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A CRITICAL ANALYSIS OF PRESIDENTIAL POWERS UNDER THE 1999 NIGERIAN CONSTITUTION

 Format: MS-WORD   Chapters: 1-5

 Pages: 100   Attributes: STANDARD RESEARCH

 Amount: 3,000

 Sep 02, 2019 |  09:55 pm |  1762
Abstract

Constitutional power, being the power fashioned out through the sovereign free will of the people, is basically meant to regulate the conduct of both the government and the governed. It is central to politics. The 1999 Nigerian Constitution vests executive powers in the President who is the Chief Executive. Similarly, the 1999 Constitution confers on the President, the power to assent to bills and modify existing laws. Even though there is provision for delegation of powers, such delegates act only for and on behalf of the President hence such acts are acts of the President. In a country like Nigeria, whose history, especially as regards executive Presidency dates back only to 1979, it is obviously difficult to attempt to imbibe the political model of the United States of America whose executive Presidency is centuries old, without obstacles. When such powers as are conferred by sections 5, 58 and 315 as well as other specifically granted powers in the Constitution are vested in one man called the President, without effective checks and balances, and without a clear frontier as in section 5(1)(b), the tendency is that such powers will be misused. Power, it is said, “tends to corrupt; absolute power corrupts absolutely”[1]. It is in the light of the foregoing that this thesis examines the gamut of the powers vested in the President, particularly as exercised since the coming into being of the 1999 Constitution.



[1] Acton, L. JEED (1834 - 1902), an English historian and political Scientist, in a letter to Ecclesiastic Mandel Creighton, dated April 1887, over the great crisis in Roman Catholicism over Pope Pius IX's infallibility. http//en.wikipedia.org.


CHAPTER ONE

GENERAL INTRODUCTION

1.1        INTRODUCTION

Presidential power under the 1999 Nigerian Constitution[1], is the totality of executive powers that have been vested in the President. According to Black’s Law Dictionary[2], executive power is defined simply as “the power to see that the laws are duly executed and enforced”.

The idea of executive Presidency is traceable to the pre-1979 era when it was thought that there was the need to have a President who could wield such powers as to be able to have a firm control of the government. This was obviously in response to the failure[3] of the Parliamentary model of government which was bequeathed to the country by the colonialists, upon the attainment of independence in 1960.[4] The executive powers, exercisable by the President, are admittedly enormous, hence it is more often than not, taken for granted especially by occupants of the office of the President. This is irrespective of the fact that such powers are granted with a number of safeguards by way of checks and balances.[5]

Now, does the president’s exercise of executive powers embrace all functions that are neither legislative nor judicial, given the wording in section 5(1)(b) in particular?

The 1999 Constitution confers presidential powers but it is important to admit that in reality, there are other factors that combine to strengthen and weaken the way such powers exercised by the president, such circumstances including the poor political sophistication of the country, social and economic forces.

The 1999 Constitution[6] vests the powers of the Federal Republic in three[7] distinct organs - the legislature, the executive and the judiciary. Consequently, the Constitution in its section 5 expressly vests the qualified executive powers of government in the President; thus:

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 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.

The powers granted under section 5(1)(a) of the 1999 Constitution are to be exercised by the President subject to the Constitution and the provisions of any law made by the National Assembly[8]. They are to be exercised by the President either directly or through the Vice President and ministers of the government of the Federation.

Flowing from this is the question of the extent of delegation since the vesting clause appears discretionary. To what extent should the President delegate or not to delegate any of his powers?

This research therefore discusses the powers of the President, both express and inherent, in relation to the extent to which such powers are exercisable, especially the power to maintain all laws made by the National Assembly and to all matters which the National Assembly can legislate upon, and of course, his security and emergency powers.


The significance of this research is its contribution to knowledge and development of constitutional principles, which could lead to good governance so that those who find themselves in position of leadership, particularly the office of President, should realize that there is, after all, no absolutism in the vesting of the executive powers in the President, and that adequate mechanisms are available to bring such a President to order.

1.2        STATEMENT OF THE PROBLEM

This research is carried out as a result of the identifiable problems associated with the vesting of some of the powers of the Federation in the President,10 and the manner that some of those powers are exercised in general terms.

While admitting that the Constitution itself provides for safeguards against the tendency to drift into arbitrariness through violation of its provisions, there are however, a number of core areas which require greater scrutiny, owing to identifiable lapses.

