Checks and imbalances
As a student of law in Ife in the 1980s, I thought the intertwined concepts of separation of powers and checks and balances were the most creative and sophisticated inventions in the subject of constitutional law. In a sense, they were probably the most important elements of the US Constitutional system which we adopted in Nigeria for the first time under the 1979 constitution and retained in General Abdulsalam Abubakar’s 1999 edition. Separation of powers was central to the efforts of the drafters of the American constitution to prevent concentration of power in one authority or person. While the British parliamentary system combined legislature and executive functions and personnel in parliament, with the members of the executive selected from amongst elected parliamentarians and retaining their membership of the legislature even as they served as ministers, the American system took no such chances.
Many years later, as I reflected on issues of theology, I found some parallels between constitutional separation of powers and the Christian conception of the Trinity-Jehovah the Father, Jesus Christ the Son and the Holy Spirit!
Under the Presidential system, a president (and governors at the states) was elected independently and he selected his own ministers. If a president selected a legislator as minister, the individual could not retain his seat in the assembly. In both parliamentary and presidential systems, the judiciary was separate and independent and served as arbiter of disputes within the various arms and amongst citizens or between citizens and their government.
Yet separation of powers in the American and inherited Nigerian systems did not imply separation of government or divided government! An intricate system of checks and balances was meant to prevent dictatorship, yet ensure the orderly functioning of governance. Hence nominees for high offices of state such as ministers, ambassadors would be required to obtain confirmation of their appointments by the President from the Senate. The power of appropriation basically rested in Congress or as we called our own legislature, the National Assembly. The assembly exercised critical powers on behalf of the citizens-appropriation, representation, confirmation, enacting legislation and oversight over executive functions. Yet the President must sign all legislative enactments and could veto those he vehemently disagreed with. His veto could only be overturned by two-thirds vote of parliament. On the other hand, the executive was entitled to undisturbed exercise of executive functions of policy formulation and administration except where laws were breached or public interests clearly threatened.
This intricate system at the best of times has been chaotic in the Nigerian experience, with the concept of “oversight” assuming unexpected interpretations; the legislature seeking to enter into the executive realm through “constituency projects”; and annual fights over appropriation. Under the Buhari presidency, the relationship between the executive and legislature is especially beginning to border on acute dysfunction! The signs of malfunction emerged quite early. The legislators in both the Senate and House of Representatives elected leaders different from those preferred by the presidency and the ruling All Progressives Congress (APC). In the Senate, that resulted in prosecution of the Senate President Bukola Saraki for alleged improper declaration of his assets as a governor in 2003! He also faced an attempted, but subsequently aborted(?) prosecution for forging the house rules under which he was elected, along with Ike Ekwerenmadu, the Deputy Senate President. It appears Saraki then found a way to repair his relationship with Buhari and everyone thought the troubles were over. In the House, pragmatic Honourables quickly reached a compromise deal, with the party and presidency, electing the defeated preferred party candidate as Majority Leader, a precedent the Senate later copied.
Then more recently a quarrel broke out over whether the Controller-General of Customs appointed by Buhari, retired Colonel Hammed Ali should wear uniforms or not! My personal opinion is that Colonel Ali should, in the interest of the service he agreed to head, have agreed to wear the uniform at least to humour the Senate. If he’s ashamed of the Customs and/or feels superior to the institution, he should not have agreed to be its head. And he shouldn’t be happy to drive in their official cars or fly in their jets! The Senators are also frequently petulant and difficult to justify given their unpopularity, perceived self-centeredness and insensitivity to public mood and opinion. Why would anyone want to defend senators who allocate any sums they deem fit to themselves as salaries, allowances and “overheads” and whose actions often appear motivated by self or group privileges rather than national interest? And recently one particularly exuberant Senator has resorted to producing videos in which he dances “Fuji” and mocks his opponents within the Upper House! In the end, Ali appears to have conjured up a lawsuit as a pretext for refusing to obey the summons of the Senate. While the senate and Ali flex muscles and egos, the grass are the Nigerian people whose interest was in the substantive issue of whether the Customs and Excise department was right in its strange decision to start asking motor vehicle drivers for the customs papers from years back!
The crisis over the (non-) confirmation of the President’s nominee as EFCC Chairman, Ibrahim Magu is more curious and perplexing! Again my personal opinion contrary to the often politicized legal opinions proffered by biased and partisan lawyers (including SANs and Professors of law!) is that the Senate, having turned down a request for confirmation of appointment of any nominee for any position that requires such confirmation, there is no legal basis whatsoever for such a person to stay in the office. I believe the Senate is completely correct on this legal position. What will be the point of the law providing for legislative confirmation if a nominee can remain in an acting position in spite of the legislature turning him or her down on two occasions? I am not sure I support the Senate’s subsequent decision to suspend the consideration of 27 INEC Resident Electoral Commissioners as a reprisal for the executive disrespect over Magu, but I do sympathize with their sentiments. Everyone’s uppermost interest should be the preservation of the rule of law and a prevention of a defacto dictatorship in Nigeria!
Again as the Senate and the Presidency engage in this supremacy battle, the 2017 Budget is yet to be passed and we are now in April. Those who suffer the economic consequences of delayed budget passage in a recessionary economy are not the fat cats in the executive and legislature, but firms, individuals and households who need any relief they can get from economic hardship plaguing the land! Instead the executive and/or its friends and partisans expend scarce resources seemingly funding a surreptitious campaign to delegitimize the Senate and pro-presidency groups start calling for the abolition of the Senate!
While it may be possible in theory to understand the conflicts between the executive and legislature, the more perplexing angle to the Magu affair is the role of the Department of State Security, which is within the executive in the scandalous matter! The whole story around Magu’s appointment is a chronicle in incompetence, tardiness and executive dysfunction! Magu was appointed Acting EFCC Chair on November 9, 2015. It was not until June 17, 2016 that a letter was forwarded to the Senate for his confirmation. On October 3, 2016 DSS wrote a damning report to the Senate on him, whereupon the Senate rejected his nomination on December 15, 2016. On January 23, 2017, the President re-nominated Magu and again on March 14, 2017, DSS wrote a second letter also rejecting Magu as unworthy of the position. The Senate duly rejected him the next day March 15, 2017! The DSS is headed by Lawal Daura an appointee of the President from his own Daura town in Katsina State. The Magu affair indicts President Buhari suggesting he is weak and not in charge of his own government. It also portrays his government as dysfunctional and divided against itself!
In the end, the Nigerian constitutional system under Buhari may now be officially termed a system of checks and imbalances for the purpose of divided government as a means of ensuring that nothing gets done!
Opeyemi Agbaje