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The president cannot approve $1bn insurgency fund without National Assembly approval (2)

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Last week, we commenced this thought-provoking topic of PMB purchasing two Tucano jets for $496 million without recourse to the NASS, which must be involved in any dealing with funds from the consolidated revenue. The sum was part of $1 billion he said he required. This action was wrong. Surprisingly, some persons have argued that PMB’s action was proper and legal and that PMB acted in the overall interest of Nigerians, under the so-called “doctrine of necessity.” They quickly cited the February 9, 2010, NASS enthronement of the then Vice President, Dr. Goodluck Ebele Jonathan (GEJ), as acting president of Nigeria, when President Umaru Yar’Adua, who was bed-ridden in a Saudi Arabian hospital, had failed to transfer power to GEJ as provided for in section 145 of the 1999 Constitution. The doctrine had then been invoked to save Nigeria from imminent disintegration. The “doctrine of necessity” simply refers to extra-legal actions taken by state actors, which are designed to restore order in an emergency situation, and are, therefore, designated as constitutional. It is only invoked as justification for actions by a person who acts in an emergency that he or she did not create. It means a situation where “that which is otherwise not lawful is made lawful by necessity.” That is, however, not the case here, where the situation is quite different.

TRUMP MISINFORMEDThe facts of this $1 billion or $496 million Tucano/insurgency fund, according to Senate President, Dr. Bukola Saraki, are that the President already became aware of the need to appropriate this sum since October 2017. That would mean a whopping eight months when the necessary legislative approval ought to have been sought diligently. But that was not to be. A self-imposed sense of urgency by Mr. President for jets that would be delivered in 2020 anyway, not in 2018, or even 2019, cannot, by any stretch of the imagination, amount to an urgent necessity such as to invoke the “doctrine of necessity.” Today, we shall explore the legal implications of such an unapproved appropriation of $496 million by PMB.

Appropriation without National Assembly approval amounts to misappropriation.

It is clear, and evidently too, that appropriations of any kind and for whatever purpose, must be advanced with procedural and substantive compliance with section 80(1) – (4). The seal and approval of the Presidency on $1 billion funds earmarked to allegedly combat insurgency without due and prior legislative authorisation which cloaks the appropriation with the aura of legitimacy constitutes a brazen demonstration of constitutional contempt and an indefensible arrogation, usurpation and encroachment on the premier legislative function of the National Assembly. It is a constitutional aberration; an affront on the ideals of our constitutional democracy, the values of democracy itself and the hallowed doctrine of separation of powers that characterise our constitutional philosophy: a doctrine made famous in 1748 by the great French philosopher, Baron de Montesque.

Impeachment as a consequence

In order not to underestimate this breach, we must admit that the consequences of a constitutional sabotage of this magnitude are grave, real and constitutes clear and present danger. The reward of impeachment is the only viable means by which this infraction can be reversed and the integrity of the Constitution guarded jealously. See sections 143 and 188 of the 1999 Constitution, as altered, which talks about “gross misconduct,” a phrase that is as nebulous as it is all-encompassing. See the cases ofNWAKANMA v. ABARIBE & ORS (2008) LPELR-4639(CA), HON. MICHAEL DAPIANLONG & ORS v. CHIEF (DR.) JOSHUA CHIBI DARIYE & ANOR (2007) LPELR-928(SC), DANLADI v. TARABA STATE HOUSE OF ASSEMBLY & ORS (2014) LPELR-24021(SC), ALAMIEYESEIGHA v. IGONIWARI & ORS (2007) LPELR-8220(CA)

Sections 81-83 carefully lay down procedural steps by which authorised appropriations and withdrawals may be orchestrated or set in motion, either as substantive Appropriation Acts or Supplementary Acts. (See Supplementary Act NO. 2 (2010) authorising over N87 billion).

Section 82 was enacted as constitutional ingenuity that forestalls governmental shutdown on account of pending but uncompleted passage of appropriation bills. Thus, in the event that the appropriation bill is pending, or has not been passed into law, the president may make authorised withdrawals from the CRF for the sole purpose of “meeting expenditure necessary to carry on the services of government.” In other words, for the government not to completely shut down, the President may make withdrawals not exceeding the amount authorised and withdrawn in the previous financial year.

Withdrawals based on contingencies
Section 83 establishes the existence of the legislature’s power to authorize the president to make withdrawals from contingencies fund, if he is satisfied that there has been an unforeseen need for expenditure from that particular account.

The provisions are mandatory
In taking a critical look at the above provisions, two themes run through the entire gamut of the provisions. One is the theme of legislative authorisation, the legitimacy by which appropriations advanced are measured. The other is the justification of the imperativeness of the provisions, exemplified in the mandatory character attached to its compliance. The word “SHALL” employed in all the wordings of the constitutional language-provisions, over-emphasizes the primacy, the value and premium that the framers placed on the nature of compliance envisaged in the provisions.