1.            Execution and maintenance of the Constitution

Under this provision as in section 5(1)(b), the President is empowered not only to execute and maintain the Constitution as well as all laws made by the National Assembly, it would appear that the extension of his powers to act on “all matters within which the National Assembly has, for the time being, power to make laws”, tends to confer on the President, the power to act, even before such issues are brought to the notice of the National Assembly, in which case it might be too late to reverse such an action if the National Assembly failed to concur. Kehinde Mowoe,[9]: is of the view that the only construction that can be put on this is that whenever a situation arises in relation to an issue where no legislation is in place, the President has a duty to act as he deems fit.

2.            Security Powers

The security powers of the President are largely provided in sections 215, 216 and 218 of the Constitution.[10] Admittedly, the powers usually delegated to the Police under the Police Act, are enormous and such powers are exclusively delegable by the President. In all of this, there is only one federal Police Force. The problem here, as advanced by Oyelowo Oyewo,[11] is that maintenance of one federal Police Force and delegation of power by the President alone, regates the principle of true federalism and defeats the essence of quick response to security threat.[12] The second aim of the security powers vested in the President is the power to direct the operational use of the Armed Forces. Apart from the deployment of troops on combat outside Nigeria which is regulated by the National Assembly, the President has the power to deploy troops to quell internal crisis but what is the justification in the excessive use of force such as was witnessed in Odi in Bayelsa State and Zaki Biam in Benue State during the regime of President Obasanjo?

3.            Power of rule making

Whereas the Constitution[13] confers legislative power in the National Assembly, the President is vested with the power to “modify” existing laws.[14] This power is viewed as negating the intent and meaning of the separation of powers,[15] and is capable of portraying the President as being involved in legislation.[16]

4.            Emergency Powers

Emergency power, as provided in section 305 of the Constitution, has been tested twice - in Plateau and Ekiti States, and discussions on the exercise of such power have shown that there is more to it than the mere exercise of the powers. In the instant cases, conditions precedent were said not to have been met while the removal of the governors and the sack of the states’ legislatures were said to be in excess of the grant.[17]

1.3        OBJECTIVES OF THE RESEARCH

For those countries operating the presidential system of government such as the United States of America[18], especially as regards the President’s powers[19], and Nigeria, under the 1999 Constitution, presidents, more often than not, tend to abuse such powers vested in them, without actually being brought to book by the invocation of the numerous checks available. It is against this background that this research aims:

1.           To forestall failure of government such as we had under the 1960 and the 1963 Constitutions where lawlessness became the order of the day as a result of power struggle[20] between the then Prime Minister and the President, which led to the intervention of the military in 1966.

2.           To ensure that the power granted the President under section 5(1)(b) to execute and maintain the Constitution is exercised in strict conformity with the Constitution and the laws made by the National Assembly, and for the President not to unilaterally expand the scope of that power,[21] thereby avoiding a drift into arbitrariness.

3.           To ensure that the President does not exercise his security and emergency powers[22] arbitrarily so as not to infringe on private rights in the course of the exercise of these powers.

4.           To ensure that the principle of separation of powers and its concomitant checks and balances are observed, particularly in relation to section 315.


1.4        JUSTIFICATION


The Nigerian Constitution provides for the Executive Presidency, whereby all executive powers are vested in the President. Even though the Constitution provides for delegation of certain of those powers, an overbearing president may elect to carry on as if governance revolves round a single man. The wanton expansion of the scope of the executive powers by the President, hiding under the provisions of section 5(1)(b), no doubt, has the potential to lead to failure of government. Instances where the President has unilaterally deployed troops and imposed emergency rules without the conditions precedent having been first satisfied, do not augur well of good governance. The power of the President to make rules is also viewed as a negation of the principle of separation of powers.This is more apt, for the reason that a constitution, toning down the enormous powers of the president, to make the exercise of powers more effective, will no doubt further the political, and socio-economic interests of the Nigerian state, as this will foster good governance and eschew authoritarianism as exhibited by President Obasanjo[23].

The 1999 Constitution, modelled alongside that of the United States of America, cannot, in all honesty be said to fit the Nigerian situation, as the Nigerian politicians have not shown sufficient maturity to effectively operate a single executive presidential system.Here, John Locke’s maxim that “power corrupts, absolute power corrupts absolutely”, is brought to test.


