Olusegun Adeniyi: Clark, Adoke And Presidential Powers
n a recent conversation on the Boko Haram menace with a friend, an Ijaw man who is close to the current administration, I was taken aback when he suddenly blurted: “Honestly, the problem oga (President Goodluck Jonathan) has is his Attorney General. I don’t know how a president can surround himself with people who do not mean well for him.”
Surprised by such a remark that I imagined was probably borne out of a personal grudge against the Justice Minister, Mr. Mohammed Bello Adoke (SAN), I decided to be sarcastic: “You mean Adoke has also joined APC (the opposition All Progressive Party) or is he now one of the people funding Boko Haram?” His response was even more shocking: “Who knows? For all you care Adoke could be both an APC member and a Boko Haram sponsor; afterall, what is the difference between the two?”
When we got to discussion, my friend gave me the full detail of what transpired at a recent Federal Executive Council (FEC) meeting when the president wanted to extend emergency rule in Adamawa, Borno and Yobe states. He said most FEC members were disposed to the idea of the president suspending the three governors and all democratic structures so he could appoint administrators, the way President Olusegun Obasanjo once did in Plateau and Ekiti states. But according to my friend, it was Adoke who argued against the idea “and even though he was clearly in the minority, his view prevailed just because he carries the useless title of Attorney General.”
Given that conversation, I was not one bit surprised when Ijaw leader, Chief Edwin Clark said on Tuesday that Adoke has failed in his responsibility to give “appropriate advice” to President Jonathan on the declaration of the state of emergency in the three North-eastern states of Adamawa, Borno and Yobe. And for effect, Clark had to address a lavish media conference to state that position, perhaps to demonstrate how strongly he feels about the issue. As far as Clark is concerned, Adoke ought to have advised the president to remove the governors in the three states because they are “anti-Jonathan and pro-Boko Haram”.
For the simple reason that this proposition has been floating in the air for some time now and given that there are many people who think like Clark, it is indeed imperative for us to interrogate the idea. While I don’t think President Jonathan would succumb to such a dangerous gambit, I still believe he should be properly guided on the matter, just in case people like Clark (who evidently does not seem to understand that a government can only perform in an atmosphere of cooperation, mutual respect and tolerance) succeed with their campaign.
When in May 2004, President Olusegun Obasanjo suspended from office Governor Joshua Dariye of Plateau State and members of the House of Assembly while appointing a Sole Administrator for the State, the consensus of most prominent lawyers at the time was that he acted beyond his powers. From the late Chief FRA Williams to Professors Ben Nwabueze and Itse Sagay, the argument was that there is nothing in the Constitution that so empowers the president to take the actions he did. In fact, rather uncharacteristically, the late Williams issued a legal position which he circulated to the media, about the illegality of the action taken by the president.
Titled “Illegality and Unconstitutionality of President Olusegun Obasanjo’s Declaration of Emergency and Suspension of the Governor and Parliament of Plateau State” and dated 22 May 2004, the late Williams stated: “There is no provision contained in any part of our Constitution which confers such a power on the President. It is a contradiction of all known principles of true federation operating in a democratic society. The Governor is elected by the people of the state. So are the members of the House of Assembly. It was a recognition of these facts that informed the provisions inserted in our Constitution relating to the exercise of emergency powers…”
However, having spent several hours at the United States Information Service (USIS) in Lagos, scouring through documents and papers, I wrote a two-part piece that for some days earned me the sobriquet of “a good boy” at the villa at a period I was very critical of the Obasanjo presidency. Since the usual refrain at that time was “this cannot happen in America”, I had relied on a 1989 document of the Library of Congress titled “Powers of the Presidency” to suggest that such assumption was not entirely correct. Of course it didn’t matter at the time that my intervention was more an academic exercise on the powers of the presidency than an endorsement of what Obasanjo did.
