The
cerebral Catholic Bishop of Sokoto and Public Intellectual, Rev. Father Matthew
Hassan Kukuah while addressing the opening of the Nigerian Barr Association
Annual General Conference in Abuja on the 27th August, 2012, had
opined that President Jonathan is the most powerful President in the world who
is vested with limitless and plenitude of powers to do the impossible including
the award of oil blocks to individuals that instantaneously turned a poor man into
a billionaire.
On
the other hand, President Jonathan while delivering the key address in the
Conference had said he is the most criticised President in the world and his
critics are not fair to him because he is not expected to use his last than two
years in office to transform the country and solve the myriad of momentous
problems grappling and confronting the country.
The
question is: Is it true that the President of Nigeria is the most powerful President
in the World? I shall answer the question in the affirmative. I agree with the
views canvassed by Rev. Father Kukuah that President Jonathan is the most
powerful President in the World. I shall even go a step further by suggesting
that President Jonathan is a Constitutional Dictator by virtue of the awesome,
expansive and extensive executive powers vested on him by the Constitution of
the Federal Republic of Nigeria.
The
term “constitutional dictatorship” is defined by Sanford Levinson and Jack M.
Balkin in an article in the Minnesota Law Review, Vol. 94, Page 1789 titled “Constitutional
Dictatorship: Its Dangers and its Designs”
thus:
“A constitutional dictatorship is a system (or
subsystem) of constitutional government that
bestows on a certain individual or institution the right to make binding
rules, directives, and decisions and apply them to concrete circumstances
unhindered by timely legal cheeks to their legal authority”.
Accordingly,
Section 5 subsection 1 (a) of the 1999 Constitution of the Federal Republic of
Nigeria (as amended) provides thus:
“Subject to the provisions of this Constitution, the
executive powers of the Federation-
(a) shall be vested in the President and may, subject as
aforesaid and to the provisions of any law made by the National Assembly, be
exercised by him either directly or through the Vice-President and Ministers of
the Government of the Federation or officers in the public service of the
Federation”.
Undoubtedly
the framers of the Constitution contemplate a powerful, magisterial and
imperial President vested with a plenitude of executive powers to be able to
hold and manage a country of the mosaic complexity of Nigeria with various
centripetal and centrifugal forces competing and contending with each other to
rend it. The framers of the Constitution decided to adopt a Presidential System
of Government with a ‘strong president’ at the helm of affairs endowed with
awesome powers to hold the country together; to rein schism tendencies inherent
in a heterogeneous society together and neutralize it.
This
is one of the reasons why the proponents of ‘Presidentialism’ at the 1978
Constituent Assembly that was constituted by the then Federal Military
Government of Murtala/Obasanjo in 1975 to deliberate on a New Constitution in order
to usher in the handover of power from the military to the civilian on the 1st
October, 1979, had their way. It was the
thinking among Delegates to the 1978 Constituent Assembly that the Parliamentary
System of Government that was the constitutional order in the country between
1960 - 1966 contributed to the political instability that dogged the First
Republic and led to its demise on the 15th January, 1966.
It
was this Constituent Assembly headed by the then foremost Lawyer in the Country,
Chief Fredrick Rotimi Williams (of blessed memory) that recommended the
adoption of a Constitution modelled after the American Presidential System that
the 1988 Constituent Assembly and the Justice Niki Tobi’s Panel on
Constitutional Review that produced the 1989 Constitution and the 1999
Constitution respectively subsequently adopted.
Although
the Constitution makes provision for the Separation of Powers between the 3
(Three) Organs of Government, the Executive, Legislature and Judiciary there
are instances where the ‘separation of powers’ is more in theory than practice.
The power of law making is vested in the National Assembly. Undoubtedly Section
4 (1) of the Constitution vests on the National Assembly the power to make laws
for the Peace, Order and Good Government of the Country. However, by Section 315 of the Constitution
the President is vested with the power of law making. It is necessary to
reproduce Section 315 subsection 1 of the Constitution thus:
“Subject to the provisions of this Constitution, an
existing law shall have effect with such modifications as may be necessary to
bring it into conformity with the provisions of this Constitution and shall be
deemed to be -
(a) an Act of the National Assembly to the extent that
it is a law with respect to any matter on which the National Assembly is
empowered by this Constitution to make laws; and
(b) a Law made by a House of Assembly to the extent that
it is a law with respect to any matter on which a House of Assembly is
empowered by this Constitution to make laws.
