By Prof. Ben Nwabueze
Since his inauguration on May 29, 2015 as elected “civilian” President of the Federal Republic of Nigeria, Muhammadu Buhari, a retired army general and former head of the military government, has been ruling the country for more than two and a half months without ministers. The question examined in this write-up is whether the President ruling without ministers is permitted by the Constitution or is even within its contemplation.
It should be stated right-away that the term “rule” is here used to embrace eight different functions of government, viz the exercise of executive powers in the form of the taking of executive actions, including the appointment and disciplinary control of executive functionaries of government; execution of the laws – the law of the constitution and other laws; maintenance of law and order; the determination and conduct of policy; direction and control of the departments of state and their activities; protection or preservation of the properties and instrumentalities of government; co-ordination of the activities of government ministries, departments and agencies (MDAS); and lastly pure administration.
ANTECEDENTS
The President ruling for more than two and a half months without ministers is really incredible, but, incredible as it is, we Nigerians, as a people, ought to have foreseen it from our experience of the dictatorial way former President Obasanjo who, like President Buhari, is a retired army general and former head of the military government, rode roughshod over the constitutional limitations on his powers. Olusegun Obasanjo, as elected “civilian” President in 1999, just carried over the arrogant, intolerant mentality and the mental attitude of impunity in the use of power implanted in him during his almost four years rule as head of the military government from 1976 – 79. Besides, his natural disposition as a person is not such as to have permitted him to shed the habits and attitudes about the administration of affairs acquired over a long period of years as commander of a military unit, minister in, and later head of, a military government. Comparison with George Washington or D’wright Eisenhower is simply inapposite and unhelpful.
It is not likely that anyone other than a retired army general and former head of the military government would ever think of ruling the country for more than two and a half months without ministers knowing fully well, as he or she ought to know, that the type of governmental system established for the country by the Constitution does not permit him to do that. And yet knowing his antecedents and the influence they must have on him, Nigerians elected him as “civilian” President in the March 2015 election. His election cannot but portray Nigerians as incapable of learning from past experience, a people lacking the degree of political maturity and sagacity required for the successful working of constitutional democracy.
What is happening now has no precedent in President Shehu Shagari’s 16 days delay in announcing his ministerial nominees and sending them to the Senate for confirmation. The delay in Shagari’s case was due to the President’s party, the National Party of Nigeria (NPN), not having a majority in the Senate to secure confirmation of the list of ministerial nominees, and the desire of the President for a national government of reconciliation, and his invitation to the five recognised political parties to join it. Apparently he thought he should allow them time to make up their minds. He seemed to have put so much store on a national government embracing all recognised political parties as a way of ending the prevailing political tension in the country arising from his disputed victory in the election, and also minimizing future conflicts. The Unity Party of Nigeria (UPN) and the Great Nigerian People’s Party (GNPP) had emphatically and mockingly rejected the invitation (only the Nigerian People’s Party (NPP) accepted and joined, which secured for the President a majority in the Senate), but the President seemed to believe that, given time, they might change their position and agree to join. The invitation was accordingly renewed on 16 October during his first address to the National Assembly, though he was at pains to state that the invitation should not be “misunderstood as a call for an All Party Government.” – National Assembly Debs (Senate) Official Report, 9 – 19 Oct, 1979, col. 133. However, as one commentator observed, “it is a height of presidential unorthodoxy to invite all the political parties to join his national government”. Amechi Okolo, Daily Times, Friday 23 November, 1979, 7.
Another factor that contributed to the delay was his concern to conciliate and please powerful interests within his own party. In the words of another commentator, he had “allowed his search for conciliation to override the institutional demands of his office. Party chieftains assumed a vetoing power in the nomination process which they had no legitimate claim to.” Stanley Macebuh, Daily Times, Thursday November 1979, p. 2.
