The controversy surrounding the approval of $496m as payment for aircraft by President Muhammadu Buhari without the consent of the National Assembly has continued unabated, GBENRO ADEOYE writes about the implications
It is not uncommon to see pictures of President Muhammadu Buhari, Senate President Bukola Saraki and Speaker of the House of Representatives, Yakubu Dogara, together, often with bright smiles. But in reality, such photographs probably belie the underlying tension as relations between the executive and the legislature have been frosty for some time.
This can be traced back to issues surrounding budgets and their delays, appointments, refusal of Buhari’s cabinet members or other appointees to honour requests to appear before any arm or committee of the National Assembly, arrests of lawmakers, alleged inflaming utterances by both parties, and notably the refusal of the Senate to confirm the appointment of the Acting Chairman of the Economic and Financial Crimes Commission, Ibrahim Magu.
Then in April, with two separate letters sent to the Senate and House of Representatives by the President, the growing tension between the executive and the legislature appeared to have gone a notch higher.
The letters stated that the President had approved the release of US$496,374,470.00 (equivalent to N151,394,421,335.00), for the purchase of Super Tucano aircraft from the United States government with the money paid directly to the treasury of the foreign government.
The similar letters, titled, ‘Supplementary input to the 2018 appropriation bill: Purchase of Super Tucano Aircraft from the United States government’ and dated April 13, 2018, had read in part: “In the expectation that the National Assembly would have no objection to the purchase of this highly specialised aircraft, which is critical to National Security, I granted anticipatory approval for the release of US$496,374,470.00 to be included in the 2018 appropriation bill, which the National Assembly is currently finalising.”
The President had also attempted to justify the timing of the request and reason for the purchase in the letters, citing “the ongoing security emergencies in the country” and that the government had a deadline for payment.
Some lawmakers in both chambers were, however, quick to describe the action of the President as a constitutional infraction, adding that to have spent the money before sending a request to that effect to the National Assembly was an impeachable offence. However, as the controversy surrounding the matter rages on, there have been arguments in some quarters that the President approved the release of the money to meet the exigencies of the situation.
But a lawyer and social commentator, Mr. Jiti Ogunye, disagreed that Buhari’s action was as a result of any security exigencies, rather describing it as a breach of the provisions of the constitution.
“The urgency that the government is talking about, which it’s using as a reason for sidestepping the prescriptions of the constitution on how money belonging to the commonwealth has to be spent, is an induced urgency. So there is a breach.
“Sections 80, 81 and 82 of the constitution say that we have that breach and the fact that the reported ex post facto communication with the Senate shows that he knew that the endorsement of the National Assembly ought to have been obtained prior to that purchase.
“The issue of the purchase was one of the highpoints of the President’s visit to the United States, so he was in a hurry to pay that money before going to the US; it is not that there was a deadline. He wanted to accomplish that before going to meet US President, Donald Trump, so that the friendship between the two presidents and countries could be solidified and enhanced.
“So my submission is that this was no real urgency, it was an induced urgency. And once you endorse (it), that means it can always happen in the name of urgency because everything is urgent in Nigeria. If you have a four-year tenure, everything is urgent because you know that everything you have to do has to be done within four years. So can we then say the failure of the President not to form a cabinet for six months was not urgent and when he wanted to spend money on buying jets, that was urgent?
And those defending it and saying all the balderdash are making a mockery of themselves. Are they saying that once there is urgency, you can then shred the constitution into pieces and burn it? That is nonsensical and no serious-minded person would say that,” he said.
Also according to him, the President’s action will have far-reaching implications for the country, including impunity.
He said, “First, if the breach is explained away in the way and manner it is currently being done and by the passage of time, it is allowed to then be forgotten, certainly, with that precedence, it means for the rest of his term, the President may then be impelled to do something like that again.
“Or if he secures a re-election, it means that this kind of action can then recur and occur more frequently at that time. So there must be a kind of legislative warning.
“Also, there is always going to be a temptation for the Federal Government of Nigeria to sidestep the due process and the path of constitutionality and want to dip its hands into the ECA funds. We need to find a way, as a country, to prevent the executive to always find it easy to dip its hands into it.”
Similarly, another lawyer, Mr. Liborous Oshoma, said the President’s action could encourage the culture of impunity in the system and create a dangerous precedent.
He said, “We forget that when we encourage impunity, we create a convention that people easily follow. Even some people that have frowned on what the President did have said that the Peoples Democratic Party should not complain because it has been its practice. If the PDP did it wrong, should the ruling All Progressives Congress also do it wrong?
“Rather, it consistently benchmarks themselves against the failures of the PDP. If you ask them, ‘Why did you breach the provisions of the law?’ They will tell you, after all, the PDP breached it too. So why did you say you wanted to do things differently? Why did you talk about a government of change? And the problem is that subsequent governments will just take a cue from the way it has been done before.