(2) The appropriate authority may at any time by order
make such modifications in the text of any existing law as the appropriate
authority considers necessary or expedient to bring that law into conformity
with the provisions of this Constitution.
(3) Nothing in this Constitution shall be construed as
affecting the power of a court of law or any tribunal established by law to
declare invalid any provision of an existing law on the ground of inconsistency
with the provision of any other law, that is to say-
(a)
any other existing law;
(b) a
law of a House of Assembly;
(c) an
Act of the National Assembly; or
(d)
any provision of this Constitution.
(4) In this section, the following expressions have the
meanings assigned to them, respectively-
(a)
"appropriate authority" means-
(i) the President, in relation to the provisions of any
law of the Federation;
(ii) the Governor
of a State, in relation to the provisions of any existing law deemed to be a
law made by the House of Assembly of that State; or
(iii) any person appointed by any law to revise or
rewrite the laws of the Federation or of a State;
(b) "existing law" means any law and includes
any rule of law or any enactment or instrument whatsoever which is in force
immediately before the date when this section comes into force or which, having
been passed or made before that date, comes into force after that date; and
(c) "modification" includes addition,
alteration, omission or repeal.
(5) Nothing in this Constitution shall invalidate the following
enactments, that is to say -
(a)
the National Youth Service Corps Act 1993;
(b)
the Public Complaints Commission Act;
(c) the National Security Agencies Act;
(d) the Land Use Act, and the provisions of
those enactments shall continue to apply and have full effect in accordance
with their tenor and to the like extent as any other provisions forming part of
this Constitution and shall not be altered or repealed except in accordance
with the provisions of section 9 (2) of this Constitution.
(6) Without prejudice to subsection (5) of this section,
the enactments mentioned in the said subsection shall hereafter continue to
have effect as Federal enactments and as if they related to matters included in
the Exclusive Legislative List set out in Part I of the Second Schedule to this
Constitution”.
From
the above, it goes without saying that the President is vested with the power
to make law, just like the National Assembly. Accordingly the President can
initiate in his own accord the amendment of any Statute or regulation or
legislation in order to bring it in conformity with the provisions of the
Constitution. It goes without saying that the President is vested with both
executive and legislative powers by the Constitution. One of the hallmarks of
dictatorship is when powers are concentrated in the hands of one single
individual. In this wise, executive and legislative powers are concentrated in
the President. By Section 131 (1) of the
Constitution, the President is Head of State and the Chief Executive of the
Federation.
Apart
from the Executive and Legislative powers of the President, he also has the
responsibility for the appointment of the Chief Justice of Nigeria and the
Justices of the Supreme Court of Nigeria upon the recommendation of the
National Judicial Council subject to the confirmation of such appointment by
the Senate. See Section 231 subsections
(1) & (2) of the Constitution of the Federal Republic of Nigeria.
The
President is also vested with the power of the appointment of the President of
the Court of Appeal and the Justices of the Court of Appeal upon recommendation
of the National Judicial Council. See Section 238 (1) & (2) of the
Constitution of the Federal Republic of Nigeria.
The
President is also vested with the power of the appointments of the Chief Judges
of the Federal High Court and the High Court of the Federal Capital Territory,
Abuja, respectively upon the recommendation of the National Judicial Council
subject to the confirmation of the Senate. The President is conferred with the
power to appoint all Judges of the Federal High Court and the High Court of the
Federal Capital Territory upon the recommendation of the National Judicial
Council. See Section 250 subsections (1) & (2) of the Constitution. See
also Section 256 subsection (1) & (2) of the Constitution.
The
President is also responsible for the appointment of the President of the
Customary Court of Appeal of the Federal Capital Territory upon the
recommendation of the National Judicial Council subject to the confirmation of
the Senate. All the Judges of the Customary Court of Appeal of the Federal
Capital Territory are appointed by the President upon the recommendation of the
National Judicial Council. See Section 266 (1) & (2) of the Constitution.
The
President is finally vested with the power to appoint the Grand Khadi of the
Sharia Court of Appeal of the Federal Capital Territory subject to the
confirmation of the Senate. All Khadis of the Sharia Court of Appeal are
appointed by the President upon the recommendation of the National Judicial
Council. See Section 261 subsections (1) & (2) of the Constitution.
