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Fighting corruption subject to consultational limitations

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By Ben Nwabueze
THE dangers of a war on corruption uninhibited by constitutional limitations on power: The war against corruption is no doubt a very laudable cause that demands the wholehearted support of all. Constitutional democracy cannot be sustained, much less be nurtured to full maturity in Nigeria, unless a relentless war is waged against rampant corruption.

But support for the war obliges us to make a choice between, on the one hand, a total war against corruption uninhibited by the limitations on power contained in the Constitution, i.e. to do away, even if not completely, with the system of rule known as constitutional democracy which we have adopted as a deliberate choice, and, on the other, fighting corruption within and subject to the framework of limitations on power embodied in the Constitution, especially limitations arising from the federal system and the guarantee of civil and political rights.

Buhari
Buhari

We should be under no illusions whatsoever that to do away with constitutional limitations on power in order to be able to wage a total war on corruption untrammeled by those limitations is to risk the destruction of our continued co-existence in one country.

The Constitution is like a glue that holds us together as one polity; without it and the limitations it imposes on power, especially the limitations arising from the federal system and the guarantee of civil and political rights, we risk not having one Nigeria. We in the Igbo Leaders of Thought stand firmly on the continued peaceful co-existence of all the ethnic nations comprised in Nigeria. But President Buhari has given a hint that his intention is to wage a total war on corruption untrammeled by constitutional limitations. The hint comes from notable statements of his, albeit in terms not free from differing interpretations.

Hints by the president of his intention to wage a total war on corruption uninhibited by constitutional limitations on power

Statement portraying corruption as a monster that will kill us if we do not kill it first. At a recent Conference the President said: “Our fight against corruption is not just a moral battle for virtue and righteousness in our land; it is a fight for the soul and substance of our nation…This is why we must see it as an existential threat; if we don’t kill it, it will kill us” – emphasis supplied.

This statement is nothing but a propaganda gimmick purposely put out to seduce Nigerians into acclaiming him (the President) as a liberator embarked on a desperate war to free us from the killing clutches of corruption. Devastating as its evil consequences are, corruption is not such a monster as will destroy our very existence if we do not first kill it. It does not therefore call for a total war on it untrammeled by the constitutional limitations on power. The statement is a false, unwarranted alarm call for a total war. Furthermore, as stated in my earlier write-up, corruption is not Nigeria’s Number One enemy to warrant subordinating our Constitution to the war against it.

Statement contained in the President’s Inaugural Speech on May 29, 2015

Constitutional limitations

What the President said in his Inaugural Speech on May 29, 2015 bears out more directly and unmistakeably his intention not to allow constitutional limitations on power to stand in the way of a total war on corruption. He said, “Constitutionally there are limits to powers of each of the three tiers of government but that should not mean the Federal Government should fold its arms and close its eyes to what is going on in the states and local governments. Not least the operations of the Local Government Joint Account. While the Federal Government can not interfere in the details of its operations it will ensure that the gross corruption at the local level is checked. As far as the constitution allows me I will try to ensure that there is responsible and accountable governance at all levels of government in the country. For I will not have kept my own trust with the Nigerian people if I allow others abuse theirs under my watch” (emphasis supplied).

That “the President Federal Republic of Nigeria”, as he is officially styled, should make such a statement is incredible. It is simply unbelievable that he, as President in a federal state, should exhibit such lack of understanding of the nature and the cardinal principles of the federal system as established by our Constitution, and that it is no part of the responsibility of the chief executive of the Federal Government (i.e. the President) under the system to “ensure that there is responsible and accountable governance at all levels of government in the country”. The State Governments as well as the local governments under our federal system are not under his (the President’s) “watch”; it is no part of his responsibility to watch over, or to keep an eye on, them to ensure that they maintain “responsible and accountable governance”. Such a preposterous proposition is simply subversive of the federal system under our Constitution.

Likewise, it is no part of the responsibility of a State Governor, as the chief executive of the State Government, to watch over or police the President to ensure that he does not commit corruption. The constitutional agencies entrusted with that responsibility in both the case of the State Governor and the President are the judiciary, including the Code of Conduct Bureau (CCB) and the Code of Conduct Tribunal (CCT); the legislative assemblies through the exercise of their power to impeach and remove the chief executive and through the exercise of their over-sight function; and, ultimately, the people through the exercise of their right during election not to vote back to office a corrupt President or Governor.

