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The cerebral Catholic Bishop of Sokoto and Public Intellectual, Rev. Father Matthew Hassan Kukuah while addressing the opening of the Nigerian Barr Association Annual General Conference in Abuja on the 27th August, 2012, had opined that President Jonathan is the most powerful President in the world who is vested with limitless and plenitude of powers to do the impossible including the award of oil blocks to individuals that instantaneously turned a poor man into a billionaire.
On the other hand, President Jonathan while delivering the key address in the Conference had said he is the most criticised President in the world and his critics are not fair to him because he is not expected to use his last than two years in office to transform the country and solve the myriad of momentous problems grappling and confronting the country.
The question is: Is it true that the President of Nigeria is the most powerful President in the World? I shall answer the question in the affirmative. I agree with the views canvassed by Rev. Father Kukuah that President Jonathan is the most powerful President in the World. I shall even go a step further by suggesting that President Jonathan is a Constitutional Dictator by virtue of the awesome, expansive and extensive executive powers vested on him by the Constitution of the Federal Republic of Nigeria.
The term “constitutional dictatorship” is defined by Sanford Levinson and Jack M. Balkin in an article in the Minnesota Law Review, Vol. 94, Page 1789 titled “Constitutional Dictatorship: Its Dangers and its Designs” thus:
“A constitutional dictatorship is a system (or subsystem) of constitutional government that bestows on a certain individual or institution the right to make binding rules, directives, and decisions and apply them to concrete circumstances unhindered by timely legal cheeks to their legal authority”.
Accordingly, Section 5 subsection 1 (a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provides thus:
“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”.
Undoubtedly the framers of the Constitution contemplate a powerful, magisterial and imperial President vested with a plenitude of executive powers to be able to hold and manage a country of the mosaic complexity of Nigeria with various centripetal and centrifugal forces competing and contending with each other to rend it. The framers of the Constitution decided to adopt a Presidential System of Government with a ‘strong president’ at the helm of affairs endowed with awesome powers to hold the country together; to rein schism tendencies inherent in a heterogeneous society together and neutralize it.
This is one of the reasons why the proponents of ‘Presidentialism’ at the 1978 Constituent Assembly that was constituted by the then Federal Military Government of Murtala/Obasanjo in 1975 to deliberate on a New Constitution in order to usher in the handover of power from the military to the civilian on the 1st October, 1979, had their way. It was the thinking among Delegates to the 1978 Constituent Assembly that the Parliamentary System of Government that was the constitutional order in the country between 1960 – 1966 contributed to the political instability that dogged the First Republic and led to its demise on the 15th January, 1966.
It was this Constituent Assembly headed by the then foremost Lawyer in the Country, Chief Fredrick Rotimi Williams (of blessed memory) that recommended the adoption of a Constitution modelled after the American Presidential System that the 1988 Constituent Assembly and the Justice Niki Tobi’s Panel on Constitutional Review that produced the 1989 Constitution and the 1999 Constitution respectively subsequently adopted.
Although the Constitution makes provision for the Separation of Powers between the 3 (Three) Organs of Government, the Executive, Legislature and Judiciary there are instances where the ‘separation of powers’ is more in theory than practice. The power of law making is vested in the National Assembly. Undoubtedly Section 4 (1) of the Constitution vests on the National Assembly the power to make laws for the Peace, Order and Good Government of the Country. However, by Section 315 of the Constitution the President is vested with the power of law making. It is necessary to reproduce Section 315 subsection 1 of the Constitution thus:
“Subject to the provisions of this Constitution, an existing law shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of this Constitution and shall be deemed to be –
(a) an Act of the National Assembly to the extent that it is a law with respect to any matter on which the National Assembly is empowered by this Constitution to make laws; and
(b) a Law made by a House of Assembly to the extent that it is a law with respect to any matter on which a House of Assembly is empowered by this Constitution to make laws.
(2) The appropriate authority may at any time by order make such modifications in the text of any existing law as the appropriate authority considers necessary or expedient to bring that law into conformity with the provisions of this Constitution.
(3) Nothing in this Constitution shall be construed as affecting the power of a court of law or any tribunal established by law to declare invalid any provision of an existing law on the ground of inconsistency with the provision of any other law, that is to say-
(a) any other existing law;
(b) a law of a House of Assembly;
(c) an Act of the National Assembly; or
(d) any provision of this Constitution.
