federal Republic of Nigeria and has attained the age of 30 years.

In addition, such a person must have been educated up to at least School Certificate level or its equivalent; and he is a member of a political party and is sponsored by that party. It is also a serious constitutional matter because no one can be a member of a political party if the person suffers any of the disqualifying provisions in section 66 of the Constitution.

The four-year permanence of the members of the National Assembly is punctuated by section 69(a) of the Constitution. It provides that a member of the National Assembly can be recalled if a petition is presented to INEC chairman and signed by more than half of the persons registered to vote in that member’s constituency al- leging their loss of confidence in that member, and which signatory 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. It seems to me that the members of the constituency of the member sought to be recalled can only lose confidence in the work the member was sent to the National Assembly to do.

Conversely, it is possible that the loss of confidence may be on issues unrelated to the legislative functions of the member of the National Assembly. Now, section 4(2) of the Constitution provides that the National Assembly shall have power to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List.

The National Assembly is also vested with the power of appropriation or power and control over public funds.

The National Assembly conducts investigation into any matter or thing with respect to which it has power to make laws; and the conduct of affairs of any person, authority, ministry or government department charged, or intended to be charged, with the duty or responsibility of executing or administering monies appropriated or to be appropriated by the National Assembly, disbursing or administering monies appropriated or to be appropriated by the National Assembly.

Furthermore, the Senate of the Federal Republic of Nigeria confirms certain category of presidential appointments in accordance with section 171 of the Constitution and other laws made by the National Assembly.

More importantly, the Senate and the House of Representatives are the tribunes of the people and represent the interests and aspirations of the people of their senatorial districts and federal constituencies.

It stands to reason that if a senator or a member of the House of Representatives becomes a bench warmer and does not understand the powers and functions of the National Assembly, does not contribute to debates, does not sponsors bills or motions the constituents will be right to recall such a member.

Unfortunately, a large number of our people do not really understand and or appreciate the work of the National Assembly.

Some of our people understand democracy and development from the prism of roads, culverts, drainages, boreholes, schools built, motorbikes bought and distributed and other visible or tangible “dividends” of democracy.

It is redundant and academic to talk to the ordinary people about bills and motions when they cannot see their tangible and visible impact in their lives.

So, it is more probable that a recall can be initiated based on the inability of the member of the National Assembly to provide for something unrelated to his or her core mandate.

What then can or will amount to “loss of confidence” leading to the recall of a member? It seems to me that loss of confidence is whatever members of the constituency regard as and adjudge as “loss of confidence”.

It seems to me that “loss of confidence” enjoys the same interpretation as the definition of gross misconduct in the removal of a President from office.

Section 143(10) of the Constitution relating to the impeachment of a President states that “gross misconduct” “means a grave violation or breach of the provisions of this Constitution or a misconduct of such nature as amounts in the opinion of the National Assembly to gross misconduct.”

Therefore, any act or misconduct relating to the performance of the legislative duties of the member or any act or conduct which in the opinion of the constituents is embarrassing or unbecoming and brings the constituency to disrepute can lead to a loss of confidence.

It will be good for our constitutional evolution to have at least one “genuine” “constituency” initiated recall process.

It will send a powerful signal that “no condition is permanent” and will reengineer the conduct of some members of the various Assemblies.

However, a contrived and malicious recall process will on the other hand lead to wastage of public funds and cow the members of the National Assembly.