President Buhari’s Release of $1 Billion to Fight Insurgents Without Due Process
What we are saying here, is about a specific expenditure of $1 billion, which is about N360 Billion Naira at today’s exchange rate by the Muhammadu Buhari led Federal Government of Nigeria, to fight insurgency in our country!
Amounts to almost 5% of Nigeria’s Annual Budget for 2018 Fiscal Year
Such expenditure requires a specific appropriation by the National Assembly of Nigeria, through a Bill to the Parliament, and approved by a specific appropriation Act for this purpose. Of course, the National Assembly of Nigeria (NASS), is made up of members who are the elected representatives and custodians of the owners of the resources living and toiling in the entity called Nigeria, to which President Muhammadu Buhari is also a citizen. Mr. Buhari was elected to the office of the President, as the leading citizen of the Sovereign Federation comprising 36 units called States and the Federal Capital Territory (FCT). Each of these States, has equal representation of 3 Senators in the Upper Legislative Chamber of the NASS, except the FCT having only one. From these federating units, comes the resource for the running of the Federal Government, to which President Buhari is elected to manage for 4 years.
Nigeria, like any nation on earth, is governed by laws. Governance is a contract, best described as a social contract with terms and conditions embedded in a written document called the Constitution of the Federal Republic of Nigeria, with the latest one being operated in the Federal Republic of Nigeria as the 1999 Constitution.
The legislative power of the Federal Republic of Nigeria, is vested in the NASS for the Federation, which consists of the Senate and the House of Representatives. Under this Constitution, the National Assembly has power to make laws for the Federation, to ensure peace and good governance at all times, within the Republic. Such laws include, the appropriation laws which are presented to the Parliament as a Bill, and thereafter will be deliberated upon by members of the respective chambers.
In Chapter One of our 1999 Constitution, under General Provisions at Part 1 titled the SUPREMACY OF THE CONSTITUTION, Section 1 provides that “This Constitution is Supreme and its Provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria. (2) The Federal Republic of Nigeria shall not be governed...except in accordance with the provisions of this Constitution (3) ...if any (action) other law is inconsistent with the provisions of this Constitution, this Constitutional Provision shall prevail, and any (action) other law shall to the extent of the inconsistence be void.
In the processes of appropriation, the Executive headed by the President, informs the NASS through an Executive Bill, of his intention for any necessary expenditure; urgent, short or long term, for the peace and good governance of Nigeria. The Executive Power of the President, is subject to the provisions of the laws made by the NASS, and is to be exercised by the President in all matters in respect of which the NASS has powers to make laws from time to time. These include, power to appropriate funds, which is, power to approve the expenditure of the Federal Government from time to time, subject to the NASS being approached through an Executive Bill called “Appropriation Bill” for that purpose. Such Bill shall clearly spell out the projects or programmes that will be executed with the funds to be appropriated, bearing in mind that peace and good governance for the entire Republic in line with Section 14(3) of the Constitution, that the Government of the Federation shall conduct its affairs, in such a manner as to reflect the federal character of Nigeria, and the need to promote national unity and also command national loyalty.
The relationship between the Executive and the Legislature is that of equal partners in the affairs affecting the Federal Republic of Nigeria
no matter what and however urgent. In a democracy, nations are not governed through Master and Servant relationship where the Executive will do what seems right to her with or without recourse to the servant, in this case the National Assembly.
The Constitution is not a mere legal document. It is essentially a document relating to and regulating the affairs of the nation state and stating the function and division of powers of the different components of the government as well as regulating the relationship between the citizen and the state.
The Constitution is the absolute law, defining how powers are shared among the various arms of government! The Executive, Legislative and the Judiciary and powers are allocated to them as appropriate. Their association is free and equal, and there are equal checks and balances or protection under the laws in respect of functions and assigned duties by the Constitution. According to SIR UDOMA JSC in the case of RABIU v STATE (1980) 8-11 S.C. particularly at pages 130 and pages 148 -149, he stated that ‘‘the function of the Constitution is to establish a framework and principles of government; broad and general in terms, intended to apply to the varying conditions which the development of our several communities must involved, ours being a plural, dynamic society” where we must not do anything to defeat the principles of governance enshrined in the Constitution.
