President’s dictatorial disregard of the commands of our Constitution: Disquieting worries of Igbo Leaders of Thought
THE executive power of the Federal Government vested in the President of Nigeria by section 5 of the Constitution is a frightfully enormous power. In terms of its extent, it embraces all the eight functions set out in my earlier write-up. They are worth repeating here again for easy understanding, viz taking actions involving execution, including 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.
In view of the awesome enormousness of the power, it is not unnatural that Gen. Muhammadu Buhari should passionately covet the office, as attested by the fact that he contested for it in four successive presidential elections in 2003, 2007, 2011 and 2015. But what is disquieting is that, while intensely coveting the office because of its enormous powers, he should arrogantly disregard the commands of the Constitution imposing restraints on the way and manner the powers are to be exercised. In fairness to him, the question may be asked whether he knows of the constitutional commands and the restraints they impose on the exercise of his well-known and undoubted powers. It is hard, however, to believe that, after contesting presidential election for four consecutive times, he is, or can be, ignorant of the limitations with respect to the way and manner for exercising the powers. He must be taken to know of them. His disregard of them cannot therefore be other than deliberate and well-calculated.
It is necessary at this point to emphasise that constitutionally prescribed manner or form for the exercise of power is nearly as important as the power itself. Our Supreme Court has held that non-compliance with, or violation of, the former attracts the sanction of nullity equally as the perversion or abuse of the power.
Given that he knows of the restraints which the Constitution of the country he desperately wants to rule, imposes on the way and manner the powers of the presidential office are to be exercised, and that his disregard of them is deliberate and well-calculated, the intriguing question arising from his disregard of the constitutional restraints concerns the reasons or motives for it. The reasons or motives may reasonably be inferred from his statements, and actions/conduct as well as from events generally, and these suggest that the disregard is done in furtherance of a pre-determined Islamisation/ Northernisation agenda. The existence of such agenda is not something conjured up just to discredit him; on the contrary, it is a fact irrefutably attested by his statements, actions/conduct and events generally.
His commitment to the Islamisation agenda was heralded in a speech at a seminar organised by the Supreme Council of Sharia in Nigeria in August 2001 where he (Gen Buhari) publicly declared that he was committed to implementing Sharia law all over the country. The Islamisation agenda was a significant factor in the APC presidential primary for the 2015 election. The voters at the said primary, who were predominantly moslems from the North, wanted a presidential candidate whom they could confidently rely upon to implement the Sharia agenda, and so voted overwhelmingly for Buhari as the man to be relied upon for the job, giving him 3,430 votes, as against 954 votes for Atiku Abubakar, also a Moslem but not a diehard Islamist like Buhari.
His position as a fervent apostle of the Islamisation/Northernisation agenda was re-affirmed in a speech he, as President-elect, delivered before an audience of exclusively prominent Northern Moslem leaders on 2 May, 2015 at Queen Amina Hall, Ahmadu Bello University (ABU), Zaria. “I charge you”, he said with the ardour of a zealot, “to join me as we build a new Northern Nigeria in a generation ………the best investment we can make in the North is not finding oil in the Chad Basin……..we will start with one local government in each state until we get to every school in all of Northern Nigeria……. To achieve this, I have secured a Northern rehabilitation fund……..to rebuild the North after the devastation of Boko Haram insurgency…… Join me my brothers and sisters and let us finish the work our forefather, Ahmadu Bello, started.” Is it not a sweet, beguiling deceit that the same President-elect should, in another speech, say: “I belong to everybody and I belong to nobody”?
In the ABU Zaria speech, I venture to say, lies the answer to what some regard as the “puzzle” of his appointments since assuming office as President on 29 May, 2015. Of the altogether 31 such appointments, 24 (or nearly 80%) go to the North, 7 to the South, distributed 4 to the South-West, 3 to the South-South and nil to the South-East.
