By ONYEDIKA AGBEDO and CHINELO OBOGO

Ahead of the 2015 general elections, President Muhammadu Buhari and his party, the All Progressives Congress (APC), hinged their campaign on three cardinal issues namely; fight against insurgency, war against corruption and economic rejuvenation. Nigerians bought into their promises and gave them their votes, thereby paving the way for Buhari to realise his long-held ambition of ruling Nigeria as a democratically elected executive president. However, one year and three months in the saddle, the administration has arguably made relative progress only on the fight against insurgency and corruption. Under President Buhari’s watch, the Nigerian economy has contracted with the attendant result of increased unemployment, poverty and bourgeoning inflation. According to a forecast by Trading Economics, global macro models and analysts released last Thursday, Nigeria’s inflation rate is expected to stand at 18.40 per cent by the end of this quarter, with the likelihood of hitting 18.50 in 12 months time. Only recently, Nigeria lost its position as Africa’s largest economy to South Africa, a position it clinched barely two years ago when authorities overhauled its GDP data for the first time in two decades.
Apparently jolted by Nigeria’s dwindling economic fortunes, President Buhari reportedly would in the coming days seek emergency powers from the National Assembly to push his planned stimulus for the economy.
The objectives of the action-plan, according to reports, include shoring up the value of the naira, creation of more jobs, boosting the foreign reserves, reviving the manufacturing sector and improving power supply.
Some national newspapers (not The Sun) had quoted government sources as stating that the decision to seek emergency powers for the President was based on a proposal from the economic team headed by Vice President Yemi Osinbajo. The reports said the economic team gauged the mood of the polity and decided that unless there was an urgency which some of the extant laws would not permit, “the recession may be longer than expected and Nigerians will not get the desired respite, which is the goal of this government”.
Thus, an executive bill titled: “Emergency Economic Stabilisation Bill 2016” would be presented to the National Assembly when the Senate and the House of Representatives resume from vacation on September 12. In the bill, the executive would be asking that the President be given sweeping powers to set aside some extant laws and use executive orders to roll out an economic recovery package within the next one year.
The bill, reports said, would be seeking powers for the President 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 turnaround operation time for the benefit of business.
One of the provisions of the bill seeks the suspension of Section 34(3) of the Public Procurement Act (PPA) of 2007 and a general amendment which the President seeks to abridge. This would enable him award contracts at will, and pay contractors 50 percent funds upfront instead of the existing 15 percent as provided in the PPA. The president can also unilaterally decide which projects money gets spent on, which contractor the money gets to and how the contractor is selected. The PPA of 2007 was passed into law to ensure due process in the awards of contract and it makes provisions for government to advertise contracts, prequalification and bidding process. A Presidency source further revealed the President would want to make orders that favour local contractors, and even as he was also concerned about the delay in the procurement process, hence the move for the suspension of the Act.
The Presidency also wants to allow state governments access Universal Basic Education Commission (UBEC) funds by providing 10 per cent counterpart funding instead of the existing 50 per cent. UBEC funds are not idle funds; they are always available as soon as a governor makes counterpart funding of 50 per cent available.
The Presidency has, however, debunked the reports. The Senior Special Assistant to the Vice President on Media and Publicity, Laolu Akande, had released a statement shortly after the issue was reported in the media saying the economic management team was   considering several measures to urgently reform the economy but that they had not yet been communicated to the President.
Akande had also stated that those measures had also not been passed to the Federal Executive Council and the National Assembly.
He said: “The economic management team has indeed been considering several policy options and measures to urgently reform and revitalise the economy. Some of these measures may well require legislative amendments and presidential orders that will enable the executive arm of government to move quickly in implementing the economic reform plans.
“As far as I know, this has not been passed on to the President, the Federal Executive Council or the legislative arm of government. So, at this point, there are no further details to share.”
In spite of the timely denial of the Presidency that such a bill was in the works, there have been varied reactions to the reports, and valid questions as to the workability of the bill have been raised. On one hand, members of the All Progressives Congress (APC) and loyalists of the President have backed the proposed plan, describing it as the only panacea to deal with the economic recession; while on the other hand, a larger section of the country have criticised the plan, saying it would only transform the already powerful president into a dictator. Those who criticise the proposed bill say that wanting more powers implies that the economic problems were caused by limited powers and not the past actions of the president; like the late inauguration of his cabinet, prolonged refusal to devalue the naira and lack of fiscal policies, among others. In this report, Sunday Sun brings you the views of some senior lawyers in the country on the constitutionality or otherwise of the proposed bill, among other issues.