1.5        RESEARCH METHODOLOGY

This research requires the use, mainly, of the doctrinal method to achieve the set objective. Therefore this research applies this method whereby information, facts and law are collected and analysed, having due regard to the constitutional provisions governing the topic of this research.

1.6        SCOPE/LIMITATION

The scope of this research is confined to the powers granted the President under section 5 as well as other enumerated powers contained in the Constitution. Such powers include the powers to execute and maintain the Constitution, security powers, emergency power and power of rule making. It also traces to origin of the executive Presidency leading to the making of the 1999 Constitution.

The concept of power, though nebulous, has been reduced to various levels for proper understanding and writers have been able to distinguish what it stands for, especially political power, in relation to its exercise.
Many authors have published some works bordering on the topic of this research. Similarly, newspapers, magazines and journals have had cause to comment on some of the aspects of the executive powers vested in the president. Such authors include erudite scholars as Ben Nwabueze, I. O. Smith, J. O. Akande, Itse E. Sagay, Hon. Justice Niki Tobi, JSC., Chuba Okadigbo, Kehinde Mowoe, J.D. Ojo and Oyelowo Oyewo.

Ben Nwabueze’s position on the powers that are specifically granted and those that are inherent is that the mere vesting of executive power in the president is sufficient for him to perform a variety of functions, provided always that such acts conform with the particular intent of the grant of power.[

Nwabueze,[25], for instance, writing on the nature of executive power, categorises power under three broad theories - (1) residual power, (2) inherent power and (3) specific grant.[26]
Bearing in mind that the main views on political power revolve around (1) normative, (2) post-modern and (3) pragmatic perspectives, and that legitimate power is similar to coercive power in that unacceptable behaviour is punished by sanction, Nwabueze says:

The widest view of executive power is that it embraces every power which, by its nature, is neither legislative nor judicial.
It is not limited to execution of the laws and, provided it is not forbidden by law, action by government need not wait upon legislation expressly empowering government to do it.[27]
It is implicit in the constitution of every civilized community. This is so because no constitution can anticipate all the different forms of phenomena which may beset a nation. No doubt vast extensions to the powers of the executive would result from the doctrine of implied powers. The doctrine is a rule of construction according to which every grant of power is construed as including by implication, all such powers as are reasonably incidental thereto and not expressly excluded.[28]

Citing the position of specific grant in contradistinction with inherent powers as is in the United States, Nwabueze says:

The United States constitution, after declaring that the executive power shall be vested in the president, goes on to empower him to do specific things such as the power of Supreme Command of the Army, to reprieve offences, to take care that the laws be faithfully executed, and with the concurrence of the Senate to make treaties and appoint public servants. It is from these specific grants, and not from the general executive power clause, that the president derives whatever executive power he has under the constitution.[29]

On the need for the President to exercise the power conferred on him by section 5(1) of the 1999 Constitution with caution, and to recognize the limits of such power, Ben Nwabueze[30], commenting specially on the declaration of a state of emergency on Plateau State[31], writes:

Emergency powers comprise two distinct powers, viz, (i) power to declare a state of emergency; and (ii) power to make laws and to execute them with respect to matters within exclusive state competence in normal times, and to overstep, with some exceptions, the limitations on power arising from the constitutional guarantee of fundamental rights in chapter iv. Section 305 of the 1999 Constitution, relied on by President Obasanjo for his action in Plateau State grants only the first power, but not the second; it only empowers the president to declare a state of emergency in situations there specified.

Ben Nwabueze, justifying his position that the President has no justification or power to declare emergency in a state and remove a sitting governor as well as sack the legislature, he draws analogy from the provisions of the 1960 constitution, thus: Section 305 of the 1999 Constitution (reproducing section 265 of the 1979 Constitution) gives the Federal Government no emergency powers, legislative or executive, exercisable during a state of emergency declared under its provisions. It (i.e. section 305) omits completely the power in section 65(1) of the 1960 and section 70(1) of the 1963 Constitutions. The only provisions relevant to the points are those in section 11(3), (4) and (5) of the 1999 Constitution...

Specific powers that have attracted the most attention of scholars include:

1.            Power to execute and maintain the Constitution under section 5;

2.            Emergency powers under section 305;

3.            Security powers under sections 216 and 218; and

4.            Power of rule making under sections 58 and 315 of the Constitution.

On the strategically important issue of security powers over the Police, the Armed Forces, and other security agencies, while the Constitution, in its sections 216 and 218, provides the modalities for the delegation of powers to the Inspector-General of Police as well as the command and operational use of the Armed Forces, it is the view of J. O. Akande[32] that before powers are delegated to the Inspector-General by the President, it is necessary for consultation to be first had with the Police Service Commission. Can this position, be said to be realistic in all instances?