And so the nation waited. As the days went by without an announcement, the public became restive and impatient about the delay in setting up an administration to get on with the pressing business of governing the country. The President’s inauguration on 1 October, 1979 had been a momentous occasion of great fervour and expectation. The fervour was generated by the excitement of the change to civil rule after 13 long years of frustration and disillusion under an autocratic military regime. The expectation was for a better life under an open, energetic government responsive to popular opinion, and imbued with a desire for action and service to the people. The public had expected that an administration would already have been worked out by the President by the time of his inauguration, and that the names of those to be called upon to serve as ministers would be announced any time; but when, more than two weeks after, an announcement had still not been made, popular fervour began, not surprisingly, to melt away. It seemed to many that the momentum had been lost, that the President had missed what appeared to be an excellent opportunity to canalize public fervour into an enduring loyalty, and to mobilize the nation. The public took on a mood, first of doubt and questioning, then of disenchantment borne out of disappointed expectation. At last, on 17 October 1979, the long-awaited list was presented to the Senate. The confirmation process in the Senate took quite some time, causing further delay in the actual appointment of ministers.
PERSONAL RULE
Obligation imposed by the Constitution on the President to consult with or seek advice from various executive bodies
Consultation with or advice by various executive bodies is a conspicuous device instituted by the Nigerian Constitution for restraining presidential action. So much is this the case that the presidency under our Constitution may well be described without impropriety as a consultative one. The obligation to consult with various executive bodies gives to the system of government under our Constitution the distinctive character of an institutional government, i.e. government by institutions established by the Constitution, which implies an impersonal system governed by rules that bind the conduct of individual office-holders. Institutional government arising from the obligation to consult with various executive bodies or institutions is thus of the essence of the government established by our Constitution, and personal rule, such as President Buhari ruling for more than two and half months without a council of ministers, is its very antithesis.
First and foremost, the President is required to hold regular meetings with the Vice-President and all ministers for the purposes of (a) determining the general direction of domestic and foreign policies of the government, the co-ordination of the activities of the government, as well as (b) for the purpose of advising him generally in the discharge of his executive functions other than those functions with respect to which he is required to seek the advice or act on the recommendation of any other person or body (s.148(2)). The word “regular” connotes constancy in time, and not as and when it suits the whim of the President. In the context it does also imply a notion of frequency in time. A meeting once in every fortnight or every month, though it satisfies the idea of constancy in time, would not be in conformity with the spirit of the provision.
The role of ministers collectively in relation to the functions in category (a) above is not merely that of giving advice; they are an integral part of the decision-taking process (“determination”). But, although the determination of general policy and the co-ordination of government activities are not thereby divested from the President, and made the collective responsibility of the Executive Council, the provision does have the effect of restricting the manner for exercising them. It requires him to exercise them, not alone in the solitude of his office or bedroom, but at a meeting with the Vice-President and ministers. The aim is to bring the collective views of the President, the Vice-President and ministers to bear upon such matters, but without depriving the President, as the sole repository of the power, of his authority to override the views of the rest of the council if and when he thinks fit. Having submitted a question on these matters to the deliberation of the council, the President is within his constitutional right to refuse to accept the views of the rest of the council.
The provision relating to functions in category (b) above obliges the President to seek the advice of the Executive Council on the discharge of his executive functions generally. Lawal Kagoma v. The Governor of Kaduna State & Others, FCA/K97/80 of 16 January 1981; the Supreme Court reversed on a different ground: Governor of Kaduna State v. Lawal Kagoma, S.C. 64/1981.
However, it is a different matter to say that the Constitution contemplates or requires that every executive action of the President must be backed by the advice of the Executive Council. That would involve the President having meetings with the Vice-President and ministers every day or even several times a day. What the provision seems to require is that the President should have regular and frequent meetings with the Vice-President and ministers in order to obtain their opinion and advice on general policy, co-ordination of government activities and other important executive functions.
