KWENU: Our Culture, Our Future
THE IMPARTIAL OBSERVER
Matters of the Moment
Nigeria’s March Madness and Governance by Summons
Wednesday 18 March 2009
The highest proof of virtue is to poses boundless power without abusing it.
Well before the dreaded Ides of March arrived, it was evident to this observer that certain things were going asunder in Nigeria’s governance circles. There were obvious revelatory signs. March, as it turns out, has become a month of madness, in which discernibly, every facet of the National Assembly seems determined to investigate those institutions of the Executive Branch under their purview.
Perhaps, this is a case of the Legislative Branch sensing that there is inertia or vacuity in the Executive Branch and wading in to rescue the situation. Nevertheless, this unfolding development could also mean that there is trouble in paradise. This piece, to quote legendry Zik, is on “the crisis about the situation in Nigeria”. Ironically, as Nigeria’s currency drifts towards being “lirarized”-- N200 to $1 – Nigerian lawmakers are not looking for rescue or safe bet exit strategies; rather, like Nero, the fiddling lawmakers are gambling on inanities; or are they. They may well be.
One of the hallmarks of any democracy is the separation of powers and the associated principles of checks and balances between the three branches of government. However, in Nigeria, there seems to be more to democracy, or the understanding of it. The presumed separation of powers must really be the great illusion. One needs to recall how the Obasanjo administration disingenuously meddled with the Legislative Branch, between 1999 and 2007, which resulted in four Senate Presidents and a Speaker of the House, being hounded out of office forcibly. In the end, the legislative branch almost atrophied. The reverse seems to be the case now, with the National Assembly seemingly being the meddlesome culprit.
Astonishingly, we have a raging debate about which of the two Houses of the National Assembly --the Senate and the House -- is superior. Except for the asinine or utterly uneducated, this issue is a no-brainer. The Senate as the upper chamber is superior to the House or the lower chamber. Those who think otherwise are being either mischievous or totally uniformed.
The senate-house superiority debate points to one key issue. We have many politicians and leaders, who do not understand and have made no effort to understand the Nigerian Constitution. Most of them, translate that acute lack of understanding to mean that there is a fundamental problem with the present 1999 Constitution. Clearly, while the document is not perfect, the practitioners appear to be the problem, as I will illustrate later, using the relations between the National Assembly and public servants.
Any Nigerian observer or follower of Nigerian media will be amazed at the number of recent news reports on the National Assembly Committees or Assembly Members summoning public servants to appear before them. Increasingly, such invitations are either ignored, or treated with levity. Moreover, there seem to be no obvious repercussions against such scofflaws. That in itself is distasteful as it is alarming. In the main, it speaks of our public officers not being alive to their obligations under the Constitution; and to a greater and worrying degree, not knowing the provisions of the Constitution that pertains to them.
In the month of March 2009 alone, there has been at least six summons from the National Assembly directed at public officers in the Executive Branch. The Federal lawmakers had invited Heads of Service of the Federation, Ms. Amma Pepple, to appear before it over a case involving the pension of 105 Nigerian Customs officers.
Second, the House of Representatives Committee on Customs also summoned Mr. Mohammed Sanusi Barkindo, the Group Managing Director of the Nigerian National Petroleum Corporation (NNPC), to appear before it to explain why the Customs Service was kept out of oil revenue collecting and accounting process.
Third, Members of the House Committee on Environment also invited Mr. Bernard-Shaw Nwadiallor, the Comptroller-General of the Customs to appear before it and when he did not, threatened to issue a subpoena against him. Indeed, Hon. Duro Faseyi, chair of the Committee went further by saying that he would not hesitate to order Nwadiallor’s arrest or drag him before the leadership of the House of Representatives.
Fourth, the National Assembly Joint Committees on Information summoned Minister of Information and Communications Minister, Dora Akunyili, to appear before it and brief the National Assembly on the re-branding Nigeria project. When she did not, Senate Information Committee Chairman, Hon. Ayogu Eze and his House counterpart, Hon. Dino Melaye, threatened to issue a committal order on the Minister Akunyili, for shunning a meeting on the re-branding project.
Fifth, the Senate Housing Committee led by Ikechukwu Obiorah, also summoned Yayale Ahmed, Secretary to the Government of the Federation (SGF), along with former Minister of Housing and Secretaries of the Committee on Disposal of Government Property, to explain how the government buildings were disposed, of and how non-tenants ended up being buyers. More importantly, they will explain how of the N98.95 billion, realized, only N75.5 billion was remitted to banks and what happened to the balance N23.47 billion.
Finally, the House Land Transport Committee has summoned Minster of Finance Mansur Muhtar, his Transport counterpart, Ibrahim Bio and CBN Governor Chukwuma Soludo, to explain the disbursements and spending of $8.3 billion for a 2006 contract awarded to the China Civil Engineering Construction Company (CCECC) and Julius Berger for the modernization of the Lagos-Kano rail line. Issues under investigation include whether the Obasanjo administration observed due process in awarding the contract.
The increasing activist role by the National Assembly in governance matters and its seemingly intrusive oversight of the activities of the Executive Branch has triggered a spate of debate about the propriety of such conducts. Those who believe that the federal legislative arm of government has become a usurper have condemned such activist roles as ploys by the National Assembly to create or expand its remit by coveting supervisory role over the activities and functions of the Executive Branch. Others critics contend that the National Assembly had constituted itself into a cog in the governance wheel.
