Friday, September 28, 2012

Are Resolutions of the National Assembly concerning the Bakassi Imbroglio binding on the Executive Branch of Government?


The decision of the Senate yesterday directing the Federal Government of Nigeria to take steps to immediately to initiate the process to file an application at the International Court of Justice for a review of its judgment delivered on the 10/10/2002 concerning the Land and Maritime Boundary Between Cameroon and Nigeria (Equatorial Guinea Intervening) is indeed a very good development. Recall that the House of Representatives passed a similar resolution directing the Federal Government of Nigeria to apply for a review of the obnoxious judgment of the International Court of Nigeria delivered on the 10th October 2002 concerning the sovereignty of the Bakassi peninsula. However the Federal Government through the Minister of Information, Labaran Maku dismissed the resolution of the House of Representatives as non binding.

This stance of the Minister of Information, Honourable Maku drew the ire of the Senate which invited the Minister to the floor of the Senate to warn him on his predilection to making reckless utterances on matters of national importance. It appears that Honourable Maku ate his words after the rebuking by the President of the Senate, David Mark as he apologised profusely. However it seems the executive branch of the Federal Government under President Jonathan is not really keen in complying with the resolutions of the House of Representatives and Senate respectively. Just two days ago while addressing the General Assembly of the Heads of States and Governments of the United Nations categorically declared that the Federal Government of Nigeria shall continue to obey the Judgment of the International Court of Justice concerning Bakassi Peninsula.

It is pertinent that both the House of Representatives and the Senate respectively constitute the National Assembly by virtue of Section 47 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended & altered).  The National Assembly is constitutionally empowered by Section  4 (2) of the Constitution to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution.

The declaration of President Jonathan at such an August Assembly like the General Assembly of the United Nations is particularly worrisome in view of the fact that it is the executive branch of the Federal Government that is constitutionally empowered to take decision whether or not the country should apply for a review of the judgment of the International Court of Justice. Meanwhile we have just about 14 days or so to the expiry of the ten years deadline which a State Party has to apply for a review of the Judgment of the International Court of Justice by virtue of Article 61 of the States of the International Court of Justice.

The pertinent question is: Are the resolutions of both Houses of the National Assembly binding on the Federal Government of Nigeria? Are the resolutions of both Houses of the National Assembly binding on the Federal Government of Nigeria? The answer is in the negative. Resolutions of the National Assembly are not binding on the Federal Government or the executive branch of government. They do not have the force of law. There are merely declarations of intent or moral suasions.

These resolutions do not have the force of law. The Federal Government may take advantage of this to ignore the resolutions of the National Assembly on review of the judgment concerning the Bakassi Peninsula. It is certain that the non-compliance with the resolutions of the National Assembly on challenge of the judgment of the International Court of Justice may likely cause a row between the National Assembly and the executive branch of the Federal Government.  

We may need to explain what a “Resolution” is all about. A resolution is a written motion adopted by a deliberative body. The substance of the resolution can be anything that can normally be proposed as a motion. For long or important motions, though, it is often better to have them written out so that discussion is easier or so that it can be distributed outside of the body after its adoption. Resolutions are commonly used in company meetings and houses of legislature. Under the Constitution of the Federal Republic of Nigeria, 1999 resolutions of the National Assembly are recognized or contemplated as one of the instruments through which the National Assembly can exercise its powers of law making.  In company law, a written resolution is especially useful in the case of the board of directors when there is the need to give its consent to a transaction entered into by a company. When such a resolution is certified by the company secretary it gives assurance to the other side that such a transaction in question is authorized by the Board of Directors. The Board of Directors of a company is undoubtedly the decision making body in such a company. Other examples include resolutions approving the opening of bank accounts or authorizing the issuance of shares in the company. In a house of a legislature (such as the House of Representatives and Senate), the term non binding resolution refers to measures that do not become laws. The resolutions of both the House of Representatives and the Senate respectively can be classified as Non-binding resolutions. This is used to differentiate those measures from a bill, which is also a resolution in the technical sense.

