Recall Process under the Constitute of Federal Republic of : M.I Anushiem, Esq & Victor A Critique Obinna Chukwuma, Esq

RECALL PROCESS UNDER THE CONSTITUTION OF FEDERAL REPUBLIC OF NIGERIA: A CRITIQUE

M .I .Anushiem, Esq And Victor Obinna Chukwumah, Esq

Abstract In any democratic government, the electorates are known as the segment of the society with sovereign political authority. This is generally expressed when sovereignty is said to belong to the people. The Constitution of Federal Republic of Nigeria, 1999 as amended provides specifically that sovereignty belongs to the people. The sovereign authority of the people enables the people to decide who represents them in the arms of government. The people make this decision through election. The constitution also provides another powerful tool through which the people can exercise this sovereign power. This tool is the authority to recall their elected representatives in the legislative arms of government. However, this all important tool has met serious challenges both in the application of the constitution and in the exercise of the right by the people. These challenges range from judicial interference in the exercise of the right to recall a legislator, political apathy by the electorate, security challenges and some challenges inflicted by the Constitution itself. The objective of this work is to analyze the efficacy or otherwise of the provisions of the Constitution of Federal Republic of Nigeria, 1999 as amended as it pertains to the exercise of right to recall a legislator. The researchers adopted doctrinal and reform oriented legal research methodology with the use of statutes, Case Law, textbooks, journal articles Internet materials and newspaper publications. At the end, the researchers found that the provisions of the Constitution of Federal Republic of Nigeria, 1999 as amended as it relates to recall process is fraught with bottlenecks and cannot be used to achieve its primary objective. The researchers recommend massive sensitization of both the electorates and the electoral umpire on the rights and processes of recall. Also, the researchers recommend and amendment of the Constitution to reduce the percentage of signature requirement, inclusion of right of appeal and judicial review of the recall process. When these and other recommendations made in this work are implemented, the electorate will stand chance of actualizing a fair and reasonable recall of a legislator whom they have lost confidence in.

Keywords: Constitution, Federal Republic of Nigeria Legislature, Recall Process.

 M.I Anushiem Esq, L.L.B (Hons), BL (Hons), LL.M, PhD (in view) is a lecturer II in the Faculty of Law, Nnamdi Azikiwe University, Awka Anambra State Nigeria, 08032641757 [email protected].  Victor Obinna Chukwumah LLB (Hons) is a Legal Practitioner based in the Federal Capital Territory , Nigeria, 07069182735, [email protected].

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Recall Process under the Constitute of Federal Republic of Nigeria: M.I Anushiem, Esq & Victor A Critique Obinna Chukwuma, Esq

1. Meaning and Nature of Recall The Black’s Law Dictionary1 defines recall as removal of a public official from office by a popular vote. Recall is the process by which a legislator may be removed from his legislative seat before the expiration of his constitutional term2 by the electorates of his constituency on grounds of loss of confidence. According to Bhanu,3 recall is a unique political device exercised by the electorate to scrutinize the performance of representatives in the legislature and to remove the incompetent ones and those that do not pay enough attention to their constituents. The recall of a legislator from the legislative house could be equated to the impeachment of the executive heads of government, primarily as both processes seek to remove political office holders from office before the end of their constitutional term. However, unlike the impeachment of the executive heads of government which is the responsibility of the legislature, the recall of a legislator is entirely the responsibility of the electorate of the legislator’s constituency.4 Therefore; recall is to the electorates what impeachment is to the legislature.

2. Basis/Rational for Recall Basically, the introduction of the power to recall was to establish in permanent manner “a culture of consultation and reciprocal control of law makers’ use of powers and privileges.5 It was based on the belief that Nigerians have an idea of the goals of nationhood and the objectives of representation. It is the idea or conception which determines the depth of their faith in popular democracy and the nature of political judgment they form on the behavior of their elected representatives. In simple terms therefore, the following are some of various reasons for the recognition and codification of the power of recall in the constitution: 1. By virtue of section 14 (2) (a) of the 1999 constitution, the sovereign power at all times belongs to people. In the spirit of this provision, they retain the mandate to vote in or vote out any erring representative. 2. Recall enhances legislative accountability. That is, the recall provision is seen as a device to assure regular and close oversight of elected legislators and to make them work continuously, rather than periodically, responsible and responsive to the will and desires of the electorates.6 3. Without the recall provision, the electorates must wait until the next scheduled election to voice their opinions on an incumbent’s performance.

