Will INEC Bow To Pressure From Lawmakers?
POLITICS DIGEST – When in 2011, former President Goodluck Jonathan set up the Presidential Committee on Restructuring and Rationalisation of Federal Government Parastatals, Commissions and Agencies, under the chairmanship of Steve Oronsaye to reduce government expenditure, he apparently did not consider the constitutional provision requiring adjustment and review of existing constituencies in the country. Federal lawmakers have now begun to agitate for new state and federal constituencies, which will, no doubt, increase government expenses, while Nigerians are complaining about they regarded as jumbo pay for the lawmakers. TONY AKOWE examines the recent agitations and the constitutional implications.
Sections 49 of the 1999 Constitution as amended states that “Subject to the provisions of this Constitution, the House of Representatives shall consist of three hundred and sixty members representing constituencies of nearly equal population as far as possible, provided that no constituency shall fall within more than one State”.
To buttress the powers contained in the section, section 71 states “subject to the provisions of section 72 of this Constitution, the Independent National Electoral Commission shall (71b), “subject to the provisions of section 49 of this Constitution, divide the Federation into three hundred and sixty Federal constituencies for purposes of elections to the House of Representatives. This implication of this section to a lay man is that the House of Representatives has a specified number of lawmakers that should be there.
Apparently, not many Nigerians have taken cognizance of other provisions of the constitution especially the provisions of section 73. (1) and 2, which states that “The Independent National Electoral Commission shall review the division of States and of the Federation into Senatorial districts and Federal constituencies at intervals of not less than ten years, and may alter the districts or constituencies in accordance with the provisions of this section to such extent as it may consider desirable in the light of the review. (2) Notwithstanding subsection (1) of this section, the Independent National Electoral Commission may at any time carry out such a review and alter the districts or constituencies in accordance with the provisions of this section to such extent as it considers necessary, in consequence of any amendment to section 8 of this Constitution or any provision replacing that section, or by reason of the holding of a census of the population, or pursuant to an Act of the National Assembly”.
The same mandate is given to the INEC regarding Houses of Assembly as contained in sections 91, 112-114 of the constitution. This explain why House Minority Leader, Hon. Ndudi Elumelu (PDP, Delta) is accusing INEC of failure to comply with the provisions of the constitution which provided for a review of existing federal constituencies after every 10 years and therefore sponsored a motion which was adopted by the House without debate asking the commission to consider creating new constituencies in the spirit of fair and equal representation as envisaged by the constitution.
The Delta lawmaker argued that the constitution allowed the commission to alter the constituencies in accordance with the provisions of the law to such extent as it may consider desirable in the light of the review. He is not unaware of the provisions of section 49 which provides that “the House of Representatives shall consist of 360 members representing 360 constituency of nearly equal population as far as possible, provided that no constituency shall fall within more than one state”.
He said: “Since the commencement of the 4th republic, INEC has failed to comply with the provisions of the constitution thereby depriving citizens of bloated federal constituencies’ adequate attention. Even though the constitution provides 10 years time frame for constituency reviews, INEC has not done any known review in the last 22yrs of the current democratic dispensation, hence the urgent need to call on INEC to be alive to her responsibilities. The reality on ground today whereby some federal constituencies are twice the size of others in both size and population is at variance with the letters and dictates of the 1999 constitution. This is so, because INEC has failed to live up to its responsibilities, hence the need to urgently rectify this abnormally for the sake of equitable representation.
To guarantee effective, quality and adequate representation in the House of Representatives, INEC should without delay delimit the constituencies and carve out new federal constituencies especially in constituencies covering four local government areas. The continuous failure for INEC to live up to its responsibilities in reviewing the division of states into federal constituencies does not only portray INEC in a bad light, but the entire government institution including the National Assembly for also failing to call her to order and invoking adequate sanctions where necessary hence the need for this motion”.