The consultative character of our executive system of government under the Constitution is further exemplified by the fact that, apart from these cases where consultation is made obligatory on the President, there are other executive bodies established by the Constitution and invested with the power to advise him on a variety of matters – the National Defence Council on the defence of the sovereignty and territorial integrity of the Federation; the National Economic Council on economic affairs; the National Population Commission on population problems (that is, apart from its own independent functions with regard to census); and the Council of State on the census, prerogative of mercy, award of national honours, matters relating to other executive bodies, and, when so requested, on the maintenance of public order and any other matters (again this is apart from the independent functions vested in it by the Constitution).
The difference here is that the power vested in these bodies (i.e. other than the executive council) to advise the President implies no obligation on his part to seek advice, so that failure or neglect by him to do so in no way affects the validity of decisions or actions taken by him, though the spirit of the provisions is that the President should seek their advice. But a “power” to advise does imply a right of initiative, a right to give advice without being asked. The power can be exercised independently of the wishes of the President; whether he requests it or not, these bodies can, from time to time, on their own initiative meet to proffer advice to the President on matters on which they are respectively empowered to advise. They have, like any other body, an inherent power to determine, independently of the President’s control, when and how frequently to meet to consider what advice to give. The President can of course request them to meet to advise him on any particular question, but it is not within his power to stop them agreeing on a schedule of meetings, whether it be monthly or quarterly. (The Council of State can advise on the maintenance of order only when requested.)
Consultation, when it does take place, whether as an obligatory requirement or at the discretion of the President, must go beyond merely giving information or announcing a decision already taken. It implies that an opportunity must be given to the person or body consulted to express an opinion, to criticize any proposal brought forward by the President and to offer advice; and that the opinion, criticism or advice so offered should genuinely be taken into consideration by the President in arriving at a decision. Having done that, the President is free to decide as seems best to him, whether in accordance with or contrary to the advice. No obligation is cast on him to accept it. But he must consult in cases where consultation is made obligatory by the Constitution.
The establishment by the Nigerian Constitution of a council of ministers charged with the function of advising the President in the exercise of his executive functions marks an important point of departure from its American prototype. For, although the U.S. Constitution clearly recognizes the office of minister, or departmental head as it is called, as a collective body they (the ministers) have no existence whatever in the Constitution. The reference to writing in the provision empowering the President to require the written opinion of a departmental head suggests that the Constitution never contemplated a collective opinion or advice. However, collective consultation has developed informally in response to the demands and pressures of modern government. Before 1793 there was nothing that could be called a cabinet. Although the first President, George Washington, occasionally called into collective consultation his departmental heads, of whom there were then only four, the meetings did not assume such frequency and regularity as to stamp them with an institutional character as an established machinery of government. It was the diplomatic crisis of that year, arising out of the question whether or not America should adopt a position of neutrality in the war between England and France, that gave the cabinet formal birth by impelling the President to meet his secretaries almost every day over the issue, the culmination being the meeting at which the decision was taken to proclaim American neutrality in the war.
However, the point that deserves to be noticed about the cabinet in the United States is that, after more than two centuries of existence as a definite institution of government, it has acquired no constitutional status by convention. There is no conventional obligation upon the President to consult it at regular intervals. How often he convenes the cabinet is a matter entirely within the discretion of the President, and the practice has varied between individual Presidents. Some hold meetings of the cabinet fairly regularly; others, distrustful of meetings, consult their cabinet at infrequent intervals, preferring informal consultations with various types of advisers.
The authoritarianism of President Lincoln, and his predilection for personal government with only occasional cabinet meetings now and again, was due to a large extent to the failure of the Constitution to provide for a cabinet. It seemed to have vindicated those critics who at the time of the Constitution’s adoption decried this omission as an open invitation to “despotism”, “caprice, the intrigues of favourites and mistresses, etc”. Koenig, The Chief Executive, rev. ed., 1969, p. 20. According to Kenneth Kaunda, the establishment of a cabinet in the Commonwealth African presidential constitutions was in order to ensure that, by subjecting him to the advice and influence of a cabinet, the President “would not be able to assume dictatorial powers.” Zambia, Independence and Beyond : The Speeches of Kenneth Kaunda, ed. Colin Legum, 1960, pp. 83 – 4.