1 B A, Garner, Black’s Law Dictionary (9th Edition, St. Paul, Minn West Publishing Company, 2009) pg 1295. 2 J O, Akande, Introduction to the constitution of the Federal Republic of Nigeria 1999 (Ibadan: Spectrum Books Ltd; 2000) pg 166. 3 Bhanu V, ‘Recall of Parliamentarians: A prospective Accountability’ Economic and political weekly, December 29, 2007 available at ww.academic.edu/5794925/Reall_of_parliamentarians_A_Prospective_Accountability. 4 I J, Udofa, ‘Recall of Erring Legislators under the 1999 Constitution of Nigeria: Challenges and Prospects’ African Journal of Law and Criminology, vol. 5 No. 3 (2015). 5 See Report of Political Bureau 1987 141 (Lagos: Federal Government Printers, 1987). 6 See Matt Q, ‘Hasta La Vista: ‘A Comparative Institutionalist Analysis of the Recall’ Representation, vol. 47, No. 2, July, 2011, pp. 161-170. 121 | P a g e

Recall Process under the Constitute of Federal Republic of Nigeria: M.I Anushiem, Esq & Victor A Critique Obinna Chukwuma, Esq

4. Just like impeachment, recall provision is enshrined to strike a just balance between the immunity enjoyed by the legislators and abuse of powers and offices held by them.

3. Recall Attempts in Nigeria The recall provision is not unknown to Nigerian Law. It is enshrined in sections 69 and 110 of the Constitution of the Federal Republic of Nigeria 1999 as amended7 for Federal Legislature and states legislatures respectively. The provision has been invoked a number of times in attempt to recall erring legislators although none of the attempts was successful. We shall now consider some of these attempts.

3.1 Recall Attempt of Solomon Lalung This happened in 2005 when the governor of Plateau State, was arrested in London for alleged money laundering but he managed to escape to Nigeria where he has immunity against prosecution. To get rid of this immunity, agitations were made for him to be impeached, a process which is the responsibility of the Plateau State legislature, headed by Solomon Lalung (the then speaker of the House). The later however refused to impeach the governor. For this, the move to recall him kicked off with a petition in that regard to INEC. No sooner had he received the petition than he ran to court and successfully obtained an order restraining INEC from continuing with the recall exercise. Ignoring the decision of the court, INEC went ahead to conduct the referendum which however ended in favour of the embattled speaker as only 27% of the total votes was recorded against him.8

3.2 Recall Attempt of Ibrahim Mantu In the same 2005, a petition was received by INEC to recall Ibrahim Mantu the then Deputy Senate President of Nigeria. This was in reaction to his questionable role in the futile effort to amend the 1999 constitution to enable the then president to prolong his tenure by another four years.9After much prevarication, INEC in April 2006, announced its discontinuation of the exercise on the grounds that the 90 day period prescribed for the exercise by the constitution has expired.10

Note that 90-day period did not expired before senator Mantu went to court to seek for an injunction to restrain INEC from commencing the verification of signatures as a necessary step

7 The First Alteration Act, 2010. 8 O, Liborous, ‘Nigeria Media, Recall, Legislators and History’ Aladeh news, 26thjune, 2017 available at https://aladeh.com/nigeria-media-recall-legislators-and-history-by-liborous-oshoma/ accessed on 20th June, 2018. 9 A, Emmanuel & Y, Habib, ‘Nigeria: INEC Gets Recall Petition Against Mantu’ All Africa. 15th December, 2015 available at www.allafrica.com/stories/200512150152.html accessed on 20th June, 2018. 10 H I, Pundiga, ‘NIGERIA: INEC drops Mantu Recall’ All Africa, 20th April, 2006 available at www.allafrica.com/stories/200604200273.html accessed on 20th June, 2018. 122 | P a g e

Recall Process under the Constitute of Federal Republic of Nigeria: M.I Anushiem, Esq & Victor A Critique Obinna Chukwuma, Esq towards a referendum11 One of the vexatious issues that bogged the minds of educated people in Nigeria then was why INEC decided to obey the decision of the court not to continue with the recall exercise pending the determination of the suit unlike its reaction in a similar recall experience with Solomon Lalung earlier the same year.12

