Meaning of recall
A recall is the power of voters to unseat a serving lawmaker before the person’s tenure is up. It shows that the sovereign power lies with the people and they have the right to recall their representatives, whether the representatives are legislators or high officials, if they fail to perform their functions in a proper manner.
According to Leacock, “the system means that all persons, who hold office must do so only as long as their tenure of office is sanctioned by the will of the people. At any time when a majority of the voters desire it, the office-holder is removed from his office.”
Prevalence of recall process in other climes
The system of recall is prevalent in some of the American states like Arkansas, Kikhoma, Montana, North Dakota, Oregon, Arizona, Louisiana, Nevada, California and Washington. In Washington, judges cannot be removed in this manner but in Oregon, even the judges themselves are recalled. In six states of America, both the judges and the officials can be recalled and in ten states, only officials can be recalled.
The system of recall is also seen in Communist China. In China, Deputies to the Local People’s Congress are elected by the people from the age of 18 years or above. The voters can recall the members of the Local People’s Congress at will. This system is not in practice in India and there is no mention of it in the Indian Constitution.
Advantages of the recall system
(1) Real control of the masses over the officials and representatives: The people can exercise their sovereign power only when they are given the right to recall their elected representatives, if they fail to perform their responsibilities in a proper manner. If the people are not given this right, they are apt to act arbitrarily and they will have no control whatsoever over their elected representatives.
(2) An important method to end bribery and corruption: The officials will not indulge in corrupt practices because of the fear of recall.
(3) This system is a symbol of direct democracy: Recall is the best system of the preservation of direct democracy. If the people have no control over their elected representatives or officials, democracy will become meaningless and the representatives and the officials will act arbitrarily.
(4) A good method to root out political corruption: In democracy, it is observed that public office holders become corrupt and favour their relatives and friends. But for fear of recall, they will hesitate to engage in cronyism, nepotism and tribalism. Ministers usually indulge in corrupt practices because the people have no control over them.
Disadvantages of the recall system
(1) There is possibility of a wrong judgment:
In the system of recall, there is possibility of a big leader, indulging in creating a misunderstanding among the people against any official, with whom the leader is not in good terms. Mostly, the people are not aware of the diplomatic tactics of the political leaders, and sometimes wrong decisions are given against honest and sincere officials. This appears to be the Senator Dino Melaye’s case that is currently playing out in Kogi State.
(2) The whole atmosphere is polluted by the recall of the officers and the representatives:
When an official or a representative is recalled, charges are leveled against him. Such an official in turn levels counter-charges against his complainants. With charges and counter-charges, the entire atmosphere is poisoned. Kogi State in focus.
(3) Independence of the officers is curtailed: Because of the fear of charges and counter-charges, some intelligent, able and honest persons hesitate to accept high positions. This is harmful for the administration. Because of the fear of recall, officers do not take decisions that may displease political leaders. Where they do, they face severe criticism and adverse propaganda. Thus, such officers invariably flatter political leaders. This curtails their freedom of action.
(4) Serious consequences may occur if the judges are recalled: The system of recall of judges destroys the liberty of the judiciary, as judges are not be able to take decisions independently and fearlessly for fear of being recalled.
(5) Independence of judgment of the Representatives is lost: Because of the fear of recall, representatives do not take unpopular, but right decision. This mars their independence.
The Nigerian situation
The world now appears to be making good use of direct democracy to throw out political dictators, and incompetent politicians out of office, as it enables the electorate to hold politicians accountable for their actions. The story is, however, different in Nigeria. Although there is a constitutional provision for recall in Nigerian politics, there is absence of full-blown direct democracy (initiative and referendum provision). Worse still, the recall process has never been effective in Nigeria, despite the horde of corrupt politicians (presidents, governors, legislators and councilors) that are stealing and mismanaging the resources of the country. If Nigerians were politically mature and educated, and if the society had strong political institutions, our political prostitutes, who are forever shifting like quicksand from one party to another, could have been recalled by their constituents. Those who have bastardised Nigeria do not deserve to remain in power; but Nigeria’s dysfunctional institutions make social change difficult, nay impossible. The Nigerian electorate should control its voting process. I call this “Peoplecracy”. We should practise democracy which is government of the people and for the people (Abraham Lincoln) in his 1863 Gettysbury address).
The above stated disadvantages of the recall process appear to be playing out in the present stalled recall process of the Kogi West Senator, Dino Melaye.
Baron de Montesqueu (1748), rightly theorised that, there are checks and balances and broad separation of powers under the Constitution. Each organ of government, i.e. the legislature, executive and judiciary must respect the others and not encroach into one another’s domain.