The President, as chief executive of the Federal Government, cannot lawfully arrogate to himself, the checking or oversight function simply because the constitutional agencies entrusted with the function do not do their work the way they are supposed to function. Insofar as, and to the extent that, the Economic and Financial Crimes Act 2004 and the Corrupt Practices and Allied Offences Act 2000 purport to confer the function on the President, they are unconstitutional, null and void. The issue cannot appropriately be pursued here.

Total war on corruption

The President’s other statements or conduct suggestive of an intention not to allow constitutional limitations on power inhibit a total war on corruption. There are other statements or conduct by the President that suggest unwillingness on his part to allow a total war on corruption to be inhibited by constitutional limitations on power.

Such statements or conduct are, without any claim to exhaustiveness, the dictatorial disregard of the commands and directives of our Constitution, in particular its provisions (a) requiring him to appoint ministers and to hold regular meetings with them (and the Vice-President) “for the purpose of determining the general direction of domestic and foreign policies of the Government of the Federation”, as well as “advising [him] generally in the discharge of his executive functions”, (the list of his ministerial nominees was submitted to the Senate for screening and confirmation only on September 30, 2015, i.e. four months after his inauguration as President; as the screening and confirmation process in the Senate is still going on as at today (10 October), it means the President is still ruling the country without ministers.) (b) directing him, in the administration of government, to “conform to, observe and apply” the principles of democracy, justice, social justice, the “federal character” principle and equality, in particular, to treat citizens equally, and not to discriminate between them on the ground of place of origin, ethnicity, religion or political opinion, as may be manifested, for example, in the way they vote in elections, whether they voted for or against his (the President’s) political party (the directive was disregarded in the 24 key appointments he made recently).

Financial resources

At this point, the nature and cardinal principles of our federal system need to be defined and explained.

The nature and cardinal principles of our federal system defined and explained

Federalism is an arrangement whereby powers of government in a country as well as financial resources are, by legally enforceable provisions in a constitution, sanctioned by the invalidity of acts that violate the limitation, divided between a general country-wide government and regionally – based governments in such a way that each, as a government, has a separate, independent existence as well as equality of status (as distinct from equality of powers) with the others, and is, in its operations, free from control or interference by the others, with a will of its own and its own apparatus for the conduct of its affairs, and with an authority exclusive in some fields and binding directly on persons and things in all matters within its competence.

Federalism is thus a vital instrument for limited government, i.e. of constitutionalism. “Of all checks on democracy” writes Professor John Dalberg-Acton, better known as Lord Acton, “federalism has been the most efficacious and the most congenial….The federal system limits and restrains sovereign power by dividing it”. – John E.E. Dalberg Acton, First Baron Acton, History of Freedom and Other Essays, ed by J.N. Figgis and R.V. Laurence (1907), p. 98.

Underlying the definition above is the principle of the autonomy of each tier of government. Autonomy refers to three things, viz (i) autonomy (i.e. independence from control or direction) in the choice of rulers and in the exercise of power over matters within the exclusive competence of the Federation or State; (ii) absence of power in the Federation or States to confer powers (including functions) or impose duties on the functionaries of the other unless such is authorised by the constitution; and (iii) non-interference in the management of each other’s affairs, which requires that, whilst keeping within the limits of its powers, the exercise of power over matters within the competence of the Federation or the States should not in its practical effect, impede, frustrate, stultify or otherwise unduly interfere with the other’s management of its affairs or its meaningful functioning as a government, e.g. the management of its finances, the appointment and control of its staff, the award of contracts for the provision of services and other projects, the exercise of other essential governmental functions, like that of law-making, the execution of laws so made, and the adjudication of disputes –  the principle of mutual non-interference, as it is called.

Of the two pillars of federalism – the ultra vires doctrine (i.e. keeping within the limits of powers) and the principle of mutual non-interference – the latter is definitely the more fundamental, since it is the basis, the foundation, of every federal system, truly so-called, without which a federal system cannot survive.  The preservation and maintenance of the federal system of government in a territorially large and culturally diverse community is far more fundamental and overriding than the maintenance of the plenitude of the Federation’s or the States’ power over any one particular matter.  On the principle of mutual non-interference, see my Federalism in Nigeria, Sweet & Maxwell 1983, reprinted in 2003, pages 3 – 17.

