By Fred Oghenesivbe
IT must be stated from the outset that the “Doctrine of Necessity” is not expressly contained in the 1999 Constitution of the Federal Republic of Nigeria, as amended. It derives its origin from the writings of medieval jurists such as Henry De Bracton and to some extent, Ivor Jennings.
The doctrine is rarely used because of the despotic nature of some leaders who may want to hide behind it to violate their country’s constitution such as the one we have at hand in Nigeria, wherein President Muhammadu Buhari spent a whopping sum of $496 Million of Nigerians funds not appropriated for, without recourse to the National Assembly. Simply defined: “Doctrine of Necessity is the basis on which extra legal actions by state actors, which are designed to restore order, are found to be constitutional.”
This universal definition of the doctrine is hinged on Bracton’s maxim which says “that which is not otherwise lawful is made lawful by necessity.” The significant feature of doctrine of necessity is the tactical and well reasoned circumvention of the constitution or some aspects of the rule of law in order to get out of political quagmire, especially to satisfy the exigencies created by certain circumstances outside the contemplation of the constitution or the rule of law.
The Bracton maxim was substantially used in the 1954 judgement in which the Pakistani Chief Justice, Mohammed Minur validated the extra-constitutional use of emergency powers by Governor-General of Pakistan, Ghulam Muhammad who on October 24, 1953 dissolved the Constituent Assembly and appointed new Council Ministers on the grounds that existing one no longer represent the people of Pakistan. The nucleus of the legal battle was whether or not the Governor-General had the powers to dissolve the Assembly, after his objection to the country’s constituton which the ousted Assembly was about to adopt.
The lesson here is that the case borders on illegality and deliberate attempt to adopt a constitution that does not represent the interest of the Pakistani people. This has no bearing with spending of funds not approved in a budget without recourse to the National Assembly. Another classic case in which the doctrine of necessity was invoked happened in Grenada in 1985, wherein the High Court of Grenada validated the legal existence of a court then trying for murder the persons who had conducted a coup against former leader, Maurice Bishop.
It was held that though the court trying the murder case no longer had jurisdiction by virtue of new laws in place but that it had the powers to try the accused persons at the time and therefore necessity demands that it dispense justice so as to sustain the sanctity of the judiciary. A rare case indeed and cannot be compared to Buhari’s negligence and/or out right disregard for separation of powers.
Back home in Nigeria, the doctrine of necessity was applied for the very first time on February 9, 2010 wherein the joint session of the National Assembly passed a resolution making Vice President Goodluck Jonathan, the Acting President and Commander-in-Chief of the Armed Forces of the Federal Republic of Nigeria. The decision of the National Assembly was applauded by Nigerians because of the ample evidence that Section145 of the 1999 Constitution of the Federal Republic of Nigeria, as amended, was being or about to be violated. In the Nigeria example where the doctrine of necessity was invoked, the then Civilian President, Alhaji Musa Yar’Adua, who for 78 days had been in Saudi Arabia for medical treatment, refused to formally empower the Vice President to exercise powers as Acting President as provided for in Section 145 of the 1999 Constitution.
From the examples cited above, it can be safely asserted that the doctrine of necessity is not and can never be a cheap tool which state actors can arbitrarily and/or arrogantly invoke to oil their political egos and/or display their large appetite for totalitarianism.
The Buhari doctrine of necessity
Mr. President may invoke the doctrine on the grounds that all efforts made to ensure that the National Assembly approves the $496 million so as to meet the deadline imposed by the American government failed to yield deserved result. But this was never the case.
The National Assembly was deliberately ignored only to ask the same Assembly to insert money already spent into a bill. As rightly opined by the Senate President, Bukola Saraki during plenary, there was sufficient time for President Buhari through his Senior Special Assistant on National Assembly Matters to deliver the letter requesting for the urgent approval of the money in question before it was illegally spent.
The distance between the National Assembly and the Presidency-cum-Aso Rock Villa is less than 45 minutes, traffic inclusive.
* Mr. Oghenesivbe, a public affairs commentator, wrote from Asaba, Delta State.