May 23, 2018

Still on the $496m saga

Still on the $496m saga

Senate Chamber

By Roland Amaize

THIS is the third time, in less than two weeks, I’m writing on this issue, although on each of the other two occasions, reference to distinguished Senator Urhoghide was made only peripherally; quite unlike this in which I’m making direct reference to him. For the avoidance of doubt and as a reminder to all, on the first of the two previous occasions, I wrote on the disaster which inevitably awaits any nation whose leaders are given to the unacceptable acts of undermining its laws, especially the constitution.

On the second, I had analysed the divergent arguments advanced by Professor Itse Sagay and Chief Dan Iwuayanwu on the $US496 million for Tucano fighter jets and its constitutional implications and at the end of my analysis, it was thumbs up for the Chief but thumbs down for the Professor of Law. In each of those my two previous write-ups, therefore, my conclusion was and remains clear that given the action of President Buhari on the issue and against the backdrop of the relevant constitutional provisions on the matter, particularly but not limited to Sections 80 and 143, the President’s action is clearly impeachable.

There is no running away from such obvious constitutional reality.

Today, while not wanting to join what I’ll best refer to as the motley assembly whose members, at best, had chosen to stand the law on its head and make it a sacrificial lamb at the altar of political expediency, even as some had spoken from both sides of their mouths, I’ve come out in total, clear and absolute defense of the motion moved by distinguished Senator Urhoghide. Whether the motion was an invitation to the Senate to commence investigation on the matter under Section 143 or it was for it to commence impeachment exercise under the same Section, it matters not to my position on the issue.

Let me state very clearly at this juncture that I’m not oblivious of the deluge or spate of criticisms against the motion. I’m not also unaware that for the reason of the motion, he was ambushed and molested at the Benin Airport by hired and conscripted thugs masquerading as party supporters. I’m no less aware that even criticisms against him on the issue also came from the highest executive and legislative angles of the state. One thing is very clear and certain; it is that once a matter touches the issue of law as distinct from politics, I’m never known to quibble and otherwise run from the ‘battle front’ as a way of shying away from the issue at stake.

Law and NOT politics is my chosen field. So while I owe a duty of care to myself in avoiding making unnecessary foray into political arena, else I slip, not for one moment will I hesitate in jumping into any discourse that is legally rooted as in this case. Clearly, politics is for me an unfamiliar terrain while law being unarguably my profession, is quite a familiar terrain for me. This, I state with consummate modesty.

Now, the issue at stake here is one which is rooted in the nation’s constitution. We must not also lose sight of the fact that the President, upon his inauguration, had sworn to uphold and abide by its provisions with the obvious implications of being called to order, as appropriate, in the event of any act of infraction by him. The germane question is this: by taking money from the nation’s confers, whether huge or small, to execute a project, never mind its nature or kind, without prior approval of the NASS by way of appropriation under Section 80 and/or any other relevant section of the constitution for that matter, did the President commit an act of gross misconduct upon which he stands to be proceeded against under S.143 of the Constitution?

I’ll defer my answer to this all-important question until after I’ve examined some of the reasons advanced by those who thought and perhaps still think that Senator Urhoghide had by his motion committed a sacrilege for which he stands, in their opinion, to be crucified.

Amongst such reasons and from diverse quarters are, that:
a. the President acted under what they had labelled as “emergency situation” such that there was no time to go before NASS prior to making the payment,

b. oh, we needed to acquire those jets because of the state of insecurity in the country,

c. oh, other Presidents had taken money from the nation’s coffers in the past without prior appropriation without they being impeached (a clear political motive),

d.the President’s action is not unconstitutional and

e. this is perhaps the most ridiculous politically ridden and ladened reason – that moving of a motion for impeachment of the President was not why the Senator was sent to Abuja, that is NASS.

I’ll briefly address those largely contrived reasons seriatim as follows:
a. This issue started about August 2017 and payment in question was made about four months ago. In all of these, there was ample opportunity and time to have sought and received NASS’s nod as necessary and desirable in accordance with constitutional requirements. Consequently, failure to seek and receive prior legislative intervention clearly lays somewhere else and not want of time to do so. Acting under a so-called emergency situation which is at best self- induced, is one which does not fly and accordingly, it is totally unacceptable.

b. The second reason is no less unimpressive. Agreeably, we all need peaceful and well secured atmosphere to operate as a nation; there is no argument about that. However, we are told that those jets will not be delivered until 2020. That, without more, makes complete nonsense of the contention as to emergency situation to justify the President deliberately committing an infraction of our Constitution. The inevitable conclusion therefore is that this reason, like the one before it, is most unsatisfactory and it does not also fly.

c. It may well be that some past Presidents in their times committed similar constitutional infractions. It may also well be that no one raised any eyebrow to such sad state of affair. But who is to be blamed for those alleged previous breaches? The present NASS? I think not. How do those other breaches now excuse the one in question? In any event, the fact that an illegal act was committed by Mr. A and for whatever reason, he was not proceeded against is not in law a justifiable ground, without more, to excuse Mr. B who subsequently commits similar infraction. That may appeal to and catch the attention and support of moral rules but not law. It certainly will not lie in the mouth of Mr. B nor should he be heard to seek and take umbrage, as a precedence, on previous similar act of Mr. A for which the latter was not punished. There is no legal premise for any such contention. To that extent, therefore, this reason, like the two before it, is nothing but a hoax.

Continues tomorrow

* Justice Amaize rtd, wrote from Benin City, Edo State.