The power of the government is contained in the Constitution which is Supreme and has binding force on all authorities and persons within the country. See the case of A.G. ONDO STATE v A.G. FEDERATION (2000) 9 NWLR (Pt. 772) p. 222 S.C.
The Constitution is the embodiment and the foundation of the rule of law. Any action of any authority or person which contravenes the provisions of the Constitution is unconstitutional, null and void.
President Muhammadu Buhari’s spending of 1billion US Dollars, a sizeable percentage of our 2018 annual budget, to fight insurgency without appropriation by the National Assembly is unconstitutional, wrongful and a deliberate reckless desecration of the Nigerian Constitution which he swore to protect, uphold, and defend.
This is not in tandem with the terms and conditions of our union, as prescribed in our Constitution. This is an impeachable offence in any Country!
The power of appropriation, is a means of control put succinctly, checks and balances on the Executive, which the President is refusing to be checked by this act, though on a purported good cause of ‘fighting insurgency’. Purported, because of the discordant tunes coming from the Federal Government over the course of the last months of efforts of fighting the same insurgents, which the government claims to have “technically defeated”, yet still requiring this whopping amount of money being released or taken out of the Federation’s account without approval nor scrutiny by the National Assembly, is unlawful to say the least.
I, personally pray as a Nigerian citizen, that this is not aimed at blackmailing us all and the National Assembly, for spending this chunk of illegally obtained funds from our common patrimony, into private purses or election funds, in disguise.
In the case of GOVERNOR OF LAGOS STATE v OJUKWU (1986) 3 NWLR (Pt.26) 39, the Supreme Court held unanimously that;
“Executive lawlessness is tantamount to a deliberate violation of the constitution..... the essence of a rule of law, is that it should never operate under the rule of force or fear”. To use force or other means to effect an act (the release and expenditure of $1Billion for whatever reason, without the NASS appropriating the money through legislative means; like through an Appropriation Bill and eventually an act of Parliament)! Amounts to an attempt to infuse timidity into our (Legislative) system and operate a
sabotage of the cherished rule of law. It should never happen in a democracy.
In this case of GOVERNOR OF LAGOS STATE v OJUKWU (supra) Per OBASEKI, J.S.C.:
“In the area where rule of law operates, the rule of self-help by force is abandoned. Nigeria, being one of the countries in the world which proclaim loudly to follow the rule of law, there is no room for the rule of self-help by force to operate...(the release of public funds without appropriation to self, because you are the President, the Executive, amounts to the introduction of self-help by force into governance or the operation of national security and our cooperate/ collective existence as a nation)..it is the duty of the Government to allow the law to take its course, or allow the legal and judicial (herein legislative) process to run its full course.... hence, the Government itself is a creation of law, and is ruled by law.
Conclusion I will end my submission, with the exhortation of the Court in the case of GADI v MALE (2010) 7 NWLR (Pt.1193) 225, which lends some formidable credence to the Supreme Court’s authoritative observations copiously alluded to in the OJUKWU’S case (supra), to the following effect.
“Paradoxically, for this great Nigerian Nation, the popularly acclaimed ‘Giant of Africa’, to ‘move forward’ and achieve the laudable objectives contained in the preamble of the 1999 Constitution, the three Arms of Government must work assiduously and harmoniously, in accordance with the dictates of the provisions of the Constitution and the laws. Otherwise, it would remain stagnant, underdeveloped, and a pariah nation!
The future of any nation, whose three Arms of Government fail to be strictly guided by the provisions and the well cherished tenets of the law, could be aptly likened to the fate that had befallen ‘The swan, The pike And The crayfish’, who failed to draw a cart due to lack of cooperation. According to a Russian (proverbial) poem“The swan makes up ward for the cloud, The crayfish falls behind, The pike-the rivers uses,’ To judge of each one’s merits, Lies beyond my will; I know the Cart remains there, still.” Quote by Hon. Justice I.M.M. Saulawa JCA in the case of Mr. D. Makolo & Ors. v The Minister of Housing and Urban Development & Ors. CA/ L/660/10 unreported decided at the Court of Appeal, Lagos
Judicial Division on 27th March, 2013. Page 9-10. Daniel Daudu Makolo, PhD Law Candidate, University of Abuja