The Avoidable Executive-Legislative Face-off
Except the executive takes urgent steps to end its frosty relationship with the legislature, the administration’s efforts to make good on its promises to the Nigerian people will suffer a setback, writes Tobi Soniyi
We have been here before. Flash back to April 2016 and you will recall a faceoff between the National Assembly and the executive arm of government. My colleague who was covering the Senate then, Omololu Ogunmade wrote: “The nation was shocked on Monday when the Senate took on the presidency, describing it as incompetent and of deliberately engaging in a campaign of calumny over the allegation that the National Assembly dropped the N60 billion Calabar-Lagos rail project from the budget. But the budget might just be a façade, as there appears to be underlining politics in this imminent executive-legislative feud.”
Exactly one year after, the Senate planned to suspend consideration of some requests sent to it by the Presidency. Already the senators have deferred consideration on the nomination of 27 persons for Resident Electoral Commissioners (RECs) of the Independent National Electoral Commission (INEC). There are also indications that they will not consider the two candidates for ministerial positions.
So, executive-legislative face off isn’t new and it is not peculiar to Nigeria. During Barack Obama’s reign as president of the United State of America, the Congress almost shut US down over disagreement with the executive. Just last month, the man who like to boast of his deal making power, Donald Trump could not get the Congress to pass the bill to replace Obamacare into law.
However, what is perhaps interesting in the recent showdown between the Bukola Saraki led-Senate and the exco is the cause of the disagreement. The immediate cause appeared to be the unwarranted attacks on the Senate by the Chairman of the Presidential Advisory Committee Against Corruption, Professor Itse Sagay, SAN who described the requirement that an appointment to fill the office of the chairman of the Economic and Financial Crimes Commission requires Senate confirmation as something that can be dispensed with. Except for mischief, even the learned professor of law and author of many books ought to know that he is wrong in the circumstance.
His statement irked members of the Senate who were already feeling let down by the refusal of President Muhammadu Buhari to present someone else for consideration as EFCC chairman after the Senators had twice rejected his nominee, Ibrahim Magu.
The senators contended that since the rejection of nominees by the Senate had not stopped them from continuing to carry on in acting capacity, (apparently referring to Magu) there was no point screening the nominees.
Senator Peter Nwaoboshi (Delta North) who raised the issue noted that the Senate recently dealt with the issue of confirmation, but the rejection of the nominee was dismissed by the Chairman of the Presidential Advisory Committee on Anti Corruption (PACAC), Prof. Itse Sagay, who said the Senate “merely confirms.”
He described Sagay’s statement as misleading because it created the impression that the legislature had no powers or it was a mere rubber stamp.
He said: “Here are we again today, now be given a list to confirm and we merely confirm. Eight of them, out of 27, are for reappointment which means they are acting already, they are already working and they are still in position. Prof. Sagay will start again citing Section 171 subsection 2 of the constitution, even if we do not confirm them, he will say continue to fight.
“But when you denigrate such an institution that has the power to confirm, and used the word ‘merely’, we could have ignored it but
The presidential system of government which Nigeria practises as a nation encompasses checks and balances. All the three arms of government must embrace this principle. An executive that refuses to obey judgments of courts, intimidates the judiciary and seeks to order the National Assembly around is a danger to democracy
for somebody of that status. My position on this matter is that since our confirmation is ‘merely’, let us suspend it until we now know whether we have the power, as given to us by the constitution, to look into confirmation matters or any other status.”
Nwaoboshi moved the motion that the Senate suspend the consideration of the nominations indefinitely.
His position was adopted by Senator Matthew Uroghide (Edo South) who also noted that the Acts establishing the agencies specified which appointments by the president have to be confirmed by the Senate.
Uroghide stated that if the Senate, in performing its statutory role of confirmation, rejected a nominee, the president was at liberty to nominate another candidate, but must inform the Senate formally on the fate of the rejected candidate.
“These persons cannot keep acting even when we have turned them down. As it is now they are acting and their names have been sent in for confirmation and we do not know what has happened in the case of the EFCC. Specifically speaking, is he acting today? If the President knew that he was not going to honour our refusal or rejection of his nominee, they should not have sent him in the first place, which would have meant an outright violation of the law establishing EFCC and of course the constitution,”Uroghide added.
There are those, including, respected Lagos lawyer, Femi Falana, SAN who argued that Magu’s appointment did not require Senate confirmation citing the provisions of Section 171 (2) of the constitution. That position merely begged the issue because the president was aware of that provisions before he chose to present Magu to the Senate for confirmation.
For obvious reasons, many Nigerians like to hate members of the National Assembly. They tend not to see anything good in whatever the lawmakers do. But on the Magu’s appointment controversy, critics like Sagay, the Socio Economic Rights and Accountability Projects and others should have been bold enough to lay the blame where it belonged: at the president’s table. But in Nigeria, truth is always the victim.
When the Department of State Security Services decided to ridicule the president by sending a security report against Magu to the Senate that should have drawn the ire of those now condemning the Senate.
A legal practitioner and ant-corruption activist, Kabir Ibrahim captured this quiet succinctly when he wrote: “The lingering and disturbing question is; how can an appointee of the President who heads an agency (the DSS) answerable to the President contradicts the President so brazenly? This is the height of official rascality unheard of in our short democratic experience! This is because it is a matter of public knowledge that the President forwarded a letter to the Senate, after the first DSS report(s), informing the Senate that Ibrahim Magu has been queried and the allegations against him investigated and found to be baseless thereby clearing the way for his re-nomination and representation to the Senate for ‘confirmation screening’. Then, the DSS sent a ‘letter’ flying in the face of the President’s earlier letter and contradicting the President’s position that Ibrahim Magu has been cleared of all allegations.”
