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THE ‘NOT TOO YOUNG TO RUN ACT’: It is not yet Uhuru for the Nigerian youth

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THE ‘NOT TOO YOUNG TO RUN ACT’: It is not yet Uhuru for the Nigerian youth

By Prince Singa Edward Zhattau…

The President whetted the appetite of Nigerian youths when he stated in his latest Democracy Day speech that: “In few days to come, I will be joined by many promising young Nigerians to sign into law the “Not Too Young to Run” Bill.” And on the 31 May, 2018, President Buhari fulfilled his promise by assenting to the “Not Too Young to Run Bill” thereby conferring the bill with the status of an Act. Nigerian youths went boisterous on the social media to celebrate what they viewed as an expansion of the electoral space to cover the young population of the country which, albeit is in the majority, it has more often than not been excluded from political governance. The current author, besides sharing in that supposed triumph, felt particularly delighted by the fact that two (Samson Itodo and Cynthia Mbalamu) out of the “promising young Nigerians” who flanked the President on that auspicious occasion were colleagues of the author back then in the Faculty of Law, University of Jos, who would later be called as members of the distinguished Nigerian Bar in 2012. On this evidence, one can see that the author’s joy was not due to the presidential assent per se, but much had to do with his selfish delight of belonging to a generation that was beginning to attract the right national and presidential reckoning.

The sponsors of the bill had pushed for the reduction in the age qualification for the offices of the President and Governor, and the membership of both the National Assembly – Senate and House of Representatives, and the State House of Assembly. The National Assembly did tweak the age qualification for all the offices except for the office of the Governor and membership of the Senate. For the avoidance doubt, the Act has succeeded in supposedly amending the following constitutional provisions: section 106 (b) of the 1999 Constitution in which the minimum age qualification for contesting into the State House of Assembly has been reduced from 30 to 25 years; section 65(b) of the Constitution by pegging the minimum age qualification at 25years as against the 30 years provided therein; and section 131 (b) of the Constitution, in which the minimum age qualification to contest for the Office of the President has been reduced from 40 to 35 years. While the “Not Too Young to Run” Act has reduced the minimum age qualification for the various political offices as provided for in the 1999 Constitution, those required age qualifications still prominently feature as provisions of the 1999 Constitution. There is, therefore, that obvious inconsistency or contradiction between the “Not Too Young to Run” Act on the one hand and the 1999 Constitution (as amended) on the other.

As Nigerian youths celebrate, so also, a million dollar question beckons: Can a mere Act of the National Assembly amend or alter any provision of the 1999 Constitution?
In Nigeria, the 1999 Constitution (as amended) is the supreme law of the land. No any other Act or Law can take precedence over the 1999 Constitution or any of its provisions. Section 1 the Constitution is very clear:

S. 1 (1) This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.
In appreciating the essence of the supremacy of our Constitution, the dictum of the erudite Niki Tobi JSC (as he then was) in A.G Abia State vs. A.G of the Federation cannot be over looked; the learned jurist espoused that:

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“The Constitution…is the beginning and the end of the legal system. In Greek language, it is the alpha and the omega. It is the barometer with which all statutes are measured. In line with the kingly position of the Constitution; all the tree arms of government are slaves of the Constitution; not in the sense of undergoing servitude or bondage, but in the sense of total obeisance and loyalty to it. This is in recognition of the supremacy of the Constitution over and above every statute, be it an Act of the National Assembly or a law of the House of Assembly of a State.”

The Principle of Inconsistency

By the principle of the supremacy of the Constitution, all other laws and the conduct of all persons and institutions are tested against the spirit and letters of the Constitution in order to determine their constitutionality thereof or otherwise. This has been re-echoed by Fabiyi J.S.C in PDP vs. CPC when he held that:

“The Constitution of Nigeria is the grundnorm, otherwise known as the basic norm from which all other laws of the society derive their validity. Each legal norm of the society derives its validity from the basic norm. Any other law that is in conflict with the provision of the Constitution must give way or abate.”

It entails that no law can be at variance with the Constitution let alone to negate the Constitution. Inconsistency to the Constitution can arise in two broad ways: (1) by action or inaction and (2) by legislation.

In the first instance, individuals or institutions in the exercise of the power legally conferred on them “to do or not to do” would usually exercise such powers ultra vires (beyond the legally accepted scope) of the Constitution. A classic example of this is the case of Dapianlong & Ors vs. Dariye & Anor (No.2) (2007) 8 NWLR (Pt. 1036) 332. In that case, the conduct of the appellant and 5 other of his colleagues as members of the Plateau State House of Assembly, whereby only the 6 of them out of the full 24 members of that House purportedly impeached the Plateau State Governor, Joshua Dariye was overturned by the court. The Supreme Court dismissed the appeal of the appellants and affirmed the decision of the Court of Appeal that the purported impeachment was done in utter disregard to the provisions of section 188 of the 1999 Constitution, and being inconsistent to the Constitution, the impeachment of the Governor was null and void. A host of other impeachment illegal impeachments such as those of Ladoja of Oyo, Fayose of Ekiti, Peter Obi of Anambra etc were all decided in similar fashions. In A.G Lagos vs. A.G Federation, the Supreme Court declared as unconstitutional the conduct of President Obasanjo of withholding the federal allocation meant for Lagos, as the President’s action was inconsistent with the provision of section 162 (3) of the 1999 Constitution.

