On the 2nd through the 4th of June 2021, Barr. Chima Williams, the acting executive director of Environmental Rights Action/Friends of the Earth Nigeria presented these Memoranda BELOW to the Senate National Public Hearing and the House of Representatives Zonal Public Hearings on the amendment of the 1999 Constitution of the Federal Republic of Nigeria.
MEMORANDUM SUBMITTED TO THE ZONAL PUBLIC HEARING ON THE PROPOSED ALTERATION TO THE PROVISIONS OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 AS AMENDED.
ORGANISED BY:
THE HOUSE OF REPRESENTATIVES COMMITTEE ON THE REVIEW OF THE 1999 CONSTITUTION.
SUBMITTED ON BEHALF OF:
ENVIRONMENTAL RIGHTS ACTION/FRIENDS OF THE EARTH NIGERIA (ERA/FoEN), HEALTH OF MOTHER EARTH FOUNDATION (HOMEF), CORPORATE ACCOUNTABILITY AND PUBLIC PARTICIPATION AFRICA (CAPPA). COALITION AGAINST GAS FLARING (CAGAF) and GREEN ALLIANCE NIGERIA (GAN)
By: Barr. Chima Williams, Acting Executive Director, Environmental Rights Action/Friends of the Earth Nigeria (ERA/FoEN); Secretary/Legal Adviser, Coalition Against Gas Flaring (CAGAF) and President, Green Alliance Nigeria (GAN) 13A Benin-Lagos Express Road, Benin City, Edo State
08023649890; 08059402385.
1.0 INTRODUCTION.
The Honourable Chairman and Members of the House of Representatives Committee on the review of the 1999 Constitution of the Federal Republic of Nigeria as amended here present, all other protocols duly observed. On behalf of the organizations and coalitions listed above who are bound by their common interest in the environmental and citizens livelihoods protection; transparency and accountability in public resources management and related issues, I present to you our areas of concern for your consideration in the process of the constitution alteration which you have embarked upon for the greater good of the majority of Nigerians. Our collective experience in these areas positions us properly to make the below stated proposals for your consideration and possible integration into the amended constitution of the Federal Republic of Nigeria 1999:
2.0. ENFORCEMENT OF ENVIRONMENTAL PROTECTION
Environment which provides pivotal support for life and livelihood has been neglected by all previous governments in Nigeria to the extent that they had never deemed it necessary to include it in the grundnorm law of the land – the constitution.
The only attempt was made half-heartedly as it was only provided for in Section 20 of the 1999 constitution under its Chapter Two an unenforceable chapter of the constitution.
Because of the importance and necessity of items listed under the Chapter Two of the 1999 constitution, we recommend thus:
- That all items listed under Chapter Two of the constitution of the Federal Republic of Nigeria 1999 be moved to Chapter Four of the constitution and renumbered appropriately.
- Where the wholesale move of Chapter Two to Chapter Four is not possible, Section 20 of the constitution should be deleted and a new Section 43 under Chapter Four inserted thus:
Section 43 –
(1) Every organ and institution of the Federal Republic of Nigeria shall recognize and guarantee the Rights of Nature to maintain her vital cycles and provide services for all species as a means of halting reckless exploitation and damaging of ecosystems.
(2) Every person shall have the right to:
- a clean and healthy environment;
- have the environment protected through measures that:
- prevent pollution and ecological degradation;
- promote conservation; and
- secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.
(3) Every person shall be entitled, subject to the procedures provided by law to institute proceedings for the protection of and promotion of sub section (1) of this section.
(4) The Chief Justice of the Federal Republic of Nigeria shall direct the establishment of environmental courts out of every jurisdiction of the States and Federal High Courts of Nigeria for the sole purpose of quick and efficient determination of environmental protection cases.
(5) The Chief Justice of the Federation shall commission the enactment of special practice directions for the enforcement of environmental rights.
- To avoid ambiguity and give room to the implementation of the provisions of the newly introduced Section 43 of the Constitution, Environment and environmental protection should be listed in the concurrent legislative list of the constitution.
- to further give effect to the enforcement of the newly introduced Section 43 of the constitution, we recommend that Section 251(1)(e) and (n) which grants exclusive jurisdiction to the Federal High Court to entertain matters arising from operations of companies incorporated under the Companies and Allied Matters Act and matters relating to Mines and Minerals (including oil fields, oil mining, geological surveys and natural gas) among others should be amended to grant jurisdiction to both Federal and State High Courts.