In their reactions to the face-off Convener, Movement for the Advancement of National Transformation (MANTRA), Mr Jude Ndukwe and Co-Convener, Coalition in Defence of Nigerian Democracy and Coalition (CDNDC), Ariyo Dare-Atoye in a statement jointly issued by them said: “We are even more appalled by the defence put up by some prominent Nigerians for the excesses of the executive. These hypocrites who have joined in bitterly criticizing the senate over its rejection of Ibrahim Magu as the substantive chairman of the EFCC, hailed the DSS reports that were used to intimidate and harass the judiciary recently but have turned around to ignore, reject and even criticize the same DSS’ report with all its weighty allegations against Magu.
“Would it have been advisable for the senate to ignore such security report and confirm Magu just to satisfy the whims and caprices of a few individuals in the executive at the expense of national security and image? Even the DSS report concluded that ‘Magu has failed the integrity test and will eventually constitute a liability to the anti-corruption drive of the present administration’. Why should any right thinking citizen expect the senate to ignore this warning?”
Since Magu and the DG SSS were appointees of the president, they ought to have resolved their differences internally. This makes the current face off between the executive and the legislature avoidable. If the president believed that Magu’s appointment requires confirmation by the Senate he then owes the Senate an explanation why Magu should remain since his nomination had been flatly rejected by the Senate.
The Magu’s case was not the first to be bungled by the presidency. The allegation against the Secretary to the Federal Government, Babachir Lawal almost degenerated.
So, executivelegislative face-off isn’t new and it is not peculiar to Nigeria. During Barack Obama’s reign as president of the United State of America, the Congress almost shut US down over disagreement with the executive. Just last month, the man who likes to boast of his deal making power, Donald Trump could not get the Congress to pass the bill to replace Obamacare into law
A confrontation was avoided when the presidency directed the Attorney General of the Federation, Abubakar Malami, SAN to investigate the allegation. The report of the investigation has not been made public. Nevertheless, the issue remains moot despite coordinated efforts to sweep it under the carpet.
Not only in Nigeria, the legislature is seeing as an obstructive irritant by those in the executive. Nevertheless, the idea of a legislature is to ensure that the executive does not become tyrannical. So the legislature does have its nuisance value. A legal practitioner, Chief Mike Ozekhome, SAN recently cautioned against the tendency to support every executive action against the legislature. He warned that by always justifying executive acts we might be unwittingly promoting authoritarianism.
Ozekhome spoke against the backdrop of the invitation extended to Sagay by the Senate Ethics Committee. While, many including Sagay himself held the views that the Senate lacked the power to summon him for airing his views on an issue of national importance, Ozekhome, however, disagreed saying that the constitution empowered the Senate to summon anyone.
He said: “The committee of the House or the House, can summon any person. it says any person, and it didn’t say some people.
“It didn’t say whether those elected or not elected. Any person; to bring papers, memos, come with evidence, and that if such a person is summoned to come and testify to come and answer questions and he refuses to come, each branch of the National Assembly can order the police to arrest and bring such a person.”
He added that “the Senate President or the Speaker of the House of Representatives if satisfied that the person has entered into recognizance, they can release the person but if not satisfied, they can tell them to keep the person there.”
Recently, the executive tried to humiliate and intimidate the judiciary as an institution when DSS raided houses of judges who were seen as standing on the way of some people within the executive arms of government. In embarking on the executive recklessness, the procedures for disciplining erring judges were ignored. People who should know better rushed to defend and justify the executive action . With some benefit of hindsight, many who supported the raids then have now seen that the move was not aimed at fighting judicial corruption but to intimidate the judiciary.
Little wonder, some have described the on going face off with the Senate as another plot to intimidate the lawmakers.
The duo of Jude Ndukwe and Dare-Atoye said: “We have observed with great shock the relentless campaign of calumny orchestrated by the executive arm of government to silence the legislature with the inordinate aim of riding roughshod over Nigerians without being checked.
“This severe campaign follows impudent acts of autocracy and tyranny against the senate in particular and the national assembly in general by the executive with the sole aim of undermining the senate and emasculating the National Assembly for very obvious reasons.
“After having succeeded in intimidating, harassing and nearly emasculating the judiciary, it is only natural that to complete the job of routing every democratic impediment to the excesses and recklessness of the executive, the legislature is their next port of call.
“These unfortunate developments have put us as a nation at the great risk of descending speedily into the unenviable state of anomie, anarchy, chaos and doom where impunity reigns supreme.”
The presidential system of government which Nigeria practises as a nation encompasses checks and balances. All the three arms of government must embrace this principle. An executive that refuses to obey judgments of courts, intimidates the judiciary and seeks to order the National Assembly around is a danger to democracy.
The budget is still pending before the National Assembly. It is therefore in the interest of the executive to have a smooth relationship with the National Assembly, otherwise the government will find it difficult to deliver on its promises. Blaming such failures on the National Assembly will not be acceptable to Nigerians.
The decision to set up a committee headed by the Vice President, Yemi Osinbajo to reconcile the executive and the legislature is indeed a welcome development.