A bill is the major mode of exercising of Federal Legislative powers vested on the National Assembly by virtue of Section 58 (1) of the Constitution of the Federal Republic of Nigeria (supra).

The resolution is often used to express the body's approval or disapproval of something which they cannot otherwise vote on, due to the matter being handled by another jurisdiction or being protected by a constitution. An example would be a resolution directing the executive to apply for a review of the judgment of the International Court of Justice, which decidedly carries no weight, but is adopted for moral support.

The work of National Assembly is initiated by the introduction of a proposal in one of four forms: the bill, the joint resolution, the concurrent resolution, and the simple resolution. Upon adoption, simple resolutions are attested to by the Clerk of the House of Representatives or the Clerk of the Senate and are published in the Hansard or Gazette of both Houses.

However if the executive branch of government under the leadership of President Jonathan fails to comply with the resolutions of the National Assembly directing it to apply for a review of the judgment of the International Court of Justice on the ground that the resolutions lack the force of law; the National Assembly may likely take advantage of the non compliance with Section 12 (1) of the Constitution of the Federal Republic of Nigeria,1999 by the Federal Government before the signing of the Green Tree Agreement between Nigeria and Cameroon that led to the handover of the Bakassi peninsula to Cameroon in August 2006 and initiate impeachment proceedings against President Jonathan for violating the Constitution.

However it is instructive that the Green Tree Agreement was signed by the predecessor of President Jonathan, Olusegun Obasanjo. Be that as it may, President Jonathan has a constitutional duty to ensure that the Green Tree Agreement is invalidated if it fails to comply with the provisions of Section 12 (1) of the Constitution which explicitly provides thus:

“No treaty between the Federation and any other country shall have the force of law except to the extent to which any such treaty has been enacted into law by the National Assembly”. 

President Jonathan has a constitutional duty to ensure that no portion or part of the territory constituting the Federal Republic of Nigeria is given away to another country under the guise of pandering to the whims and caprices of the international community to the detriment of Nigeria National Interest. President Jonathan has fundamental duty of ensuring the Constitution is preserved, obeyed and respected by all institutions and persons or group of persons including the executive branch of government under his leadership. But what stops the National Assembly passing a Law invalidating the Green Tree Agreement and compelling the President to set a motion in machinery to apply for a review of the Judgment of the International Court of Justice in order to tie the hands of the President?    

Okoi Obono-Obla

·        Obono-Obla is Barrister and a Civil Society Activist. He lives in Abuja, Nigeria.

 

Saturday, September 1, 2012

THE PRESIDENT IS A CONSTITUTIONAL DICTATOR!


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.

Wednesday, August 15, 2012

IS THE OFFICE OF THE FIRST LADY OF NIGERIA CONSTITUTIONAL?


The office of the First Lady of the Federal Republic of Nigeria has  recently aroused and enmeshed in controversy  thus:

1.   when it was reported in the media that the Federal Government of Nigeria bought 200 exotic vehicles for the hosting of a Steering Committee of First Ladies of Africa by the First Lady, Dame Patience Jonathan, under the aegis of the African Ladies Peace Mission scheduled for Friday, 27th July, 2012;

2.   There was also controversy concerning the office when Dame Patience Jonathan was appointed a Permanent Secretary in the Public Service of Bayelsa State by the Governor of Bayelsa State, Honourable Seriake Dickson. Dame Jonathan had since been sworn in as a Permanent Secretary.

3.   There was also controversy following the recommendation of the scrapping of the Office of the First Lady by the Presidential Committee on the Review under the Chairmanship of Justice Alfa Belgore. The operation and funding both in kind and cash of the office at all levels of government should be discouraged and abolished forthwith.



It is a notorious fact that none of the country’s Constitution from 1960-1999 has ever created the Office of the First Lady of the Federal Republic of Nigeria. However funds have always been allocated to the office of the First Lady by successive administrations in the country since independence. The First Lady is addressed by the title “Her Excellency”.