3.3 Recall Attempt of Senator Dino Melaye Dino Melaye is a senator representing Kogi West Senatorial District. The petition to recall him was received by INEC on 21st June, 2017. Some of the reasons that informed the recall petition include his insults to leaders, elders and personalities13 without much ado. Just like other attempts to recall some legislators in the past, this attempt failed. This time around, the reason for the failure was that the total number of signatures verified fell below the constitutional requirement.14 One notable feature of Dino’s recall was the response of the court to the delay tactics employed by the senator to frustrate the recall exercise. His efforts to prevent the recall exercise proved abortive as the court held that the 90 days provided in the constitution does not include the time spent in litigation.15

4. Challenges and Lessons from Failed Attempts We have seen from the above that although Nigeria has experienced several attempts to recall some erring legislators, none of the attempts was successful due to one reason or the other. In fact, in response to these failed recall attempts, Senator Dino Melaye has termed the attempt as a “made in Taiwan recall exercise”.16 We shall now consider some of the bottlenecks and lessons observed from these failed recall attempts.

4.1 Judicial Interference or sharp Practice by Lawyers. A cursory look at the failed attempts shows clearly that the first step by the legislators upon receipt of their petition for recall is to run to court and ask the court for an order restraining the recall exercise pending the determination of their suit. It is wondered why the courts have been entertaining the suits of these embattled legislators where there is no provision in the constitution expressly granting them the jurisdiction in that regard. Delay tactics, generally is a tool used by some lawyers to frustrate the course of justice. This has had negative impact on the recall exercise

11 J M, Asagh, ‘The Right To Recall Under The 1999 Constitution’ in D A, Guobadia and E, Azinge Current Themes in the 1999 Constitution (Lagos: Institute of Advanced Studies, 2007) p. 281. 12 O, Liborous, Op cit. 13 T, Samson, ‘All You Need to Knows About Senator’s Recall Process’ Pulse 11 July 2017 available at opera.pulse.ng/news/politics/all-you-need-to-know-about-dino-melaye-recall-id6973046.html. 14 See Adekunle, ‘Breaking: Attempt to Recall Dino Melaye Fails’ Vanguard, April 29, 2018 available at www.vanguardngr.com/2018/04/breaking-attempt-recall-dino-melaye-fails-verification- materials-hijacked/. 15 Ibid 16 See Nairalife Forum: ‘Dino Melaye Celebrated Death of Made in Taiwan Recall Exercise’ published on 8 February, 2018 available at https://grajdannskiy.ru/4079373/dino-melaye-celebrates-death- made.

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Recall Process under the Constitute of Federal Republic of Nigeria: M.I Anushiem, Esq & Victor A Critique Obinna Chukwuma, Esq either by stretching beyond the 90 days gap and thereby creating room for political influences, or by killing the spirit of the people who may, lose interest in the whole exercise.

4.2 Political Apathy We have seen from the failed attempts that some of the failures were due to the difficulty in securing the signatures of more than 50% of the registered voters in the constituency in support of the recall as required by the constitution. Even where this hurdle is passed, the people would still be reluctant to turn out to vote during the referendum conducted by INEC.17 Uneducated Nigerians do not know about the existence of this right, while the educated ones who know about the right always show general apathy towards political programmes. This is a huge bottleneck that can be tacked through massive sensitization.

There is no doubt that politics has always, played key roles either in the instigation of the petition for recall or in the frustration of the recall process. On the one hand, some recall moves failed because they cannot be traced to the will of the people but rather traced to the selfish interest of an influential politician18 or a special interest group.19 On the other hand, a genuine recall move by the electorate could meet its waterloo when the “godfathers” of the legislator sought to be recalled, intervenes to save their “godson”

4.3 Bias by INEC A direct result of political interference on the recall process is the show of bias by INEC officials. The commission occupies a very sensitive position in the conduct of the recall process. This opens it up to a lot of political influences. For instance, one wonders why the same INEC which discountenanced the order of the court not to continue with the recall of Solomon Lalung pending the determination of the suit decided to obey a similar court order in the case of Senator Ibrahim Mantu.20