According to the Congressional paper, “this argument that presidents have the authority to violate the Constitution, to ensure the security of the nation, has been used by wartime presidents to justify extraordinary exercises of power. When it is evident that conditions of national peril exist, Congress and the American public have turned to the president for leadership. Under such conditions, Lincoln and Franklin Roosevelt stretched, reinterpreted, and in some cases, brazenly violated the Constitution in the name of national security. Their claim to an inherent executive power to safeguard the nation was accepted because the American people generally agreed with their assessment of the gravity of the emergency at hand. Presidential claims of an inherent executive power during a doubtful national emergency, however, will likely fail the test of public and judicial scrutiny…”
The crux of my position was that while in the United States a President might not have removed elected officers from office as Obasanjo did, some had also performed no less unconstitutional acts. For that reason, I argued that what Obasanjo did was an exercise of power beyond what the Constitution specifies to meet certain situations which if not curtailed could lead to national insecurity as we could have had with the Plateau State situation at the time. I, however, went further to state that in the United States, the National Emergency Act of 1976 (PL94-412) terminated all states of emergency that were in effect until that time while also setting in place procedures for declaring and, more important from the view of many in Congress, terminating future states of emergency.
In the case of Nigeria, the “Emergency Powers Act 1961” which President Obasanjo sought to ‘modify’ was no longer in use which meant there was already a legal vacuum for the action he took on Plateau State. To that extent, I asked the National Assembly to look beyond Plateau State, beyond the person of Dariye, beyond ethnic affiliations and beyond the religions members professed, to the larger implications for the future of our democracy. The question I asked them to address was: should the president have the power to suspend Governors and House of Assembly members and if yes, what political structure should be in place in the intervening period of interregnum and for how long?
While the National Assembly gave Obasanjo the extra-constitutional power he sought at the time, the Supreme Court eventually rendered what he did illegal in the case filed by Dariye though that arose from his matter with the Economic and Financial Crimes Commission (EFCC) and the manner in which he was “impeached”. However, for the benefit of interested readers, I enclose below this piece, what was published on this page ten years ago on this same issue.
The fact that Obasanjo got away with what was clearly illegal should also be understood within the context of the two political situations he dealt with and the Nigeria of the time. So for Clark and fellow travellers to suggest that President Jonathan can suspend three governors from office in one fell swoop is not only to carry mischief too far, it is also a misreading of the political barometre of the nation today and the dangers inherent in the course of action they are suggesting. Even if we have to compare with what Obasanjo did in 2004, I don’t think they are drawing the correct parallels. One, what obtains in Adamawa, Borno and Yobe states is not a political crisis but rather a breakdown of law and order brought about by external forces that are challenging the political authority in the country and are bent on subverting our constitution to impose their own theocratic order.
To the extent that there is no political crisis in any of the states and the legitimacy of the governors is not in question as far as the people are concerned, it is dubious to suggest applying the “Dariye Formula”. Two, Plateau and Ekiti states where Obasanjo declared emergency rule were controlled by the ruling Peoples Democratic Party (PDP) to which he belong(ed), whereas the three states in question are controlled by the opposition, which makes the situation more dicey. Three, even though it may not have been an important factor at the time, it is today: both Dariye and Ayo Fayose are Christians like Obasanjo (and crucially, the Christian Association of Nigeria was on the former Plateau governor’s side and that led to the famous presidential quote: ‘CAN my foot!’) whereas the governors Clark wants Jonathan (a Christian) to remove are Muslims, in this most delicate season.
Four, the reason being canvassed for the suspension of the three North-east governors is purely political (they are ‘anti-Jonathan’) while in the case of Obasanjo, he took his action based purely on security considerations. Five, Obasanjo’s action was popular in both Plateau and Ekiti states at the time and it succeeded in dousing tension. If Jonathan were to take a similar position in Borno, Yobe and Adamawa states today, there will most likely be an explosion that would compound an already bad situation.
Given the foregoing, it is obvious that what Clark is advocating is not to resolve the Boko Haram menace in the affected states but rather to create more bad blood for the president and add fuel to the fire already smouldering. If the essence of the emergency powers is for the president to have lee-way to deal with serious national security challenges, the prescription by Clark is one that can only worsen our national security situation. Even at that, the framers of the Constitution could not have designed the emergency powers as a punitive instrument or a weapon of political blackmail as Clark and people like him imagine.
I am quite aware, as do most people, that the severity of the national security challenge posed by the Boko Haram insurgency could tempt political leaders to condone or even canvass acts that are clearly illegal. But to reduce the imperatives of emergency powers that are constitutionally available to the president to a partisan format as Clark has suggested would be most unfortunate. Adoke is Attorney General of the Federation. By his job description, he is the custodian of the rule of law in Nigeria and that happens to be central to whatever pretensions we still have to a democratic credential. In all situations, he has a responsibility to protect the President from advice of the kind that could escort him to trample on the rule of law in pursuit of more narrow partisan interests.
