5 Reasons Why GEJ Should NOT Resign

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In the wake of 2 bombings in Nigeria’s capital Abuja, the second taking place barely three weeks after the first, some people have resorted to calling for President Jonathan to resign or, alternatively, for the National Assembly to commence impeachment proceedings against him. I  disagree. While it is true that scandal continues to follow scandal, bombing follows bombing and national morale is undoubtedly very low, I do not think the President’s resignation is required. Here are my reasons.

 

1. THIS IS A DEMOCRACY. If we truly believe in democracy and the need to build enduring democratic institutions, then, barring gross misconduct, we need to accept that we are stuck with whoever we elect for the duration of time prescribed by the constitution  for them to be in office. We don’t get to chop and change midstream if the person we elected turns out not quite as we expected. This is the reason why we must pay greater attention and commit to playing a greater part in the electoral process first. The earliest that GEJ should go, is May 2015, when everyone crying #GEJOut can test the popularity of their movement at the polls.

 

2. WHO’S NEXT IN LINE? If the President resigns or is impeached, Vice-President Namadi Sambo takes over. If they’re both impeached, Senate President David “telephones-are-not-for-the-masses” Mark becomes President. Forgive me for not being too enthused about either of these prospects. At any rate, how would this change anything, with elections less than a year away?

 

3. GEJ IS NOT THE SERVICE CHIEFS. These guys need to get a whole lot more of the blame than people are willing to allocate to them. GEJ is Commander-In-Chief but he’s not the head of the intelligence gathering or counter-insurgency combat teams. He isn’t personally manning check-points or patrolling the terror hotspots. His Generals and their troops are. If anyone should be resigning (and that’s a big “IF”), the service chiefs are probably better candidates.

 

4. RESIGNATION WOULD BE A(NOTHER) VICTORY FOR BOKO HARAM. Would it not be the greatest tragedy, a huge smear on our collective nationhood, for Boko Haram to be able to beat its chest and declare that they bombed our president out of office? At the end of the day, until he’s served out his term, he is our president; our number one citizen. A king defends his castle. It would be a shame on my family if an unruly neighbour could unseat my father from our homestead. I’m sure the same applies to most of us.

 

5. RESIGNATION WOULD ONLY SERVE THE ETHNIC SUPREMACISTS. There are some who believe the President of Nigeria cannot and should not come from one of its smallest minorities. Nigeria belongs to all Nigerians. I will be politically correct and end my 5th point on that note.

 

Times are dark and dire, though, and we need our president to be bold, brave, inspirational and communicative. Not a word from him so far on the 200+ missing school girls, or the most recent bombing. Even if it’s hot air, we need to hear that he’s with us, see him shed an Obama tear or two and just generally show some emotional intelligence. Step up, President Jonathan.

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Injunctional Bias: Like Sanusi, Like Diezani?

 

With conflicting media reports, it is unclear whether or not the minister of petroleum resources, Diezani Allison-Madueke actually did it. However, there was news of her obtaining an injunction against the federal house of representatives, restraining them from investigating allegations that she spends considerable sums of state funds maintaining private jets for her personal use.

 

Now, mainstream social media (perhaps mainstream Nigeria, even) has a slight but very palpable anti-federal government bias. This may or may not be justified, but that is hardly the point. So, news of her having obtained this injunction has been greeted with derision at Diezani and frustration at the Nigerian judiciary. Watchers on the pro-government side of things have however pointed out what they perceive to be inconsistent criticism, as ousted/suspended/retired governor of the Central Bank, Mallam Lamido Sanusi, was congratulated when he obtained a similar injunction a few weeks ago. Are the Sanusi and Allison-Madueke injunctions one and the same? I do not think so. Why?

