By Muhammed Adamu
I SHOULD not tire to quote David Ingram, who said: “The American founders believed that a constitution that placed unlimited power in a legislative majority will inevitably result in tyranny, instability and lawlessness”. These founders, in reaching this conclusion, had discovered that their “optimistic faith in the capacity of ordinary citizens to exercise judicious self rule, collided with their pessimistic appraisal of a humanity driven by self interest”.
And so even in the democratic effort to liberate the people, ‘democracy’ when left in the wrong hands, has equal potentials also to enslave them. This paradox about democracy being both a liberating and an enslaving power, may have moved the theologian Reinhold Niebuhr to say that “Man’s capacity for justice makes democracy possible, but man’s inclination to injustice makes democracy necessary”.
And it is between these extremes of ‘democratic possibility’ and ‘democratic necessity’ that Abraham Lincoln still found a snapping point at which rather than persist in raising a monstrous democratic child sometimes it is better even to ‘throw the baby with the birth water’. At his first inaugural, Lincoln observed that whenever a people “grow weary of their existing government, they can exercise their constitutional right of amending it, or their revolutionary right to dismember or overthrow it”.
Thus Lincoln, in the eyes of the philosopher Kant, would have been a reactionary prescribing remedy to a society that has already been harmed and not recommending safeguard against harm. Kant was the one who said that democracy is like a swimming pool, and that although it is desirable for every nation to take a plunge, yet he warned “stay out of it if you are sure to get drowned”. It is an irony of a monumental proportion that democracy in Nigeria is bent on taking us where even jack-booted military dictatorship had not, namely into the deeper and deeper Kantian waters!
Ruling by special decrees
Like all other nations of the world, we have failed consistently to develop a utilitarian brand of democracy that benefits all -or even if merely avails a greater number in the society. We are stuck always with a system that is perpetually doomed to physicist Isaac Newton’s ‘motion without movement’. As if ‘democracy’, like they say of ‘virtue’, is its own reward and nothing more.
Once it was an un-elected, incurably adventurist military minority that we had to worry about –grabbing power and ruling by special decrees. But now it is a freely elected legislature in a so called democracy that we are having to keep a watchful eye over, -lest what Jean Rousseau and John Locke had conceived as the touchstone of democratic liberty, namely parliament, become, in our pathetic case, an enslaving power.
This alone is a veritable yardstick for measuring how much we have retrogressed as a people –coming all these years from a checkered era of aberrant military dictatorship to a now-blossoming dictatorship of the legislature. If we have to fret always, as we do now, over those we have ‘willfully’ and ‘freely’ elected, as much as we had fretted years ago, over those who had brandished guns as qualification to rule over our affairs, then democracy, for all its vaunted utopian and egalitarian virtues, has not availed us at all.
When the so called ‘representatives of the people’ begin to feel no longer obligated to respect the will of those who elected them, a dictatorship of the legislature is already in the making. I said when I wrote a three-part series ‘NASS and the dictatorship of the legislature’ (Peoples Daily Newspaper, 09/03/10): “only parliament enjoys full legislative, quasi-legislative and quasi-judicial powers” and the combined effect of which “either serves as an intoxicating force for bad or a sobering stimuli for good”.
Sooner or later “there is always the inherent danger that the legislature (especially in poor, culturally-inhibited democracies like ours) will come to the full realisation of the extent of its legislative powers’ its capacity to liberate or to enslave (those who elected them)”.
The danger at is that an unrestrained or un-restrainable legislature will necessarily drift into egotism, arrogance of power and greed, -all of which it cannot be denied that the nation now agonises over –and for which, as we all can see, no member of NASS loses sleep.
There is an apparent helplessness –or may be incapacity- on the part of the executive, and to that also a sickening lack of will on the part of the citizens to call the legislature to order, or to subpoena it to account.
The Gridlock: For the umpteenth time we are finding ourselves in the conundrum of a systemic gridlock. Those who should attend to the needs of society via the instrumentation of legislation, themselves constitute the problem; because they are the inordinate beneficiaries of the gridlock and will not therefore legislate to remove the gridlock. Our pathetic kind of democracy has created for us a legislative whose Achilles hills we are yet uncover.
Our Constitution, wittingly or unwittingly, has placed ‘unlimited power’ in an arrogant and greedy legislature. The NASS makes what can be described as ‘fait accompli-laws’; namely laws that the President must either peacefully assent to, or in the event that he dares to veto, the legislature itself can –by its constitutional power of override- peaceably breath legislative life into.
And so in the event that a private member initiates a bill, which is passed by both chambers but which is vetoed by the President, an override of that veto by NASS has the effect not only of bringing the un-assented bill willy-nilly into force, but it underscores also the irrelevance of the President in the chain and processes of law-making -meaning that the legislature can initiate, process and approve a legislation all by itself without the input of Mr. President.
The legislature’s power of oversight over both the executive and the judiciary, desirable as it is in any democracy, has been turned, here in Nigeria, into an instrument of criminal extortion and a weapon of legislative blackmail. No less extortive and blackmailing too is the power of the legislature to authorise executive and judicial spending.
In fact over the years, this power has been deployed vengefully,arbitrarily and with impunity. The Security and Exchange Commission,SEC was once a victim of the abuse of that power.