On the contrary, Clark has found work in the role of an ethnic guardian and a self-appointed political godfather to the president. He has insistently striven to reduce the president to an Ijaw leader with a narrow ethnic agenda while consigning larger national interests to at best a secondary place. The fact that the president has chosen to keep the governors of the embattled states in place while extending the state of emergency is every bit a plus for his political judgment. It is in fact a greater mark of statesmanship to have democratic structures in place while pursuing a stabilization of the security situation in the North Eastern states under emergency rule. The president should Ignore Clark and people who reason like him.
May 20, 2004: The President and His Powers
Back from his infamous trip to the United Kingdom, the sordid details of which may yet be in the public domain very soon, one expected that Mr. Joshua Dariye, the suspended Governor of Plateau State, would move in to calm frayed nerves, especially in the area where neighbours had turned daggers against one another.
Unfortunately, rather than rise above his ethnic nationality and play the role of a leader to a people in distress, Dariye began to inflame passions, talking in the ‘we versus them’ language in a state in which he ordinarily should be father to all. Even if anybody wanted to give him the benefit of the doubt as to whether he was culpable in all the killings in his state since 2001, what he said last week gave him away as a man that cannot be trusted to be fair to all concerned in Plateau State. And it is not a surprise that something had to give in such a dangerous situation. Now with Dariye’s removal as Governor by President Olusegun Obasanjo and the suspension of the State House of Assembly, the question pertinent to the sustenance of our fledgling democracy now is: where does the President derive the power to do what he did? That is what agitates the minds of several Nigerians today, since the constitution does not expressly empower Obasanjo, or any other individual for that matter, to remove an elected Governor.
Since we are using a borrowed robe, I am particularly interested in whether the US had any situation like this and as usual I had to task the United States Information Service (USIS). A 1989 Congressional Quarterly document published by the Library of Congress and titled Powers of the Presidency reveals quite clearly that ‘emergency’ powers are not alien to the operators of the system but they remain controversial.
The first American President to exploit this ‘emergency’ power was Abraham Lincoln during their civil war. Labelled as a ‘constitutional dictator’ because of his penchant for using unconstitutional means to have his way, especially in quelling the rebellion, whenever Lincoln was challenged either by Congress or the media, his famous refrain was that he was exercising his prerogative as commander-in-chief. Even when the Supreme Court ruled that the constitution worked ‘equally in war and in peace’ and that national preservation was not cause enough to violate its principles, Lincoln ignored the ruling. However, the caveat in the ruling was that once Congress backed the action of the President then it would not be considered illegal. Meanwhile, Lincoln had conveniently failed to call Congress to session for 11 weeks, and when he did, he intimidated them with his powers as Commander-in-chief!
Another US president who often threatened to declare state of emergency was Franklin Roosevelt–also by proclaiming unstated powers conferred on him by the constitution. But he was clever in that, whenever he acted in such manner he would railroad the Congress into approving his decision. President Harry Truman also exercised his ‘emergency’ power and when challenged, he stated that “the President has very great inherent powers to meet national emergencies.” Like in our case, there was no specificity as to what these ‘inherent powers’ are.
Given what obtains in the United States from where we borrowed this idea of presidential system, it would seem this ’emergency’ powers President Obasanjo exercised in Plateau State are actually presumed to be there though whether it is right and proper to remove an elected Governor and suspend an equally elected legislature will be a subject of intense debate in the days to come. That perhaps explains why in the US document I rely on, it is stated that this situation of emergency power “has increased the potential for rash executive action even in the absence of clear and broadly perceived emergencies.”
For the sake of those who are, however, still doubtful about the possible emergency powers available to a president in a presidential system of government, the following excerpts may be helpful:
“In times of crisis presidents often lay claim to extraordinary powers to preserve the nation, to promote the general welfare, or to provide for the common good of the people. Such ‘emergency’ powers neither are granted expressly to the president nor delegated to Congress by the constitution; instead, they are judged to reside purely in the inherent need for leaders to protect national sovereignty and domestic order. Thus, to many scholars the great silences in the Constitution imply an array of residual powers for each branch to draw on in times of crisis.