Nigeria became a Republic on the 1st October, 1963, with the coming into force of the 1963 Constitution which replaced the Independence Constitution of the Nigeria, 1960. The First President was Dr. Nnamdi Azikiwe. At that time the system of government that was in force was the West Minster variant of the Parliamentary System of Government. Under the Parliamentary system of government the President is the Head of State but does not possess any executive authority. The President is only a titular Head of State. He is not the Head of Government. The Head of Government was the Prime Minister. The Prime Minister is usually chosen from a member of the House of Parliament from the Party that commands majority of seats in the Parliament.



The Military took over the reins of government on the 15th January, 1966. From 15th January, 1966 to the 1st October, 1979, when the military held the levers of power in the country the concept of First Lady did not assume larger than life image. It later did under the subsequent military dictatorships of Generals: Babangida, Abacha and Abdul Salami Abubukar.



The military handed over power to a democratically elected President on the 1st October, 1979. The First democratically elected President was Alhaji Shehu Usman Shagari. Between 1st October, 1979 to 31st December, 1983, when President Shagari was in office there was no designated First Lady. President Shagari had three wives. None of them was designated the First Lady of the Federal Republic of Nigeria. The Country had several First Ladies since she became a Republic on 1st October, 1963. Thus Country’s First, First Lady was Mrs. Flora Azikiwe (1st October, 1963 - 15th January, 1966); the Second First Lady was Mrs. Victoria Aguiyi Ironsi (15th January, 1966 - 29th July, 1966); the Third First Lady was Mrs. Victoria Gowon (21st August, 1966 - 29th July, 1975); the Fourth First Lady was Mrs Ajoke Mohammed (29th July, 1975 - 13th February, 1976); the Fifth First Lady was Mrs. Esther Oluremi Obasanjo (13th February, 1976 - 1st October, 1979); the Sixth First Lady should have been the wife of General Muhammadu Buhari (1st January, 1984 - 27th August, 1985), however, Mrs. Sinfatu Buhari was not officially designed a First Lady of the Country. The Sixth First Lady thus became Mrs. Maryam Babangida (27th August, 1985 - 26th August, 1993). The Seventh First Lady was Mrs. Margaret Shonekan (26th August, 1993 - 17th November, 1993); the Eighth First Lady was Mrs. Maryam Abacha (17th November, 1993 - 8th June, 1998). The Ninth First Lady was Mrs. Fati Lami Abubukar (8th June, 1998 - 29th May, 1998); the Tenth First Lady was Mrs. Stella Obasanjo (29th May 1999 – 23rd October, 2005. After the death of Stella Obasanjo there was no First Lady from 23rd October, 2005, till the 29th May, 2007. The Eleventh First Lady was Mrs. Turai Yar’Adua (29th May, 2007 - 6th May, 2010). The Twelfth First Lady is Dame Patience Jonathan, the incumbent First Lady of the Federal Republic of Nigeria.



It is pertinent to state that all the First Ladies before Mrs. Maryam Babangida had always maintained very low profile. However, Mrs. Maryam Babangida brought a lot of pomp, style and glamour to the Office of the First Lady and during her time enormous financial resources were allocated to the Office.



Historically the concept of the title of “First Lady” originated from the United States of America. Linguistically, the term “Lady” originated in England. The title “First Lady” was first used in the United States of America in 1849 when President Zachary Taylor called Dolley Madison “First Lady” at her State Funeral while reciting a eulogy written by him. The title gained nationwide recognition in the United States of America in 1877, when Mary C. Ames wrote an article in the New York City Independent Newspaper describing the inauguration of President Rutherford B. Hayes. She used the term, to describe his wife, Mrs. Lucy Webb Hayes. Since then all wives of the Presidents of the United States of America are described as “First Lady”.   