It’s very normal and legitimate — Prof. Itse Sagay
What the president is seeking is very normal and legitimate. In the constitution, such powers are not provided for. So, it must be emergency powers which would pass through the National Assembly in order to reflate the economy. That is normal and quite legitimate.
•Sagay is the Chairman Presidential Advisory Committee on Anti-corruption

Buhari should perish the thought — Fred Agbaje
My take on that is that the president had better perish that thought. This is because before they came into power, they were presumed to have known or investigated the state of the economy as part of their political campaign. The recurring alibi being displayed by the present government as to the true economic situation of the country is not tenable. Any emergency powers being sought by the president are antithetical to the present democracy and the principles of constitutionalism. If the president has sworn to uphold the provisions of the constitution, where does the emergency powers come from then? In other words, how do you juxtapose economic emergency powers with the clear provisions of the Nigerian constitution?
Sections 16 and 17 of chapter two of the constitution relate to economic and social directives. Any exercise of power that does not mirror the provisions of these sections of the constitution no matter how exigent the economic situation, is unlawful, unconstitutional and a violation of the constitution.
Again, the President should remember that we are no longer running a military government. We are running a democratic government, which is based on the rule of law and the principle of constitutionalism. In as much as I sympathise with the President that the economy is running comatose, I want to state categorically that there are clear provisions of the constitution that the President can take advantage of. And if you ask me, one of them is that the National Assembly can be prevailed upon under Section 4 of the constitution to make laws that will take Nigeria out of the wood. So, should the bill eventually get to the National Assembly, they should streamline it with the clear provisions of the constitution. Any provision of the bill that cannot stand the test of constitutional scrutiny should be thrown out because we are not running a military government.
•Agbaje is a Lagos-based lawyer

It’s within the powers of the President — Dr Mahmud Aminu
The initiation of the Executive Stabilisation Bill (ESB) is within the executive powers of the President. The ESB isn’t new to our legislative history, nor are the presidential directions that follow the ESB strange to our country.
In 1981, President Shehu Shagari proposed a similar bill that was eventually passed by the then National Assembly and assented to by President Shagari as the Economic Stabilisation Act, 1982.
While the 1982 Act sought to create economic buffers against poor revenue returns occasioned by the fall in oil prices and proposed reduction in government’s waste, increase in custom duties, removal of import licenses and retrenchment of public sector workers, I find a curious parallel in the proposed ESB 2016 as it seeks to create buffers against the spiral downturn in the economy. No more
There are proposals of the ESB I find superfluous, and the emergency powers being proposed by the ESB 2016 too sweeping as the ESB seeks to perpetuate fiscal irresponsibility rather than address it.
Why does the ESB 2016 seek to amend the provisions of the Public Procurement and UBEC Acts when the private members bills process can address the legal bottlenecks that the Acts present? The President doesn’t need extra executive powers to cure what ordinary legislative practices can cure. If there’s a problem with sections of the Acts, a process of repeal of those problematic sections can be initiated by both arms of the NASS and this can be done within a single legislative hearing. After all over 163 bills passed first and second readings in a single hearing during the 7th National Assembly.
There are good reasons the UBEC fund is ring-fenced by the UBEC Act.
I find it curious that the ESB proposes to grant our predatory governors access to a fund that they have failed to grow with their mandatory counterpart contributions. These are governors who have done nothing tangible to promote or execute half of the actionable plans of the Fiscal Strategy Programme of the Federal Government.
If governors need money, they should free up their humongous security votes, plough them into those areas that can engender real and sustainable economic growth.
There are economic stabilisation programmes like reduction in government wastes, creation of jobs that can be executed, without necessarily seeking to negate existing laws, through careful implementation of the 2016 national budget. The emergency powers the Presidency seeks appear superfluous as it already has powers that can be constitutionally exercised without recourse to the National Assembly.
What the NASS can do is to approve those economic stabilisation programmes that are consistent with existing legal frameworks, repeal sections of those laws that members adjudge as bottlenecks to the smooth operation of the economic stabilisation programmes rather than negate, erode or destroy its powers.
•Aminu is the President & Senior Fellow, The PILL Centre for Poverty Law

