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Sunday, April 15, 2018

Buhari: The limits of his powers


According to vanguard news reports said that
adams Oshiomole, former President of the Nigerian Labour Council (NLC), and immediate past governor of Edo State has called on the Federal Government to “deal ruthlessly with looters” of the national treasury. The reports of Oshiomole’s statement carried in the Nigerian newspapers variously led with this headline “Buhari should deal ruthlessly with looters.” My problem is, I do not know exactly if Oshiomole is actually conflating the president with the Federal Government of Nigeria.
The president is Head of the executive branch of the federal government, and thus head of state, since the executive is that branch of government that is constitutionally mandated to manage the executive functions of the state by the act of the federation. The executive is however not the “Federal Government of Nigeria.” It is a branch of the Federal Government of Nigeria. The powers of the Federal government of Nigeria are distributed to three institutions of government: the Executive branch, the Legislature, and the Judiciary, which when constituted jointly, is the Federal government.The Federal government is joined, according to the principles of Federalism, by 36 states and a Federal Territory, each with its separate government, to constitute the federation of Nigeria. Under military rule, the institutions that constituted the republic were whittled down, and extreme power was concentrated on the executive power of the Military Head of state. The constitution that restored democracy apparently did not fully restore the “republic” as the president was endowed under what Nigerians must see as a transitional constitution with enormous, perhaps in fact extraordinary powers which has made the office seem almost an absolute authority. But even given all that, the basic frame of the constitution restored the sovereign will of the federation to the Legislature or Parliament of the land, constituted in Nigeria under the National Assembly, which is empowered to make all laws, including appropriation and spending laws, and approve all budgets, including all extra-budgetary spendings, to the extent that it is considered treasonable act for the executive to violate the finance laws as enacted by the National Assembly. And if the president breaks that law, and spends outside of the budget act, he is liable for impeachment and prosecution. That is what actually is called “corruption.” To break the laws as enacted or as amended by the constituted Assembly of the land, which has the constitutional power and obligation to scrutinize and query the president on the conduct of the state, especially on the financial conduct of the state, and the conduct of war, or the use of emergency powers. The president has no powers under the law to deploy the military anywhere in the federation, or commence war, without the authority of the National Assembly. That is why the military operation “operation Python Dance” in the East, which was conducted without the authority of the National Assembly is an act in defiance of the constitution, and of the Legislature of the land, and this president must be sanctioned for it. In any case, the Legislature is possibly the most powerful institution of the state, for unless the Legislature says to the executive, “spend” can it spend, and failing which an impeachment proceeding, and prosecution. It is actually within the powers of the National Assembly, to strip the president of his powers and his immunity, and to enact a law, permitting a Public Prosecutor to investigate the office of the President of the Federation, or constitute a committee of the Senate to examine the conduct of the president within the given ambit of the law. The most powerful security apparatus of the land is not, and should not by law be, the office of the National Security Adviser. That office is only part of the Presidential advisorate, and functions under the budget of the presidency. It is not designed to be an operational body. The most powerful security outfit of the Federation ought to be the Nigeria Police, properly established, funded, and motivated. Policing is the means by which democracies survive. It requires institutional authority of the kind that makes its leadership loyal to the constitution, and not to the president. It is the police, properly established, recruited, and trained that secures the republic. It is the Police through its Criminal Investigations Directorate that anticipates the onset of a crime – including such high crimes as financial crimes – investigates, gathers unimpeachable evidence, and prepares a case for the prosecutorial arm of government, the Department of Public Prosecution of the Ministry of Justice. The function of the Police is to enforce the acts of parliament, not the orders of the president. This is the fundamental contradiction of the Nigerian state. And this is why there have been massive looting and corruption in the state system: the Nigerian police enforces the order of the president, not the acts of parliament. Corruption in Nigeria emanates from the Executive authority, and the enormous powers that has been vested to it by this transitional constitution, makes it dangerous and unaccountable. It threatens the national security of Nigeria. That the Nigerian National Assembly has not exercised its powers, adequately, and appropriately in their defence of Nigeria, since the return of democratic government makes it complicit in the corruption of Nigeria. It began with President Obasanjo’s intrigues in 1999 to impose leadership on the National Assembly “from the throne.” When the late Chuba Okadigbo finally became president of the senate, and tried to establish legislative independence and control, it threatened Obasanjo’s own agenda, and he had to be schemed out. Nigerians kept quiet. The weakening of the Nigerian parliament began from that moment and it is the greatest tragedy of the transition to democracy. Nigerians fought for democracy in order to re-establish the parliament, the symbol of the republic, and of the power of the people to regulate the functions and operations of their elected government, and that is why it is a little heartening that the Saraki-Ekweremadu-Dogara National Assembly is securing a little more backbone for the lawmakers. Last week, news reports claimed that the President had “approved” $1 billion for the procurement of arms at a National Executive Meeting. Perhaps the president still imagines himself running an Armed Forces Ruling Council, where he could just come out with a number, and get approval, and “ba kwomi!” This, however, is an elected, constitutional government, where the president’s job is not to approve spending. He “proposes” expenditure, and sends it to those whom the constitution have given the power of the purse of the Nation: Legislators, who debate, cut, or decide to approve or not approve any further military procurement to that tune. It is not within the rights of the president to approve expenses. Those fall under the schedule of the National Assembly. And I am glad that the president of the senate reminded him that precisely. He cannot direct the Treasury to release money that he does not have. The finance committee, the Ways and Means Committee, the National Security Committee, and the general committee of both Chambers of the National Assembly will have to debate, and ascertain by their own methods, whether that money would be approved or not, and the means by which bidding for the procurement of arms to that tune would proceed. It is not military rule, Mr. President. Under democracy, the president’s power is limited. And so, again, when Oshiomole says the “President should deal ruthlessly with looters,” one should ask, under which powers can the president deal ruthlessly with looters? The president does not have the power to sentence alleged looters to jail. The president should never even have the power to order the arrest of any citizen. A judge of a properly constituted court should have the power to issue an arrest order and warrant to the police – not a president or a governor, or even the Inspector-General of Police! The Ministry of Justice could prepare a case against alleged looters, and argue it in a properly constituted court, which should then “deal ruthlessly” with whoever is found guilty of “looting” Nigeria’s treasury. It seems Mr. Oshiomole needs to be educated about these little nuances of power, even though as he has claimed, he has “interacted vertically and horizontally with power.” I agree with Oshiomole that looters of the Nigerian treasury should be treated ruthless by law. The question however is: How far should the past go on those who must be dealt with “ruthlessly?” The looting of Nigeria did not afterall begin with the Jonathan administration. Many experts in fact say what happened with Jonathan is a mere tip of the iceberg. The National Assembly must enact the law that would establish the powers of an Independent public Prosecutor to investigate suspected looters. Should they be found to have participated in the looting of Nigeria must be dealt with harshly by the law. No one should be above or beneath it.

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