A constitution defines and limits the powers of the government it creates. It follows, therefore, as the night, the day, that no government exercises any power not authorised by the constitution. Such is an assumed power and, therefore, illegal. As the people of Kogi West Senatorial district geared up towards recalling of Melaye, strenuous power tussle between the different arms of government played out. The Independent National Electoral Commission (INEC), as an arm of the executive, initially was adamant in not obeying the clear Federal High Court injunctive exparte order, secured by me, for maintaining the status quo. However, the 1999 Constitution, as altered, strict senso, involves the three arms of government in the recall process: the executive (INEC), the legislature, (NASS), and the judiciary. This was the argument of the Deputy Senate President, Senator Ike Ekweremadu, that the legislators have a role to play in the recall of their members. Ekweremadu and other lawmakers rightly maintained that the fate of Melaye would ultimately be determined in the Senate, as stipulated by Section 68(1)(h) and (2) of the Constitution of the FRN, 1999 (as altered).
Senator Ekweremadu, had faulted the arguments contained in an advertorial sponsored by Kogi State government on the subject matter, a step that unmasked its deep involvement in the recall saga. The advertorial had argued that the Senate had no role to play in Melaye’s recall process.
It maintained that “by the provisions of the INEC regulations for the recall of a legislator, a legislator stands recalled upon INEC’s confirmation of a majority vote in favour of the recall.” Not quite so. The Senate is not only deeply involved, it actually has the final say.
“Section 68(1h) reads: “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 the INEC, stating that the provisions of Section 69 of this constitution have been complied with, in respect of the recall of that member,
Section 68 (2), however, provides: “The Senate President or the Speaker of the House of Representatives, as the case may be, shall give effect to the provisions of subsection (1) of this section, so however that the Senate President, or the Speaker of the House of Representatives or a member, shall first present evidence satisfactory to the House concerned that any of the provisions of that subsection has become applicable in respect of that member.”
Senate president intervenes
Senate President, Dr. Bukola Saraki, presiding, over the issue, said the position of the Kogi State AG confirmed that the recall bid was being orchestrated by the state government.
He also expressed serious reservations at the argument of the Kogi State Attorney-General, arguing that:
“There is a need for people appointed or elected to positions to show some level of responsibility. This is a very simple matter in the constitution. You did not write it, neither did you invent it. The Deputy President of the Senate only read it, as it is. As you said, it is very unfortunate for the people of Kogi State.”
I respectfully agree with the arguments of Senator Ekweremadu. Section 68(2) of the Constitution of the Federal Republic of Nigeria, 1999 as altered, clearly states that it is the Senate President that shall give effect to Section 69 of the Constitution.
Thought for the week
“Our lives begin to end the day we become silent about things that matter”. –Martin Luther King Jnr.
Legal issues surrounding the president’s prolonged absence
Position of the federal civil service rules
Is President Buhari precluded from staying abroad on prolonged medical grounds, as he has so far done?
Let us see what the Federal Civil Service Rules state, since PMB is a public officer.
Rule 100101, FCSR, defines leave as the authorised absence of an officer from duty for specific period. The rule identifies the following types of leave: Annual Leave – absence of an officer from duty for 30 days for senior officers; 21 days for junior officers; 14 days for officers below grade level 03.
There are different recognised types of leave. Perhaps, the ones relevant to this discourse are “sick leave” and “leave on permanent invalidation”, which is granted to an officer found medically unfit to continue in service.
Rule 100237, FCSR, provides that the spouses of the president, vice president, governors, deputy governors, who are public servants are required to apply to the Head of the Civil Service of the Federation for leave of absence on grounds of public policy to join their spouses during their tenure of office.
Rule 100240 states that any officer, who, without an acceptable excuse, fails to resume duty on the approved date will be regarded as absent without leave and without pay.
It is clear that these provisions of the FCSR do not apply to PMB in any way howsoever.
Let us, therefore, x-ray the provisions of the constitution.
Constitutional position relating to president’s prolonged medical absence
There is no specific provisions under the constitution, which allow for the impeachment of the president for spending any particular length or period of time outside his duty post. There is absolutely nothing in Sections 143-147, which in any way, provides for impeachment of the president on account of his prolonged absence from his duties. However, the Federal Executive Council, which consists of the body of ministers appointed by the president himself, which could have removed PMB from office, will clearly NEVER pass any resolution to the effect that the president has become incapacitated, to the extent of not being able to perform the duties of his office. Who born monkey? Infra digni tatem!
The only route open to the president’s removal from office the way things presently stand, is through his own voluntary resignation from office, in keeping up with his own posture of being a man of honour and integrity, as he can no longer perform the functions of his office. His present place of abode, London, is neither Abuja, nor is his yet undisclosed hospital, the president’s office, where he was elected to function from.
I wish PMB quick recovery, body and soul, to repossess his legendary military vitality and alacrity and the much desired capacity to tackle Nigeria’s myriads of problems. AMEN.