Happily, these principles are firmly rooted in a long line of decisions of the courts, too many to be all noted here. But there is one such decision so directly in point here, which must be mentioned and expatiated upon, namely Attorney-General of Abia State & Ors v. Attorney-General of the Federation (2006). The case concerned the constitutional validity of the Monitoring of Revenue Allocation to Local Governments Act 2005 originated by former President Olusegun Obasanjo and enacted into law by the National Assembly.

THE PRESIDENT HAS NO POWER OR RESPONSIBILITY UNDER OUR FEDERAL SYSTEM TO WATCH OVER OR OVERSEE THE STATE AND LOCAL GOVERNMENTS TO ENSURE THAT THEY DO NOT COMMIT CORRUPTION

Back to the Monitoring of Revenue Allocation to Local Governments Act 2005. The Act enjoins “each State of the Federation (to) establish a body to be known as the State Joint Local Government Account Allocation Committee” (section 1).  The membership of the Committee, as provided by the Act itself, includes (a) the Commissioner or any other officer charged with responsibility for local government in the State (Chairman);  (b) a Commissioner of Revenue Mobilization, Allocation and Fiscal Commission; (c) all Chairmen of local government councils in the State; (d) the State Accountant-General; (e) a representative of the Accountant-General of the Federation; and (f) a representative of the State Revenue Board (section 1(2)).

The functions of the Committee are (i) to ensure prompt payment into the State Joint Local Government Account of allocations made to the local government councils in the State from the Federation Account by the State Government, and that the funds so paid are distributed to the said councils in accordance with the provisions of the Constitution and any law made in that behalf by the State House of Assembly; (ii) to monitor the payment and distribution so as to ascertain the actual amount paid to each local government council (section 2).  Monthly returns must be rendered by the Committee to the Federation Account Allocation Committee which shall scrutinize them and in turn render quarterly returns through the Accountant-General of the Federation to each House of the National Assembly (section 3) while the Auditor-General of the Federation shall at the end of each financial year report to each House of the National Assembly, “stating how the monies allocated to each State for the benefit of the local government councils within the State… were spent.” (section 9).

The Act makes it a criminal offence for any organ, authority or official of a State, however described or constituted, to alter, deduct or re-allocate funds standing to the credit of the State Joint Local Government Account” (section 7(1) (emphasis supplied), and prescribes as punishment therefor, “a fine twice the amount altered, deducted or re-allocated illegally, or imprisonment for a term of five years, or both such fine and imprisonment (section 7(3)).  And where there is default in allocation or distribution to any local government council, the amount involved in such default “shall be a first charge on the State’s next allocation from the Federation Account and shall be credited to the affected local government” (section 7(2)).

The provisions of the Act set out above (i.e. sections 1, 2, 3, 7 and 9) were challenged in the original jurisdiction of the Supreme Court by three State Governments, Abia, Delta and Lagos, on the ground that they are inconsistent with the Constitution and therefore null and void: Att-Gen of Abia State & Ors v. Att-Gen of the Federation & Ors SC 99/2005 – the three suits were consolidated into one.

The view underlying the provisions of the Act is that the money in the Federation Account belongs alone to the Federal Government which, as owner and paymaster, has the power and duty to ensure its proper utilization and management by the recipients of its largesse, i.e. the State and Local Governments.  Such is certainly not the case.  The Federation Account is a common pool of revenue belonging to all the governments alike, and sharing of it amongst the joint owners is assigned to the Federal Government by the Constitution for reasons of expediency.  The Constitution of a federal state cannot reasonably be supposed to have contemplated that, in the discharge of that role, the Federal Government should prescribe terms or conditions so utterly at variance or subversive of the very notion of federalism as a system of government.