The levers of our parliament’s power to initiate impeachment proceedings against willfully erring presidents, should long have been throttled by the 7th Assembly, if on no one, at least on an incorrigibly sinning Jonathan. But it was not so used; because the sins of Jonathan were mainly against the interests of ‘the people’; -not against the interests of the ‘people’s representatives’.
Thus where a corrupt and un-disciplined Jonathan was deemed not grossly mis-conducting enough to be impeached, a Spartan and disciplined Buhari who is all fangs and talons against corruption, just might. Buhari is towing with the raw nerve of a stealthily desperate Saraki NASS, and is thus ripening by the day and getting more and more auspicious for legislative plucking. It is the molten anger of the Buhari mob that the Saraki parliament is scared stiff about.
If our legislators are not busy ‘abrogating’ unfavourable electoral laws to pave way for their political ambition, they are desperately attempting to ‘amend’ the criminal code to escape justice; or they are pushing hard to ‘enact’ a new Constitution to invest themselves with immunities against the scrutiny of the other arms of government or the harangues of what they believe is a ‘meddlesome’ court of public opinion.
Our lawmakers have attempted many times in the past even to make laws ousting courts’ jurisdiction; they have in fact severally defied many an order of court; they have even declared the Auditor General of the Federation incapable of looking into their accounts.
In fact, the Ghalli Assembly even had the nerve to tell Nigerians that the NASS even as it was immune to the inquisition of other arms of government, it was constitutionally incapable of probing itself. And the Saraki Assembly had recently told us that the criminal conspiracy to forge the Standing Rules of the Senate is merely the ‘internal affairs’ of the Senate, resolvable by its Ethics and Privileges Committee. The Ethics and Privileges Committees of the two chambers are the NASS’ legislative cat’s paws, always available to pull members’ inordinate political chestnuts out of every smoldering fire of parliamentary inquisition.
What can a President do?
In fairness to Nigerian presidents, without the people as alternate court of public opinion, backed by an unbiased media, it is practically impossible that any executive or judicial arm of government can check a dictatorship-bound legislature. And like I said in the concluding part of ‘NASS and the dictatorship of the legislature’:
“Only where the people are politically conscious and capable of being self-willed into progressive action, can they assume that ultimate sovereign role capable of checking the legislature”. To keep the legislature’s balance between the intoxication of ‘unlimited power’ and the sobriety of democratic diffidence to the will of those who elected them to office, is the primary duty of the people and not of the President or the courts.
Sovereignty as they say belongs to the people. And it is because of the absence of a mature ‘people’s dictatorship’ in Nigeria that sovereignty still remains trapped in our terribly self-serving kind of lawmaking body, and which now has, under Saraki, an asphyxiating stranglehold on the jugular of our democracy.
In another three-part series titled ‘NASS: Incentive or systemic drag?’ (Sunday Vanguard Column, ‘The Spectrum’), I wrote: “Genuine democracy is never attained only on the altar of a strong and vibrant checks and balances between and among the three arms of government; nor by the good intention, alone of a strong,patriot-president; nor yet by the pen power of an uncompromising media intelligentsia; but genuine democracy is attained by the people themselves participating, monitoring, guarding and whenever necessary, ready to swing” in defense of the system.
Nonetheless a ‘strong President’ –which evidently Buhari has not been shaping up to be- backed by the preeminent might of an executive that controls ‘man, money and machinery’ of governance, can, if he chooses, be a lone check even on the most cantankerous legislature.
The President exercises powers which are not contemplated by the Constitution, but which are not necessarily in conflict with it. And not only can he veto a bill passed by the legislature, he can also refuse to implement a law which has become so by reason that his vetowas overridden by the legislature –provided he can prove his action is in the national interest.
But because this power is rooted more in convention than in the letter of the law, the President will require a vibrant court of public opinion –ready not only to sing, like we always do, but also to swing.
When selfish legislative gangsterism is bent on sinking your democracy, maybe “the time has come” as Hue Long would say, “for all good men to rise above principles”.
It is about time!
OUR legislators have this nauseating penchant for drawing the sword whenever a legislative power that they arrogate to themselves is put to the test; sometimes even by the most innocuous of democratic challenges requiring merely a due diligence test by the courts.
And they are quick always to cite the ‘independence’ of the legislative arm, warning – whenever they do so- that the ‘independence’ of the legislature is under serious threat and ipso facto, the entire system of representative government may be brought to a sudden end.
In truth, theoretically or even in practice, there is no such thing as ‘independence’ of any of the arms of government. No one arm ofgovernment is ‘independent’ of the others.
The doctrine of separation of powers did not envisage that; nor has the practice of democracy in whatever garb made such democratic utopia possible. The three arms of government are mutually inter-dependent, with each enjoying a sphere of independence subject to the constitutionally permissible interference of the others.
If the arms of government were to be independent of one another, in a manner that precludes interference in the affairs of one another, the legislature –more than any- stands to loose the most on the scale of constitutional ‘checks and balances’ that the three arms of government are constitutionally obligated mutually to undertake -for and against each other.
The legislature’s power of oversight of Executive and judicial functions, of investigation, of reprimand, of subpoena and of arrest would necessarily be untenable on a democratic scale of permissible if every arm were to cry ‘independence’ at the slightest interference – or fear of possible interference – by another.
In fact, doctrinally, the right of the judiciary to entertain any matter including against the legislature is on a scale higher than the right of the legislature to conduct legislative business with ‘absolute’ non-interference by any others.