National Assembly Should determine the bill on its merit — Emeka Ngige
The bill has not been presented to the National Assembly, so I don’t think it would be fair to start criticising it. However, should the bill get to the National Assembly eventually, then I can say it’s up to the National Assembly to determine it on its merit. So, both the Senate and the House of Representatives should look at the bill critically and jointly pass a resolution whether or not the President should be granted such powers.
In the democracy we run and the economic recession we have found ourselves, there is serious need for a re-jig of our economy and the President will need some powers to do that. But I don’t subscribe to giving him an unlimited power that he would exercise alone. So, the National Assembly should look at the bill if eventually presented to them to see whether it will help the president to fix the economy. That is the area I think the public should be concerned about. On the need to revive our economy by granting some powers to the president, I think it is necessary but it should not be a very wide and uncontrollable power. That will not be good for the country.
•Ngige is a Senior Advocate of Nigeria (SAN)

Emergency powers would not solve the problem — Martins Agoziem
The advance payment of 15 per cent to contractors is not the cause of the non-execution of contracts, but the issue has always been the rate at which the government defaults. Bottlenecks could be reduced by making amendments to the various Acts without necessarily increasing presidential powers. The PPA as amended was enacted based on the recommendation of the World Bank, which advised for better transparency in the proceedings of public procurement. It is designed to protect the country from sharp practices by fraudulent businessmen and their collaborators in government procurement offices. The downside of this is that while the bill is meant to allow governors access more funds that would improve the education sector , there is no guarantee that they would utilise the funds properly, as there are reports that many states that received bailout funds from the Federal Government have mismanaged it and still owe workers’ salaries.
When the President was military head of state, he had absolute powers to do anything he wanted, but even with all the powers, not much was achieved for the economy. There is nothing wrong with the spirit of the proposed bill, given the dire economic situation, but the question is if those behind it inspire confidence. ‘Special’ or ‘Emergency’ powers would not solve the problem, and this brings to question the need for restructuring. Refusing to restructure is just like an ostrich burying its head in the sand. Giving more powers to the president in a unitary structure that is not working is not the way to set things right. The problem with giving a president emergency power in a democratic setting is that it would set a bad precedence. If it happens this one time, the lure of finding a reason to extend and expand those emergency powers would always be there. Very soon, governors would start demanding emergency powers that would last for their whole tenure.

Flashback to 1983 -1985
A retro of President Buhari’s regime in 1983 showed that despite the absolute powers he had at his disposal, by the middle of his tenure, much of the economic problems that characterized the second republic had returned. There was a decline in the economy, and food and other imports including palm oil and rice were high. In trying to save the economy, Buhari’s regime imposed austerity measures, which came with constraints. The economic policy of the regime included a currency change in 1984, which came two weeks before the delayed budget of 1984. Despite his efforts, and the collapse of oil prices, the country’s earnings fell by more than half, and the economy went into a recession. Other measures taken to revamp the economy involved the closure of borders, wage freeze, cut-back on government spending etc.
The austerity measures employed by the Buhari regime, led to mass sack of civil servants and increased unemployment, and to solve the problem, he expelled thousands of migrants. He also withdrew food subsidy and re-introduced fees, which caused students’ protests. By October 1984, Buhari declared that the government was broke. By then, his economic policies had achieved very little success. The economy suffered, while the national debt rose from $14 billion to $18 billion in less than two years.
With the austerity measures in place, Nigerians had to queue for essential commodities (popularly called essenco), such as bread and milk. Raw materials and spare parts needed to keep factories running were scarce. Inflation rose to 40 per cent. When he seized power, one dollar exchanged for N0.724, by the time he was overthrown, one dollar exchanged for N0.894. There was pressure on him by the International Monetary Fund to devalue the naira, and in 1984, he resisted devaluation. As a result, foreign currency reduced and his response was to ration it, and cut imports by half. By this time, his support had slowly begun to decline.