Consequences of the President not observing or disregarding the constitutional requirement of consultation
The consequences of the President not having ministers or not consulting with them collectively as a council are that his exercise of the functions of government noted earlier is largely unconstitutional. By making it mandatory for the President to establish offices of ministers and, with the approval of the Senate to appoint persons to such offices, and by casting upon him the obligation to hold regular meetings with the Vice-President and ministers for the purpose of advising him on the exercise of his executive functions, the Constitution does clearly manifest an intention that the President is not to govern without the restraining and moderating influence of the collective advice of an Executive Council. Clearly, therefore, in a situation where the President refuses or neglects to establish ministerial offices and to appoint persons to them or where, having appointed ministers, he refuses or neglects to hold regular meetings with them collectively as a council for the purpose of getting their advice on his executive actions, the administration of government by him in these circumstances would be a violation of both the spirit and letters of the Constitution, no matter how benevolent, liberal or beneficial to the public his actions may be. “I am of the view”, said the learned President of the Federal Court of Appeal, Justice Maman Nasir, “that if the Governor…….refuses to hold these regular meetings, he constitutes himself as a dictator and this will be in my view not only contrary to the spirit of the Constitution but is clearly a breach of the specific provisions of this section.” Lawal Kagoma v. The Governor of Kaduna State & Others, ibid.
What the decision of the Court of Appeal in the Lawal Kagoma case means, in clear, unequivocal language, is that the administration of government by a President without the restraining and moderating influence of a council of ministers is unconstitutional, null and void. A president under our type of Constitution ruling without ministers tantamounts, in an approximate or loose sense of the term, to a dictatorship but not in a strict sense, since a dictator, defined in the dictionary as “a person exercising absolute authority”, cannot co-exist with the system of limitations on power established by the Nigerian Constitution. It is entirely inconsistent with, and not permitted by, our Constitution which does not grant power in its full amplitude to government, but rather limits it by the guarantee of civil liberties to the individual, the separation of the functions of legislation, execution and adjudication, by a right guaranteed to the people to elect and dismiss their rulers at periodic interval of time, and by other restraining devices such as the obligation to consult with various executive bodies and other checks and balances. Of course, a constitution, in the strict sense of a supreme, overriding law, not a mere political charter as in the case of the constitutions of the former Soviet Union and the former communist countries of Eastern Europe, can create what is known as “a constitutional dictatorship”, which is a seeming contradiction in terms, as will be explained later in this write-up.
Merits of government by institutions or by consultation with various executive bodies, as opposed to personal rule
Government by institutions or by consultation with various executive bodies, as opposed to personal rule, has obvious democratic virtue. First, as has truly been said, the interaction of many minds “is usually more illuminating than the intuition of one. In a meeting representing different departments and diverse points of view, there is a greater likelihood of hearing alternatives, of exposing errors, and of challenging assumption.” Theodore C. Sorensen, Decision-making in the White House, 1963, p. 69. Perhaps even more important is what has been described as the “increased public confidence inspired by order and regularity and the increased esprit de corps of the participants”. ibid Modern government challenges the capacity of a single mind to deal with its many and complex problems. Crisis increases the intensity of the challenge, and modern government faces an ever-recurrent series of crises.
Second, collective consultation is likely to have a more restraining effect on the President than an individual one. It is less easy to ride roughshod over a determined opposition from a council than from an individual, and a President who does that faces a heavier responsibility in the event of failure or mistake; and where ministers are concerned he may also provoke the resignation of some and a consequent undermining of the unity of his administration as well as a possible loss of public support and confidence. There can be no doubt therefore that an obligation to consult a council does operate to restrain the President’s exercise of his powers.