Its nature is indeed of mandatory and compulsive character; and justifiably so. There are no ambiguities to the meaning and extent of its scope, as a plethora of case law demonstrates legal scholarship on the subject.

The locus-classicus case of AMOKEODO v. IGP (1999) LPELR 486 S.C is the first to deal extensively with the meaning intended to be attached to the word “SHALL” by the framers of our Constitution. However, more recently, the Supreme Court in UGBA & ORS v. SUSWAM &ORS 2012 LPELR 9726 S.C, stated that:

“The word ‘SHALL’ has been employed by the lawmaker of the Constitution, which is the grundnorm, it signifies command. The envisaged act must be complied with’’

In TRANSNATIONAL CORP OF NIGERIA PLC v. EGBE & ORS, 2017, LPELR 42243, the Court of Appeal, in construing the word “shall”, held that: “in law, the use of the word ‘shall’ was deliberate and it demands mandatory compliance. This is so because, the word shall when used in an enactment denotes a mandatory requirement. It must be complied with to render such an act or process competent. It neither allows nor permits any other course of action’’.
However, the Supreme Court in Nyesom v. Peterside & ORS (2015) LPELR 257 24 pp. 35-36; para D, drew our attention like it did in Amokeodo’s case, to the contextual construction of the word “SHALL.” Thus, in the court’s assessment, the general rule remains in favour of a mandatory compliant character of the word and the exception denotes the contextual situations when the word may be construed permissively, or as granting discretion to the authority in charge of implementation. Hear the Court:

“It is not always correct to say that where the word shall is used in a statute, it imports a mandatory order or a command … it is, therefore, my humble view that the use of the word shall may sometimes be assumed as conveying a permissive or directory meaning of ‘MAY’. In fact, whether the word shall is a used in a mandatory or directory sense, would depend on the circumstance of a given case depending also ON THE CONTEXT IN WHICH IT IS USED’’

The point to be emphasised here is that this judicial revelation about the contextual import of the word is highly susceptible to “shenaniganist’’ interpretations aimed at undermining the very spirit of the provisions and which hold the ideals and values we place on our constitutional democracy in great contempt, nay damages.

The argument or plausibility of such may be premised on section 82 of the 1999 Constitution, which obviously relates to the present political realities of today, where the budget is yet to be passed and the executive is manipulatively laying claim to constitutional privilege inherent in section 82 premised on “meeting expenditure necessary to carry on the services of government,” and which may reasonably include an insurgency fund of $1 billion.

The spirit-purpose of the Constitution

The antidote to such obscure and constitutionally obstructionist interpretation is a reconsideration of the spirit-purpose behind the provisions and the ideals sought to be protected, entrenched, safe-guarded and guaranteed by the express contemplations of the draftsman. The Court of Appeal in ONAGORUWA v. STATE (1993) LPELR-43436 redefined the constitutional blueprint for the interpretation of the grund-norm, when it held that:

“Mere technical rules of interpretation of statutes are to some extent inadmissible in the interpretation of the Constitution to defeat the principles of government entrenched therein. And where the question is whether the Constitution has used an expression in the wider or in the narrower sense, a Court of law, should whenever possible, and in response to the demands of justice, lean to the broader interpretation, unless there is something in the text or in the rest of the Constitution to indicate that the narrower interpretation will best carry out the objects and purposes of the Constitution.

The approach of the courts to the construction of the Constitution should be, and so it has been, one of liberalism, probably a variation on the theme of the general maxim ut res maginvalent quam pereat. It is not the duty of the courts to defeat the obvious ends of the Constitution in the guise of interpretation. See Rabiu V. State (1981) 2 NCLR 293 at 326. It has been accepted by all the courts of the land, including this court, that a broad and liberal spirit should prevail in interpreting the provisions of our Constitution, although in the process we must constantly bear in mind the objects, which such provisions were intended to serve. It is also important that the provisions of the Constitution ought to be interpreted as a whole, that is, related sections ought to be interpreted together. In construing the Constitution, courts of law should not give due regard to mere technical rules of interpretation, if these will frustrate the real intention of the framers of the Constitution. See Bronik Motors v. Wema Bank (1983) 1 SCNLR 296. It is legitimate to look back at the history of the process, which brought the Constitution or a particular provision or section into being. A Court of law is not to be oblivious of the history behind the law or section interpreted.” Per TOBI, J.C.A.(Pp. 80-82, Paras. E-A)
In FAWEHINMI v. I.G.P & ORS (2002) LPELR-1258, the Supreme Court instructively reckons that:

“The whole essence is to approach the interpretation of the Constitution in order to uphold it to meet the purpose of the framers and the aspirations held out by it for the larger society primarily by looking at the words used until there is the need to take other factors into consideration. When the terms are plain and involve no ambiguity, they must be given their meaning upon the ordinary and surrounding circumstances.” Per Uwaifo JSC. (Pp.31-32, paras. G-A)
(To be continued next week)

Thought for the week
“National security is the first duty of government but we are also committed to reversing the substantial erosion of civil liberties.” (Theresa May).

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