Emergency powers under Shagari
In 1982, prior to President Buhari’s military rule, there was a plunge in crude oil prices and Nigeria was faced with virtually the same economic challenges it has today. The then President, Shehu Shagari, told Nigerians that it had become crucial for the government to revamp the economy. He then proposed a bill tagged the “Economic Stabilisation (Temporary Provisional) Act 1982’ which was immediately approved by the legislature. Some of the provisions of the bill were: The pegging of Hajj forex subsidy to a maximum Basic Transport Allowance (BTA) of N800 and a maximum of 50,000 persons; reduction of business travel allowance from N3, 000 to N2, 500 yearly for companies registered in Nigeria; reintroduction of pre-shipment inspection for frozen and canned fish, books, spare parts and raw materials; tariff charges on 49 import items; 45 per cent increase in excise duties, among others.
Despite these reforms, inflation had risen to over 30 per cent and the foreign reserves had fallen to $2.85 billion. The military described the Stabilisation Act as a failure, and it was on that basis that Shagari was overthrown by Buhari in 1983.
After Buhari was overthrown in 1985, General Ibrahim Babangida, who took over power, immediately established his own economic plan, the Structural Adjustment Programme, popularly known as SAP. Despite the fanfare that greeted the plan, it was not a huge success, as by 1986, the economy had contracted by 8.8 per cent.

Emergency powers: What obtains in other climes

By CHINELO OBOGO and AYO ALONGE

Like Buhari, some presidents had asked for emergency powers when their countries were faced with challenging situations that required urgent attention.
Although the American constitution does not expressly grant emergency powers to the U.S. President in times of national emergency, the country’s judiciary recognises the right of the executive arm to use emergency powers if Congress grants such powers to the President. Thus, a claim of emergency powers was at the centre of late President Abraham Lincoln’s suspension of habeas corpus without Congressional approval in 1861. Lincoln claimed that the rebellion created an emergency that permitted him the extraordinary power of unilaterally suspending the judicial writ.
Another democratic President of the U. S. who sought more powers over an organ of government was the late Franklin Roosevelt of the United States. He emerged President during the Great Depression of 1933 and to bring the country out of recession, he introduced some economic reforms which he called the ‘New Deal’. In the first 100 days of his tenure, he was able to get Congress’ approval on nearly everything he planned. His only obstacle to turning the legislation into action turned out to be the Supreme Court. In 1936, the US Supreme Court invalidated the provisions of several key elements in the New Deal programs like the Agricultural Adjustment Act and the National Industrial Recovery Act as well as a number of smaller, less expansive legislative proposals were either entirely or partially unconstitutional.
Roosevelt was enraged. He then tried to assert control over the judiciary by threatening to change the number of justices, and appointing new ones who would do his bidding. On February 5, 1937, he sent ‘The Judicial Procedures Reform Bill’, commonly referred to as “the court-packing plan,” to Congress which would enable him gain political control over the US Supreme Court. Among other things, the bill would have allowed him to appoint up to six additional justices to the Supreme Court, raising its total to 15. Even though his plan did not violate the Constitution, which did not specify the number of Supreme Court justices, no one at the time believed that he was driven by motives other than being able to appoint pro-New Deal judges, who would make the execution of his agenda possible. Roosevelt himself argued that the Bill was needed to overcome the Supreme Court’s opposition to the New Deal, stating that the nation had reached a point where it “must take action to save the Constitution from the Court, and the Court from itself.”
Historians say that what Roosevelt failed to realize was that the government’s lawyers often failed to foster sufficient arguments for their defense, subsequently handicapping them before the courts. This made the Court not to uphold much of the New Deal legislation because it was poorly drafted and defended.
Also recently in Philippines, lawmakers granted President Rodrigo Duterte emergency powers to address the country’s worsening transportation problems. The emergency powers were granted with the view that capital projects implemented through emergency powers would not only provide the best deal to the taxpayers, but would also be fast-tracked and time-bound. The Philippines constitution provides that the Congress could grant emergency powers to the president for up to three years.
Similarly, in Turkey, parliamentarians recently backed emergency powers for President Recep Tayyip Erdogan to pursue alleged supporters of a failed coup.
Consequently, lawmakers passed a motion by a comfortable majority, giving the Turkish executive arm the powers to rule by decrees and edicts for at least the next three months. However, in an instance of power usurpation, the decrees and edicts can be overruled by the Parliament and not subject to review by Turkey’s judicial arm.