The Isamisation/Northernisation agenda has a link with the President not announcing his ministerial nominees more than three months after his inauguration. The disdainful delay was not, as is naively thought in some quarters, because of his concern to make sure that only the right persons, the Buhari “saints”, would make the list. Far from that; he simply did not want interference by ministers by way of advice in the vital appointments he has made and in the other crucial actions or decisions he has taken. Ministers are an unwanted incumbrance on the regime of personal rule to which his disposition and his antecedents as army commander and head of the military government have accustomed him. He will eventually announce his ministerial nominees but he will be doing so reluctantly and grudgingly. He neither wants nor needs them.
What is said above is largely by way of introduction. The main aim of this write-up is to examine the constitutional commands respecting the way and manner for the exercise of presidential powers, with particular reference to the obligation laid on the President to (i) submit himself to the restraining influence of the advice of ministers both as individuals and collectively at regular meetings with them. (This has been examined in my previous write-up); (ii) to observe and conform to the principles of justice, social justice and equality in the administration of government – both legal equality (or equality before the law) and social equality (embraced in the term social justice); (iii) to treat citizens equally without unfair discrimination based on ethnicity, place of origin, religion, political opinion or sex. The restraints of these obligations are not imposed without compelling reasons. The write-up examines the underlying reasons for them.
COMMANDS OF THE CONSTITUTION REQUIRING CONFORMANCE WITH THE PRINCIPLES OF JUSTICE, SOCIAL JUSTICE AND EQUALITY IN THE ADMINISTRATION OF GOVERNMENT
Our Constitution enshrines in its chapter 2, Directive Principles of State Policy which “all organs of government, and all authorities and persons exercising legislative, executive or judicial powers” must, as a matter of constitutional “duty”, “conform to, observe and apply” in governance (section 13). Among the principles so enshrined are those of justice, social justice and equality. Thus, it is declared as follows:
“The Federal Republic of Nigeria shall be a state based on the principles of democracy and social justice” (section 14(1)).
“The state social order is founded on the ideals of Freedom, Equality and Justice” (section 17(1)).
“The national ethic shall be …….Social Justice……..” (section 23)
There is another remarkable directive of great significance in this connection. It is commonly referred to as the “federal character” principle. It is contained in section 14(3), and says:
(3) The composition of the Government of the Federation or any of its agencies and the conduct of its affairs shall be carried out in such manner as to reflect the federal character of Nigeria and the need to promote national unity and also to command national loyalty, thereby ensuring that there shall be no predominance of persons from a few States or from a few ethnic or other sectional groups in that Government or in any of its agencies.
A similar provision is made in subsection (4) as regards a State Government and a local government council. The concentration of 24 out of the 31 (or nearly 80%) appointments so far made by President Buhari is clearly a flagrant violation of the federal character directive.
In furtherance of the principles of justice, social justice and equality declared in sections 14(1), 17(1) and 23, chapter 2 goes on to lay on the state specifically a positive duty to direct its policy towards ensuring equality in the general condition of society, i.e. social equality. In view of the natural inequality among individuals owing to differences between them in physical, intellectual and will power, social equality can only mean equality in the general condition of society secured by the actions of the state. The actions which this requires of the state are set out in some detail in chapter2, but it will over-burden this write-up to examine them here.
More pertinently for present purposes, chapter 2 further directs that “every citizen shall have equality of rights, obligations and opportunities before the law”; that “every citizen shall have equality of rights, obligations and opportunity for securing adequate means of livelihood as well as adequate opportunities to secure suitable employment” (s.17(3)); that there shall be “equal pay for equal work without discrimination on account of sex, or on any other grounds whatsoever (s.17(3)(e)), as well as equal educational opportunities at all levels (s. 18(1)).
While, as stated below, the prohibition in the Bill of Rights is limited to discrimination based on the grounds of ethnicity, place of origin, membership of a particular community, sex, religion or political opinion, the directives in Chapter 2 of the Constitution are not so qualified. But the combined effect of the two sets of provisions is that all unfair discriminations, that is to say, discrimination without rational or objective justification, are constitutionally prohibited. It is universally accepted that discrimination based solely on the grounds specified in the Bill of Rights (s. 42) is altogether irrational and is, therefore, not reasonably justifiable in a constitutional democracy.