Quite on the contrary, those who resist such activist role or those who have adopted a “negative" attitude towards the National Assembly, are seen as ignorant of the Constitution, or guilty of sheer petulance. However, they may be on solid legal grounds if one takes into account certain legal views on the subject. As Oluwadare Aguda, a retired justice and legal expert concludes, “The manner in which the so-called “oversight functions” of the legislatures is carried out is unconstitutional. There is no constitutional basis for these “oversight functions.” Any direct intervention by the Legislature in the work of the Executive is a breach of the principle of separation of powers.” The vehemence, with which Aguda condemns such incursion, makes it seem as if its arbitrariness is rivaled only by the arbitrariness of death.
Nevertheless, those are hardly the last words. Nor is such a practice peculiar to Nigeria. Since the U.S. is the bedrock and measure of democracy, it may help to consider how Americans handle such practices. May be Nigeria’s problem is that those in power have copied the Americans wrongly, or as usual, engaged in excesses. Some questions also demand answers.
One of the most celebrated cases of summons before the legislative branch occurred in 1981 and involved Alexander Haig, a retired four-star general, during the Senate hearing on the general's nomination as Secretary of State. One and a half years earlier, Mr. Haig, then retired from active military service and a private citizen, had appeared before the Armed Services Committee on the SALT treaty. Gen. Haig refused to change his opinion on a particularly issue and when he was vigorously -- some contend-- hostilely questioned by Colorado’s Senator Gary Hart, a Democrat, Haig retorted; “I am no longer at your beck and call in uniform. I'm a private citizen now, Senator.'' For the record, Haig carried the day. As a private citizen, he was not like publicly paid public servants at the government’s disposal.
Yet, when eighteen months later Mr. Haig was up for confirmation as Secretary of State, by a twist of fate, he again confronted Senator Hart. The tone of the exchange was discernibly different. It fell on Senator Hart to recall their last encounter, along these lines:
Let me refer to an exchange you and I had about a year and a half ago in a hearing before the Armed Services Committee on the SALT treaty. 'You said: 'I am no longer at your beck and call in uniform. I'm a private citizen now, Senator.' Since I have never in six years beckoned or called you personally, I assume you were referring to the Senate as an institution. Now you are no longer in uniform; you will be Secretary of State. I'm interested in knowing whether that statement in any regard casts any shadow on the commitment you made in your opening statement about cooperation with the Senate and with the Congress.
A bemused, chastised, if not trapped Mr. Haig, gave a rather perfunctory, but yet instructive reply:
Senator Hart, I think it means that I'm back at your beck and call.
This round of encounter went to Senator Hart. Mr. Haig’s response was intensely enlightening. Though as a private citizens, individuals may opt not to appear before legislative bodies, rarely do public servants demur when required to; and less so, when formally asked or subpoenaed. As a soldier, politician, diplomat and private citizen, Haig understood that fact very well.
This reality is equally true of Nigerian public servants, even if they elect to think otherwise. It is indeed a fallacy to believe that because one belongs to the Executive Branch, or is a minister appointed by the President that they are immune or statutorily shielded from such appearances and inquiries.
For avoidance of doubt, the 1999 Constitution states in Section 67 (2):
“A minister of the Government of the Federation shall attend either House of the National Assembly if invited to explain to the House the conduct of his Ministry, and in particular when the affairs of that Ministry are under discussion”. Furthermore, Section 88 and Section 89 of the Constitution, invests the National Assembly with statutory powers to “investigate any matter under which it has powers to legislate” and the power to “summon any person in Nigeria to give evidence or procure any document.”
Added to these, are the ancillary powers to issue warrants or to subpoena persons to compel attendance. Such subpoenas has the full force of the law behind them and as such can effectively be executed accredited law officer or indeed anyone authorized or deputized for that purpose by either the Speaker of the House of Representatives or the President of the Senate or the.
In parallel, in the U.S., investigations by the Congress, though not an explicit legislative function, is deemed one of the most important tools available to U.S. lawmakers to inform the citizenry and arouse public interest in national issues. Hence, the Congressional power to investigate is deemed a political and democratic imperative. Furthermore, the purposes of such investigation is fourfold: to ascertain the prima facie qualification of public officers and officials of the other two branches, to gather information on the need for new legislation, to test the efficacy of existing laws, to probe into the conduct of political appointees, and if need be, commence basis for impeachment proceedings. Routinely, such investigations are held in the open and their findings are of public record. To ensure compliance, U.S. Congressional committees retain the statutory power to compel testimony from unwilling witnesses and to cite such persons for contempt, and in the case of false evidence for perjury.
If as a nation Nigerians wish to make progress, public servants must abide by their oath of office, which includes service and upholding the constitutionals sanction of their duties. For now, most appointed public officers, view even the most benign legislative summon with malignant hostility. For their part, lawmakers wield their powers unreservedly and are not bashful about intimidating or threatening their guests. Those on either side of the divide, especially those who have suspended their critical thinking, must learn to transcend their elitist dolt and try to understand what their constitutional responsibilities are and where the threshold of compliance lies.
Finally, those in three arms of the Nigerian government must understand that one critical factor underlying good governance is the respect each branch has for the rights and constitutional prerogatives of the other branches. At the personal level, the most salient and enduring factor is a simple code: “The highest proof of virtue is to poses boundless power without abusing it. This code applies to all and sundry in the business of governance, regardless of which branch they serve in. In a democracy, the three arms must of necessity, govern in tandem. Like the romance of sweet science, the romance of bipartisanship and consensus building can be all embracing. Nigerians just need to work at it.
With neither anger nor partiality, until next time, keep the law, stay impartial, and observe closely.
Hank Eso is a columnist for Kwenu.com (New Jersey). His commentaries on Nigerian politics and global issues have appeared in The New Times (Lagos), African Profile International (New York), The Nigerian And Africa Abroad, (New York), African Market News (New Jersey) and in Gamji.com and Nigeriavillagesquare.com © Hank Eso, Wednesday 18 March 2009. Contact Email: firstname.lastname@example.org
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