“The negotiations, from what we learnt, were concluded in August 2017. And the government had till February to make payment and the budget was presented around October. The government knew it wanted to purchase the aircraft and also knew that it could not spend funds without appropriation, whether for security purpose or not.
“Let us assume that the approval was not given at the Federal Executive Council until December 2017 after the budget had been presented, then what stopped you from immediately writing to the National Assembly like you had done now to ask that it should be included in the budget that had been submitted. After all, it had not been passed. And even if the budget has been passed, there is provision for supplementary inputs.”
But the Director, Strategic Communication of the President Muhammadu Buhari Campaign Organisation, Mr. Festus Keyamo (SAN), said the President’s action was covered by the Doctrine of Necessity and that the ECA did not solely belong to the Federal Government, meaning that there was still controversy surrounding whether money from an account belonging to the states or local governments should be taken to the National Assembly for approval.
He said, “First, the President is not setting any precedent at all. The precedent has since been created by former Presidents like Olusegun Obasanjo, the late Umaru Yar’Adua, and Goodluck Jonathan. Obasanjo took N17bn from that same account and there was no single noise from the National Assembly at that time. I’m not saying it is right or that in all situations, this should be done; I’m trying to expose the hypocrisy of some Nigerians who are making it look like the President has done something that has never been done before and that it is so bad that it is impeachable.
“So, it’s something that all Presidents have been doing before regarding that account but take note that they are not cases of corruption but a matter of breach of procedure. Then there is even no clear-cut legal position regarding whether such requests should be taken wholly to the National Assembly or whether it is only the portion of money belonging to the Federal Government that should be taken there.
“Don’t forget that it is only 53 per cent of the fund that belongs to the Federal Government; 47 per cent belongs to the states and the local governments. So there is even a controversy which has not been settled by any court as to whether it is only the percentage that belongs to the Federal Government that should be taken to the National Assembly or whether those belonging to the states should be taken to the state houses of assembly or whether the governors sitting in the National Economic Council, that approved the funds, have approved it for the states.
“For me, the ideal thing is to take it to the National Assembly for approval. But there was a situation whereby we had a deadline to pay for the aircraft. The time was short. People are saying the delivery date is 2020, but it is not about the date of delivery, it is about the date of payment.
“People are also talking about last year but that was the negotiation and you cannot take negotiation to the National Assembly. In fact, they started negotiating for the aircraft as far back as 2011 since the administration of Jonathan. The government was begging for the aircraft to be sold and at a point approached Israel, which also refused to sell. So we had few weeks to pay and not since the September date being quoted.
“Then there is the Doctrine of Necessity and it is not alien to constitutional law. It does not only apply when there is a lacuna in the constitution, that is when the constitution does not provide for certain things. It also applies to situations where there is a clear provision on how to do something but for certain exigencies, that provision cannot be followed. So the doctrine of necessity is wide enough to accommodate such situations.”
Keyamo, however, admitted that the criticism of it was that it could also be wide enough to be abused.
“But does it exist? Yes, it does. Does it exist in situations of extreme urgencies? Yes, it does. Is it for a purpose of securing lives and property? Yes, it is. Does this case apply to it? That is where your opinion differs from mine. I think it applies and you think it does not apply, let us go to court. My position and personal submission as a senior lawyer, and it may not be the position of the Presidency or anybody in the government, is that this situation fits very well the Doctrine of Necessity.
“It applies to cases that involve the security of lives and property that the President has sworn to uphold, and cases that apply to extreme urgency. You know that the budget has been with the National Assembly for five months now without approval, the nominees of the President have been there for one year without approval, and the moment the President submits himself to the approval process, he can no longer go behind and pay.”
Oshoma, however, insisted that the argument that “it falls under the Doctrine of Necessity does not arise at all.”
He said, “Even when this government made the payment in February, it waited till April to inform the National Assembly. What impunity, in a democracy? We should understand that the rule of law is the thread that binds democracy together. If you decide not to abide by the provisions of the law in a democratic dispensation, what you are encouraging is the creation of a convention of impunity and it will boomerang some day.”
And like Ogunye, who noted that even though the President’s action was a breach of the provisions of the constitution, the National Assembly lacked the moral right to impeach him, Oshoma said, “if Nigeria had a strong institution and a strong National Assembly that is above board, the President would have been long gone.”
“One of the greatest problems of this government is impunity. We see it not playing by the book, bypassing processes and creating excuses and spending funds without appropriation. What offence can be more than that?
“But because the National Assembly has, at various times, ridiculed itself such that Nigerians don’t take it seriously, we treat issues like this lightly. Otherwise, this is enough reason to investigate the involvement of the President in this and if he is found wanting, impeachment proceedings should have been commenced against him.”
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