Rationale for requiring conformance with the principles of justice, social justice and equality in the administration of government
Professor Lord Bryce has articulated the place of equality as a pre-supposition (though not a constitutive element) of democracy. “Democracy”, he writes in his book, Modern Democracies, vol 2 (1920), page 674, “is supposed to be the product and the guardian both of Equality and Liberty, being so consecrated by its relationship to both these precious possessions as to be almost above criticism..”
The importance of justice in human society is perhaps best illustrated by considering the feelings aroused in us by injustice. Whereas justice is a cold virtue that evokes no feeling, injustice or unfairness arouses intense fury in us, as we get heated up and indignant about it. “Indignation, which is the conceptually appropriate response to injustice, expresses, as its etymology shows, a sense of not being regarded as worthy of consideration. Injustice betokens an absence of respect, and manifests a lack of concern.” Lucas, On Justice (1980), p.7. For this reason, the occurrence of injustice, especially if it is on a wide scale, immediately puts the “unity and coherence of society under strain.” Lucas, op. cit., p. 4
Justice is thus rightly regarded as the “bond of society,” Lucas, op. cit., p. 18, the “cornerstone of human togetherness.” Oputa, Lecture on Justice. It is the condition in which the individual can feel able “to identify with society, feel at one with it, and accept its rulings.” Lucas, op. cit., p. 1. An unjust society cannot maintain its unity and cohesion, because it cannot arouse in its members a strong enough feeling of loyalty and allegiance. Injustice not only alienates the individual’s loyalty, what is worse, it also arouses him to disaffection. An individual, denied recognition by society, cannot but feel alienated and disaffected. “Justice,” wrote James Madison, “is not only the end of government, it is the end of civil society. It ever has been and ever will be pursued until it be obtained or until liberty be lost in the pursuit.” James Madison, The Federalist, No. 25, ed. Clinton Rositer (1961). Unjust action by the state as between the racial, ethnic and religious groups comprised in it (i.e. the state) is of far greater concern. This is because of its tendency to generate greater bitter resentment and to provoke more violent social conflicts than unjust treatment of individuals.
By concentrating in the North nearly 80% of his 31 strategic appointments and by excluding the South-East completely, a feeling of alienation, of not being wanted, may have been created on the part of those so disadvantaged or excluded. A feeling of alienation may grow into that of disaffection or disloyalty.
But it is perhaps social justice more than individual justice that bears more significantly upon the maintenance of the unity and coherence of society. As Honore has observed, “modern social and economic developments have made it clear that individual justice….is only a partial and incomplete form of justice.” This perhaps accounts for the shift in emphasis since the 19th century from analysis of individual justice to that of social justice. The glaring injustice of the present-day economic order, both domestic and international, the cry of the underprivileged for protection and the demands of the individual on the state for welfare services have compelled attention being increasingly focused on the need and importance of social justice and away from issues of individual justice that once dominated it, and which characterised the order of society governed by classical liberalism. The concept of social justice has indeed conquered the public imagination. “Almost every claim for government action on behalf of particular groups is advanced in its name, and if it can be made to appear that a certain measure is demanded by social justice, opposition to it will rapidly weaken. People may dispute whether or not the particular measure is required by social justice, but that this is the standard which ought to guide political action…..is hardly ever questioned. In consequence, there are today probably no political movements or politicians who do not readily appeal to ‘social justice’ in support of the particular measures which they advocate”: F.A. Hayek, The Mirage of Social Justice (1976), p. 65.