3.0 CITIZENS PARTICIPATION IN THE BUDGET PROCESS.
Budgeting is an inseparable element of governance irrespective of the system of governance being practiced – be it military dictatorship or democracy. However, fundamentally, practices in budget formulation, approval and implementation processes are expected to differ depending on which form of governance is in practice. In a democratic government, democratic demands and practices require stakeholders participation but present budget practice in Nigeria points otherwise. This is why in Nigeria, it is popularly believed that the dividends of budgeting are yet to be fully experienced. Many reasons, which have been adduced for this include faulty budget formulation process arising from poor stakeholder participation/consultation, poor priorities/targets setting and poor implementation. There is equally no benchmark as to when a budget must be passed.
The essence of budgeting under a civilian administration it must be noted is to ensure that the people’s standard of living is improved beyond what it was previously and whatever should be done to make this happen must be encouraged as democratic or civilian governance will lose its meaning and appeal if it fails to elevate the peoples wellbeing above every other state consideration. In this regard, it is imperative for us that citizens are involved from the conception/initiation stage to the implementation stage of the budgets of any tier of government in Nigeria. To achieve this, we strongly recommend thus:
3.1 An amendment of Sections 81 (1) and 121 (1) of the 1999 constitution which bestows power to propose and enact budgets on the President and National Assembly for the Federal and the Governor and State House of Assembly for States respectively is hereby proposed thus: A Proviso that will read thus: “Provided that such estimates are arrived at, after receiving inputs from States, Local government authorities, community organizations, Civil society organizations, Non-governmental organizations and the organized private sector arising from a call circular issued to them to that effect” at the end of each of the subsections.
3.2 Because delays in presentation of budget proposals by the Executive and passage of the Appropriation Bill by the respective Assemblies mostly impact negatively on Nigerians, it is hereby recommended that a new section be inserted into the 1999 constitution stipulating thus:
(a) The Executive shall present before the respective Assemblies their budget proposals for consideration not later than 31st of August of each financial year.
(b) The Respective Assemblies shall finish legislative business on any budget proposal presented before it not later than the 17th December of the succeeding financial year.
(c) The Executive will without fail commence the implementation of the appropriation act by January 1, of the respective year for the appropriation.
4.0 ELECTION AND ELECTORAL MATTERS.
To ensure that our electoral processes does not only produce credible individuals at the helms of affairs but is also acceptable to the people and thereby restores citizens confidence not only in the process but also in governance we propose the under-listed amendments to the 1999 constitution of the Federal Republic of Nigeria:
4.1. POLITICAL PARTIES AND INDEPENDENT CANDIDATES.
For qualified and credible Nigerians not to be disqualified from contesting elections and giving adequate representation to their people, we recommend that Sections 65 (2), 106, 131 and 177 of the 1999 constitution be amended by adding in Section 65 (2) a new paragraph (c), Section 106 a new Subsection (e) and Sections 131 and 177 a new Subsection (d) to read: “Where not a member of any political party meets all the criteria set for members of political parties except for party sponsorship”. The present Subsection (d) of Sections 131 and 177 should be renumbered Subsection (e) respectively.
4.2. CREDIBLE CANDIDATURE.
To ensure that only credible, tested and trusted persons stand elections in Nigeria in addition to all the conditions set out for candidates’ qualification, we propose the introduction of a new Subsection (4) to Sections 66 and 107, and Subsections (k) to Sections 137 and 182 thus: “In addition to all other stipulated qualifications to stand for an elective office in Nigeria, nobody shall be qualified to contest any national election except:
(a) Such a person has held one form of leadership position or the other either at organizational, community or other levels.
(b) Such a person if a political office holder be it by appointment or election and be it the President or Councillor, like his counterparts in the public or civil service had resigned from office not later than ninety (90) clear days from the date of the election where he is interested”
4.3. ELIMINATION OF UNDUE CROSS CARPETING
Recent experience has shown that the frictions and tension created by undue cross carpeting of politicians from one political party to another at the expense of the party on whose platform and resources such a candidate became elected has not been healthy for the political growth of the nation hence it is recommended that the proviso to Sections 68(1)(g) and 109 (1) (g) be deleted and similar provisions as Sections 68 (1) (g) and 109 (1) (g) included in the relevant Sections dealing with the offices of the Governor, Deputy Governor, President and Vice President respectively.