Not unaware of the financial implication of creating additional federal constituencies in the country and the clamor for a reduction of the cost of governance in the country, Elumelu said “will you say because of education is expensive, you will not educate your children? What you do is to find out the cost first. They should find out the cost and then come to us. The law says they should review. They can review it downward based on information available to them or they can review it upward. What we are saying is that they have not complied with the provisions of the constitution. We want them to comply with it, after which, they can come back to us. When that law was made putting the number of federal constituencies at 360, Nigerian population was not up to 200 million.
Today, we are over 200 million people and the constitution says there should be equal representation. There are places where it is one local government to a federal constituency. In some places, there are two federal constituencies in one local government. But in some other place, you have three or more local government. That is not fair and equal representation.”
He is also not lost in the fact that the National Assembly has a role to play in the entire process, but believe that INEC should start the process and seek the support of the legislature. He said “it is a constitutional matter. INEC has to do its part and then approach the National Assembly. It is only when they have done what the constitution asked them to do that they can now approach the constitution review committee.
But, the constitution review committee cannot initiate that on its own because the constitution say it is INEC that has to do that and not the National Assembly”.
Similarly, relying on the provisions of section 112-114, Ajibola Muraina, leading all the 13 federal lawmakers from Oyo state harped on the need to review upward the number of state constituencies in Oyo state. According to him, section 112 of the Constitution 1999 (as amended) provides that the Independent National Electoral Commission (INEC) shall divide every state in the Federation into such number of State Constituencies as is equal to three or four times the number of Federal Constituencies within the State.
In addition, he argued that section 91 of the same constitution provides that the House of Assembly of a State shall consist of three or four times the number of seats the State has in the House of Representatives divided in a way to reflect, as far as possible, nearly equal population, provided that a House of Assembly of a State shall consist of not less than twenty–four and not more than forty members.
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Lamentably, he said has refused to comply with the constitutional provision by increasing the numbers of state constituencies in Oyo state thereby denying the people of the sate the maximum representation. He stressed that with he said considering the size and population of the state, it is evident that 32 state constituencies would no serve of the people, but rather deprives them of equitable and fair representation in the State House of Assembly. He urged INEC to increase the number to 40 which is the maximum required by the constitution.
However, the motion was amended to take care of the entire country in other to prevent further motions on the issue. The lawmaker said: “Since the inception of the present democratic dispensation on 29 May 1999, INEC has failed to review the number of State Constituencies in Oyo State as prescribed by the Constitution which is the supreme law of the Federation and its provisions are binding on all authorities and persons in Nigeria”.
He however said that since the discharge of this constitutional duty by INEC is subject to the consequential approval of the National Assembly, the process should be commenced and concluded before the statutory periods prescribed for the conduct of the next general election in Nigeria, which may hold in the first quarter of 2021. A close study revealed that while the Edo state House of Assembly currently has the minimum number of 24 members, Kaduna state presently have 34 members in the state Assembly, while Lagos has the maximum of 40 state constituencies as stipulated by the constitution.
But, INEC dismissed the claim that the constitution placed an obligation on it to review the constituencies every 10 years, stressing that the commission has not breached any provision of the constitution.
Chairman, Information and Voter Education of the Commission, Barrister Festus Okoye said “the 1999 Constitution (as amended) does not place an obligation on INEC to revise or alter the boundaries of constituencies every 10 years, as has been canvassed by some opinions in the media. For the avoidance of doubt, Section 73 (1) of the Constitution provides for that to happen at intervals of “not less than 10 years”. This implies that it can only happen from 10 years and above. Therefore, the Commission is not in breach of the Constitution, since the revision could happen in 10 years or more.” Okoye argued that the review of the existing constituencies is a joint responsibility of both the Commission and the National Assembly, adding that such a review must be passed by a resolution of the two chambers of the National Assembly.
He argued that “the Constitution also provides that the Commission may embark on revision and adjustment after a national census, creation of States or by an Act of the National Assembly [Section 73 (2)].