4.4 Security Challenges Insecurity is generally a notorious problem in our electoral system and the recall exercise is not exempted from the problem. For instance, during the verification of signatures in relation to the recall of Senator Dino Melaye, hoodlums attacked the office of the INEC in Mopamuro Local government Area of . They disrupted the collation of results, shot in the air, damaged vehicles and escaped with result sheet, while the INEC staff fled for safety.21

4.5 Capital requirement Although this has not been popularly cited as a challenge to the recall process, it cannot be easily dispensed with when considering the inhibiting factors to the successful exercise of the right to

17 I J, Udofia, Op.cit. 18 Ibid, p. 10. 19 V, Bhanu, Op.cit.

20 O, Liborous, Op.cit. 21 Adekunle, Op.cit. 124 | P a g e

Recall Process under the Constitute of Federal Republic of Nigeria: M.I Anushiem, Esq & Victor A Critique Obinna Chukwuma, Esq recall. According to a learned writer, the cumbersome procedure provided in the constitution is capital intensive.22 A lot of resources is required to gather signatures and to go through the whole procedure. Thus, without massive support from the government that controls the resources, the exercise of the right may not be feasible for the ordinary people. For instance, INEC has revealed that it spent over 100 million naira in the failed recall attempt of Senator Dino Melaye.23

4.6 Requirement for Signature Section 69(a) of the FCRN24 provides that more than half of the registered voters in the legislator’s constituency must sign the petition and that such signatures must be verified by INEC before a referendum can be held. So many writers agree that percentage of signature requirement (just like our own constitutional requirement) will surely prohibit the electorate from bringing about a recall election.25 It is no doubt that our legislators deliberately entrenched this requirement in the constitution in order to render the right to recall impracticable.

5. Critical Analysis of Recall Process under the Nigerian 1999 Constitution Section 69 of the Constitution of the Federal Republic of Nigeria (First Alteration) Act, 2010 provides as follows: A member of the Senate or of the House of Representatives may be recalled as such a member if: (a) There is presented to the chairman of the Independent National Electoral Commission a petition in that behalf signed by more than one half of the persons registered to vote in that member’s constituency alleging their loss of confidence in that member and which signatures are duly verified by the Independent National Electoral Commission. (b) The petition is thereafter, in a referendum conducted by the Independent National Electoral Commission within ninety days of the date of receipt of the petition, approved by a simple majority of the votes of the persons registered to vote in that member’s constituency.26

Section 68 (h) of the Constitution then provides that “a member of the senate or of the House of Representatives shall vacate his seat in the house which he is a member if the President of the Senate or as the case may be, the Speaker of the House of Representatives receives a certificate under the hand of the chairman of INEC stating that the provisions of section 69 of the Constitution have been complied with in respect of the recall of that member.

22 A A, Iguh, ‘A Review of Some Contentious Issues in Electoral Matters in Nigeria’ International Journal of Computers & Technology Vol. 15 No. 11, 2016 (7213-7217) P 7217. 23 Taboola, ‘INEC Reveals Huge Amount it Spent on Melaye’s Failed Recall’ Information Nigeria, May 4, 2018 available at www.informationng.com/2018/05/inec, May 4th, 2018 ge-amount-it-spent- on-melayes-failed-recall.html. 24 Op.cit. 25 E M, Elizabeth, ‘The Use and Abuse of Recall: A Proposal for Legislative Recall Reform’ Nebraska Law Review, vol 67 No. 3 (1998) P 637. 26 Section 110 as it relates to members of the state Houses of Assembly. 125 | P a g e

Recall Process under the Constitute of Federal Republic of Nigeria: M.I Anushiem, Esq & Victor A Critique Obinna Chukwuma, Esq

There is nowhere else to look at under Nigerian Law for a guide on the recall election procedure except the above. The provisions may appear innocent and coherent but a critical study on them reveals otherwise.