COMMANDS OF THE CONSTITUTION REQUIRING CONFORMANCE WITH THE PRINCIPLE OF EQUAL TREATMENT OF CITIZENS (OR THE PRINCIPLE OF NON-DISCRIMINATION) IN THE ADMINISTRATION OF GOVERNMENT
Under chapter 4 of our Constitution guaranteeing the fundamental rights of persons, the state is enjoined not to violate or contravene the fundamental rights of life, dignity of the human person, personal liberty, freedom of thought, conscience and religion, freedom of expression and the press, peaceful assembly and association and freedom of movement. The emphasis in the guarantee is on the word “every”, which means all persons equally, regardless of their station in life or standing in society, whether poor or rich, powerful or inconsequential, of lowly or noble birth, etc. The basis of the guarantee is that the dignity and sacredness of the human person entitle all persons to equal respect for all those attributes that make up the human personality – life itself, intellect and thought, conscience and feeling, movement and speech.
The examination herein focuses specially on section 42 prohibiting discrimination between individuals on grounds considered unfair. It says that a citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, whether expressly by, or in the practical application of, any law in force in the country or any executive or administrative action of government, be subjected to disabilities or restrictions, or be accorded any privilege or advantage which are not applied to citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religion or political opinions if such disabilities, restrictions, privilege or advantage are imposed or accorded by reason only that the individual affected is such a person, (Sex was made a prohibited ground only since 1979.)
The words “restrictions” and “advantage” appearing in the provision call for special notice. They are words of wide import, and carry the scope of the provision far beyond what is implied by the words “disabilities” and “privilege”. The latter are essentially terms of art. Disability connotes “an incapacity for the full enjoyment of ordinary legal rights”, while privilege implies something approximating to a legal right, such, for instance, as the non-liability of members of the National Assembly for words spoken during the proceedings of the Assembly. The words “restrictions” and “advantage”, on the other hand, are not so limited in their import.
To come within the prohibition, however, a restriction or advantage, equally as a disability or privilege, must stem from some law or some executive or administrative action of government. Discrimination based solely on some social practice, such as the discriminatory rules or practices of social clubs or other wholly private associations, is thus not within the ambit of the prohibition. But law in the context of the provision seems to embrace legislation as well as the common law, customary law and Islamic law. Accordingly, any rules of the latter are unconstitutional and void to the extent that they discriminate between citizens on any of the prohibited grounds. The rules of Sharia law discriminating against non-Moslems are thus impeachable as unconstitutional.
Rationale for requiring conformance with the principle of equal treatment of citizens (or the non-discrimination principle) in the administration of government
The equal treatment of citizens by the state or freedom from unfair discrimination guaranteed in section 42(1) of the Constitution is among the rights that constitute the essence of the concept of human rights because it rests upon our common humanity as living human beings, with a body and a soul, the ability to breathe, think, speak, move about and to act, and a capacity for emotions and sensations. Every human being feels pain, anguish and happiness, and is endowed with a conscience that enables him to judge between right and wrong, and to form beliefs, just like everyone else. The differences which undoubtedly exist between individuals because of differences in physical, intellectual and will power – “rights,” which, to quote Lord Bryce again, “nature has bestowed on some and denied to others” James Bryce, Modern Democracies, vol. 1 (1920), p. 70, are only differences of degree, which leave unaffected our basic common human nature. Because of our basic common human nature, all citizens have more or less the same need for the security of their person and property, for justice in their dispute with others, for peace and order, for happiness, the good life and for welfare care generally, for obedience to the laws on the part of all, and the protection of their basic human rights.
The rationale for the state to treat all citizens equally arises partly from our common humanity as human beings with the very same basic need noted above, and partly from the need to avoid the incidence of unfairness in the administration of government, except where such is reasonably justifiable in a democratic society. If the state is the product of a social contract, then, all citizens should count equally in relation to it. In this view, a democratic state is an organization in which the relationship of all members to it is on equal terms, whether it pertains to the conferment of rights, the imposition of obligations, the security of lives and property, the administration of justice, the distribution of social amenities or the exercise of legislative and executive power generally.
The actions of President Buhari since his assumption of office seem to fly in the face of the necessity for equal treatment of citizens regardless of differences in ethnicity and in their religious and political affiliations, and of the compelling rationale for the principle of equal treatment as articulated above.
• Prof. Nwabueze, a constitutional lawyer wrote this on behalf Igbo Leaders of Thought