Third, government in a regime of personal rule is not systemised because “it is largely contingent upon men, upon their interests and ambitions, their desires and aversions, their hopes and fears, and all the other predispositions that the political animal is capable of exhibiting and projecting upon political life,” and further because it is restrained, to the extent that it is restrained at all, only by “private and tacit agreements, prudential concerns and personal ties and dependences rather than by public rules and institutions”. And it is dangerous because of its tendency to give rise to an assault, sometimes tyrannical assault, on human rights : see Jackson and Roseberg, Personal Rule in Africa (1982) page 10.
THE SEEMINGLY CONTRADICTORY PHENOMENON KNOWN AS CONSTITUTIONAL DICTATORSHIP
(i) Constitutional dictatorship as exemplified by the one-party authoritarian regimes of Kwame Nkrumah in Ghana, Kamuzu Banda in Malawi and Mobutu Sese Seko in Zaire (now Democratic Republic of Congo)
The phenomenon known as “constitutional dictatorship” is a seeming contradiction in terms because, as earlier stated, a dictatorship, i.e. a regime of absolute, unlimited power i.e. an autocracy or despotism, as distinct from an authoritarian one (authoritarianism), cannot co-exist with a constitution truly so-called, i.e. a constitution as supreme, overriding law that limits powers of government by the various devices mentioned above. (As will appear from the discussion that follows, the dividing line between a constitutional dictatorship and an authoritarian regime of the African one-party type that existed and operated in the continent in the past is a thin one.) Both absolutism and authoritarianism are less than total rule, (totalitarianism) of the socialist/communist system, which it will be out of place to examine here – as to which, see my Constitutional Democracy in Africa, volume 4, under the sub-title Forms of Government, pages 364 – 420.
In practice, a constitution, having the force of a supreme, overriding law, does sometimes grant power in its full plenitude with only slight limitations; by so doing, it creates a near-absolutism, which is then quite appropriately called a constitutional dictatorship, because it is created by, or is based in, the constitution. Such was the republican Constitution of Ghana 1960 which invested the “First President”, meaning Kwame Nkrumah for as long as he continued to be re-elected president, with executive as well as supreme legislative power. Parliament had of course power to make law concurrently with Nkrumah, yet a law made by him might alter (whether expressly or by implication) “any enactment other than the Constitution.” Besides, parliament under Ghana’s one-party system was entirely subservient to the president and his government. Remarkably, the centralising design of the Constitution stopped short of subsuming judicial power in the president’s and parliament’s legislative power. Judicial power was expressly vested in the courts, which secured its existence as a separate and independent power. But the Constitution might just as well have omitted an express or implied vesting of judicial power in the courts, which would then have subsumed it in legislative power, and so make the absolutism more or less complete. But while judicial power was separated from legislative power by being vested in the courts, its independence was seriously attenuated by the power vested in the president to appoint and dismiss judges in his unfettered discretion, a power of which he made quite an oppressive use.
Not only were legislative and executive powers united in Nkrumah as president, but also the limitation on power implied by a constitutional guarantee of liberty was absent. The Constitution guaranteed no rights. It only required the president on assumption of office to make a declaration of directive principles of government in terms therein prescribed, a declaration which the country’s supreme court has rightly held not to constitute a bill of rights or even a part of the general law of Ghana, being in its form merely a personal declaration of the president’s : Re Akoto, (1961) GLAIR 523. Also absent were the restrictions on legislative power implied by the provisions relating to chiefdoms and regional assemblies embodied in the independence Constitution of 1957.
Furthermore, the people of Ghana were effectively denied the right to elect their chief ruler at periodic intervals of time and to remove him by refusing to re-elect him if they thought his management of affairs unsatisfactory. This result was brought about by the entrenchment of the Convention People’s Party (CPP) in the Constitution as the only legally permitted political party. Taken together with the fact that Nkrumah was the life chairman of the party, indeed he was the CPP, the effect was to guarantee him re-election without opposition or contest, whenever the occasion arose for a presidential election. Thus, Nkrumah as president was practically as irremovable through the electoral process as if he had been proclaimed president for life in the Constitution.
