Voters’ Power TO Recall Elected Officials: How it Works In Nigeria And United States of America

by Muhammad Ahmad Isa

ABSTRACT
People are the source of political power. The purpose of establishing a government is to protect the interest of the people. Whenever therefore the government fails to protect the interests of the people, the people have the right to take away this trust and form a new government. This idea makes the modern constitution of nations to provide a peaceful means of changing an elected official before the period of the general election which is known as a ‘recall’.

The essay attempts to educate Nigerians who are not well aware of the power given to them by their constitution, to recall their elected officials (particularly the legislators). In doing so, this essay have studied the recall processes in Nigeria and the United States. The study have shown that in Nigeria, few attempts to recall some legislators were made but none was successful.

Whilst in the United States despite the variation of the recall processes from one state to another, many state officials were successfully recalled. The reasons can be twofold; first, the people of the United States are more aware of the recall provisions than the people of the Federal Republic of Nigeria. Secondly, the recall process in Nigeria is more rigid than that of United States. Hence, the essay have made some recommendations.
Keyword: RECALL, VOTERS, POWER, ELECTED OFFICIALS

Introduction
1. Man is a social animal. He lives in society never in isolation. He is not only rational but also gregarious. The existence of leadership is of necessity for the purpose of man’s interaction. For the leadership to be effective, the leaders must have the people’s mandate. The acquisition of the people’s mandate is through a social contract.

Origin and justification for it were found in the theories of natural law and especially John Locke’s theory of ‘the social contract’. He believed that the source of political power was derived from the people and not from above. In the pre-political society there were no laws, rulers or government. However, as a result of transgression of rights by some of the citizens of that society it become convenient to establish a government to which everyone consented for the purpose of minimizing such strife.

These philosophers believed that the state came into being with the sole aim of protecting and enforcing these natural rights through a mechanism of civil society. Whenever therefore the state fails to protect these natural rights of the individual, the people in the civil society have the right to take away this trust and form a new government through popular revolution.

For example, it is the impact and effectiveness of this theory that led to the struggles against the political absolutism in England in the late 18th and early 19th centuries which led to the Proclamation of MagnaCarta (215) and Bill of Rights (688). In America this revolt led to the American Declaration of Independence, and in France, it was the revolt that led to the Declaration of Man and the Citizen in 1789.

For the avoidance of chaos, the modern constitutions of countries have provided a legal as well as peaceful means of popular revolution for their peoples which is known as ‘recall’. Despite the importance of the recall provision in the constitutions of nations, people in a country like Nigeria are not well aware of the provision.

To this effect, this essay is geared toward elucidating the obscured recall provisions by studying the provisions of the Nigerian and United States Constitutions so as to make Nigerians understand the power given to them by their constitution and how the power can be useful to them.

Conceptual Clarification
Recall: Within this context, recall according to the Black’s Law Dictionary, is the removal of a public official from office by popular vote. Thus, recall election is an election in which voters decide whether to remove an elected official from office before the term ends.
Power: Power within this context is the legal right or authorization to act or not act; a person’s or organization’s ability to alter, by an act of will, the rights, duties, liabilities, or other legal relations either of that person or another.
Voter: A voter is someone who has the qualifications necessary for voting.
General Election: An election that occurs at a regular interval of time. – Also termed regular election.

2. Some Characters of the Nigerian and United States of American Constitutions
There are some constitutional characters which can be found in both Nigerian and United States of American Constitutions. For the sake of clarity, it is imperative to identify some of these characters that are more relevant to this fact in issue.

a. Social Contract Document: The constitutions of both countries are social contract documents. For example, the preamble to the Constitution of the Federal Republic of Nigeria 1999 provides:
We the people of the Federal Republic of Nigeria
Having firmly and solemnly resolve, to live in unity and harmony as one indivisible and indissoluble sovereign Nation under God, dedicated to the promotion of inter- African solidarity, world peace, international co-operation and understanding

And to provide for a constitution for the purpose of promoting the good government and welfare of all persons in our country, on the principles of freedom, equality and justice and for the purpose of consolidating the unity of our people
Do hereby make, enact and give to ourselves the following constitution.

The preamble to the 1787 Constitution of United States also provides:

We the people of the United States, in order to form a more perfect union, establish justice, ensure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessing of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

b. Democracy: Democracy is defined as ‘[a] situation or system in which everyone is equal and has the right to vote, make decisions etc.’ It is observed that….’Democracy seems to bestow an aura of legitimacy on modern political life: rules, laws, policies, and decisions appear justified when they are ‘democratic’…’.