The Office of the First Lady of the Federal Republic of Nigeria in its website is listed as an organ of the Government of the Federal Republic of Nigeria. Indeed number three in the hierarchy of these organs of Government of the Federal Republic of Nigeria. The other organs listed are the President, Vice-President, the Federal Executive Council and the State House. The Office of the President is created by Section 130 of the Constitution. In the same vein, the Office of the Vice-President is created by Section 141 of the Constitution. The State House is the office of the President. The Federal Executive Council (constitutionally known as the Executive Council of the Federation) is created by Section 147 of the Constitution. However, there is nowhere in the Constitution of the Federal Republic of Nigeria where the Office of the First Lady is mentioned. See ATTORNEY-GENERAL OF THE FEDERATION V ATIKU ABUBAKAR (2007) 10 NWLR (Pt.1041) 1. In other words, the Office of the First Lady of the Federal Republic of Nigeria is not created by the Constitution or any legislation. It is a mere contraption existing at the whims and caprices of the occupants of the position of the President. Conversely there is no enactment of the National Assembly creating the office of the First Lady of the Federal Republic of Nigeria.



However, the office of the First Lady is unwittingly accorded the imprimatur of officialdom by the Federal Government deploying to the office senior and junior Civil Servants. Vehicles belonging to the Federal Government of Nigeria are being used to service the office. The deployment of vehicles and allocation of money to the official of the First Lady is decidedly illegal and void because there is no place for such office by virtue of the Constitution.



The Constitution is by virtue of Section 1 (3) thereof the supreme law of the Country. It follows that it is the Constitution that imparts efficacy and legitimacy to all other laws and regulations in the Country and therefore anything that does not derive its legitimacy from the Constitution is illegal, null and void.



In MUNIRAT ODUNTAN V ABUDU W. AKIBU (2000)7S.C. (PARTII)106, the Supreme Court held that where a non-member of a chieftaincy family was appointed, such appointment is void ab initio and the approval of the Executive Council would not, and could not confer validity on such appointment; the approval itself is equally void. For anything based on a void act is "bad and incurably bad".

 

One of the greatest English Jurist of the 20th Century, Lord Denning, Master of the Rolls in the case of MACFOY Vs UNITED AFRICAN COMPANY LIMITED (1961) 3 All E. R. 1169, succinctly and eruditely illuminated on the position of the law when an act is void thus:

“…  If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse. So will this judgment collapse if the statement of claim was a nullity. But if an act is only voidable, then it is not automatically void. It is only an irregularity which may be waived. It is not to be avoided unless something is done to avoid it. There must be an order of the court setting it aside: and the court has discretion whether to set it aside or not. It will do so if justice demands it but not otherwise. Meanwhile it remains good and a support for all that has been done under it. So will this statement of claim be a support for the judgment, if it was only voidable and not void”.



I have also studied the Appropriation Acts of 2010, 2011 and 2012 respectively to find out if the Office of the First Lady was allotted any money. The office of the First Lady is not listed in the departments or agencies or Commissions or other statutory bodies under the Presidency. The Office of the First Lady is not also mentioned in the breakdown of appropriation for capital or recurrent expenditure of the Office of the Head of Service; Office of the Secretary to the Federal Government; Federal Ministry of Women Affairs or the Federal Ministry of Special Duties.



I also in my search found to my chagrin and consternation that there is no allocation made whatsoever for the Office of the First Lady under the cloak of any Federal Ministry or Extra Ministerial Department of the Federal Government of Nigeria. However there is no denying the fact that the office of the First Lady enjoys some substantial form of allocation of funds from the public till to enable the First Lady and her coterie of officials to move around in expensive attires, razzmatazz and wields so much clout, influence and power. It goes without saying that access to the First Lady attracts rewards and opportunities of unimaginable proportion. At the States level the wives of the Governors are also First Ladies of their respective States and enjoy allocation of funds of the public treasury despite the fact that there is no statute or law giving a veneer of legitimacy to the office of First Ladies of States.



