May 27, 2018

Obasanjo and the extent of presidential powers – Reuben Abati

Obasanjo and the extent of presidential powers – Reuben Abati

More than a week after President Olusegun Obasanjo released his state of the nation commentary and devastating assessment of the Buhari administration, it has remained the main subject in the public arena in Nigeria. It is a measure of the stature, influence and capacity of the elder statesman that whenever he intervenes as he has done, he sets the tone for public debate and the country’s future political direction. I have already commented at length on the appropriateness, timeliness, depth, brutal honesty and shortcoming of that statement on both television and radio, more than twice, but there is an additional aspect that the statement further throws up, namely the nature and extent of presidential powers to wit: should Obasanjo blame Buhari?     

It is common practice in Nigeria for political commentators, either on the streets or in formal situations to make excuses for Presidents, either serving or retired. You are likely to hear statements such as: “The President is a good man, it is just that he is surrounded by bad advisers and ministers”, or something like “Buhari is not the problem, the problem is that he has been hijacked by a cabal, or as the view was once expressed – “a cabal is now in charge!”  The powers, style and limitations of the President are hardly ever placed in proper context. Proponents of the positivism of Presidential powers always speak in terms of “Good President, bad aides” in the Nigerian Presidential system, contrary to the norm that the buck stops at the President’s table.  

President Obasanjo’s various assessments of sitting administrations adopt a different orientation. He holds the President personally responsible for the performance or non-performance of his government. In his recent statement on the Buhari administration, he thus characteristically accused President Buhari of nepotism, lack of understanding of the internal dynamics of Nigerian politics, blame-passing, condoning of misconduct and outright incompetence. He more or less ascribes to the President of Nigeria the powers and the responsibility to provide leadership and ensure good governance. In his view, in areas where the President lacks capacity, it is his duty to recruit competent persons to assist him and where and when he fails, he is still the one to be held responsible.

The underlying principle in Obasanjo’s statement is that those to whom power is bequeathed must be accountable for the exercise of such power. In his only reference to advisers in his intervention, Obasanjo uses the word “so-called advisers.” It is most unfortunate that in the various responses from government and its agents to the Obasanjo statement, there has been no attempt to take on Obasanjo on the issues. He has been called names by hired voices, or system sycophants, and all he got from the Minister of Information was an acknowledgement note and a patronizing “Baba-is-a-patriot”, tepid climb-down, without a word of defence on the substantial question about how the incumbent President has abdicated responsibility and failed the leadership test.  

For me, there are a number of projected questions:  Can a President actually be held responsible for the failings of the government he heads? Should the blame for an administration’s failures be heaped on the head of a past government and its officials? Who can be held liable in the circumstance – a cabal, former Ministers, or those exercising delegated authority? For whereas Obasanjo holds every President accountable, I have heard persons claim that he has no moral right to do so. It is even alleged that President Buhari cannot be questioned because he is answerable only to the people whose sovereignty he personifies.  

President Obasanjo, by heaping the blame and the responsibility, on the head of President Muhammadu Buhari is drawing attention to the full extent of the ascribed and inherent powers of the President under the Constitution. The Nigerian Constitution in letter and spirit makes the Nigerian President an Emperor with near-absolute powers. There may be checks and balances on his powers here and there, in terms of his having recourse to the National Assembly on certain issues and having to make consultations, but in totality, the Constitution confers on him a kingly prerogative, especially on matters of policy and its execution. His powers are extensive and expansive. Under Section 5(1) of the Constitution, he is empowered to either exercise his powers directly or to delegate. His relationship with those to whom he delegates authority is akin to that between an agent and a disclosed principal.  

Section 5(1) is instructive: “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 or Ministers of the Government of the Federation or other officers in the public service of the Federation; and

 

Section 148(1) adds:

“The President may, in his discretion, assign to 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.”

It stands to reason therefore that whatever is done by those agents, lawfully and within the bounds of Presidential approval, are within the scope of the responsibility of the President. In other words, the President cannot pass the buck.  So, is it right to say Buhari is a good man, but the problem is the cabal? Or to hold heads of MDAs liable for acts that were carried out with Presidential authority and approval? The President is the custodian of the social contract with the people as defined in Section 14, and where there is a failure of consideration in this regard, the government is deemed not only to have lost legitimacy, the President is deemed to have failed. This is a key point in Obasanjo’s statement, which makes it notably different from similar interventions by him in the past.

The term or the group known as “cabal” is unknown to the Nigerian Constitution but the Constitution knows the President. Section 148 also recognizes that Ministers are appointees of the President, exercising delegated authority. This is why the National Assembly cannot impeach Ministers; they can only be sanctioned or relieved of their duties by their appointor, namely the President. Where the conduct of any government official is in question, it is important to establish whether or not such a person acted beyond the scope of the approval or directive given or whether or not such was ratified by the President. However, no public official is allowed under the law to carry out an unlawful directive, where such happens, such a person is personally liable. In practical terms, this has been a source of problem. Nigerian Presidents function like Emperors. How many appointees can stand in front of a President and query his authority, or turn down his directive?

