Power of the People: The Recall Process
This article by learned Senior Advocate, Mike Ozekhome, examines the pros and cons of the 'Recall Process', that is, the power of the people to unseat a serving law maker before the end of his or her tenure, emphasising on it in terms of the Nigerian cont
Arecall, 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 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) Important method to end Bribery and Corruption:
The officials will not indulge in corrupt practices, because of the fear of recall. (3) 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) Good method to curb Political Corruption: In democracy, it is observed that public office holders become corrupt, and they 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) Possibility of wrong judgement: 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 on good terms. Mostly, the people are not aware of the diplomatic tactics of the political leaders, and sometimes wrong decisions are made against honest and sincere officials. This appears to be the Senator Dino Melaye case, that is currently playing out in Kogi State.
(2) Pollution of the atmosphere by recall of Officers and the Representatives:
When an official or a representative is recalled, charges are levelled against him. Such an official, in turn, levels counter-charges against his complainants. With charges and countercharges, the entire atmosphere is poisoned. Kogi State in focus. (3) Independence of the Officers is Curtailed: Because of the fear of charges and countercharges, 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 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 Judgement of the Representatives is lost:
Because of the fear of recall, representatives do not take unpopular, but right decisions. 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 Councillors), 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 quick sand 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 practice 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. organ of government, i.e. the Legislature, Executive and the Judiciary, must respect the others, and not encroach onto each other'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 the recalling of Melaye, a 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 amended).
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 has 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, confirms 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 Senate President, 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 amended, clearly states that it is the Senate President that shall give effect to Section 69 of the Constitution. But, in doing this, he must first present “satisfactory evidence” to the House, that any of the provisions of the subsection has become applicable in respect of the member to be recalled. This is after receiving a certificate from INEC that Section 69 has been duly complied with.
It follows therefore, as a condition precedent to giving effect to INEC’s certificate, that section 69 has been complied with, that, the members of the Senate, must first be satisfied with the whole procedure, before the process for recall, can be said to be completed. It is not just the Senate President, or Speaker of the House of Representatives that can raise this issue of “satisfactory evidence”, but any member of both Houses. And some people are still saying the Senate has no role to play? I am always amused as to how people can allow sheer political expediency and partisanship, becloud their true and honest sense of judgement. Nigeria, we hail thee.
Chief Mike Ozekhome, SAN, OFR, FCIArb, LL.D, Constitutional Lawyer and Human Rights Activist
"IT FOLLOWS THEREFORE, AS A CONDITION PRECEDENT TO GIVING EFFECT TO INEC’S CERTIFICATE, THAT SECTION 69 HAS BEEN COMPLIED WITH, THAT, THE MEMBERS OF THE SENATE, MUST FIRST BE SATISFIED WITH THE WHOLE PROCEDURE, BEFORE THE PROCESS FOR RECALL, CAN BE SAID TO BE COMPLETED"