None of these conditions actually exists at the moment. The last population census was conducted in 2006, about fifteen years ago. The Commission feels that revising and/or altering constituencies based on 15-year-old population data is inappropriate because the well-known rapidity of population changes in Nigeria would make nonsense of any outcome. In any case, the National Population Commission is working on conducting and another census and it seems reasonable to await its outcome.
On the other hand, no new states have been created in Nigeria since the constitution came into effect in 1999 nor is there an act of the National Assembly requesting INEC to activate the relevant sections of the constitution on division, revision and alteration of electoral constituencies”.
Commenting on the agitation for new state constituencies, Okoye insisted that unless there is a constitutional amendment, there was no way such an exercise can be carried out. While admitted that the constitutional provision that the number for each State House of Assembly should be three or four times the number of its federal constituencies (seats in the House of Representatives), he said there was also a proviso in the law that limits the number of state constituencies to a minimum of 24 and a maximum of 40. He said “the problem is that some States presently have three times the number of their seats in the House of Representatives, others have four times; others have the minimum of 24 and yet others have reached the maximum of 40. For some, their present number of State Assembly constituencies is neither three nor four times the number of their House of Representative seats. This motley distribution calls for more clarity in the division, revision and alteration of electoral constituency boundaries, which in fact may require constitutional amendments”.
Okoye, who is also a National Commissioner of INEC and served as a member of the Electoral Reforms Committee, which was chaired by former Chief Justice of the Federation, Justice Mohammed Lawal Uwais which recommended far reaching electoral reforms in the country said even though the commission was battling with the challenges, which has served as limitation on the issue of revision and adjustment of constituencies, it was not oblivious of the importance of balanced constituency delimitation on the democratic and electoral processes. “However, these are complicated legal, political and practical issues. This is why the Commission has requested for a meeting with the leadership of the National Assembly to resolve these issues and build the necessary consensus that will ensure that any revision of electoral boundaries will be passed by the National Assembly”.
While defending the Commission’s 2021 budget estimates before the lawmakers in November 2021, INEC Chairman, Prof Mahmoud Yakubu, had told them that there cannot be delimitation of constituencies until the constitution is amended as the number of seats in both Chambers of the National Assembly has been provided for in the Constitution. He said “the truth is that we can’t create additional constituencies, because the number for the House of Representatives and the Senate is fixed in the Constitution. There are 360 constituencies. We can’t create one additional constituency and we can’t reduce it. So, the solution actually lies in the hands of honourable members. If you want additional constituencies to be created, the Constitution has to be amended to provide for the number of constituencies”.
The Commission’s position has the backing of a former member of the House, Mohammed Musa Soba. Soba, who represented Soba Constituency of Kaduna State in the 8th Assembly told The Nation that there must be a constitutional amendment before any constituency can be created both at the state and federal level. He said “the constitution did not say they should review. It says they can review. I agree with them that it is time for the review, but they are not under any obligation to do the review because it falls within the ambit of constitution amendment. The constitution must be amended to give way for the delineation of the other constituencies. It is not just that because the constitution says they should review the constituencies, it is not that the National Assembly will just sit down and direct INEC or do it on behalf of INEC. No. They should review the constitution first. They must amend the constitution to create way for the creation of more constituencies. It is a constitutional issue and not just something they can sit down and make pronouncement on because the constitution permits.
So, my view is that it falls within the ambit amendment to the constitution”.
But, a Professor of Law at the Ahmadu Bello University, Zaria, Prof. Andrew Akume aligned with the lawmakers insisting that INEC has fragrantly refused to abide by the constitutional provisions. Prof Akume told The Nation that the Lawmakers are right in their demand for new constituencies, saying “personally, I have thought of filing a suit against INEC for constitutional breach. They are using that thing to be cheating people. So, what the members are saying is right. As you know, population is increasing. Each time there is a population delineation, they are supposed to adjust the constituencies. In some places, the population may have increased more than the other as a result of movement or people running away from bandits. You are supposed to use that to delineate the constituencies based on population, but they are not doing so. I was going of filing a public action case against INEC.”
