Akpo Mudiaga-Odje
10 July 2008
opinion
In view of the recent agitations and tensions in the Niger Delta region of our country, the Federal Government has embarked on organizing a Niger Delta Summit to deliberate on the challenges facing the region specifically, and Nigeria in general.
Consequently and at the instance of President Umaru Yar'Adua, and Vice-President Goodluck Jonathan, held series of meetings with the governors of the Niger Delta region and some of its elected members in the National Assembly as well as Speakers of the respective States, and approved the holding of the Summit sometime in July this year.
Due process of law not being followed by Mr President It is as a result of the Federal government not following the due process of law and the constitution that this discourse has come apposite.
The National Assembly as the representatives of the people and defender of the citizenry in making laws pursuant to Section 4 of the 1999 Constitution for peace, order and good government of the Federation, is vested with exclusive powers of checking the excesses of the Executive.
Accordingly, Section 4 as above stated so far as material for our purpose provides that: "4(1) The legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the Federation which shall consist of a Senate and a House of Representatives.
(2) The National Assembly shall have power to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part 1 of the Second Schedule to this Constitution."
Pursuant to the above and under Item 39 of the Exclusive Legislative List, the National Assembly shall to the exclusion of any other authority, have powers to make laws in respect of "mines and minerals including oil fields, oil mining, geological surveys and natural gas." No law from the National Assembly authorising the proposed Summit as provided by the 1999 Constitution.
Afortiori, the so-called Niger Delta Summit being a gathering purportedly established by the Federal Government of Nigeria to deliberate on oil, gas, minerals, oil fields, oil mining, etc., mandatorily requires a law of authorization from the National Assembly pursuant to Section 4 and Item 39 above to constitute the Summit.
It is that law as passed by the National Assembly that will spell out the establishment, composition, funding and structure of the Summit. Without that authority by a law from the National Assembly, the Summit will be unconstitutional and any moneys spent therein will be a colossal waste to the nation.Appropriation Act, 2008 and funding of the proposed Summit.
The above is the exclusive power given to the National Assembly by the 1999 Constitution, and that esteemed institution cannot sit idly by whilst the executive arm of government viciously violates its integrity and sovereignty.
In addition, a careful examination of the over bloated and severely deficited Appropriation Act, 2008 otherwise referred to simply as "the 2008 budget," will reveal that there is specifically no budgetary provision under heads of expenditure contained therein for the funding of this Summit.
This is another gross violation of the Constitution, especially Sections 81-84 of same. For the avoidance of doubt, they provide so far as material for our purpose that:
"81(1) The President shall cause to be prepared and laid before each House of the National Assembly at any time in each financial year estimates of the revenues and expenditure of the Federation for the next following financial year.
(2) The heads of expenditure contained in the estimates (other than expenditure charged upon the Consolidated Revenue Fund of the Federation by this Constitution) shall be included in a bill to be known as an Appropriation Bill, providing for the issue from the Consolidated Revenue Fund of the sums necessary to meet that expenditure and the appropriation of those sums for the purposes specified therein. 82.
If the Appropriation Bill in respect of any financial year has not been passed into law by the beginning of the financial year, the President may authorize the withdrawal of moneys from the Consolidated Revenue Fund of the Federation for the purpose of meeting expenditure necessary to carry on the services of the Government of the Federation for a period not exceeding six months or until the coming into operation of the Appropriation Act, whichever is the earlier; Provided that the withdrawal in respect of such period shall not exceed the amount authorized to be withdrawn from the Consolidated Revenue Fund of the Federation under the provisions of the Appropriation Act passed by the National Assembly for the corresponding period in the immediately preceding financial year, being an amount proportionate to the total amount so authorized for the immediately preceding financial year.
83(2) Where any advance is made in accordance with the provisions of this section, a Supplementary Estimate shall be presented and a Supplementary Appropriation Bill shall be introduced as soon as possible for the purpose of replacing the amount so advanced."
Based on the foregoing, therefore, the constitutional quo warranto challenging the proposed Niger Delta Summit is premised on two grounds, to wit:- (i) Absence of an enabling law by the National Assembly establishing and/or authorizing the summit as directed by Section 4 and Item 39 of the Exclusive Legislative List of the 1999 Constitution.
(ii) Absence of any budgetary provision to finance its activities, including logistics arising therefrom in gross violation of the Appropriation Act, 2008 and/or Sections 80-84 of the 1999 Constitution as above, specifically Section 81(2) thereof.