The President is
also the Commander-in-Chief of the Armed Forces of the Federal Republic of
Nigeria. According to the Wikipedia the term ‘commander-in-chief’ is the person
exercising supreme command authority of a nation's military forces or
significant element of those forces. In the latter case, the force element may
be defined as those forces within a particular region or those forces which are
associated by function. As a practical term it refers to the military
competencies that reside in a nation-state's executive, Head of State and/or
Head of Government. Often, a given country's commander-in-chief need not be or
have been a commissioned officer or even a veteran, and it is by this legal
statute that civilian control of the military is realized in states where it is
constitutionally required.
By virtue of Section
218 subsections 1, 2 & 3 of the Constitution of the Federal Republic of
Nigeria the powers of the President as the Commander-in-Chief of the Armed
Forces of the Federation shall include power to determine the operational use
of the Armed Forces of the Federation.
Secondly, the powers
conferred on the President by subsection (1) of this section shall include
power to appoint the Chief of Defence Staff, the Chief of Army Staff, the Chief
of Naval Staff, the Chief of Air Staff and heads of any other branches of the Armed
Forces of the Federation as may be established by an Act of the National
Assembly.
Thirdly, the
President may, by directions in writing and subject to such conditions as he
may think fit, delegate to any member of the Armed Forces of the Federation his
powers relating to the operational use of the armed forces of the Federation.
The
President is also vested with the power by Section 215 (1) (a) of the
Constitution for the appointment of the Inspector General of Police. The President,
on the advice of the Nigeria Police Council, can appoint the Inspector-General
of Police from among serving members of the Nigeria Police Force. Also by
virtue of Section 215 (3) of the Constitution the President or such other
Minister of the Government of the Federation as he (the President) may
authorise in that behalf may give to the Inspector-General of Police such
lawful directions with respect to the maintenance and securing of public safety
and public order as he may consider necessary, and the Inspector-General of
Police shall comply with those directions or cause them to be complied with.
Fourthly,
subject to the provisions of this section, the Governor of a State or such
Commissioner of the Government of the State as he may authorise in that behalf,
may give to the Commissioner of Police of that State such lawful directions
with respect to the maintenance and securing of public safety and public order
within the State as he may consider necessary, and the Commissioner of Police
shall comply with those directions or cause them to be complied with:
Provided
that before carrying out any such directions under the foregoing provisions of
this subsection, the Commissioner of Police may request that the matter be
referred to the President or such Minister of the Government of the Federation
as may be authorised in that behalf by the President for his directions.
Fifthly,
the President is also entrusted with the responsibility for the appointment of
the Director-Generals of the State Security Service and the National
Intelligence Agency. See Section 3 (1) of the National Security Agencies Act,
2004. The National Intelligence Agency
by virtue of Section 2 (a) (b) & (c) of the National Security Agencies Act
is charged with responsibility for - (a) the general maintenance of the security
of Nigeria outside Nigeria, concerning matters that are not related to military
issues; and (b) such other responsibilities affecting national intelligence
outside Nigeria as the National Defence Council or the President, as the case
may be, may deem necessary.
The
State Security Service, SSS, by Section 3 (a) (b) & (c) of the National
Security Agencies Act, 2004, is entrusted with the power of the prevention and detection within
Nigeria of any crime against the internal security of Nigeria; the protection
and preservation of all non-military classified matters concerning the internal
security of Nigeria; and such other responsibilities affecting internal
security within Nigeria as the National Assembly or the President, as the case
may be, may deem necessary.
The
President is also entrusted with the responsibility for the appointment of the
Executive Chairman and members of the Economic and Financial Crimes Commission
subject to the confirmation of the Senate. The EFCC is vested with the power
for the investigation of economic and financial crimes bordering on money
laundering. See Section 2 (3) of the Economic and Financial Crimes Commission (Establishment
etc) Act, 2004.
The
President is responsible for the appointment of the Chairman and members of the
Independent Corrupt Practices & Other Related Offences Commission, ICPC,
subject to the confirmation of the Senate. See Section 3 (6) of the Corrupt
Practices and Other Related Offences Act, 2000.
The
hand of the President is fully strengthened by the EFCC and ICPC Acts to fight
corruption and graft to a standstill.
The
President is also responsible for the appointment of the Commandant-General of
the Nigeria Security and Civil Defence Corps. See Section 8 subsection 1 of the
Nigerian Security and Civil Defence Act, Cap. N148, Law of the Federation of
Nigerian, 2004.