In recognition of this, Section 14(1)-(2) of the CFRN 1999 provides:

14. (1) The Federal Republic of Nigeria shall be a state based on the principles of democracy and social justice.
    (2) It is hereby, accordingly, declared that:
    (a) Sovereignty belongs to the people of Nigeria from whom government through this Constitution derives all its powers and authority;
    (b) The security and welfare of the people shall be the primary purpose of all government: and
    (c) The participation by the people in their government shall be ensured in accordance with the provisions of this Constitution.

Similarly, Article IV section 2 of the United States Constitution provides that ‘[t]he Citizens of each State shall be entitled to all privileges and Immunities of Citizens in the Several States…’

c. Federalism: No definition of federalism that encompasses all forms of the concept. However, two definitions that encompass the forms of the concept of federalism adopted in Nigerian and United States Constitutions will be provided.
Lord Haldane in Attorney General for Common Wealth of Australia V. Colonial Sugar Refinery Co, was of the view that:

……The natural and literal interpretation of the word federal confines its appellation to cases in which states, while agreeing on a measure of delegation of powers to a common government, yet in the main continue to preserve their original constitution. The word could only be used loosely, to describe states which agree to delegate their powers with a view to entirely new constitutions even of the states themselves.

To Kehinde, generally, the concept of federalism relates to the division of power between a national government, and other regional or state governments, and sometimes, local governments. Such power may however be shared in various ways, sometimes with a stronger centre, or with a weaker centre which is often referred to as con-federalism.

To this effect, Section 2 of the CFRN 1999 provides:

2. (1) Nigeria is one indivisible and indissoluble sovereign state to be known by the name of the Federal Republic of Nigeria.
   (2) Nigeria shall be a Federation consisting of States and a Federal Capital Territory.

d. Presidential System: A presidential system is democratic system of government characterized by separation of powers and checks and balances between the executive and legislative branches. Under a presidential constitution, the people elect both the executive head and the members of the legislature. Thus, the authority to govern is given to both arms. The head of government is the official heading the executive branch and making the most important decisions in the country.

Section 130 of the CFRN 1999 provides that ‘[t]here shall be for the Federation a President. The President shall be the Head of State, the Chief Executive of the Federation and Commander-in-chief of the Armed Forces of the Federation.’ Similarly, Article II section 2 of the American Constitution provides that ‘[t]he President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several states…..’

Note need to be taking that despite the similarities between the Nigerian and the American Constitution, there exist some differences. Some of the differences were identified in Attorney General of Bendel State v. Attorney General of Federation & Ors (1982) 3 NCLR per Eso JSC that:

The Nigerian Constitution….. is made to suit the peculiarity of the Nigerian society – a multi- ethnic society living in a developing country. What obtains in the United States of America…… for that matter, which have different socio-economic and different political developments, does not necessarily obtain here.

In concurrence with this, Nnamani JSC added:

Although the United States Constitution is closest to ours, ours bear many distinct features which are peculiar to it. While our Constitution is contained in one document and covers the constitutions of all our constituent units, the United States has a Constitution for the Central Government and separate ones for the States.

4. Recall in Nigeria
   No doubt, elected officials are people’s representatives, and the tyranny of the people’s representatives is checked by periodical resort to the ballot box. The question that need to be answered is that whether or not, the tyranny of the people’s representatives can only be checked by periodical resort to the ballot box? Putting it in another language, must the voters who wish to change their elected officials for their inability to perform their manifest functions wait until their tenures expire?
   Surely the answer to this question will be negative. Voters can change their elected officials through recall election before their tenures expire. This is a constitutional right of the voters and not a privilege. In Nigeria, voters can change the members of the Senate or of the House Representatives or State House of Assembly or of an Area Council of the Federal Capital Territory through a recall. However, it should be noted that the Executive Arm of Government in Nigeria are not subject to recall but can be impeached by the Legislature when found guilty of a gross misconduct in the performance of the functions of their offices. Also, judicial officers in Nigeria can only be removed from office for their inability to discharge the functions of their offices or appointment (whether arising from infirmity of mind or of body) or for misconduct or contravention of the code of conduct.
   By virtue of sections 69 and 110 of the CFRN, and section 113 of the Electoral Act, 2022, a member of the Senate or of the House Representatives or State House of Assembly or of an Area Council of the Federal Capital Territory 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

(b) the petition is thereafter, in a referendum conducted by the Independent National Electoral Commission within ninety days of the date of the receipt of the petition, approved by a simple majority of the votes of the persons registered to vote in that member’s constituency.

The effect of subsection (a) above is that to give the recall petition a life, it shall be signed by more than 50% of the total registered voters in that members constituency. Putting it in another language, the petition shall be signed by at least 51% of the total registered voters in that member’s constituency.