Having regard to the above serious constitutional breaches and gross violation of the authority of the National Assembly as provided by the 1999 Constitution, we hereby request that the Senate summon the appropriate authorities handling this Summit with a view of putting an immediate stop to further actions on the issue until it seeks approval from the National Assembly in accordance with the provisions of the 1999 Constitution as adumbrated above.
Further instances of usurpation of the powers of the National Assembly by the Executive under the 1999 Constitution. In addition to the above, the Executive has been doing the following in gross violation of the powers of the National Assembly, viz:-(i) Continued operation of and withdrawals from the illegal Excess Crude Oil Account in violation of Section 162(1) of the Constitution and the exclusive constitutional powers of authorization by the National Assembly under Section 80(2)(3) and (4) of the 1999 Constitution on withdrawal from public funds.
(ii) Deliberate and willful refusal to release over N320b owed the Niger Delta Development Commission (NDDC) in gross violation of Section 14 of the NDDC Act, 2000 courageously passed by the National Assembly (headed by Dr. Chuba Okadigbo of blessed memory and Alhaji Ghali Umar N'Aba), by overriding the veto of the erstwhile President Olusegun Obasanjo pursuant to Section 58(3) of the 1999 Constitution. (iii) Up till today, the Federal Government has been paying since July 2000, only 10% instead of 15% of the statutory allocation of the oil-producing States as directed by Section 14 of the NDDC Act, 2000 and duly passed by this hallowed chambers.
The 5% shortfall has resulted in several billions of arrears now being owed to the Commission. (iv) Unilateral declaration and/or continued observance of May 29th of every year as national public holiday pursuant to the Public Holidays Act, Cap.P40, Vol.14 Laws of the Federation of Nigeria, 2004 now inconsistent with the 1999 Constitution because it is only the National Assembly under Item 51 of the 1999 Constitution that has the exclusive powers to declare public holidays in the Federation or any part thereof since May 29 1999 when the Constitution came into effect by virtue of Section 320 thereof.
The above constitutional infractions by the Executive as personified by Mr. President are notwithstanding the clear provisions of Section 5 of the 1999 Constitution which directs him to implement and execute all laws passed by the National Assembly.
For the sake of augmenting this pontification, Section 5 of the Constitution so far as material for our purpose, provides that: "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 law."
This constitutional directive to the President to implement and execute all laws passed by the National Assembly, has been upheld by our esteemed Supreme Court in the case of Abia State Vs. Attorney_General of the Federation [2003] 4 NWLR (pt.809) 124.
What the National Assembly must do to uphold its integrity and sovereignty. The challenge now falls on the National Assembly to become more proactive and jealously guard its constitutional powers from the vicious infractions of an over-ambitious Executive. It must stand up to be counted now, or forever remain lame! We do not want the National Assembly to set up a Public Hearing later on moneys spent on the Summit after it has been held.
Rather, it should stop it from being held and save us another round of red herring on the constitutionality or otherwise of setting up the Summit. In the words of Ross Perot, the former Independent presidential candidate in the United States: "If you see a snake, kill it. Don't go and set up a Committee on the killing of snakes."
This is the approach we need to solve the Niger Delta question. Accordingly, the National Assembly is respectfully urged to Immediately stop the proposed Niger Delta Summit now being constituted by Mr. President until: (i) The National Assembly enacts a law for its establishment, composition and structure in accordance with section 4 and item 39 of the exclusive legislative list of the 1999 constitution; and (ii) There is a budgetary provision established for it by law from the National Assembly by way of an appropriation act and/or supplementary appropriation act in accordance with the lucid provisions of sections 81-83 of the 1999 constitution.
The above request is in keeping with the spirit of upholding the Rule of Law, a slogan which this present administration brandishes everyday as its greatest priority. The meaning of the Rule of Law is further propagated and expounded by A.V. Dicey's work - "The Law of the Constitution (1885)" which accentuates the equality before the law.
Taking the point further and writing on the Rule of Law in his seminal expose titled: "Administrative Law" (Seventh Edition) at page 24, Sir William Wade, QC, LLD, FBA, noted inter alia that: "What the rule of law requires is that the government should not enjoy unnecessary privileges and exemptions from ordinary law." On his part, P.P. Craig captured the meaning of Rule of Law succinctly in his work "Administrative Law" (Third Edition) at page 11 that: "The ordinary law applied to all. Special regimes did not exist." This is what is expected from Mr. President.
Conclusion
At this juncture, it must be pungently asserted that distinguished members of the National Assembly must realise and remember that the National Assembly in the eyes of the people is an institution expected to defend its sovereignty and assert its independence in the discharge of its constitutional duties. Anything short of that will make it an appendage of the Executive and a willing partner in celebrating the enthronement of executive recklessness and constitutional tyranny in Nigeria.
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