(4) In this section, the following expressions have the meanings assigned to them, respectively-
(a) “appropriate authority” means-
(i) the President, in relation to the provisions of any law of the Federation;
(ii) the Governor of a State, in relation to the provisions of any existing law deemed to be a law made by the House of Assembly of that State; or
(iii) any person appointed by any law to revise or rewrite the laws of the Federation or of a State;
(b) “existing law” means any law and includes any rule of law or any enactment or instrument whatsoever which is in force immediately before the date when this section comes into force or which, having been passed or made before that date, comes into force after that date; and
(c) “modification” includes addition, alteration, omission or repeal.
(5) Nothing in this Constitution shall invalidate the following enactments, that is to say –
(a) the National Youth Service Corps Act 1993;
(b) the Public Complaints Commission Act;
(c) the National Security Agencies Act;
(d) the Land Use Act, and the provisions of those enactments shall continue to apply and have full effect in accordance with their tenor and to the like extent as any other provisions forming part of this Constitution and shall not be altered or repealed except in accordance with the provisions of section 9 (2) of this Constitution.
(6) Without prejudice to subsection (5) of this section, the enactments mentioned in the said subsection shall hereafter continue to have effect as Federal enactments and as if they related to matters included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution”.
From the above, it goes without saying that the President is vested with the power to make law, just like the National Assembly. Accordingly the President can initiate in his own accord the amendment of any Statute or regulation or legislation in order to bring it in conformity with the provisions of the Constitution. It goes without saying that the President is vested with both executive and legislative powers by the Constitution. One of the hallmarks of dictatorship is when powers are concentrated in the hands of one single individual. In this wise, executive and legislative powers are concentrated in the President. By Section 131 (1) of the Constitution, the President is Head of State and the Chief Executive of the Federation.
Apart from the Executive and Legislative powers of the President, he also has the responsibility for the appointment of the Chief Justice of Nigeria and the Justices of the Supreme Court of Nigeria upon the recommendation of the National Judicial Council subject to the confirmation of such appointment by the Senate. See Section 231 subsections (1) & (2) of the Constitution of the Federal Republic of Nigeria.
The President is also vested with the power of the appointment of the President of the Court of Appeal and the Justices of the Court of Appeal upon recommendation of the National Judicial Council. See Section 238 (1) & (2) of the Constitution of the Federal Republic of Nigeria.
The President is also vested with the power of the appointments of the Chief Judges of the Federal High Court and the High Court of the Federal Capital Territory, Abuja, respectively upon the recommendation of the National Judicial Council subject to the confirmation of the Senate. The President is conferred with the power to appoint all Judges of the Federal High Court and the High Court of the Federal Capital Territory upon the recommendation of the National Judicial Council. See Section 250 subsections (1) & (2) of the Constitution. See also Section 256 subsection (1) & (2) of the Constitution.
The President is also responsible for the appointment of the President of the Customary Court of Appeal of the Federal Capital Territory upon the recommendation of the National Judicial Council subject to the confirmation of the Senate. All the Judges of the Customary Court of Appeal of the Federal Capital Territory are appointed by the President upon the recommendation of the National Judicial Council. See Section 266 (1) & (2) of the Constitution.
The President is finally vested with the power to appoint the Grand Khadi of the Sharia Court of Appeal of the Federal Capital Territory subject to the confirmation of the Senate. All Khadis of the Sharia Court of Appeal are appointed by the President upon the recommendation of the National Judicial Council. See Section 261 subsections (1) & (2) of the Constitution.
The President is also the Commander-in-Chief of the Armed Forces of the Federal Republic of Nigeria. According to the Wikipedia the term ‘commander-in-chief’ is the person exercising supreme command authority of a nation’s military forces or significant element of those forces. In the latter case, the force element may be defined as those forces within a particular region or those forces which are associated by function. As a practical term it refers to the military competencies that reside in a nation-state’s executive, Head of State and/or Head of Government. Often, a given country’s commander-in-chief need not be or have been a commissioned officer or even a veteran, and it is by this legal statute that civilian control of the military is realized in states where it is constitutionally required.