4.4. DETERMINATION OF ELECTION PETITIONS BEFORE SWEARING IN OR INAUGURATION.
To ensure that public funds and State apparatus is not used by an individual against his opponent in the course of electoral petition, we propose that a Subsection (5) is added to Section 285 thus: “All matters brought before an election tribunal against any candidate and appeals if any arising therefrom must be first determined and concluded within a period of 90 days before the inauguration/swearing in of the affected candidate”
4.5. INDEPENDENT ELECTORAL BODIES.
(a) The Independence of INEC: to guarantee the independence of INEC & SIEC we recommend that the leadership of INEC should be drawn from representatives of registered political parties who should elect from themselves a Chairman while the government nominates a secretary.
(b) The representatives of the political parties at the apex of INEC and SIEC will be saddled with the responsibility of appointing the state and local government resident electoral commissioners.
(c) The funds of INEC and SIEC including salaries and others should be disbursed from a consolidated fund and their budget being included as an item in the national budget to be disbursed without let or hindrance.
4.6. ELECTORAL TIMETABLE.
To ensure that the syndrome of bandwagon effect is reduced to the barest minimum, electoral timetables should be drawn in such a way that elections are conducted in the order of lower positions first. ie for national elections:
(a) Day 1 – Elections into the office of State Houses of Assembly and National Assembly.
(b) Day 2 – Gubernatorial and Presidential Elections.
(c) For state elections: Councillorship and Chairmanship elections one day.
(d) The interval between one national election and the other should not exceed a period of five working days.
4.7. UNDUE INFLUENCE.
To ensure level playing field:
- No uniformed personnel should be seen within the radius of 100 metres from the venue of voting except during counting of votes where accredited uniformed personnel only will be allowed to participate for security reasons.
- The use of money on election day should amount to electoral fraud which where proven should disqualify ¾ of the votes garnered by such candidate in the booth or ward where the monetary inducement occurred.
- It should be an offence punishable with disqualification of all the votes garnered by a candidate if in a booth or ward should any disruption of the smooth conduct of an election occur in that booth or ward as a result of the activities of the candidate or his/her supporters.
4.8. ADOPTION OF ELECTRONIC VOTING AND USE OF VIDEO RECORDERS AND OTHER RECORDING DEVICES DURING ELECTION.
Radical issues desire radical solutions. To ensure that the electorates votes counts and to reduce the incidence of electoral fraud, rigging and violence to the barest minimum, we recommend that ELECTRONIC VOTING be adopted as the mode of voting in elections in Nigeria. Coupled with this, is that party/candidates’ agents should be allowed to use electronic recording devices during elections.
5.0 LAND USE ACT.
There is no gainsaying that the Land Use Decree No. 6 of 1978 is the most controversial and vilified law ever made in the annals of Nigerian history. However, since its coming into being and perhaps its inclusion into the constitution by the saving provisions of the constitution which makes its amendment to pass the stringent conditions of a constitutional amendment, despite the huge hues and cries by Nigerians whose land it has stolen, no government has mustered the courage to amend or repeal it and we think this review of the 1999 constitution is a great opportunity to do away with the Land Use Decree from our constitution.
Based on the above, it is our recommendation that:
5.1. Section 315(5)(d) of the 1999 constitution as amended should be deleted.
5.2. Section 44 (1) (a) of the 1999 constitution should be amended by inserting in between of and compensation the word “adequate” and after the word compensation insert “not only un-exhausted improvements but also for inconvenience suffered by the dispossessed holder/occupier.”
5.3. The Land Use Act where retained should be amended thus:
- Sections 21, 26 and 28 of the Land Use Act which provides for consent, power to revoke and expropriate by the Governor or Local Government Chairman as the case may be should be expunged from the Act. This recommendation arises from the practical experiences of inhibitions to development by the requirements of these provisions as professionals, private property developers and the organised private sector have always fingered the law as the greatest disincentive to real estate development and the growth of the real estate sector of the nation’s economy as it limits access to land for development purposes. One of the most contentious sections of the Act has to do with the Governor’s consent and the issuance of the Certificate of Occupancy (C of O) which is required as collateral for obtaining loans from financial institutions. Nigerians should be allowed to use their land resources for economic empowerment without the interference of any governor or Chairman.
- Section 49 of the Land Use Act should be deleted as there is no need or reason for the retention of land bank in the face of dire need for development in the country. Let all the undeveloped land acquired before the commencement of the Act by government or her agencies revert back to their original owners.