On the operational use of the Armed Forces, it is Akande’s view that “it would seem that there are no constitutional limits on the exercise of this power other than the power of the National Assembly”, but to this, the learned author did not go further to advance remedy.

On the power of the executive to make law, for instance, Hon Justice Niki Tobi[33], JSC, in his work, “The exercise of legislative powers in Nigeria”, argues that although the Constitution clearly provides for separation of powers whereby the executive is not empowered to make laws, it, in fact, is involved in the art of law making. Niki Tobi refers to sections 11, 58(1)(4), 315, to justify his position. These constitutional provisions deal separately with the President’s assent to bills; existing laws and public order.

With due respect, Niki Tobi did not take a position on whether this power of the President to assent to bills under section 58(4), is not a contradiction to the avowed principle of separation of powers where the three arms - Legislature, Executive and Judiciary - are to operate within their jurisdictions, with one serving as a watch-dog on the other, collaborative exercise of powers notwithstanding.

Another writer, V.C.R.A.C. Crabbe[34] believes that the power of the President to veto legislation by Congress is a legislative power.

I. O. Smith[35], writing on the features of the Constitution, discusses the supremacy of the Constitution, that it is written, rigid, republican, federal, presidential, with the principles of separation of powers, with bi-cameral legislature and the rule of law, independent judiciary and fundamental rights provision.


Specifically, he restates the position of the President, vis-a-vis the discharge of the executive powers conferred on him, thus:

The Constitution established a presidential system of government.

Under this dispensation, the President is the Head of State, the Head of Government and Commander-in-Chief of the Armed Forces, as provided in section 130(2) of the Constitution... The president shall discharge his executive functions with the assistance of ministers and special advisers.

Smith, in his book, merely restated the position of the Constitution but did not dwell on the crucial issue or elements that sustain the effective exercise of the powers of the President, such as the lure to circumvent constitutional provisions and act in excess of the powers conferred, having taken advantage of the gullibility of the elected representatives and the docility of the electorate.

Contributing to the vesting of powers in sections 5(1)(b) and 305 of the Constitution, Kehinde Mowoe,[36] emphasizing the enormity of powers exercisable by the President, holds that the only construction that can be put to this vesting clause is that the President is under an obligation to deal with issues as they occur on a day-to-day basis, before they receive the attention of the National Assembly.

On emergency power, the author holds that there can be no doubt that this power to declare a state of emergency, especially in relation to a component state, “can be potent in the hands of an unscrupulous Chief Executive and a cantankerous federal legislature especially in the light of the provisions of section 11(3)(4) of the Constitution.[37]

In his contribution to the provisions of sections 58 and 315, Oyelowo Oyewo believes that “executive powers of rule making and the exercise of delegated powers constitute a veritable source of over-reaching its limits and unsettling the separation of powers from the legislature or even the checks and balances in the interplay of powers and functions’[38]

This research, zeroing in on four broad areas, viz, (1) the vesting in, and (2) exercise of such enormous executive powers by the President; (3) delegation of certain of such powers thereof and the (4) power of the president to legislate, viz-a-viz modification of existing laws - examines the identifiable pitfalls therein and proffers recommendations to such areas where inadequacies exist.

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.8 ORGANISATIONAL LAYOUT

This research has been designed to cover five chapters, bearing in mind the need to examine the preliminary issues leading to the theme of the research as discussed in chapter two. Chapter one presents in an over­view, the titles and summaries of the various chapters. They are: Introduction, Objective of the Research, Statement of the Problem, Justification, Scope of the Research, Research Methodology, Literature Review, Organizational Layout and Conclusion.

Chapter Two is presented as a forerunner to the critical analysis in Chapter Three of this research. This chapter discusses in general terms, the concept of political power, the nature of presidential powers, origin and development as well as how executive presidential system came to be adopted in the 1999 Constitution. It also discusses the main features of the 1999 Constitution.

Chapter Three gives a critical analysis of the powers of the President under the 1999 Constitution of the Federal Republic of Nigeria while Chapter Four is a critique of the exercise of the powers thereof.

Chapter Five, the last in this research, summarises the discussions contained in the body of this work, proffers recommendations and draws a conclusion.



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