By virtue of Section 218 subsections 1, 2 & 3 of the Constitution of the Federal Republic of Nigeria the powers of the President as the Commander-in-Chief of the Armed Forces of the Federation shall include power to determine the operational use of the Armed Forces of the Federation.
Secondly, the powers conferred on the President by subsection (1) of this section shall include power to appoint the Chief of Defence Staff, the Chief of Army Staff, the Chief of Naval Staff, the Chief of Air Staff and heads of any other branches of the Armed Forces of the Federation as may be established by an Act of the National Assembly.
Thirdly, the President may, by directions in writing and subject to such conditions as he may think fit, delegate to any member of the Armed Forces of the Federation his powers relating to the operational use of the armed forces of the Federation.
The President is also vested with the power by Section 215 (1) (a) of the Constitution for the appointment of the Inspector General of Police. The President, on the advice of the Nigeria Police Council, can appoint the Inspector-General of Police from among serving members of the Nigeria Police Force. Also by virtue of Section 215 (3) of the Constitution the President or such other Minister of the Government of the Federation as he (the President) may authorise in that behalf may give to the Inspector-General of Police such lawful directions with respect to the maintenance and securing of public safety and public order as he may consider necessary, and the Inspector-General of Police shall comply with those directions or cause them to be complied with.
Fourthly, subject to the provisions of this section, the Governor of a State or such Commissioner of the Government of the State as he may authorise in that behalf, may give to the Commissioner of Police of that State such lawful directions with respect to the maintenance and securing of public safety and public order within the State as he may consider necessary, and the Commissioner of Police shall comply with those directions or cause them to be complied with:
Provided that before carrying out any such directions under the foregoing provisions of this subsection, the Commissioner of Police may request that the matter be referred to the President or such Minister of the Government of the Federation as may be authorised in that behalf by the President for his directions.
Fifthly, the President is also entrusted with the responsibility for the appointment of the Director-Generals of the State Security Service and the National Intelligence Agency. See Section 3 (1) of the National Security Agencies Act, 2004. The National Intelligence Agency by virtue of Section 2 (a) (b) & (c) of the National Security Agencies Act is charged with responsibility for – (a) the general maintenance of the security of Nigeria outside Nigeria, concerning matters that are not related to military issues; and (b) such other responsibilities affecting national intelligence outside Nigeria as the National Defence Council or the President, as the case may be, may deem necessary.
The State Security Service, SSS, by Section 3 (a) (b) & (c) of the National Security Agencies Act, 2004, is entrusted with the power of the prevention and detection within Nigeria of any crime against the internal security of Nigeria; the protection and preservation of all non-military classified matters concerning the internal security of Nigeria; and such other responsibilities affecting internal security within Nigeria as the National Assembly or the President, as the case may be, may deem necessary.
The President is also entrusted with the responsibility for the appointment of the Executive Chairman and members of the Economic and Financial Crimes Commission subject to the confirmation of the Senate. The EFCC is vested with the power for the investigation of economic and financial crimes bordering on money laundering. See Section 2 (3) of the Economic and Financial Crimes Commission (Establishment etc) Act, 2004.
The President is responsible for the appointment of the Chairman and members of the Independent Corrupt Practices & Other Related Offences Commission, ICPC, subject to the confirmation of the Senate. See Section 3 (6) of the Corrupt Practices and Other Related Offences Act, 2000.
The hand of the President is fully strengthened by the EFCC and ICPC Acts to fight corruption and graft to a standstill.
The President is also responsible for the appointment of the Commandant-General of the Nigeria Security and Civil Defence Corps. See Section 8 subsection 1 of the Nigerian Security and Civil Defence Act, Cap. N148, Law of the Federation of Nigerian, 2004.
The President appoints members of the Council of Ministers of the Federation. The President may, in his discretion, assign to the Vice-President or any Minister of the Government of the Federation, responsibility for any business of the Government of the Federation, including the administration of any department of government.