5.1 Lack of specification of Conduct that may Warrant Loss of Confidence in a Legislator Going by the provisions of the Constitution, the petition is sufficient once it alleges “Loss of Confidence” in the Legislator irrespective of the ground. This particular loophole has the following effects: (a) our courts are stymied and cannot broadly interpret such provision without being accused of lawmaking.27 (b) it makes the legislators vulnerable to harassment by unscrupulous constituencies or political godfathers.28

5.2 No provision for Appeal or Judicial Review A cursory perusal of the recall provision under the 1999 constitution may reveal that the court has no role to play in the recall procedure. Firstly, nothing in section 69 of the constitution grants jurisdiction to the court to entertain any objection from the legislator in relation to his recall petition. This is more so because the constitution does not specify any ground upon which the recall petition can be based. The only requirements are that the petition alleges loss of confidence in the Legislator and is duly signed by at the last 50.1% of the registered voters in the legislator’s constituency, the determination or verification of which is the duty of INEC and not the court. The reason for this omission particularly was to prevent a chain of hardship in that the constitution will be destabilized, as the referendum ought to be conducted within 90 days.29 Secondly, nothing in section 69 of the constitution expressly entitles the Legislator to apply for the judicial review of the conduct of the recall exercise by INEC. In other words, the provision does not envisage the possibility of the verification exercise or the referendum being married by irregularities. This is a dangerous omission because it implies that INEC is infallible. The provision for judicial review is recognized in some states of the United States of America.30

5.3 Signature Requirement and Verification The constitution provides that the petition must be signed by more than half of the registered voters in the legislator’s constituency and such signatures must be verified by INEC. It is humbly submitted that this signature threshold is too high and impracticable. In Switzerland, Schaffhauses require only 1000 signatures on the petition.31 In Philippines, the signature threshold is 25% of the registered voters.32 In the United Kingdom, the signature threshold is 10%

27 E M, Elizabeth, Op.cit, p. 635 28 I J, Udofa, Op.cit, p. 7 29 See the court of appeal per Ubaezonu J.C.A as he then was in Peter V. Okoye (2002) FWLR (pt 110) 1864

30 K, Richard, Etal Recall Elections 2014 (House of Commons Library, 2014) p. 6. 31 Ibid, P.7 32 Ibid p. 8 126 | P a g e

Recall Process under the Constitute of Federal Republic of Nigeria: M.I Anushiem, Esq & Victor A Critique Obinna Chukwuma, Esq of the registered voters.33 Despite this cumbersome signature requirement, the Nigerian Legislature went ahead to alter the provisions of section 69 of constitution in 2010 to include that all such signatures must be verified by INEC. In this connection, a learned writer has stated that although the amendment looks innocent however, it creates room for abuse by some corrupt officials of INEC and complicates the process of recall.34

He further suggested that requirement of verification should be expunged from the constitution35. However, it is humbly submitted that the verify development36 because it ensures to the authenticity of the signatures and as such goes to the validity of the petition. The only problem is that the threshold of signatures to be appended and verified is too high, and this can be resolved by reducing it to a reasonable extent.

5.4 Ambiguity It is interesting to note that section 69 of the constitution uses the phrase “may be recalled” leaving it open to conjecture as to whether the fulfillment of the conditions outlined in the section, without more, results in the automatic recall of the affected legislator or whether there is still a discretion that could be exercised in favour of such legislator, in spite of the fulfillment of those condition.37

This observation cannot be easily dismissed by the argument that the word “may” is often times interpreted to mean “Shall” which generally suggests an obligation.38 A careful perusal of section 68 (h) reveals the following: a. There must be a certificate stating that the provision of section 69 of the constitution has been complied with in relation to the recall of the legislator. b. The certificate must be signed by the chairman of INEC c. The certificate must be “received” by the president of the senate or the speaker of the House of Representatives.39

Furthermore, this ambiguity is strengthened by the appearance of the word “If” in section 68 (h) of the Constitution clearly suggesting that the word ‘may’ as used in section 69 of the Constitution is purely permissive. In other words, despite section 69 of the Constitution, the office of the legislator cannot be vacated except where section 68 (h) is complied with. In the same vein, the

33 Section 1 (3),(4) and (9) of the UK Recall of MPs Act, 2015 34 I B, Lawal ‘Impeachment and Recall of Legislators in Nigeria and United States of America’ US-China Law Review Vol. 12 p. 998 35 O N, Ogbu ‘A Critical Analysis of the Constitution (First Alteration) Act’ Vol. 10 (2011-2012) p. 55. 36 T, Oyetibo, SAN ‘Recall of Elected Officers: Engaging Government Beyond Elections’ The Token Vol. 1 issue 4 (2015) p. 3. 37 Ibid. 38 This argument usually applies to penal statutes. See A-G; Lagos State vs. Keita (2016) LPELR-40163 (CA). 39 See also section 109(h) of the Constitution, Op.cit. 127 | P a g e