Undoubtedly the allocation to public funds to the Office of the First Lady is illegal and unconstitutional. It amounts to an egregious violation of the provisions of the Constitution to allocate funds which are not appropriated by the National Assembly that is constitutionally vested with the power of appropriation of Public Funds. Section 81 subsections 1, 2 & 3 of the Constitution of the Federal Republic of Nigeria, 1999 (as altered and amended) provides thus:

“The President shall cause to be prepared and laid before each House of the National Assembly at any time in each financial year estimates of the revenues and expenditure of the Federation for the next following financial year.

(2) The heads of expenditure contained in the estimates (other than expenditure charged upon the Consolidated Revenue Fund of the Federation by this Constitution) shall be included in a bill, to be known as an Appropriation Bill, providing for the issue from the Consolidated Revenue Fund of the sums necessary to meet that expenditure and the appropriation of those sums for the purposes specified therein.

(3) Any amount standing to the credit of the judiciary in the Consolidated Revenue Fund of the Federation shall be paid directly to the National Judicial Council for disbursement to the heads of the courts established for the Federation and the States under section 6 of this Constitution.

(4) If in respect of any financial year it is found that-

(a) the amount appropriated by the Appropriation Act for any purpose is insufficient; or

(b) a need has arisen for expenditure for a purpose for which no amount has been appropriated by the Act, a supplementary estimate showing the sums required shall be laid before each House of the National Assembly and the heads of any such expenditure shall be included in a Supplementary Appropriation Bill”.



From the above, it is as clear as the crystal that any allocation of money by the Federal Government that is not contained in the allocation to the Federal Ministries, Agencies, Extra Ministerial Departments, Parastatals, the Presidency, Offices of the Head of Service and Secretary to the Federal Government and Federal Executive Bodies established by Section 153 and listed in Part 1 of the Third Schedule to the Constitution of the Federal Republic of Nigeria (supra) is void ab initio. The Federal Executive bodies created by Section 153 of the Constitution include:

1.   The Code of Conduct Bureau;

2.   The Council of States;

3.   The Federal Character Commission;

4.   The Federal Civil Service Commission;

5.   The Federal Judicial Service Commission;

6.   The Independent National Electoral Commission;

7.   The National Defence  Council;

8.   The National Judicial Council;

9.   The National Population Commission;

10.                The National Security Council;

11.                The National Police Council;

12.                The Police Service Commission and

13.                The Revenue Mobilization Allocation and Fiscal Commission.



From the above, it is abundantly clear the Office of the First Lady of the Federal Republic of Nigeria and its counterpart in the 36 States of the Federation including the Federal Capital Territory, Abuja, is illegal and unconstitutional. A fortiori, the allocation of Public Funds to these Offices by the Federal Government and the State Governments of the 36 States and the Federal Capital Territory, Abuja, is illegal and void.   



The appointment of Dame Patience Jonathan as Permanent Secretary in Bayelsa State is a pointer to the fact that the Office of the First Lady is illegal. Otherwise it would amount to an illegality for Dame Jonathan to occupy two Public offices simultaneously. Section 208 (2) (c) of the Constitution of the Country vests on a State Governor power to appoint and remove a Permanent Secretary appointed into the Public Service of such a State.



Undoubtedly a Permanent Secretary either in the Public Service of the Federation or the Public Service of a State is a Public Officer by virtue of Section 10 of Part II of the Fifth Schedule to the Constitution. See Section 318 of the Constitution for the definition of the term “public officer”.  By Section 2 (a) of Part 1 of the Fifth Schedule to the Constitution it is an offence for a public servant to receive or be paid the emoluments of any public office at the same time as he receives or is paid the emoluments of any other public office. See ANTHONY ABIODUN DADA V. [2005] 6 NWLR (PT. 920) 1.



It is therefore the right time these Offices are scrapped and abolished in view of the fact that the President and the 36 States have sworn to preserve, protect and defend the Constitution of the Federal Republic of Nigeria. It is an impeachable offence for the President and the State Governors to continue to breach provisions of the Constitution to continue to allow the Offices of the First Lady of Nigeria and that of the respective 36 States to exist or deploy public funds towards its existence.   



OKOI OBONO-OBLA