Tempers seem to have cooled-off from the #ChildNotBride campaign, which might be because the “activists” have gone back to the drawing-board to re-strategise (as recommended), or they got tired/bored, or have gone back to their daily lives and would be back (shortly). Beside the issue of child marriage that was dug-up (albeit unwarrantedly) from the ongoing Constitution review, another issue that comes to mind is the manner in which legislators vote.
Legislators in this context refers to the individual lawmakers at all levels i.e. Senators, Members of the House of Representatives and State Houses of Assembly. This piece shall discuss the role of legislators and how they vote or should vote during the legislation process. Should they vote based on personal convictions? Morality? Religious beliefs? Popular/public opinion?
According to Bradley & Ewing, “Law is an instrument for exercising state power that in some circumstances is also a means of protecting the people against arbitrary or abusive government.” Although Aristotle famously notes that government by laws is superior to government by men, one must not forget that State laws are man-made; in the Nigerian context, these “men” are the legislators. Their primary duty is to make laws for the “peace, order and good government of the Federation.”
In Nigeria, our democracy is founded on the principle of popular sovereignty. Our Constitution begins with “We the people of the Federal Republic of Nigeria” and section 14(2)(a) of the Constitution enshrines this principle- that “sovereignty belongs to the people of Nigeria from whom government through this Constitution derives all its powers and authority.” For order and coherence, the people do not rule directly; instead, representatives are elected by the people, and as provided in Article 21(3) of the Universal Declaration on Human Rights (UDHR), the authority of government shall be based on the will of the people, which is expressed through periodic and genuine elections.
The National Assembly resounds this principle on its website, where it is stated that:
“In a democratic environment, power belongs to the people who in turn elect those who are to carry out the task of law-making on their behalf.”
With that in mind, how do Nigerian legislators vote/decide during the legislation process? Do/should they vote based on what their constituents desire? Or based on personal preferences/convictions? Religious/moral considerations? Public opinion? Political ideologies?
For the purpose of this discussion, let us assume that all the Nigerian legislators were duly elected into office, that no election was rigged or that the court has duly (and rightly) held that a legislator was duly elected by the people. On that premise, what are the reasons for electing a particular candidate? Is it political preferences? Religious/moral preferences? The person’s proven character, good judgment and skill? The person’s ability to represent the will of the people?
These questions are important because whoever is elected as a legislator is expected (in theory) to convey the will of the people through the ambit of legislation. A legislator is elected by the people, as their representative in Parliament. As such, before a legislator votes on a proposal, s/he has to remember that s/he is saddled with the arduous task of conveying the will of the people. It is expected that such representative should ponder when to vote “aye” or “nay”, or even abstain from the process based on the interests of his/her constituents- the people s/he represents – or for personal/religious/political/moral etc. reasons.
After all, as theorist like Edmund Burke suggest, a representative’s duty is not only to communicate the electorate’s wishes, but also to use his/her own judgment in the exercise of power notwithstanding that their view is not in consonance with the views of the majority of voters. According to T. Mohale:
“Although the notion of representing the will of the people has become the justification of modern state power, classical philosophy disputes the idea that people have a clear idea of what they want, and those who do have their own thoughts are seen as being unpopular and old fashioned.”
Abraham Lincoln’s government reflected the will of the people but he also knew when not to give into the will of the people, or when not to let the people have their way e.g. the situation with regard to slavery and ‘Free States’. Inasmuch as we detest ‘borrowing’ ideas from western democracies, this is an instance where we need to swallow our pride and learn a thing or two from Lincoln.
Before voting in favour of, or against a proposal or even abstaining, a legislator ought to go through a phase of multi-lemma – even if it is for a few seconds. From all indications, our legislators skip through this multi-lemma phase and simply utter ‘aye’ or ‘nay’ when a vote is called for. It is not uncommon to find our ‘distinguished’ and ‘honourable’ legislators sleeping during plenary sessions, that is if they even attend. It is also a known fact that not all legislators attend legislative sessions; they choose when it is ‘important’ or ‘necessary’. Also, unprecedented high numbers of legislators usually do not fail to attend parliamentary sittings when a matter that affects their self-interests is on the agenda. Even for the Constitution Review, not all Senators and Members of the House of Representatives were in attendance but I have no doubt that if the agenda for the day includes a bill on reducing legislators’ remuneration or prohibiting their travel outside Nigeria while serving as legislators, every legislator would be in attendance.
The climax in the legislative process for some legislators is the part where they get to shout “aye” or “nay”. Some legislators do not even stop to think before uttering either of those words, or abstaining from voting altogether. For example, Senator Akinyelure reportedly apologised for “voting in error” in support of child marriage, that there was a “misinterpretation of the vote” on his part. Firstly, it is disappointing to know that a Senator voted in error due to his own misinterpretation. Second, that he did not understand that section 29(4)(b) of the Constitution was on renunciation of citizenship and not minimum marriageable age, is a matter of serious (if not national) concern.
Although we must not take for granted the fact that not every section of the people can be pleased, and sometimes the will of the people may not be what is “best” for the nation, it goes without saying that if the legislature receives an outcry from what appears to be a good proportion of the people, they should take that outcry as a cue for them to reconsider their action.
As Obama once said, “A good compromise, a good piece of legislation, is like a good sentence; or a good piece of music. Everybody can recognise it. They say, ‘Huh. It works. It makes sense.’”
 A. Bradley and K.D. Ewing, Constitutional and Administrative Law (New York: Pearson Longman, 15th ed., 2011) 91.
 Aristotle, d’Eentrevesm The Notion of the State, 71.
 Section 4, Nigerian Constitution (CFRN).
 Preamble, CFRN.
 T. Mohale, ‘Does Parliamentary Democracy Automatically Represent the Will of the People?’ (2011) The Frantz Fanon Blog.
Abrams, Elliott (ed), Democracy: How Direct? Views from the Founding Era and the Polling Era (Washington DC: Ethics and Public Policy Centre, 2002).
Bradley, Anthony and Keith Ewing, Constitutional and Administrative Law (New York: Pearson Longman, 15th ed., 2011).
De Marneffe, Peter, ‘Popular Sovereignty and the Griswold Problematic’ (1994) 13(1) Law and Philosophy 97-112.
Locke’s Political Philosophy (2005) Stanford Encyclopedia of Philosophy [available at: http://plato.stanford.edu/entries/locke-political/] (accessed on 25 July 2013).
Mohale, Tebello, ‘Does Parliamentary Democracy Automatically Represent the Will of the People?’ (2011) The Frantz Fanon Blog [available at: http://thinkingafricarhodesuniversity.blogspot.co.uk/2011/10/does-parliamentary-democracy.html] (accessed on 25 July 2013).
Ornestein, Norman, ‘The Role of the Legislature in a Democracy’, Freedom Paper No.3 [available at: http://www.ait.org.tw/infousa/enus/media/pressfreedom/freedom3.htm] (accessed 25 July 2013).
Pitkin, Hanna F., The Concept of Representation (California; London: University of California Press, 1972).