The
President appoints members of the Council of Ministers of the Federation. The
President may, in his discretion, assign to the Vice-President or any Minister
of the Government of the Federation, responsibility for any business of the
Government of the Federation, including the administration of any department of
government.
The
President is empowered to hold regular meetings with the Vice-President and all
the Ministers of the Government of the Federation for the purposes of -
(a)
determining the general direction of domestic and foreign policies of the
Government of the Federation;
(b)
co-ordinating the activities of the President, the Vice-President and the
Ministers of the Government of the Federation in the discharge of their
executive responsibilities; and
(c)
advising the President generally in the discharge of his executive functions
other than those functions with respect to which he is required by this
Constitution to seek the advice or act on the recommendation of any other
person or body. See Section 148 of the Constitution.
The
President appoints Chairmen and members of the Code of Conduct Bureau, the
Federal Civil Service Commission, the Independent National Electoral
Commission, the National Judicial Council, the Federal Judicial Service
Commission, the Federal Character Commission, the Nigeria Police Council, the
National Population Commission, the Revenue Mobilisation Allocation and Fiscal
Commission and National Defence Council; National Economic Council; National Judicial Council; National Population Commission; National
Security Council; Nigeria Police Council; Police Service Commission; and Revenue Mobilisation Allocation and Fiscal
Commission & the Police Service Commission subject to the confirmation of
the Senate. See Section 154 (1) of the Constitution.
It
is instructive to note that by Section 154 (2) of the Constitution the
President in exercising his powers to appoint a person as Chairman or member of
the Council of State or the National Defence Council or the National Security
Council, the President shall not be required to obtain the confirmation of the
Senate.
Undoubtedly
from the above the President is the pilot, director, driver and implementer of
the executive policies of the Country. All the appointees of the President are
individually and collectively responsible and accountable to the President. The
President has the absolute power to dismiss or suspend or remove all those
appointed by him save in the cases of the head of the various Federal Courts
established by the Constitution. See Section 1 (b) of the Interpretation Act,
2004.
The
President is also the enforcer of all legislations passed by the National
Assembly as the Chief Executive of the Federation. The President is vested with
the power to assent to any law passed by the National Assembly. See Section 58
(3) of the Constitution. The President can veto any legislation passed by the
National Assembly by withdrawing his assent. See Section 58 (4) of the
Constitution.
The
President is also vested with extensive and awesome powers to deal with cases
of dire threat to National Security such as the current brutal and devastating
bombing campaigns being carried out in the North by the Boko Haram insurgency.
The framers of the Constitution contemplate the President to be a ‘Constitutional
Dictator’ in which he is allowed to exercise dictatorial powers during national
emergency.
The
dictatorship is not absolute and is within the limits of the powers vested on
him by the Constitution. Even in the Roman Empire there were provisions in for
a dictator who could govern for a period of time but whose actions remained
subject to scrutiny at the end of the period of the dictator’s term. The United
States Constitution has a similar clause which gives the power to the President
to adjourn Congress to such time as he shall think prudent. Abraham Lincoln
during the period of civil war exercised extraordinary powers to preserve the
Union. It follows that President
Jonathan cannot claim that he has no power vested on him by the Constitution to
deal ruthlessly and decisively against all those who are undermining National
Security and the Country’s territorial integrity.
The
President is vested with extraordinary powers by Section 305 of the
Constitution to declare a ‘state of emergency’ in order to preserve the peace,
stability and territorial integrity including directly ordering the arrest of
dissenters and the suspension of the fundamental rights provisions of the
Constitution relating to the exercise of the rights to personal liberty and
freedom of movement. Section 305 subsections 1, 2 & 3 of the Constitution which
provides as follows:
“305. Procedure for
declaration of state of emergency
(1) Subject to the
provisions of this Constitution, the President may by instrument published in
the official Gazette of the Government of the Federation issue a proclamation
of a state of emergency in the Federation or any part thereof.
(2) The President
shall immediately after the publication, transmit copies of the official
Gazette of the Government of the Federation containing the proclamation,
including the details of the emergency, to the President of the Senate and the
Speaker of the House of Representatives, each of whom shall forthwith convene
or arrange for a meeting of the House of which he is President or Speaker, as
the case may be, to consider the situation and decide whether or not to pass a
resolution approving the proclamation.