- The ambiguities created by Sections 5, 6, 28, 49 and 50 over the issue of land holding otherwise known as Land tenure system is unnecessary and therefore should be deleted. There should be a reversal to the pre Land Use Act status quo ante bellum where control over land was vested in families, villages, communities and clans as under the traditional or customary agrarian land tenure system, individuals did not have complete control over the land and the sale of land was hardly possible. Individual occupants of land were identified by the right they hold rather than by actual possession of land. This had worked perfectly well for the people!
- Flowing from the suggested amendment to Section 44 (1) (a) of the 1999 constitution which makes the issue of payment of adequate compensation for both un-exhausted improvement and inconvenience by dispossessed party over compulsory acquisition of land by government or her agents for public purposes, we highly recommend that Sections 6 and 29 of the Land Use Act should be amended to provide for “adequate compensation for the cost of improvements, inconvenience of getting an alternative land and the social, cultural, customary and economic values attached to the acquired land.
- Sections 47 and 30 of the Land Use Act which denies courts the jurisdiction to hear and determine the amount or adequacy of compensation by making the Land Use and Allocation Committee the only arbiter on appeal should be expunged and in its place a new Section inserted thus: “For the determination of what is adequate compensation for the acquired land under this Act, the dispossessed holder or occupier shall have the right of access for the determination of his interest in the property and amount of compensation to a court of law or tribunal or body having jurisdiction in that part of Nigeria”
- A new provision should be created in the Land Use Act which makes it illegal and an offence punishable under the Act for any government official to be involved in any act that leads or likely to lead to the concession of a government acquired land to a company or individual for any purpose whatsoever.
- Section 44(3) which reads “Notwithstanding the foregoing provisions of this section, the entire property in and control of all minerals, mineral oils and natural gas in under or upon any land in Nigeria or in, 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” should be amended to read thus: “Notwithstanding the foregoing provisions of this section, the entire property in and control of all minerals, mineral oils and natural gas in under or upon any land in Nigeria or in, under or upon the territorial waters and the Exclusive Economic Zone of Nigeria shall vest in the Federal Republic of Nigeria and shall be managed by the Government of the Federation in such manner as may be prescribed by the National Assembly” Justification for this is based on the fact that bestowing of the resources of Nigeria on the Federal Government alone alienates other from the harnessing, management and protection of the God given resources for the benefit of all Nigerians as you can only be interested in protecting and preserving what belongs to you!
- DEVOLUTION OF POWERS
In order to create stimulus for enterprise and at the same time ensure that the resources available to and bestowed on each state is maximally utilised for the benefit of Nigerians the following amendments should be made to the Constitution:
- That all mines and minerals including gold, diamond, oil and gas resources etc shall be controlled by the respective Local Government areas they are found provided always that the production and processing of the mines and minerals may be allocated to all qualified persons without regards to race, ethnicity, religion, gender and any form of discrimination whatsoever.
- The Mines and mineral resources shall be allocated for production and processing through transparent and accountable process using best and next practices.
- The production of mines and minerals including oil and gas shall be undertaking in a way and manner to ensure that all waste resources therefrom are reutilized taking care not to pollute the environment.
We are most grateful for the opportunity to contribute.
Thank you and may God bless the Federal Republic of Nigeria!
Presented at:
Uyo Zonal Centre:
DATE: 1ST AND 2ND JUNE, 2021.
VENUE: IBOM HALL, IBRAHIM BABANGIDA AVENUE, UYO, AKWA IBOM STATE.
By:
Dr. Mina Ogbanga, Executive Director, Centre for Development Support Initiative (CEDSI) and Vice Chairman, Coalition Against Gas Flaring (CAGAF) – 08033402265, cedsi2000@yahoo.com
Lagos Zonal Centre
DATE: 1ST AND 2ND JUNE, 2021.
VENUE: MARRIOTT HOTEL, GRA, IKEJA, LAGOS STATE.
By: Akinbode Oluwafemi, Executive Director, Corporate Accountability and Public Participation Africa (CAPPA) and Steering Committee Member, Coalition Against Gas Flaring (CAGAF) – 08060535681, bodeolufemi@gmail.com
Asaba Zonal Centre:
DATE: 3RD AND 4TH JUNE, 2021.
VENUE: EVENT CENTRE, OKPANAM ROAD, ASABA, DELTA STATE.
By: Barr. Chima Williams – Acting Executive Director, ERA/FoEN; President, Green Alliance Nigeria and Secretary/Legal Adviser, CAGAF – 08023649890; princewchima@yahoo.co.uk
and Benjamin Ogbalor, Chief Executive Officer, Initiative for Community Development and Chairman CAGAF – 08036681396, everbenjamin@yahoo.com