In the executive field, the Constitution again assured the president near-absolute power and control. Not only was executive power vested in him, but it was provided that, “subject to the president’s power in that behalf, the cabinet, consisting of himself and the ministers, shall have the general direction and control of the government.” (art. 16(2)). It follows that, since the direction and control of the cabinet in Ghana was subject to the powers of the president, the latter had the overriding voice. It needs to be emphasised further that the general direction and control of the cabinet was at the level of the government and not at the level of individual ministries. The ministers, individually, were under the direction of the president for the work of their respective ministries, and it was entirely in the discretion of the president what functions and the extent of such functions to assign to any minister. Herein lay the lever held by the president over ministers and the cabinet.
The cabinet and the individual ministers were neutralised and turned into an appendage of Nkrumah through the manipulation of the letter of the provisions of the Constitution, which was a perversion of their spirit, which perhaps justifies the assertion that Nkrumah had raised “extra-constitutionality to the level of an art.” Henry Bretton : The Rise and Fall of Kwame Nkrumah : A Study of Personal Rule in Africa (1966), p. 148. (A similar provision in the constitutions of Tanzania and Gambia was not manipulated in the same way to neutralise the cabinet and individual ministers.) It was his power to appoint and assign functions to ministers and the lever it gave him over them, which Nkrumah adroitly harnessed to absorb in himself personally the functions of the cabinet, thereby reducing it to a mere tool for the attainment and furtherance of his ambition for one-man rule. There was, of course, established a full complement of ministries to which were appointed separate ministers, but the critical aspects of the functions of most of them were detached from the minister and given to the president.
Nkrumah’s powers under the 1960 Constitution (as amended) were thus near-absolute, and his regime is rightly categorised as approximating to a constitutional dictatorship. Kamuzu Bnda’s near-dictatorship in Malawi was even more squarely based in the Constitution than Nkrumah’s in Ghana was, so also was Mobutu’s in Zaire, but an examination of the relevant provisions of the constitution in the two countries will overburden the discussion without adding much further illumination of the term “constitutional dictatorship”. (Kamuzu Banda frankly admitted being a dictator but maintained that he was such by the permission of the people).
Classifying Buhari’s two and half months rule and Obasanjo’s eight years rule, both under the same system of constitutional democracy established by the 1999 Constitution President Obasanjo’s eight years rule was a regime of personal rule, not an institutional government, i.e. rule by institutions established by the Constitution and whose activities are governed by public rules prescribed by law, the institutions or most of them having been sucked into the vortex of the President’s personal rule machine; it was not a government of laws but largely of men exercising powers with reckless impunity, the concept of the rule of law having been systematically subverted, as by the subversion of the doctrine of the separation of powers, the subversion of the legislative process, by interference with the judicial process, the subversion of Nigeria’s federal system, and by many other perversions of power; it was, in short, a regime where coercion and physical force, illegally applied, determined the conduct of affairs by government. It was, moreover, a regime where the President, as father of the nation, was regarded as all-knowing and infallible; a regime that enthroned the culture of sycophancy and the adulation of the President. His rule thus approximated somewhat closely to a constitutional dictatorship by means of the perversion of constitutional institutions and restraints upon powers.
As for President Buhari’s rule, it is too early to classify it, beyond saying that it is, so far, not an institutional government, but a regime of personal rule, the main institution i.e. a council of ministers, to advise and assist him not having as yet been constituted. In the mean time, the nation is all expectancy, waiting to see whether he is truly a democrat as he, in his post-election statement, declared himself to be, or whether he is going to conduct the affairs of the country in the way his antecedents as former army commander and head of the military government, would lead us to expect. In any case, he should bring to an end this unconstitutional regime of personal rule by announcing his ministerial nominees without further delay.
What is said in this write-up is applicable to those of the newly elected State Governors who also rule without commissioners apparently taking a cue from the President.
*Nwabueze, a Senior Advocate of Nigeria (SAN), is a foremost constitutional lawyer
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