(3) The President
shall have power to issue a proclamation of a state of emergency only when -
(a)
the Federation is at war;
(b) the Federation
is in imminent danger of invasion or involvement in a state of war;
(c) there is actual
breakdown of public order and public safety in the Federation or any part
thereof to such extent as to require extraordinary measures to restore peace
and security;
(d) there is a clear
and present danger of an actual breakdown of public order and public safety in
the Federation or any part thereof requiring extraordinary measures to avert
such danger;
(e) there is an
occurrence or imminent danger, or the occurrence of any disaster or natural
calamity, affecting the community or a section of the community in the
Federation;
(f) there is any
other public danger which clearly constitutes a threat to the existence of the
Federation; or
(g) the President
receives a request to do so in accordance with the provisions of subsection (4)
of this section”.
So
how can a President vested with such awesome powers by the basic law of the
Country such as President Jonathan has been vested with have any excuse for non-performance? The President does not need to spend donkey
years in the presidency for him to perform. The President does not need to stay
in office before he can clean up the Country of corruption and graft. The
President does not need to spend in office four years before he can sack all
the corrupt Ministers or other government officials who have overstayed their
usefulness.
The
President cannot complain of not having enough powers to deal with the boko
haram insurgency. The President cannot complain of not having power to declare
a period of national economic emergency in order to deal with the economic or
even power supply Sector which has remained dismal. The President cannot
complain of not having power to declare a period of emergency in order to deal
with the crisis caused by crumbling social infrastructure such as roads etc.
The President has enough powers to exercise to deal with the chronic
unemployment situation grappling the Country.
President
Franklin Dwight Roosevelt, who was President of the United States of America
during the period of the Great Depression and the Second World War, also
exercised extraordinary powers to drastically and squarely address both
emergencies. President Roosevelt‘s actions included the interim suspension of
the right of contract in violation of the provisions of the United States
Constitution as well as closing of banks and a moratorium on forecloses.
President Roosevelt also ordered the mass detention of Japanese Nationals and
Japanese-Americans in concentration camps to deal with the threat posed by
Japan to the United States of America. We also saw the extraordinary powers
exercised by President George W. Bush after the attacks of September 11, 2001,
to deal with the threat posed by international terrorism.
President
Jonathan can assume similar extraordinary powers to deal with the nagging and
troublesome boko haram insurgency and other threats to the territorial
integrity of the Country in order to preserve National Unity. President
Jonathan cannot continue to manifest helplessness and hopelessness or feign
that he has no such powers.
President
Jonathan can package a sort of “New Deal” to comprehensively deal with all
economic, social, political crises grappling and confronting the Country.
President Roosevelt created through legislation 10 (Ten) Programmes to deal
with the exigencies thrown up by the Great Depression in the United States of
America. These included: Civilian Conservation Corps; Civil Works
Administration; Federal Housing Administration; Federal Security Agency; Home
Owners Loan Corporation; National Recovery Act; Public Works Administration;
Social Security Act; Tennessee Valley Authority and Works Progress
Administration.
President
Roosevelt initiated the Judicial Procedures Reform Bill of 1937 to add more Justices
to the United States of America Supreme Court in order to obtain favourable
rulings regarding the various legislations that he had initiated concerning the
New Deal that had previously been ruled unconstitutional. This led to Roosevelt
fundamentally altering the way the Supreme Court functioned and allowed him to
have a majority in the bench that were friendly and disposed to the ‘New Deal
Agenda’.
It
follows that with all the powers of the President conferred by the Constitution
President Jonathan cannot be heard to grumble about being in office for too
short a time or that he did not create the enormous problems and challenges
confronting the Country. The President cannot be blaming his detractors or enemies
as having been responsible for the insecurity in the Country. The President is
the Commander-in-chief. A decisive, tough, firm, single-minded, purposeful and
charismatic President can galvanise, electrify and energize the entire Country using
the powers vested on him by the Constitution to carry out Revolutionary Reforms
to revamp the Country and usher in peace and stability that will manifest in
economic prosperity. We do not want to hear the President complain or lament or
whimper again. Let him brace up to the task confronting him as President. Let
him face the challenges squarely. Let him deal with his detractors or political
enemies who are undermining him within the confines of the law. The President
must desist from whimpering and constitutionally tackle the problems with the
decisiveness which required of him.
OKOI OBONO-OBLA
·
Obono-Obla
is a Barrister-at-law and a Civil Society Activist. He lives in Abuja, Nigeria.