I align with the definition of responsibility in Obasanjo’s review of the exercise of presidential authority. For instance, there are cases in court against Ministers and advisers who served under the Jonathan administration over matters such as the spending of security votes and sale of oil blocks, but to what extent can they be held responsible for obeying presidential directives? Today, in President Buhari’s Aso Villa, the Chief of Staff in particular has been accused within the public domain of many things. Does anyone really believe that a Chief of Staff can act on his own without Presidential backing and not lose his job?

When the matter of MTN’s underpayment of sanctions sum came up and the penalty sum was allegedly reviewed downwards after some consideration, the MTN Executive that was involved was sanctioned, and Nigerians asked that certain government officials should similarly be sanctioned, but to date, nothing has happened. Could that have been the case without the President’s knowledge? In the more recent controversial case of Abdulrasheed Maina, the Attorney General of the Federation, Abubakar Malami who was accused of protecting a man who had been sacked from service on the grounds of embezzlement, pilfering and corruption, had said that he acted with the knowledge and approval of the President.

Can he possibly in the future be called to account for his action even when he was carrying out a Presidential directive, apparent or otherwise? Afterall, his explanation was further confirmed from the statement of the Head of Service to the Federation who said when the issue came up, she notified the President of the likely backlash. When the National Assembly summons a prominent government official and he or she refuses to honour the invitation, can it be assumed that any Presidential appointee can be so dismissive of the legislature without Presidential concurrence? When recently there was a face-off between the Department of State Security, the National Intelligence Agency and the EFCC, with the intelligence agencies insisting that they or their former bosses cannot be questioned by the EFCC, could they have gotten away with it without Presidential approval?  It is noteworthy that the intelligence agencies report directly to the President and take directives from him. They relate to other departments of government only on a need-to-know basis. There is also that other matter between Dr Ibe Kachikwu and NNPC GMD, Kanti Baru, with the latter insisting that he had Presidential approval. Can either party be arrested in the future for “alleged corruption” in the light of the revelation by the Vice President, then acting as President, that he only gave “non-financial approvals?”  

Our point therefore is that everything in our Presidential democracy revolves around the President. Whereas the Constitution, upholding the separation of powers, vests the authority of the other two tiers of government: the legislature (Section 4) and the judiciary (Section 6) in institutions, the 1999 Constitution vests executive authority not in any institution, but the person of the President. The Presidency is not a collegiate; technically, even the Vice President has no powers. He can only function to the extent of powers delegated to him by the President, and even the very limited powers assigned to him can only be exercised under presidential directive.

This is partly why when President Buhari went on a medical vacation and Vice President Osinbajo acted as President, there were persons who accused him of becoming ambitious and trying to seize Presidential powers even when he had been granted delegated authority. The second time the President travelled, the Vice President was directed to act only as a co-ordinator! The President is granted immunity from prosecution; while in office, he is regarded as a Messiah, such that even the powers of the National Assembly to impeach him in the event of “gross misconduct” or “incapacitation” are difficult to execute.

More than at any other time, the Buhari administration has further problematized the extent of the powers of a President by calling to question virtually every act and directive under the preceding Jonathan administration. If a President gave a directive and it was lawfully carried out, without the agent going on a frolic of his own, and without any willful act of criminality, should such agents become the target of a witch-hunt? By stretching the matter in this direction, the Buhari administration may have created the basis for the growth of a political culture based on vendetta and the source of its own lack of vibrancy.  

This probably explains why under this administration, delegated authority is being exercised with so much fear. The Ministers and heads of parastatals and agencies are so scared because they imagine that even when they carry out directives, they may be held liable tomorrow by a different government. Already, they are being told that they are the problem and not the President. Why shouldn’t a future government arrest and detain them and tell them that the execution of a Presidential directive is no protection? They may ultimately end up as victims of their current triumphalism.

By demonizing former public officials, and undermining the powers of a past President to exercise power and authority through legitimate and lawful delegation, the Buhari administration may unwittingly make public service unattractive and set a disturbing precedent. Be sure, however that the Nigerian public in the future will still argue that “Baba is a good man, it was the cabal that caused his problems.” Good intentions alone do not guarantee good leadership: this is the underlying moral of the Obasanjo statement. Whether or not he can mount the high horse to say this is beyond the purview of this present commentary.

But here is the long-term challenge: Can a President who has been given so much powers under the Constitution be allowed to abdicate responsibility? Section 5(1) and Section 148, and other relevant sections of the 1999 Constitution on Presidential powers present grey areas that throw up jurisprudential questions that should be clarified and resolved. It is an issue on which Nigerians must make a value judgment: do we need to preserve the status quo or is there a need to review the extent of Presidential powers? There are two ways forward: a constitutional amendment of Presidential powers to make Presidents more accountable, more institution-based and less omnipotent, or a resolution of the dilemma through the jurisprudence of our courts.  

 

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