The President is empowered to hold regular meetings with the Vice-President and all the Ministers of the Government of the Federation for the purposes of –
(a) determining the general direction of domestic and foreign policies of the Government of the Federation;
(b) co-ordinating the activities of the President, the Vice-President and the Ministers of the Government of the Federation in the discharge of their executive responsibilities; and
(c) advising the President generally in the discharge of his executive functions other than those functions with respect to which he is required by this Constitution to seek the advice or act on the recommendation of any other person or body. See Section 148 of the Constitution.
The President appoints Chairmen and members of the Code of Conduct Bureau, the Federal Civil Service Commission, the Independent National Electoral Commission, the National Judicial Council, the Federal Judicial Service Commission, the Federal Character Commission, the Nigeria Police Council, the National Population Commission, the Revenue Mobilisation Allocation and Fiscal Commission and National Defence Council; National Economic Council; National Judicial Council; National Population Commission; National Security Council; Nigeria Police Council; Police Service Commission; and Revenue Mobilisation Allocation and Fiscal Commission & the Police Service Commission subject to the confirmation of the Senate. See Section 154 (1) of the Constitution.
It is instructive to note that by Section 154 (2) of the Constitution the President in exercising his powers to appoint a person as Chairman or member of the Council of State or the National Defence Council or the National Security Council, the President shall not be required to obtain the confirmation of the Senate.
Undoubtedly from the above the President is the pilot, director, driver and implementer of the executive policies of the Country. All the appointees of the President are individually and collectively responsible and accountable to the President. The President has the absolute power to dismiss or suspend or remove all those appointed by him save in the cases of the head of the various Federal Courts established by the Constitution. See Section 1 (b) of the Interpretation Act, 2004.
The President is also the enforcer of all legislations passed by the National Assembly as the Chief Executive of the Federation. The President is vested with the power to assent to any law passed by the National Assembly. See Section 58 (3) of the Constitution. The President can veto any legislation passed by the National Assembly by withdrawing his assent. See Section 58 (4) of the Constitution.
The President is also vested with extensive and awesome powers to deal with cases of dire threat to National Security such as the current brutal and devastating bombing campaigns being carried out in the North by the Boko Haram insurgency. The framers of the Constitution contemplate the President to be a ‘Constitutional Dictator’ in which he is allowed to exercise dictatorial powers during national emergency.
The dictatorship is not absolute and is within the limits of the powers vested on him by the Constitution. Even in the Roman Empire there were provisions in for a dictator who could govern for a period of time but whose actions remained subject to scrutiny at the end of the period of the dictator’s term. The United States Constitution has a similar clause which gives the power to the President to adjourn Congress to such time as he shall think prudent. Abraham Lincoln during the period of civil war exercised extraordinary powers to preserve the Union. It follows that President Jonathan cannot claim that he has no power vested on him by the Constitution to deal ruthlessly and decisively against all those who are undermining National Security and the Country’s territorial integrity.
The President is vested with extraordinary powers by Section 305 of the Constitution to declare a ‘state of emergency’ in order to preserve the peace, stability and territorial integrity including directly ordering the arrest of dissenters and the suspension of the fundamental rights provisions of the Constitution relating to the exercise of the rights to personal liberty and freedom of movement. Section 305 subsections 1, 2 & 3 of the Constitution which provides as follows:
“305. Procedure for declaration of state of emergency
(1) Subject to the provisions of this Constitution, the President may by instrument published in the official Gazette of the Government of the Federation issue a proclamation of a state of emergency in the Federation or any part thereof.
(2) The President shall immediately after the publication, transmit copies of the official Gazette of the Government of the Federation containing the proclamation, including the details of the emergency, to the President of the Senate and the Speaker of the House of Representatives, each of whom shall forthwith convene or arrange for a meeting of the House of which he is President or Speaker, as the case may be, to consider the situation and decide whether or not to pass a resolution approving the proclamation.
(3) The President shall have power to issue a proclamation of a state of emergency only when –
(a) the Federation is at war;
(b) the Federation is in imminent danger of invasion or involvement in a state of war;
(c) there is actual breakdown of public order and public safety in the Federation or any part thereof to such extent as to require extraordinary measures to restore peace and security;
(d) there is a clear and present danger of an actual breakdown of public order and public safety in the Federation or any part thereof requiring extraordinary measures to avert such danger;
(e) there is an occurrence or imminent danger, or the occurrence of any disaster or natural calamity, affecting the community or a section of the community in the Federation;
(f) there is any other public danger which clearly constitutes a threat to the existence of the Federation; or
(g) the President receives a request to do so in accordance with the provisions of subsection (4) of this section”.