Recall Process under the Constitute of Federal Republic of Nigeria: M.I Anushiem, Esq & Victor A Critique Obinna Chukwuma, Esq import of the word ‘received’ as used in section 68 (h) is also ambiguous as one does not know whether it means to receive notice (i.e. to be aware) or to receive information (i.e. to overhear) or both. The dictionary meaning of ‘receive’ includes ‘to accept’.40

The question therefore is whether or not the president of the senate or the speaker of the House is given the discretion to consider the merits of the certificate of compliance. This is supported by the following statements credited to the senate president in response to the recall exercise of senate Dino Melaye:

‘I really do not know why a lot of efforts are being wasted that should have gone on more important things. Eventually, it must come back here for us to decide whether it is satisfactory’.41

In as much as the government above may not be totally adjudged as Visceral,42 I extrapolate that the issue can only be led to rest through a judicial interpretation or a legislative amendment.

5.5 No Provision for Exceptional Cases The recall provision under section 69 of the Constitution is narrow in scope and does not envisage certain possibilities that may arise in the future. For instance, what is the fate of a new legislator who replaces a successfully recalled legislator where the general election will happen in few weeks or months’ time? Will the new legislator stand re-elected or be required to contest for the position again? Section 69 of the Constitution is totally silent on these questions. In United Kingdom, in such circumstances the recall process cannot hold.43

5.6 No Penal provision for Malicious Petitions Most petitioners are not held accountable for statements that they make on the petition for recall. This is more so, as the Constitution is silent on the grounds that may inform a recall petition neither does it provide a punishment for any petitioner who knowingly rests a recall campaign on false allegations.44

6. The Courts and Recall Process in Nigeria It is clear that nothing in section 69 of the Constitution grants jurisdiction to the court to intervene in a recall exercise. The Supreme Court has held in a number of cases that jurisdiction is statutory and cannot be implied or conferred by the agreement of parties.45 Similarly, the Supreme Court

40 Burton’s legal Thesaurus, 4th Edition, 2007 retrieved from https://legaldictionary.com/receive. 41 T, Samson, Op.cit. 42 See also Mike Ozekhome, SAN, ‘The Power of the People: The Recall Process’. Thisday News, 25 July, 2017 available at www.pressreader.com/nigeriathisday/20170725/281745564452944 accessed on 20th June, 2018. 43 See section 13 of the recall of MPs Act, 2015. 44 E M, Elizabeth, Op.cit, p. 638. 45 See Garfa v Govt. of Kwara State (2007)4 NWLR (pt. 1024)375. 128 | P a g e

Recall Process under the Constitute of Federal Republic of Nigeria: M.I Anushiem, Esq & Victor A Critique Obinna Chukwuma, Esq has also held in a number of cases that it will distance itself from political issues save for exceptional cases46.

Perhaps, the reason for the omission is to prevent the judicialization of politics or the politicisation of the judiciary. Little wonder, therefore in the recent case of Senator Dino Melaye V. INEC47 the court of Appeal dismissed all the claims and applications of the senator for an order of stay of execution as ‘grossly lacking in merit’, and held that the proper thing the Federal High Court should have done when it received the suit of the appellant was to strike same out without delay. This decision sets the precedent that the rushing to courts by senators to challenge a petition for recall is a futile attempt which is only targeted at achieving an unnecessary delay. However, it is not safe to conclude that section 69 of the Constitution has condemned the court to a lame dog even in the face of gross irregularity and injustice tainting the recall process. It is settled law that in interpreting a constitutional provision, the Court should adopt a broad approach to the process.48

Therefore, it is apposite to read section 69 together with section 251 (1) (r) of the Constitution which provides that notwithstanding anything contained in the Constitution including section 69, the Federal High Court shall have the exclusive jurisdiction to hear any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies. INEC is an agency of the Federal Government49 and it is no doubt that the conduct of the recall process falls within the meaning of ‘executive or administrative action or decision’ given that it ‘relates to the effectuation of the orders or plans or policies of the agency’.50

However, what is in doubt now is at what stage of the recall process this jurisdiction can be invoked. The law is clear that the plaintiff’s claim determines whether or not the court has jurisdiction to hear a matter and for a claim to confer jurisdiction on the court, it must disclose a reasonable cause of action.51 The researchers are of the opinion that the jurisdiction of the Court can be invoked at any stage of the recall process where irregularity or illegality is noticed or where there is non-compliance with the constitutional procedural prescription.