It is however surprising that, since the beginning of the Fourth Republic, more than a decade ago, the provision on recall has not been invoked; there have been threats of it invocation. The first shot at recalling a lawmaker started in 2000 with George Okoye, a member representing Njikoka-2 Constituency in the House of Representatives.

After legal tussle between the lawmaker and INEC, the commission proceeded with the process but a low turnout of registered voters expected to ‘stamp the quit notice’ stalled it. Again, on August 27, 2005, the Speaker of Plateau State House of Assembly, Simon Lalong, survived the recall process initiated against him.

Ten out of the eleven wards in his local government voted against the referendum. There was also the case of Farouk Aliyu in 2006, then member representing Birnin-Kudu/Buji Federal Constituency of Jigawa in the House of Representatives. Like in the previous cases, less than the required voters turned up in the referendum.

The next in line was Umar Jibril, a member representing Lokoja/Kogi/Koton Karfe Federal Constituency, whose constituents had reportedly said they no longer want him as their representative. However, he was smeared in controversies as some of the constituents filed a counter-petition to INEC, alleging that their signatures were forged and as such they were not in support of the recall process as originally claimed.

Finally, the latest recall attempt was against Senator Dino David Melaye of Kogi West Senatorial District. A total of 189,870 signatories were on the petition, representing 54% of the 351,146 registered voters in the senatorial district which is comprised of seven local government areas including Lokaja, the state capital. However, based on the results announced by Professor Ukertor Gabriel Moti, the Declaration Officer for the exercise held in the senatorial district, only 18,742 of the 189,870 of the signatories to the petition for the Senator’s recall were verified by INEC. The verified signatories represents 5.34% of the 351,146 registered voters in the Senatorial district and has therefore not satisfied the requirement of the law for a referendum.

5. Recall in United States of America
   In United States, recall only applies to the state officers. Federal officers are not subject to recall. In relation to the federal legislators, the United States Constitution provides that each House may determine the Rules of it Proceedings, punish its Members for disorderly Behavior, and with the concurrence of two thirds, expel a Member. Furthermore, the President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of Treason, Bribery, or other high Crimes and Misdemeanors

For the recall of the state officers, the grounds for recall in the United States vary from one state to another. For example, in Alaska, the grounds for recall in the state are lack of fitness, incompetence, neglect of duties, or corruption. While in Minnesota, the grounds for recall of an officer other than judge in the state are serious malfeasance or nonfeasance during the term of office of a serious crime

Additionally, the state officials that are subject to recall vary from one state to another. For example, in Montana, any person holding a public office of the state or any of its political subdivision, either by election or appointment, is subject to recall from office. While in Nevada, based on a 2017 Nevada Supreme Court decision in Ramsey v. City of North Las Vegas, every public officer in the state can be recalled except the elected judges.

Furthermore, recall procedures in the United States are less rigid if to be compared with that of Nigeria. For example, Article VIII section 6 of the Minnesotan Constitution states:

…….A petition for recall must set forth the specific conduct that may warrant recall. A petition may not be issued until the Supreme Court has determined that the facts alleged in the petition are true and are sufficient grounds for issuing a recall petition. A petition must be signed by a number of eligible voters who reside in the district where the officer serves and who number not less than 25 percent of the number of votes cast for the office at the most recent general election.

Upon a determination by the secretary of state that a petition has been signed by at least the minimum number of eligible voters, a recall election must be conducted in the manner provided by law. A recall election may not occur less than six months before the end of the officer’s term. An officer who is removed from office by a recall election or who resigns from office after a petition for recall issues may not be appointed to fill the vacancy that is created.

There have been many attempts to recall governors throughout U.S. history, but only four have gathered enough petition signatures to trigger recall elections. In 2021, California Governor Gavin Newsom survived a recall election. In 2012, Wisconsin Governor Scott Walker survived a recall election.

In 2003, California voters successfully recalled Governor Gray David, and in North Dakota in 1921, voters successfully recalled not only Governor Lynn J. Frazier, but also the attorney general and the commissioner of agriculture. In 1998, Arizona voters submitted enough signature to trigger a recall election for Governor Evan Mecham but he was impeached by the state’s house of representatives before the scheduled recall election.

Recall efforts against state legislators are more common, but still unusual. Recall attempts against legislators have gathered enough signatures to trigger an election just 39 times. Eleven of these occurred in a single year, 2011. Forty five percent of all legislative recall elections that have ever occurred were held between 2011 and 2013. However, only eight of those 17 elections succeeded in unseating a legislator. Overall, 55 % of legislative recall elections have succeeded in unseating a legislator.

