INEC Budget: Lawyers Divided Over President’s Power To Reconvene NASS
Senior lawyers in the country were yesterday divided on whether President Muhammadu Buhari has the power to reconvene the National Assembly, which is on a two-month recess, to attend to his requests pending before the federal legislature for national interest. President Buhari had recently requested the lawmakers to approve the sum of N242billion in the 2018 Appropriation Act to fund the supplementary budgets of the Independent National Electoral Commission (INEC) and security agencies for the conduct of the 2019 general election. But the two chambers of the National Assembly, which was billed to proceed on holiday last Thursday, abruptly adjourned for recess on Tuesday without adducing reasons for its action, leaving the request, which is time bound, pending. INEC chairman, Mahmoud Yakubu, had at a retreat organised by State House Correspondents on ‘Covering Election Campaigns’ at the Epe Resort in Lagos on Saturday lamented that it is walking a tightrope in terms of funding, which is threatening the successful conduct of the 2019 elections for instance. The issue of whether or not President Buhari has the power to recall the National Assembly from recess to attend to his request for budgetary provision for the 2019 polls became a subject of debate among legal experts yesterday when the Senator representing Rivers Southeast senatorial district, Magnus Ngei Abe, declared that the Nigerian Constitution empowers Buhari to summon the National Assembly at any time to discuss pressing national issues. But in a swift reaction the House of Representatives countered Senator Abe, saying that it is not aware of any provision in the constitution that empowers the president to adjourn or reconvene the National Assembly at will. Some of the lawyers who agreed with Senator Abe that the president has inherent powers which allow him to respond to crisis situation said such powers are those that can be inferred from the constitution based on major roles the constitution confers on him. But those who agreed with the Green Chamber that the president lacks such power said after the proclamation letter Buhari wrote to convene and inaugurate the 8th National Assembly on June 9, 2015 for the purpose of electing their leaders, he ceases to be able to reconvene the federal legislature for any reason till their tenure end next year. According to the lawyers in support of the argument, the power conferred on the president for the issuance of a proclamation in Sections 64 (3) and 105 (3) of the 1999 Constitution (as amended) for the National Assembly to convene in the first instance can be relied upon to reconvene the legislature for the overall public interest. They further held that executive privilege which is derived from the president’s inherent power also makes it possible for the president to write to the leadership of the National Assembly, including the Clerk of the National Assembly to ask members to suspend their recess temporally to deliberate on executive requests that are time bound. All the lawyers who separately spoke with the LEADERSHIP exclusively on the matter however agreed that the president can write the leadership of the National Assembly to reconvene to attend to the pressing requests, but without the power to compel them to reconvene. A member of the inner bar and former Attorney General of the Federation, Chief Mike Aodooka (SAN), argued that the president can invoke executive privilege to reconvene the National Assembly because it is part of his inherent powers to respond to crisis. The former Justice Minister said, “The president can claim executive privilege to reconvene the national assembly directly or indirectly. It is part of the inherent power of the president to respond to a crisis because if this budget is not approved for INEC to conduct the next elections and the elections are not held, it would lead to national crisis. “The power to reconvene the National Assembly might not be contained directly in the constitution but it can be derived based on the roles the president is enjoined to perform.” Another member of the inner bar, Professor Yemi Akinseye-George (SAN), said the president can write the leadership of the National Assembly to reconvene to consider those pressing needs of the country but can’t compel them to do his bidding. He added, however, that the lawmakers must obey the request in view of the public interest they also chose to serve. He said, “This is the very reason the executive and the legislature must work in synergy and in harmony in order to move the nation forward. As we speak, the ICPC can’t function because it has no board. The president’s letter asking them to approve the board appointment has been read on the floor of the Senate. “The whole place (ICPC) is in disarray because they have no board and no decision can be taken there. It is not giving the Senate good image because it is as if there are some of them having pending matter before the agency they don’t want to be heard or decided’’. On his part, a constitutional lawyer, Alasa Ismail, tied the power of the president to reconvene the National Assembly to sections 64 (3) and 105 (3) of the constituion, which empowers the president to convene the federal legislature for inauguration. “The power the president derives by virtue of Sections 64 (3) and105 (3) to convene the National Assembly for inauguration can be relied upon to request them to reconvene for urgent national importance. The constitution or the law generally is very organic. That was how we arrived at doctrine of necessity in our law’’, he stated. But another member of the inner bar and human rights activist, Chief Femi Falana (SAN), said the president does not have the power to reconvene the National Assembly. Falana noted however that the president can appeal to the leadership of the national assembly by “drawing their attention to the urgency to reconvene so as to handle the issue of the funding of INEC for the 2019 general election”. Toeing Falana’s line of argument, another learned silk, Chief Emeka Ngige (SAN), said, “The executive lacks the power to reconvene NASS, which had gone on recess, but nothing stops the executive from writing a letter to the presiding officers of both chambers of NASS on a matter or matters pending before them that requires urgent attention. “I believe that upon receipt of the letter the presiding officers are expected to do the needful’’. Another learned silk, Norrison Ibinabo Quakers (SAN), agreed with Falana and Ngige