6.1 Invoking the Jurisdiction at the Early Stage of the Recall Process. This has been the idea usually followed by the senators whenever, a recall move is taken against them. However, the courts have held in such instances that it does not have jurisdiction to hear the suit as no reasonable cause of action is disclosed against INEC.52

46 Tazoor v Loraer (2016)3 NWLR (pt. 1500) 463 at 529. 47 CA/A/299/M/2018. 48 Rafiu v State (1980) 8- 11 SC 130 at 139. 49 Salim v CPC (2013) 1-2 SC. 50 Oladipo v NCSB (2009) 12 NWLR (PT 1156) 563. 51 Kwara State v Warrah (1995) 7 NWLR pt. 405. 52 Njoku v Goodluck Jonathan (2015) LPELR- 24496(CA). 129 | P a g e

Recall Process under the Constitute of Federal Republic of Nigeria: M.I Anushiem, Esq & Victor A Critique Obinna Chukwuma, Esq

6.2 Invoking the Jurisdiction at the closing stage of the Recall It is clear that section 69 of the Constitution does not provide for judicial review or right of appeal in the recall process. However, we must not lose sight of the fact that section 68 (h) mentions a ‘certificate of compliance’. This suggests that the constitutional guideline for the recall must be duly followed. As a matter of utmost importance, for instance, the Supreme Court has held that although it will distance itself from the internal affairs of a political party as it relates to primaries, it will intervene where the guideline was not followed in the conduct of the election53 Apart from strict compliance with the procedure for recall, it is submitted that where there is evidence of compromise on the part of INEC, such as where the verification exercise or the referendum itself is marred by irregularities (e.g announcement of wrong results), the court will have jurisdiction to entertain a suit against INEC in that regard.

7. Issues Arising: A Case Study of Dino Melaye V. Inec54 The attempts to recall Dino Melaye is the most recent recall attempt in Nigeria. The recall attempt failed due to failure to meet the signature verification requirement. During the period of the recall attempt, the senator was seen running from one court to another asking the courts to suspend the recall exercise. At the Federal High Court,55 some issues arose which shall be briefly discussed below:56

7.1 The Duty of the Petitioners in Relation to the Recall One of the issues that came up in court was whether the petitioners have a duty to serve the senator with copies of the petition. The Court held that the duty of the petitioners is simply to submit a petition backed by appropriate signatories to the electoral body. The Court further held that the petitioners do not have any such duty to serve the senator with copies of the petition.

7.2 Hearing the Petitioner before the Recall Process can Continue. The Court also addressed the question whether INEC was duty bound to hear the senator before issuing the guidelines for the recall. The court held that no such duty existed. It held that if there is a dispute requiring some hearing, it is a dispute between the legislators and electorates who alone must be the unfettered judges of their performance; and that the dispute will be resolved in the ballot paper during the recall referendum.

7.3 Duty of INEC to Serve the Legislator with Copies of the Recall Petition The Constitution does not expressly impose on INEC any duty to serve the senator with the copies of the recall petition. However, the Court held that such duty was necessary as it accords with the principles of good administration and of natural justice, which even if not explicitly stated in the Constitution, must form part of those constitutional traditions that are common to and must govern modern societies, especially democratic societies.

53 See for instance, Court of Appeal in Dino Melaye v INEC, Supra. 54 Supra 55 Dino Melaye v INEC, Supra. 56 Dino Melaye v INEC, Supra. 130 | P a g e

Recall Process under the Constitute of Federal Republic of Nigeria: M.I Anushiem, Esq & Victor A Critique Obinna Chukwuma, Esq

7.4 When an Agreed Legislator can Approach the Court Although the Court dismissed the suit of the senator which was brought at the early stage of the recall as “hasty, premature and presumptions”, it held that the senator must go into the verification exercise and it is only when he does not get justice that he can come to court. The import of this decision is that where the guideline was not followed in the conduct of the verification of the signatures, the senator will have a right of action against INEC and/or any person or persons through whom the irregularity occurred.