Additionally, two legislators resigned after petitions with sufficient signatures to force recall election against them were submitted. Many more recall efforts are started and never make it to the election stage; either they are abandoned by their sponsors, or they fail to gather enough valid petition signatures to trigger an election.

For example, in 2019 in Colorado, a petition to recall Representative Rochelle Galindo was approved for circulation, but Galindo resigned from office before the petitions were turned in. Because she resigned, a recall election was not held and a vacancy committee from Galindo’s party selected her successor.

The following is a list of every recall election of a state legislator throughout U.S history. The fact that these elections occurred means that, in each of the following cases, enough signatures were gathered on petitions to trigger a recall election. Officials on this list who “survived recall election” are people who were not voted out of office in the subsequent recall election. Officials who were “successfully recalled” on this list are people who were voted out of office in that election.

. 1913 – California State Senator Marshall Black: successfully recalled.
. 1914 – California State Senator Edwin Grant: successfully recalled.
. 1914 – California State Senator James Owens: survived recall election.
. 1932 – Wisconsin State Senator Otto Mueller: survived recall election.
. 1935 – Oregon State Representative Harry Merriam: successfully recalled.
. 1971 – Idaho State Senator Fisher Ellsworth: successfully recalled.
. 1971 – Idaho State Representative Aden Hyde: successfully recalled.
. 1981 – Washington State Senator Peter Von Reichbauer: successfully recalled.
. 1983 – Michigan State Senator Phil Mastin: successfully recalled.
. 1983 – Michigan State Senator Serotkin: successfully recalled. (Technically he resigned from office before the results of the recall election were certified, but the results were sufficient to recall him.)
. 1985 – Oregon State Representatives Pat Gillis: successfully recalled.
. 1988 – Oregon State Senator Bill Olso: successfully recalled.
. 1990 – Wisconsin Assembly member Jim Holperin: survived recalled.
. 1994 – California State Senator Devid Reberti: survived recall election.
. 1995 – California Assembly member Paul Horcher: Successfully recalled.
. 1995 – California Assembly member Michael Machado: survived recall election.
. 1995 – Assembly member Doris Allen: successfully recalled.
. 1996 – Wisconsin State Senator George Petak: successfully recalled.
. 2003 – Wisconsin State Senator Gary George: successfully recalled.
. 2008 – California State Senator Jeff Denham: survived recall election.
. 2008 – Michigan House Speaker Andy Dillon: survived recall election.
. 2011 –Wisconsin State SenatorS Robert Cawles, Alberta darling, Dave Hansen, Shella Harsdorf JiM Holperin, Luther Olsen and Robert Wirch: survived recall electionS.
. 2011 – Wisconsin State SenatorS Randy Hopper and Dan Kapanke: successfully recalled.
. 2011 – Arizona Senate President Russell Pearce: successfully recalled.
. 2011 – Michigan State Repretentative Paul Scott: Successfully recalled.
. 2012 – Wisconsin State Senators Van Wanggaard and Palm Galloway: successfully recalled. (Senator Pam Galloway resigned earlier in the year when enough signatures were gathered to trigger a recall election against her. Even though her name wasn’t on the ballot, a recall election was still held for her seat.)
. 2012 – Wisconsin Senate Republican leader Scott Fitzgerald and Senator Terry Moulton: survived recalled elections.
. 2013 – Colorado Senate President John Morse and Senator Angela Giron: successfully recalled.
. 2018 – California State Senator Josh Newman: successfully recalled.

6. Conclusion/Recommendations
   Recall is the constitutional power of voters which is exercisable beyond the period of the general election. Voters exercise this power when elected official is guilty of a breach which goes to the very root of the social contract. This recall power given to the voters serves as a limitation to the powers of the elected officials. Borrowing the words of Nwabueze, a constitution as a Supreme law which mere grants power in all its plenitude without limitations of any kind hardly merits to be so called.
   However, while the recall procedure in the United States is less rigid, the procedure in Nigeria is rigid; a recall petition must be signed by more than one-half of the persons registered to vote in that member’s constituency, and it must further approved by a simple majority of the votes of the persons registered to vote in that member’s constituency.
   Hence, it is recommended that the provisions of the Constitution and the Electrical Act that relate to recall procedure in Nigeria should be amended. The requirement of the signatures for a recall petition should be more than one-half of the number of votes cast for the office at the most recent general election. And the petition should be approved by more than one-half of the number of votes cast for the office at the most recent general election.
   Finally, the executives should also be subjected to recall since the authority to govern is given to them by the people.