By Obi Nwaknma
On Wednesday the Nigerian Council of State met in Abuja, and took far-reaching decisions including, as the Vanguard reported, endorsing a proposal to fund agricultural production and supporting herdsmen with $1 billion in government funds. I do not think it has the power under the constitution to do this, because this sounds to me like the function already assigned to the National Assembly.

President Buhari exchanges pleasantries with former President Obasanjo, ahead of the National Council of State Meeting at the State House,
President Buhari exchanges pleasantries with former President Obasanjo, ahead of the National Council of State Meeting at the State House,

But the council is weighty enough to impose state policy – not only on the federal government, but on the federation of Nigeria. I think I need to clarify that distinction to readers who may not know the difference: the “Federal government” is the central government of the Federal Republic of Nigeria.

The federation governments of Nigeria are the unique, independent governments of the federation. They are autonomous or independent states in principle, whose governors are heads of states in their own rights, and who under the basic principle of the federal state have a relationship of equality with the president, except that the president of the federation is in a constitutional relationship with the governors of the states under the principle of primus inter pares – that is he is “first among equals.” That is to say, even under Nigeria’s very weird federal constitution, it is still understood that the President of the Federation is the head of a different level of government, and is not the boss of the state governments.

A state may of course become insolvent, unsustainable, and moribund, and may go into retainership. The Nigerian constitution in its current spirit does not anticipate this. But in the event of the liquidation of a state, the process of its dismantling naturally begins in its State’s Assembly, since the Assembly or parliament is the body under the rule of law in a democracy, that determines the financial laws and the financial health of a state – that is, its budgets, taxes, and expenditures.

And in making the determination, and on receiving a note to that effect from the Office of the Governor that the state can no longer meet its obligations to its citizens in terms of paying salaries to public sector workers, raising enough taxes from its tax base to cover the expenditures of government, including the provision of the services for which governments are instituted, including the payment of pensions, and the physical and economic protection of citizens resident in that particular state, may declare itself moribund.

In doing so, the state’s Assembly may invite the National Assembly to take over temporary legislative duties of such a state while the remaining assets of the state is determined by assessment.

The National Assembly may then have the power to place such a state under the temporary administration of the president of the federation and declare such a state a Federal Trust Area, to be run by an administrator appointed by the president and approved by the Federal (National) Assembly. What I’ve sketched is of course not in the Nigerian constitution, because as I have said, the framers of the Nigerian constitution have never anticipated such a scenario, and our lawmakers in this fourth republic have been essentially lax. They have failed to take their functions seriously.

Besides, lawmaking is a fundamentally intellectual process, and we have sent mostly yam heads to these Assemblies. As a result, the public is frequently the victim of a Nigerian constitution framed to serve predatory men. That is what the 1999 constitution under which this republic is currently governed essentially is.

There have been numerous criticisms of this constitution made under the military rule of Sani Abacha, and whose essential premise was that General Abacha would succeed himself in his planned transition from military Head of state, to civilian president, and thus needed a document that would secure his power, rather than the power and integrity of the state.

The makers of the 1999 constitution as a result padded anti-democratic anomalies that basically skewed the nature of the federation into it. One of the inevitable truths, and Nigerians must really deal with this truth, is that Nigeria is not running a democratic system. It is running a hybrid system. Under the democratic palimpsest is a very feudal presidency – an anomalous presidency given extremely wide powers.

The powers of the Nigerian president which mirrors in a smaller scale, the executive power of state governors is corrupt power aided by a corrupt document whose aim was to further the corruption of the state by corrupt military Generals who all became billionaires using the extreme powers, and a handful of their civilian partners who understand that a fully democratized Nigeria will be detrimental to their corrupt interests.

A corrupt constitution creates a corrupt state, and makes the situation fertile for corruption. Until the powers of the presidency and the executive offices is fully reduced and democratized, Nigeria will not develop the administrative capacity necessary to stem the level of corruption that transfers the powers and wealth of the state to a few individual hands, while the nation reels with poverty and discontent.

One of the most corrupt features of the current constitution is the provision under the Third Schedule of a body called the “Council of state” established under the executive power of the president. Like the “Code of Conduct Bureau,” the “National Council of state” is a vexatious and unnecessary body. But here is what this constitution lists as the membership of the Council of states: the president (who is chairman), the Vice-President (who is vice-chair), the Chief Justice, the President of senate, the Speaker of the House of Representatives, all the state governors, and former Heads of state of Nigeria, and the Attorney General.

The Council is said to be an “advisory” body to president on matters ranging from the national population commission, the prerogative of mercy, the award of National Honours, appointments in the Independent Electoral Commission, the National Judicial Commission, and the National Population commission, as well as indeed provide advise on keeping law and order in Nigeria.

This is an extraordinary invasion of the boundaries of state power, for what that provision under this fraud of a constitution does is to unify the powers of the state under the president through the council which assumes also by this extraordinary means, the ordinary or routine functions of the National Assembly. Clearly, this provision of the 1999 constitution had in mind a hybrid military government, not a democracy, because the basic frame of constitutional rule is that government is equally distributed along three equal powers: the executive, the Legislature, and the Judiciary.

Under this constitution, the Nigerian judiciary is profoundly the weakest link; weakened deliberately and defanged to be mostly subservient to the will of a powerful executive, and a dilatory parliament, which has failed to protect its independence and strengthening the delivery of justice.

The National Assembly has also allowed its powers to be appropriated by an executive which can even, according to this constitution, introduce a bill in the Assembly – what they call an “executive bill.” This anomaly is permitted to continue without amendment in a presidential system of government in which the president is not a member of the National Assembly.

The introduction of the budget bill is not by convention a presidential bill. It normally is a budget bill presented for debate through the leadership of the president’s party in the National Assembly with whom he is or should be in close conference. But Nigeria runs on great antinomies. The National Council of state is one of those. It provides continuous interference and intervention in the power of the state by past Heads of government, whose roles as private citizens, after their service, should remain private. Occupation of the office of the President should never grant an individual perpetual authority.

A former president is not an elected citizen, and must never be granted the extraordinary privilege, including the right to remain in government through the sham council called the “national council of state.” It is an unmandated perquisite. Once an individual has served as Head of state, they should return permanently to their first status as citizens. The National Council of state is an anomalous extention of power for have-beens, and an extraordinary unification of the power of the federation under the singular agency of the executive authority irrespective of the fact that the executive constitutionally should not constitute the sole or highest authority in the land.

It is a rogue provision – one of the many- inserted into Nigeria’s 1999 constitution to create a super powerful presidency. The Ekweremadu committee on amendments should pay attention to this. The role of the National Council of state usurps established powers and appropriates the duties already established in the National Assembly. It is a needless body that puts to question the democratic rights of ordinary citizens by its perpetuation of the right and power of the oligarchs.




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