that Buhari lacks constitutional power to reconvene the National Assembly, saying it is only the leadership of the National Assembly that can reconvene sitting for the lawmakers. He said, “Anybody saying that President Buhari can reconvene the National Assembly does not know what he is talking about. There is nowhere in the Nigerian constitution that such power is given to the executive. “Nigeria operates a constitutional democracy. Even though our laws are not perfect, we must all abide by its dictate until it is replaced or amended. What I think the executive can do is to go to court to seek an order compelling the National Assembly members to reconvene and treat all matters of national importance currently before them. “The court will have to listen to both sides and make a decision one way or the other. Constitutionally, that is one of the roles of the judicial arm of government. “But I want to say this; the constant crisis between the executive and the legislator is very bad for the country. It is in the best interest of the nation that the two arms of government respect each other, recognise the doctrine of separation of powers and play their roles according to the rule of law”. Agreeing with the SANs, a constitutional lawyer, Valentine Offia, said, “the president only has power to convene the National Assembly through proclamation for the first sitting. Once it has elected its leaders, he (the president) has no power to reconvene it till the end of that tenure’’. Another constitutional lawyer and president of Voters Rights Agenda, Wale Ogunade, said there is no part of the Nigerian laws that give the president the power to reconvene the National Assembly. He said, “I am not aware of any provision of the 1999 constitution that empowered the president or the whole of the executive branch of government to convene or call back members of the National Assembly from their recess. “The only thing to my mind that the president can do is appeal to the lawmakers to put the interests of the country above their personal agendas by coming back to attend to urgent national issues on their table. “The consideration and passage of the 2019 electoral budget is very important to the success of INEC and the elections. So, the two arms of government should put aside their differences and do the right thing”. President Buhari had recently presented a N228billion supplementary budget to the National Assembly, asking the legislature to re-allocate part of the N578billion voted to the projects inserted by the lawmakers into the 2018 Appropriation Act. Buhari who said INEC and security agencies need the N242billion for the 2019 general election asked that N164billon be vired to fund the polls, while the balance of N78billion would be covered by the 2019 budget. The president also said N64billion be taken from the same source back to the critical projects whose allocations were cut by the lawmakers. The lawmakers had introduced 6,403 projects into the budget amounting to N578billion. On Thursday, the Presidency pleaded with the lawmakers to reconvene and approve Buhari’s requests in the interest of the country. Addressing journalists in Abuja, the senior special assistant to the president on National Assembly Matters (Senate), Senator Ita Enang, warned that delaying the approvals would frustrate some organs of the government. PMB Constitutionally Empowered To Do So – Sen Abe Igniting the debate yesterday, Senator Magnus Abe (Rivers South-East) had said the Nigerian Constitution empowers President Buhari to summon the National Assembly at any time to discuss pressing national issues. Abe who spoke with LEADERSHIP at Kaani Community in Khana local government area of Rivers State said if the National Assembly continues on its current recess, it would negatively affect the passage of INEC budget for the 2019 polls. He said, “The President is the Commander-in-Chief and the Constitution gives him power to summon the House if there are pressing national issues to be discussed. “The House going on recess may affect many things that need to be done before the 2019 election because we need to pass the budget of INEC and all that. So, in national interest, if it is necessary to call the House back, we will all come back, there is no big deal about that.” Also, a member representing Ikwerre/Emohua Federal Constituency in the House of Representatives, Hon. Chidi Wiyioka, yesterday revealed that issues of INEC budget for the 2019 polls may be discussed in the next two weeks when the House reconvenes. Wiyioka, who made the revelation while speaking with LEADERSHIP in Port Harcourt, said the next set of defectors in the House of Representatives would be dumping the Peoples Democratic Party (PDP) for the All Progressives Congress (APC). The lawmaker said, “I don’t know if there are plans to change the leadership of the House, but there are personal opinions. But when we reconvene because I am sure that in the next one or two weeks we will reconvene to consider budget for INEC. “Like I told you, in the next two weeks, things will show and you will know the pattern things are playing. But I want to assure you that APC is still in charge and will continue to be in charge of the House of Representatives for this 8th Assembly and the 9th Assembly”. We’re Not Aware Of Such Power – Reps But disagreeing with Senator Abe, the House of Representatives told LEADERSHIP yesterday evening that it is not aware of any provision in the constitution that empowers the president to adjourn or reconvene the National Assembly at will. The House noted that rather, the president could seek understanding of the National Assembly leadership, with a view to ensuring that the two chambers are called back from recess if need be. Chairman of the House Committee on Media and Public Affairs, Hon Abdulrazak Namdas, while responding to enquiry by our correspondent, noted that the National Assembly is an independent institution and cannot be ordered by any other individual except it’s leaders. He noted that Senator Abe would do well to buttress his point with relevant provisions of the constitution. Namdas said, “I am not aware that the president have such powers. What I know is that the president can secure understanding of the National Assembly leadership so much that the Senate president, who is the chairman of the National Assembly or the Speaker, as the case may be, can reconvene the Senate or the House of Representatives. “He (Abe) is a Senator, I expected that his claim would be supported by relevant provisions of the constitution”.