In another breath, where in the course of legislating and the legislature enacted a law that is inconsistent with the Constitution, that law will be declared null and void to the extent of such inconsistency. In Inspector General of Police vs. ANPP, sections 1(2), (3), (4), (5), (6), 2, 3 and 4 of the Public Order Act enacted by the National Assembly which provided among other things that nobody can organize and stage public protests without seeking and obtaining licence from the Governor and conferring the Governor with the power of a final arbiter on matters arising thereof were held to be in violation of the constitutional provisions of sections 39 and 40 which guaranteed the right to peaceful assembly and association. In the light of the inconsistency, those affected sections of the Public Order Act were declared null and void by the Court of Appeal.
Having highlighted earlier the manifest inconsistency between the Constitution and the Not Too Young to Run Act in respect of the minimum age qualification to contest a given office, the Act is bound to go down the path of those pieces of legislation which had been held to negate or be at variance with the Constitution. That fate is simple: nullification!

It is interesting to note that a piece of legislation regarding a subject matter which already has been provided for in the Constitution, shall still make way for the Constitution even if such legislation were not overtly inconsistent with the Constitution. Where in the purported exercise of the legislative power of either the National Assembly or State House of Assembly and a law is enacted which the Constitution has adequately covered that subject matter, that Act of the National Assembly, or Law of a House of Assembly must abate or make way for the provision of the Constitution in that regard.
The implications of the Not Too Young To Run Act on the democratization processes in Nigeria.

When eventually put through the crucible of constitutionalism, the “Not Too Young to Run” Act cannot survive. In that light, the Act is a nonstarter, for it is a matter of when, and not if, the Act will be set aside. The implication for the youths is that an act which will eventually be deemed not to have existed will keep us excluded from the electoral process, at least, as it regards candidature. At best, we can vote but cannot be voted for. We must therefore postpone our jubilation and once again redeploy our resources in a continuous search for solutions to this debacle.

If a given political party gets lulled into a fool’s paradise by fielding a candidate whose age does not meet the age requirement provided for in the Constitution concerning a given office, even though such a candidate wins at the polls, the electoral victory of such ineligible candidate (albeit eligible under the Not Too Young to Run Act) can successfully be challenged at the Election Tribunal. More painfully though is the carousel effect this scenario will create which will include: the thwarting of the political will of the majority electorate; the unpleasant distraction to governance due to lingering litigation, not to talk of the likelihood of diverting state funds to cater for such cost intensive litigation.

That the cost of our election is just about the highest in the world is a non contentious fact. God forbid a scenario whereby all the candidates in a given election are ultimately adjudged to be ineligible as regards age to contest in the election. It will only result in conducting another election, and obviously, the nation can only stand the chance of incurring more cost.

The way out

The solution to removing the age barrier which has stifled the full inclusion and participation of the youths in the electoral and governance process overtime lies in the alteration of the relevant sections of the Constitution. The 1999 Constitution (as amended) is Supreme as we will have seen. In further affirmation of such supremacy, the only way the Constitution can be amended is provided for in the Constitution itself. Under section 9 of the Constitution, two methods of amending the 1999 Constitution can be elicited.

(i) Four Fifths Majority Requirement

This is the more tasking of the two methods. For an alteration under this head to be valid, it must be supported by not less than four-fifths of the majority of each chamber of the National Assembly: the Senate and the House of Representatives. In addition to being passed by the National Assembly, an alteration must at least be supported by the resolution of the House of Assembly of not less than two-thirds of the 36 states in Nigeria. Hence, the resolution to approve the alteration by the National Assembly must be supported by at least 24 State Houses of Assembly. And thereafter, the bill is forwarded to the President for assent. By the provision of section 9 (3) of the Constitution, the subject matter that are amended by this cumbersome process are alterations of the following provisions: section 9 itself, section 8 (which deals with provisions on creation of new state and Local Government Area, boundary adjustment of an existing state or Local Government Area) or Chapter IV (which deals with fundamental human rights). It is then that the bill is forwarded to the President for assent. Thank goodness that the “Not Too Young To Run Bill” does not fall under this head.

(ii) Two-Thirds Majority Requirement

All other amendments apart from the ones spelt out in the first procedure above fall under this head. For any alteration here to be valid, it must be passed by not less than two-thirds of the majority of each chamber of the National Assembly: Senate and House of Representatives. In addition to that, it must be approved by the resolution of the House of Assembly of not less than two-thirds of the current 36 states in Nigeria. Thus, the alteration by the National Assembly here must be supported by the House of Assembly resolution of at least 24 states. It is then that the bill can be forwarded to the President for assent.

One will find that the second procedure is not as cumbersome as the first; nevertheless, it is still a complex process. The “Not Too Young to Run Bill” will have to go through this procedure for it to assume the position of the law regarding the alterations it seeks to put in place.

Conclusion

Even though, we have not gotten what we need, we cannot help but commend the untiring efforts of the young men and women who have invested heavily in pushing to the front burner the youth agitation for an all inclusive electoral process. Nonetheless, it is only through the amendment of the Constitution that the yearnings and aspirations of the Nigerian youth to shatter the age barrier in Nigeria’s electoral system can truly be attained. The place of the Constitution in attaining the dream of the young people as encapsulated in the idea of “Not Too Young to Run” can hardly be disputed. The National Assembly cannot shatter the age barrier through a mere Act. Unlike in Britain where you have parliamentary supremacy, in Nigeria as it is in the United States, what you have constitutional supremacy. Without crossing this albatross, we will only be left chasing shadows. President Buhari who has proved adept at the art of humour, might be right after all, when he famously joked after assenting to the “Not Too Young to Run Bill” thus: “You can aspire for President but please postpone your campaign till after 2019 election.” Yes, I do not see the possibility of getting the “Not Too Young to Run Bill” through the appropriate channel before the next election, and painfully, the Nigerian youths will have to wait till after 2019 for an opportunity to flex their electoral muscle as candidates in elections. It is not yet uhuru!

 

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