 

Well, according to information on its own website, the FRC “is a federal government agency established by the Financial Reporting Council of Nigeria Act, No. 6, 2011.  It is a federal government Parastatal under the supervision of the Federal Ministry of Industry, Trade and Investment. The FRC is responsible for, among other things, developing and publishing accounting and financial reporting standards to be observed in the preparation of financial statements of public entities in Nigeria; and for related matters.” The enabling Act also suggests that the FRC is strictly concerned with developing, setting and enforcing accounting financial reporting standards.

Does the FRC have the power to investigate for financial misappropriation? [CORRECTION] Hmmm. The enabling Act entitles the FRC to investigate “any complaint or dishonest practice, negligence, professional misconduct or malpractice, made against any professional.” The FRC also has the power to summon the professional being investigated. Who then is a “professional” for the purposes of the FRC Act? The Act seems to use “professional” interchangeably with “professional accountant” (see the sections on registration), so I would suggest that the FRC’s power to investigate is limited to professional accountants who have not conducted themselves properly in their audit/financial reporting. I do not think its powers of investigation of the FRC, as drafted, extend to investigating financial misappropriation. In any event, the courts will rule on whether the CBN governor’s suit against the FRC on the 12th of May.

 

So, in my opinion, Sanusi’s injunction was ostensibly to stop a federal agency from arrogating questionable powers to itself or overreaching itself. At the very least, the FRC’s power to investigate a CBN governor is questionable. Agreed?

 

On the other hand, the constitution establishes, unequivocally, that Houses of Assembly have the power to investigate (a) any matter over which it has power to make laws; (b) the conduct of affairs of any person or agency charged with administering its laws or disbursing money it has appropriated.

 

But the constitution does not stop there. It goes on to say that the foregoing powers are only exercisable for the purpose of enabling the National Assembly to (a) make or amend laws; and “(b) expose corruption, inefficiency or waste in the execution or administration of laws within its legislative competence and in the disbursement or administration of funds appropriated by it.”

 

Dear friends, does the National Assembly have the power to investigate allegations of corruption or misappropriation of funds against a minister of a federal government ministry in respect of which the Assembly makes laws and appropriates funds? I think so.

Is there any basis for courts to grant an injunction to restrain the National Assembly from investigating a minister? Oh yes! If their investigation is neither for the purpose of aiding the legislative process nor for exposing corruption, etc., then yes, the National Assembly would be acting outside its constitutional bounds.

 

Is this investigation concerned with exposing corruption and waste? The answer, my friends, is blowing in the wind…

 

 

What’s A State of Emergency Anyway?

On the 15th of May 2013, President Goodluck Jonathan declared a State of Emergency in 3 states in the northern region of Nigeria. Apart from the debate on the propriety or otherwise of the declaration (or “proclamation” as the constitution calls it), a lot of debate has also been had on whether or not a state of emergency can be declared with the Governors of the affected states remaining in office. With all the “sacred” opinions flying about, perhaps it is time to take an academic look at what a State of Emergency is.

What Is A State of Emergency?

A state of emergency is a proclamation by the government of a country suspending certain judicial, legislative or executive functions, or suspending certain rights guaranteed by the constitution, during times of civil unrest or natural disasters. The concept of the need for the state to have emergency powers can be traced back to 5th Century Rome, when the constitution at the time empowered the Senate to appoint a dictator for a period of 6 months, to quickly take decisions and implement strategies for victory at war. Basically, declaring a state of emergency enables the government to override usual administrative controls or circumvent usual checks and balances in order to provide the speedy, effective response a national crisis requires.

When Can A State of Emergency Be Declared?

Generally, an emergency can be declared when circumstances arise that cannot be dealt with quickly or efficiently enough under the rule of law, or under normal constitutional circumstances. Specifically, under the Nigerian constitution, the President has the power to declare a state of emergency 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 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 clearly a public danger which clearly constitutes a threat to the existence of the Federation; or

g. The President receives a request from a State Governor to do so.

What is the Order of Events to be Followed in Declaring a State of Emergency?