So how can a President vested with such awesome powers by the basic law of the Country such as President Jonathan has been vested with have any excuse for non-performance? The President does not need to spend donkey years in the presidency for him to perform. The President does not need to stay in office before he can clean up the Country of corruption and graft. The President does not need to spend in office four years before he can sack all the corrupt Ministers or other government officials who have overstayed their usefulness.
The President cannot complain of not having enough powers to deal with the boko haram insurgency. The President cannot complain of not having power to declare a period of national economic emergency in order to deal with the economic or even power supply Sector which has remained dismal. The President cannot complain of not having power to declare a period of emergency in order to deal with the crisis caused by crumbling social infrastructure such as roads etc. The President has enough powers to exercise to deal with the chronic unemployment situation grappling the Country.
President Franklin Dwight Roosevelt, who was President of the United States of America during the period of the Great Depression and the Second World War, also exercised extraordinary powers to drastically and squarely address both emergencies. President Roosevelt‘s actions included the interim suspension of the right of contract in violation of the provisions of the United States Constitution as well as closing of banks and a moratorium on forecloses. President Roosevelt also ordered the mass detention of Japanese Nationals and Japanese-Americans in concentration camps to deal with the threat posed by Japan to the United States of America. We also saw the extraordinary powers exercised by President George W. Bush after the attacks of September 11, 2001, to deal with the threat posed by international terrorism.
President Jonathan can assume similar extraordinary powers to deal with the nagging and troublesome boko haram insurgency and other threats to the territorial integrity of the Country in order to preserve National Unity. President Jonathan cannot continue to manifest helplessness and hopelessness or feign that he has no such powers.
President Jonathan can package a sort of “New Deal” to comprehensively deal with all economic, social, political crises grappling and confronting the Country. President Roosevelt created through legislation 10 (Ten) Programmes to deal with the exigencies thrown up by the Great Depression in the United States of America. These included: Civilian Conservation Corps; Civil Works Administration; Federal Housing Administration; Federal Security Agency; Home Owners Loan Corporation; National Recovery Act; Public Works Administration; Social Security Act; Tennessee Valley Authority and Works Progress Administration.
President Roosevelt initiated the Judicial Procedures Reform Bill of 1937 to add more Justices to the United States of America Supreme Court in order to obtain favourable rulings regarding the various legislations that he had initiated concerning the New Deal that had previously been ruled unconstitutional. This led to Roosevelt fundamentally altering the way the Supreme Court functioned and allowed him to have a majority in the bench that were friendly and disposed to the ‘New Deal Agenda’.
It follows that with all the powers of the President conferred by the Constitution President Jonathan cannot be heard to grumble about being in office for too short a time or that he did not create the enormous problems and challenges confronting the Country. The President cannot be blaming his detractors or enemies as having been responsible for the insecurity in the Country.
The other day the Senior Special Assistant to the President, Dr. Doyin Okupe on Channel Television blamed everybody for the President woes. He dishonestly blamed General Muhammadu Buhari and the opposition for the insurgency and not doing anything to end it! In a blasphemous tone, Dr. Okupe likens President Jonathan to Jesus Christ for carrying the burden of Nigeria just as Jesus Christ carried the burden of Christians! Before then President Jonathan gleefully blamed the escalation in the bloody campaign of Boko Haram on internal and external sabotage.
The President is the Commander-in-chief. A decisive, tough, firm, single-minded, purposeful and charismatic President can galvanise, electrify and energize the entire Country using the powers vested on him by the Constitution to carry out Revolutionary Reforms to revamp the Country and usher in peace and stability that will manifest in economic prosperity. We do not want to hear the President complain or lament or whimper again. Let him brace up to the task confronting him as President. Let him face the challenges squarely. Let him deal with his detractors or political enemies who are undermining him within the confines of the law. The President must desist from whimpering and constitutionally tackle the problems with the decisiveness which required of him.
Obono-Obla is a Barrister-at-law, Essayist and a Human Rights Activist. He lives in Abuja, Nigeria.
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