YAND ON THE PROPOSED EMERGENCY ECONOMIC STABILIZATION BILL 2016.
The request by the President for more powers should be a source of concern for all Nigerians who truly desire the protection and entrenchment of the cardinal principles of the rule of law and due process. Emergency power, or its function, a State of Emergency is not defined in the Constitution of the Federal Republic of Nigeria 1999 as amended. However, emergency power can be defined conveniently as power granted to or used by a public authority to meet emergency needs, such as in case of war or disaster. Such disaster can be natural or man-made.
Under the 1999 Constitution as amended, section 305 regulates when and how the President can invoke his power to declare a state of emergency in any part of or all over the Federation. Subsection (3) of the said section 305 provides thusly:
“(3) The President shall have power to issue a Proclamation of a state of emergency only when —
(a) the Federation is at war;
(b) the Federation is in imminent danger of invasion or involvement in a state of war;
(c ) there is actual breakdown of public order and public safety in the Federation or any part thereof to such extent as to require extraordinary measures to restore peace and security;
(d) there is a clear and present danger of an actual breakdown of public order and public safety in the Federation or any part thereof requiring extraordinary measures to avert such danger;
(e) there is an occurrence or imminent danger, or the occurrence of any disaster or natural calamity, affecting the community or a section of the community in the Federation;
(f) there is any other public danger which clearly constitutes a threat to the existence of the Federation; or
(g) the President receives a request to do so in accordance with the provisions of subsection (4) of this section.”
The above represents the set of circumstances under which a state of emergency may be declared by the President. It is instructive to note that subsections (2) and (6) guarantees that this power is not exercised by the President alone. In other words, the National Assembly sitting separately and by a resolution of each chamber obtained through a two-third majority votes of all the members of each chamber has to approve the President’s proclamation of a state of emergency.
Ordinarily, the President’s request for ‘more powers’, as the proposed Emergency Economic Stabilization Bill 2016 has come to be described should not have been a source of worry. This is because under section 305, the powers of the President is somewhat limited; and the state of emergency thus declared can cease to have effect if any of the factors envisaged in subsection (6) of section 305 occurs. The factors are:-
“(6) A Proclamation issued by the President under this section shall cease to have effect —
(a) if it is revoked by the President by instrument published in the Official Gazette of the Government of the Federation;
(b) if it affects the Federation or any part thereof and within two days when the National Assembly is in session, or within ten days when the National Assembly is not in session, after its publication, there is no resolution supported by two-thirds majority of all the members of each House of the National Assembly approving the Proclamation;
(c ) after a period of six months has elapsed since it has been in force:
Provided that the National Assembly may, before the expiration of the period of six months aforesaid, extend the period for the Proclamation of the state of emergency to remain in force from time to time for a further period of six months by resolution passed in like manner; or
(d) at any time after the approval referred to in paragraph (b) or the extension referred to in paragraph (c ) of this subsection, when each House of the National Assembly revokes the Proclamation by a simple majority of all the members of each House.”
What makes the proposed Emergency Economic Stabilisation Bill 2016 scary is the sweeping powers the proposed Bill intends to vest in the President. In other words, if the Bill is passed into law, the President will be empowered legally to perform the functions of the Legislature in addition to the overwhelming powers which he already enjoys under the 1999 Constitution.
The extent of the powers which the President wants extend to the powers to abridge the procurement process to support stimulus spending on critical sectors of the economy; make orders to favour local contractors/suppliers in contract awards; abridge the process of sale or lease of government assets to generate revenue; allow virement of budgetary allocation to projects that are urgent, without going back to the National Assembly; amend certain laws, such as the Universal Basic Education Commission (UBEC) Act, so that states that cannot access their cash trapped in the accounts of the commission (because they cannot meet the counterpart funding) can do so; and to embark on radical reforms in visa issuance at Nigeria’s consular offices and on arrival in the country and to compel some agencies of government like the Corporate Affairs Commission (CAC), the National Agency for Foods Administration and Control (NAFDAC) and others to improve on their turn around operation time for the benefit of business.