7.5 Impact of Litigation on the 90 days Constitutional Limit The court frowned at the application of the senator asking the court to hold that the 90 days required by law for the conduct of the recall has elapsed by effluxion of time. It held that the constitutional period is not affected by the time spent in court.

8. Conclusion This Article clearly justifies the machinery of recall as a means of ensuring legislative accountability. The absence of a recall provision denies the electorates of the power to curtail legislative excesses. Luckily though for Nigeria, sections 69 & 110 of the 1999 Constitution guarantee the right to recall an erring legislator. Therefore, the country has experienced several recall attempts the recent of which is the failed attempt to recall Senator Dino Melaye. However, this article underscored the fact that none of the recall attempts were successful due to a number of factors, the chief of which are political interference and high signature requirement, etc. Worst still, a further critical examination of the recall provision under our law revealed certain loopholes which, except where urgent legislative or judicial attention is given, will contribute a great deal of confusion, abuse and frustration of the recall process. For instance, the recall provision does not clearly spell out what conduct that may inform a loss of confidence in a legislator. This obviously creates room for recall frenzy. Also, probably intending to prevent recall abuse, but obviously complicating the recall process, the Constitution prescribes a high minimum signature requirement followed by a verification exercise before referendum can be held. The omission to provide for a judicial review of the recall is a major loophole in the constitution as INEC is thereby presumed infallible. A combined reading of sections 69 and 68 (h) of the Constitution introduces confusion as whether a review authority is vested in the legislature itself. Only judicial interpretation can solve this issue. This article also submitted that the Federal High Court has the jurisdiction to entertain actions against INEC where on the part of the latter; there is evidence of bias or violation of the guideline in the conduct of the recall. The article concluded by considering some of the pivotal issues affecting recall which were raised in the case of Dino Melaye. These issues as resolved are not contained in any law but are judicial pronouncements that can shape legal minds ahead of future recall cases.

9. Recommendations A brief consideration of the recall attempts in Nigeria revealed certain bottlenecks which, if unattended to, will constitute a continuous setback to the exercise of the right to recall. More also, a further critical examination of section 69 of the Constitution also showed clearly that something urgent needs to be done in order to ensure a successful invocation of the recall provision in the future. Sequel to this, the following recommendations are necessary:

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Recall Process under the Constitute of Federal Republic of Nigeria: M.I Anushiem, Esq & Victor A Critique Obinna Chukwuma, Esq

9.1 There is great need for the electorates to be sensitized on the mechanisms for a recall through all possible means including the media.

9.2 There is a great duty on the INEC officials to carry out their functions without any iota of fear or favour. This can be achieved through a selective appointment of the officials that will conduct the recall exercise.

9.3 The omission of a judicial review or appeal of the conduct of the recall by the Constitution is an indirect constitutional admission that INEC is infallible. It contradicts the spirit of natural justice. Therefore, the researchers recommend that the Constitution should be amended to provide for a right of appeal and judicial review of the conduct of the recall.

9.4 The minimum percentage of signature requirement under the Constitution is too high and certainly constitutes a major barrier to a successful recall process in Nigeria. Therefore, there is need for the percentage to be reduced so as to reflect international best practice which obtain in developed countries.

9.5 Unlike some developed countries, Nigerian Constitution is silent on what conduct that may warrant a ‘loss of confidence’ in a legislator. This may lead to abuse of the recall provision. Therefore, the Constitution should be amended to contain not just the requirement of a reason to back the petition but it should clearly itemize all such grounds that may inform loss of confidence in a legislator. This will reduce recall abuse and harassment of legislators.

9.6 An urgent judicial interpretation of section 68 (h) of the Constitution is needed to ascertain whether or not the mandate to review the recall process is thereby vested on the legislature. This will help avoid future crisis that may arise between the legislature and INEC which may lead to prolonged court cases and frustration of the recall process.

9.7 In order to prevent the abuse of recall by unscrupulous citizens and politicians, a penal provision should be provided for a recall petition that is based on false allegation, malice and other political factors. This will make the petitioners to err on the path of caution while agitating for the removal of a legislator.

9.8 Lawyers are advised against the use of delay tactics where the interest of the society is at stake. Also, it is submitted that lawyers should shape their minds in line with the rulings of His Lordship, Nnamdi Dimgba in Dino Melaye V. INEC57 as it relates to future cases on recall.

57 Supra. 132 | P a g e