1. The President issues a proclamation of a state of emergency and publishes it in the Official Gazette.

2. Immediately after the proclamation is published in the Official Gazette, the President transmits copies to the Senate President and the Speaker of the House of Representatives.

3. The Senate President and the Speaker immediately arrange for meetings of their respective houses of legislature to consider the situation and decide whether or not to pass a resolution approving the proclamation of the state of emergency.

4. The proclamation of the state of emergency ceases to have effect –

a. If it is revoked by the President;

b. If the National Assembly fails to ratify it in each House (resolution supported by two-thirds majority) within 2 days (when the Assembly is in session) or within 10 days (when the Assembly is on recess) after the publication of the proclamation.

c. After a period of 6 months has elapsed since the proclamation came into force (the National Assembly can extend the period of the state of emergency for further periods of 6 months, as it deems fit).

d. At any time after ratification by the National Assembly, when each House of the National Assembly revokes the proclamation.

Must Governors be Suspended During States of Emergency?

While historically, Governors have always been suspended during periods of emergency, there is nothing in the Nigerian constitution that makes their suspension compulsory. The following question then is, how is military intervention in a State compatible with Governors remaining in office for the duration of the state of emergency? My answer to this (but this is not backed by any constitutional provision) is that the two are compatible in the instant situation for the following reasons:

1. The President has deployed soldiers to restore security to the various States. Security is not the only function of a State Governor. In fact, it is arguable (and perhaps even likely) that the Governor performs more administrative than security functions. Unless the affected States have completely ground to a halt, I do not see a reason why the Governor cannot continue to perform all his other functions outside security.

2. The militancy/insurgency is not taking place in every single square mile or local government area of the affected States. Many parts of the affected States continue to enjoy relative peace and normalcy. Should they be neglected because the army is fighting insurgents in pockets of the State? Should the delivery of governance to relatively unaffected areas not continue?

3. Consider that no American Governor has been suspended during periods of emergency. Not even during the manhunt for the bombers of the Boston Marathon.

4. Given that a Governor could request the President to declare a state of emergency in his State, it is unlikely (in this event) that the framers of the constitution conceived that a Governor would believe his suspension from office would be one of the outcomes of him making such a request.

Final Constitutional Question

There is the further question of whether it is even constitutional at all for Governors to be suspended during periods of emergency. Senior lawyers with much more constitutional knowledge and experience than me appear to believe that it is indeed unconstitutional; that a Governor may only be removed from office by impeachment, resignation, or on grounds of infirmity. I have a contradictory hypothesis (emphasis on hypothesis).

I would suggest, that while it is true that a Governor may only be PERMANENTLY removed by the previously-listed means, suspension from office while the period of emergency lasts is valid if ratified by the National Assembly. If a state of emergency is in effect a suspension of the constitutional order because of emergency circumstances, and the only restraint placed on the President in the constitution is that the details of the emergency rule must be ratified by the National Assembly, I think a case can be made for the validity of the temporary removal of an affected Governor from office. It remains a theory however – as is that of my renowned, most esteemed, learned seniors – until the courts are given the opportunity to rule on the question one way or the other.

Before We Abolish the Senate

In recent discussions on the need to cut down the size of government and its expenses, many have questioned whether it is necessary to have two federal houses of parliament. After all, goes the argument, they are virtually never in disagreement with each other. The ruling party controls both chambers and thus, any notion of one operating as a checks and balances mechanism against the other is mere fiction – one set of lawmakers is clearly redundant.

It is tempting, in the red mist of revolutionary fervour, to align oneself with this position and demand, on the singular basis of unnecessary expenditure, that one of the legislative chambers be abolished.

However, we know from basic economics that apart from cash cost, there is also an opportunity cost to be considered when allocating scarce resources.

To ascertain the opportunity cost of moving to a unicameral legislative system, one must first understand the thinking behind designing legislatures to consist of two chambers. My research suggests that there are at least two cogent reasons for it – philosophy and representation.