Gratifyingly, the Supreme Court, by a majority of five to two, declared unconstitutional, null and void the provisions of the Act that purport to invest the Federal Government with supervisory role over the use, management and disbursement of money in the State Joint Local Government Act, i.e. sections 2, 3, 7 and 9 of the Act. Justice Niki Tobi, delivering the judgment of the Court, said that these provisions of the Act “are clearly against the federal arrangement in the Constitution”, and that “it has traits of unitarism”; further, that “the word ‘monitoring’ used in the Act “conveys some element of policing the State Governments.” “The word,” he maintains, “means to watch, to check. In terms of showing strength of the Federal Government, it is a very arrogant word that spells some doom in a federal structure”: at pages 29 – 30. (emphasis supplied)

The learned justice of the Supreme Court further affirms that the provision of the Act that makes two federal officers members of a state government committee “is antithesis to federalism and to our federal arrangement” (at page 35), and that the words “monitor” and “distribution” in section 2(b) of the Act “offend the federal arrangement in the Constitution and the federal principle” (at page 37). Section 1 of the Act is declared null and void on the additional ground that it duplicates section 162(6) of the Constitution that enjoins “each State…..[to] maintain a special account to be called ‘State Joint Local Government Account’ into which shall be paid all allocations to the local government councils of the State from the Federation Account and from the Government of the State”.

The Supreme Court also held that allocation of money from the Account direct to local government councils without channeling it through the State Governments, which will then divide and pay it over to their local government councils, is unconstitutional, null and void, op.cit at pages 27 and 35.  Accordingly, the provision of section 7(2) of the Monitoring Act which, it may be recalled, makes any amount by which a State Government is in default in its payments to any of its local government councils a first charge on the State Government’s next allocation from the Federation Account, which is then to be paid direct to the local government council concerned.  Certainly, the payment in this case is not one by the State Government to the local government council, as provided by the Constitution.  The fact that payment under the provision of section 7(2) is in consequence of a default in payment by the State Government does not make it any the less a breach of constitutional requirement.

Re-affirming autonomy as a cardinal principle of our federal system, the Supreme Court further held that the duty cast on a State Government by section 162 (6) to maintain a State Joint Local Government Account as well as the power to manage such Account which is implied by the duty is so cast on it as an autonomous tier of government free of control by the Federal Government in the exercise of the function.  As was said by Uwais CJN in Att-Gen of Lagos State v. Att-Gen of the Federation (2003) 6 S.C (Pt 1) 1, “by the doctrine of federalism, which Nigeria has adopted, the autonomy of each Government, which presupposes its separate existence and its independence from the control of the other governments including the Federal Government, is essential to federal arrangement.”

Lastly, the Court affirmed that local government, being a matter of purely local concern, is a function within the exclusive jurisdiction of the State Governments; it is so by virtue of being a residual matter assigned, under the division of powers in section 4 of the Constitution, exclusively to the State Governments, save for certain aspects of it over which the Federal Government is given limited regulatory powers.  The conception underlying the Constitution is that local government is an agency of the State Government, and derives its establishment, structure, composition, finance and functions from a law made by the State House of Assembly (section 7(1), save again as aforesaid.  The words structure and composition are underlined to emphasize that only a state law can establish a committee or other structures for a local government and prescribe their composition; the Federal Government cannot lawfully enjoin the State Government to do so, as the Monitoring Act purports to have done, despite the phrase “such terms…as may be prescribed by the National Assembly” in section 162(3), (4), (5) and (7) of the Constitution which should be read subject to the basic principle embodied in section 7(1). As was said by Ogundare JSC in Att-Gen of Abia State v. Att-Gen of the Federation [2002] 6 NWLR (Pt. 763) 264 at page 422:

“the Constitution intends that everything relating to Local Governments be in the province of the State Government rather than in that of the Government of the Federation……Other than these [exceptions]. I can find no provision in the Constitution empowering the National Assembly to make laws affecting local government.”

The President’s statement in his Inaugural Speech quoted above is particularly amazing because it appears that he made it without being aware of the decision and pronouncements of the Supreme Court in the Monitoring Act case or, maybe he just decided to disregard or not to be bound by them. But Vice-President Yemi Osinbajo could not have been unaware of the decision and pronouncements since he was the Attorney-General for Lagos State at the time and a party to the suit or, maybe he did not have access to the Speech in draft before it was delivered.

FINAL REMARKS

To sum up. What we say is that the past should not be allowed to repeat itself again; in explicit words, the war against corruption should not, as happened in the past, be used again to camouflage or disguise the plan to foist a dictatorship on us. The story of that tragic experience of the past is told in my next write-up titled The tragedy of our lack of collective sense of history.

Professor Ben Nwabueze

 

 

 

 

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