“The doctrine of emergency powers is a variation of what the Framers knew as the Lockean Prerogative. John Locke, the eighteenth-century English philosopher, believed strongly in a government of laws. But he also argued that, in dire emergencies, ‘the laws themselves…. Give way to the executive power, or rather to this fundamental law of nature and government….[namely] that, as much as may be, all the members of society are to be preserved.’
“Despite the Constitution’s general silence on the subject, the notion of emergency powers arguably remained implicit in the document. Article II mandates, for example, that the president shall ‘preserve, protect, and defend’ the Constitution and uphold its provisions. This duty could require the president to bring to bear the commander-in-chief and chief executive powers from which many implied powers arise. What is more, in ‘The Federalist Papers’, Alexander Hamilton and James Madison both indicated their views that national preservation might be cause for superseding constitutional restrictions. Nonetheless, as Arthur Schlesinger, Jr., argued, they also warned that those claiming emergency powers did so at their own risk and, having acted, must gain support from Congress and the people if constitutional government is to survive.
“Philosophic question aside, the debate over emergency powers also is a highly practical one. The structure of the U.S. system was designed to diffuse political power and safeguard individual rights. That the president alone may be able to act quickly and flexibly when the situation demands speed and dexterity is a reality the Founders recognised when they created the single executive and endowed it with the commander-in-chief and chief executive powers.
“The question thus is not who should lead in times of crisis. Rather, the question is how to preserve both the nation and the Constitution when crisis threatens the future of the Republic. Abraham Lincoln, in defending his remarkable usurpation of power during the early months of the Civil War, asked simply, ‘Is there in all republics this inherent and fatal weakness? Must a government of necessity be too strong for the liberties of its people, or too weak to maintain its own existence?’ Or, as Lincoln later asked, ‘Was it possible to lose the nation and yet preserve the Union?…’
“Lincoln’s experiences during the American Civil War were unique, but history is dotted with other moments where this dilemma emerged powerfully. Few doubt the need for presidents to wield extraordinary powers in times of crisis, but debates rage when the ‘crisis’ is not clear to all or when the claims to emergency powers appear overstated. Asserting the powers necessary to defend and preserve the nation under moments of true emergency is one thing, but claiming such powers when the threat is not readily apparent, or when the powers asserted seem disproportionate to the alleged threat, is a far different matter.
“That is the dilemma of emergency powers: ‘Whether intentionally or not,’ political scientists Erwin Hargrove and Michael Nelson have written, ‘the Constitution conferred prerogative power in times of emergency on the president. Efforts to define ’emergency’ by legislation and thus limit the president in such cases have run up against Locke’s warning of the futility of trying to legislate for cases yet unknown.’
“The history of the nation has been marked by recurrent tensions between presidential claims to extraordinary powers and the right of Congress to impose its will when emergencies occur. It is a struggle yet to be resolved entirely…”
The full paper is rather interesting. However, having satisfied myself that what President Obasanjo did may not be as illegal as most people think, the questions that agitate my mind now are: Could this declaration not become an avenue for mischief makers in some states to put their Governors under the siege of violence and then expect the President to wield the big stick? Under a system that is becoming increasingly intolerant of opposing views, are we not becoming vulnerable to our own ‘constitutional dictatorship’? Is what the president did in Plateau fair to all concerned? Will it promote the cause of our fragile democracy? Will it not compound the problem in an area where the President has already labelled spokesmen of one side of the crisis as idiots? Will a successful execution of this emergency order not embolden the president to go the ‘extra mile’ in other extra-constitutional matters, even concerning his term of office? Are we not unwittingly encouraging the creation of a Fujimori? Have all the available options been explored before this emergency rule? Is it only a military administrator, a military General that can instill order in a supposedly democratic government? Is it not worrying that most national assembly members yesterday voted along religious/ethnic lines?
I have no answer for any of these questions but those who are rejoicing over the fate of Dariye, as incompetent as he actually was as Plateau State Governor, should pause to ponder whether they are also not digging their own political graves. I hope I will not one day write that I said so.
The Verdict Written By Olusegun Adeniyi and Culled from Thisday; [email protected]
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