The power to allow virement of budgetary allocation is a manifest usurpation of the constitutional powers of the Legislature. Section 80 of the 1999 Constitution as amended empowers the Legislature to exercise powers and control over public funds. This means that no public fund may be spent without prior legislative authorization. The annual ritual of placing the Appropriation Bill, commonly referred to as budget, before the Legislature is a testimonial of the enormous powers reposed in the Legislature. If this power is removed from the Legislature, one wonders the form of democracy that will be in effect. Yet, if it is antithetical to the spirit of democracy to allow the President to exercise the power to allow virement of budgetary allocation, then the power to amend certain laws ultimately makes the President the executive and the legislature rolled into one entity. In such a situation, the safeguard for the principles of separation of power and checks and balance would be removed albeit legally. Section 4 of the 1999 Constitution as amended vests legislative powers of the Federation in the National Assembly of the Federation which shall exercise same in making laws for the peace, order and good governance of Nigeria. If the President desires the powers to ‘amend certain laws’, what then will be the duties of the National Assembly?
Even if the argument is to enhance the efficiency of those agencies of the Federation listed as being the primary focus of the proposed Bill, it is our contention here that those agencies which have been listed as those whose enabling laws would be amended to make for fast-track service delivery already have the capacity for such fast-track service delivery. Take the Corporate Affairs Commission (CAC) as an example. The Commission has the capacity to effect ‘express’ registration process. Here, whereas it takes on the average three to five working days to search for availability of names, and another four to seven working days for the certificate of incorporation to be ready, for ‘express’, it takes considerably less time for a company to be incorporated. The difference in the ‘normal’ and the ‘express’ is the huge cost involved in the latter. In essence, there is no need for any amendment of the enabling law. Where it becomes inevitable to abridge the time required to do anything under the enabling law, the abridgement can be done through simple administrative regulations which are known as subsidiary legislations.
On the other hand, section 5 of the Constitution as amended provides the full extent of the powers of the President who is the head of the executive arm of Government. The said section 5. Provides thus:
“5 (1) 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 and Ministers of the Government of the Federation or officers in the public service of the Federation; and
(b) shall extend to the execution and maintenance of this Constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has, for the time being, power to make laws.”
With this kind of overwhelming powers, it is strange that the President is seeking for more powers.
Legally speaking, therefore, it has been demonstrated that the President does not need extra powers. He should turn inwards and utilize the powers which the Constitution has vested in him already. The Nigerian President, by virtue of the enormous powers which the Constitution gives him, is the most powerful President in the world. Former President Goodluck Jonathan was reputed to have said that if he used just an infinitesimal fraction of the powers which the Constitution accorded him, he would have been described as a tyrant. Instead of seeking for more powers, the President should assemble smart financial and economic experts to come up with a workable idea that will position the country on the right track.
It is doubtful if the country’s public procurement and financial processes will be best served by this Bill. To start with, the President wants to “make orders to favour local contractors/suppliers in contract awards”. This request is, mildly put, pointless as this can be done without presidential “orders”. There is also the potential for corruption to creep into the system. A situation whereby the president has the power to decide which companies get which contract can create an avenue for political patronage to the obvious disadvantage of non-supporters of his policies & political party.
This bill also seeks to abridge the process of sale or lease of government assets to generate revenue. But, there are no details on how this will be done. It is submitted here that administrative regulations can meet this requirement. Giving the President the powers to enact laws or amend existing law over matters as quotidian as the sale or lease of Government is an overkill. On the issue of the UBEC funds, the President should cooperate with the National Assembly to make laws that will enable the states access the UBE funds stuck in the agency. The funds can go a long way in helping out the cash-trapped states. Presidential powers are not needed in this regard.
Finally, with regards to the inimical nature of the proposed bill and its political realities, it is pertinent that this administration face the hard truth:
In attempting to expand the reach of the executive, this administration has not just run the risk of losing both local and international good will, but the level of trust vested upon the Presidency by hopeful Nigerians, which has fallen precipitously since inauguration day, may well have reached its nadir.
In recent times, members of the administration have carried on with a degree of impropriety,and a lack of decorum in their responses to the complaints of the citizenry about their daily struggles. Many officials have been indignant and callous in their responses to issues demanding clarity, Compassion and understanding. Seemingly indifferent to the fact that the people’s trust and goodwill provide a receptive ear and heart to its policies, this government would appear to have taken the people’s loyalty for granted. In governance, perception matters. And the perception now, is that of an administration, both untrustworthy and overreaching.