Constitutional crises

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National Assembly Complex Abuja.

Nigeria has a plethora of constitutional issues to deal with presently. To be sure, there was never a time constituents of the federation took a holiday, away from the dissonance of constitutional debates. Right from the days when British colonial government was pressured to contemplate a handover to the nationalists who demanded self-rule, leaders of the various ethnic and political groupings have hopped from one constitutional conference to another. There has never been respite since then, with each outcome beckoning for more, each constitution begging for refinement and improvement.

But it is rather an embarrassment, that after many decades of constitution making, the polity is yet hobbled by predicaments that ought to have been rested based on experience and convention. It is not too difficult to know a people who are teachable and ready to learn. Such make mistakes, admit same, make amends and move fast to restore missing links. But those that are stiff-necked would remain perpetually redundant and would remain laughing stock of the international community. If after 57 years that the British left in 1960, there is no progression in constitutionalism and no database of conventions to address challenges that are foisted by political dynamics, then it were better to retrace steps. When colonial authorities introduced Nigeria to constitutionalism, it was a progressive endeavor. Each step was an improvement on the previous.

The journey kicked off in 1914 with the Lugard Constitution of 1914, which amalgamated the north and southern protectorates. Lugard himself, being the Governor-General, administered it. It was soon repealed with the 1922 Sir Clifford constitution, which introduced some measure of representation with the establishment of a legislative council. Then in 1946, there was the Arthur Richard constitution, which recognized the three regions of north, west and east. In 1951, the Richard constitution was let go for the Macpherson constitution. Here, history records that there was more consultation with constituents more than in previous constitutions.

As a result of more participation of locals in the transitional governments with frictions setting in, regional leaders were invited to participate in a conference in London, which birthed the Lyttleton Constitution of 1954, which granted relative autonomy to regional governments, with their own legislative houses and bureaucracies. It was this structure that encouraged the federal system that subsisted at independence. After that there was the constitution of 1963, which was homegrown and established the basis for the federalism that brought so much gains to the regional governments, until 1967.

Today, two groups are contesting for space at the Unity Fountain, Abuja. The one group led by Charly Boy, also known as Area Father had been meeting since Monday, August 7 and the theme of their outing is #Resume or Resign. They want president Muhammadu Buhari, who has been on sick leave for more than 90 days in London, to return home and continue with his job, or pack his belongings out of Aso Rock, if he can no longer cope with the arduous demands of his office. The other group, yet to be properly identified, is rooting for Mr. President. According to them, Buhari had constitutionally transmitted powers to his vice, now Acting President Yemi Osinbajo, to coordinate the government as Buhari embarked on his second journey to London on May 7. The latter group thinks if power had been transmitted, then no offence had been committed. Buhari could as well remain in London until 2019, when he might just show up at the next presidential convention of his party to be handed the party flag and ticket. Thereafter, he could return to London, after again transmitting power to his vice, while the All Progressives Congress (APC) will prosecute the campaigns and election on his behalf. Buhari will then come on the eve of May 29, 2019, preparatory to his swearing in for another four years.

Constitutionally, it seems the two sides are doing well based on their different understanding of the constitution. For the Charly Boy side, Buhari may have fulfilled the requirements of Section 145, which has to do with transmitting a letter to the National Assembly, requesting to proceed on vacation because he is unable to discharge the functions of his office. And the constitution has refused to put a timeline on when a vacation will amount to dereliction of duty. Since the polity encourages frivolous public holidays, and the constitution has granted Mr. President perpetual holiday, the Charly Boy group thinks Buhari, well celebrated for his selflessness, integrity and uprightness should be honourable enough to resign. They reason that Buhari will be on record as the only Nigerian president who resigned voluntarily.

The Charly Boy group knows too well that their outing has no constitutional backing, apart from the freedom to associate in a peaceful manner. They know that men of courage are not in the National Assembly or even in the civil society to compel the NASS to begin work on Section 144, which is clearly what the Buhari saga calls for. Section 144(1) ‘a’ stresses what to do when a president begins to show signs of incapacitation. The Section empowers the NASS to do the needful, in league with the members of the Federal Executive Council. It is a simple process, but made very complex by politics. You do not require experts from Harvard Medical School to authenticate when a man is no longer fit for the job. If a man is away from office for more days than he is legally entitled to, conventional wisdom explains he needs to go home and rest.

But the pro-Buhari group will not hear any of that. That is the reason for the two rallies taking place outside the National Assembly and the Judiciary, two arms that are recognised to make laws and interpret them. The NASS only recently concluded a process of constitution amendment. It did not occur to them to add a few sentences to Section 145, to put timeline on when a president’s vacation or that of his vice becomes fraudulent. Until they do that, this constitutional conundrum will continue to repeat itself.

The other constitutional crisis has to do with senate’s screening of certain presidential nominees for appointments into offices. The constitution has listed certain commissions whose heads are to be screened for confirmation by the Senate. It happens that by the time the Economic and financial Crimes Commission (EFCC) was established by an act of parliament, the 1999 constitution was already in operation. Meaning that, the EFCC may not have been listed in the constitution, but that did not stop the first three chairmen of EFCC from being confirmed by the Senate. To me, that is convention and a matter of common sense. Practice makes a system perfect, but if some people decide to willfully contravene convention, waiting to load every single item on earth inside a Constitution, then, that document will require a forklift to carry it from place to place. That day will never come.

After the Presidency had submitted Ibrahim Magu’s name for confirmation twice and the process refused to admit him, the Presidency now realised that Magu didn’t require confirmation. And the man is strutting about illegally. If the Acting President, Yemi Osinbajo is truly a man of law and order, he should have asked Magu to step aside, subject the matter to judicial interpretation and save this democracy from embarrassment.

The last constitutional affliction has to do with the power of appropriation. Section 81 is very clear on where the budget should come from, and where it shall be laid. The constitution may not have detailed what to do with it after it is laid before the two chambers of the NASS. But convention has shown that the budget is presented for authorization, without which the executive cannot implement. This democracy ought to have grown beyond the inanities politicians subject it to for selfish reasons.

All over the country, warlords and ethnic champions are calling for change, because the constitution of 1999, even with the amendments of 2011, has deliberately left many gaps unexplained. The Acting President is a law professor, and he has a duty to steer the country away from looming chaos and anarchy.