On the underlying philosophy, NYU law professor, Jeremy Waldron, in a very informative paperwhich I urge every “change agent” to read, begins his discussion with an interesting anecdote, which I have reproduced in full: ‘Herodotus and Tacitus report that the ancient Goths of Germany, when they had to decide anything important – like going to war, or moving their settlements or entering into a treaty – they would debate it not once but twice. The first time, they would debate the issue drunk, the second time they would debate the issue sober. Drunk – to give a bit of vigour and spirit to their deliberations; sober, to add a dimension of prudence and discretion.’

These ancients believed in the wisdom of two different approaches to considering an issue, almost in the style of two-heads-are-better-than-one, with the expected consensus hopefully being somewhere in the middle of the two ‘ideological’ extremes. The idea was also to guard against the likely tyranny of a legislature with no checks.

There is also a less politically correct thesis, which in spite of its inherent classism still rings true.

The fact is if true democracy is really practised, it would result in the supremacy of the will of the masses/the mob (as the majority) over that of the minority elite. Even for the rigid idealists, it is clear that the affairs and policies of state cannot be left exclusively to the will of the majority.

The history of the US Congress provides an excellent example of how bicameralism serves to ease fears of lopsided representation in the legislature. At the constitutional convention, delegates from smaller states were fearful of having no voice in government and advocated representation on an equal basis regardless of the size of the state. Larger states insisted on representation based on population and the convention seemed headed towards gridlock. The bicameral system solved both problems. Each state got an equal number of senators, with the number of lower house representatives being determined by population.

To recap, therefore, bicameralism guarantees against the subjugation of smaller constituent members (population wise) and should also serve as a wiser, calmer counterfoil to the effervescence of the will of the people.

If, in the quest to reform the legislature, we were to opt for a unicameral assembly, what would we be gaining apart from the expected savings in salaries and emoluments?

Currently, we would not be losing much. The president’s party, the PDP, has the majority of the seats in both houses and is therefore the party from which the speaker and the senate president are drawn. Apart from the dispute, a few years ago, over which house was the ‘lower’ house, the two houses have taken identical positions and reached identical conclusions on the issues and laws they have considered.

The senate can hardly be said to have been a calming, more enlightened voice on the house of representatives. The house of representatives itself can hardly be said to be the voice of the masses, there being very little difference in the ilk of members of both houses and the distance between the electorate and those who have represented them so far in this dispensation.

Taken with the relatively insignificant number of laws that would facilitate development and the huge amounts spent on legislators’ remuneration (which embarrasses them to anger each time they’re reminded),  bicameralism does not appear to have demonstrated any of its touted benefits in Nigeria, since the current democratic dispensation began in 1999.

But democracy and reform should be about building enduring institutions. We should be working towards the answer we want, rather than away from what we find undesirable. The distinction between the two is very fine but it exists nonetheless. If each manoeuvre we make seeks to neutralise what we perceive as bad rather than establish the good we desire, we run the risk of ‘playing’ what Arsene Wenger refers to as ‘anti-football’ and establishing an ‘anti-democracy’ – establishing democratic institutions that are primarily designed to handicap government rather than a system for the ages.

Our discussion must therefore not simply be about the financial cost. There are undoubted benefits to bicameralism.

Rather than jettisoning bicameralism, could we think instead of maybe tweaking the version we currently practice to bring it closer to what would be best for us?

Could the constitution be amended such that the Speaker and the Senate President never come from the same party?

Can there be a default number of people-sponsored bills that must be debated each year in default of which the bills pass as presented?

To truly make the senate a bedrock of wisdom, can we work towards minimum educational/experience requirements for would-be senators?

Are there other measures we can employ to ensure that allowances and sham investigations are not all our legislators are preoccupied with? If the answer to all these questions is a resounding no, then perhaps there truly would be no further point to two legislative houses and our dialogue can then move on to creating the best unicameral legislature possible.

 

This piece was first published in TheScoop.