Constitutionality of President Buhari ruling Nigeria for more than two and half months without a council of ministers (2)
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.
• Professor Ben Nwabueze (SAN), is a member of Igbo Leaders of Thought
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