Jonathan, Tambuwal and separation of powers

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Friday, 22 June 2012
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1. Goodluck Jonathan. 2.Aminu Tambuwal 3. Bamanga Tukur, PDP National Chairman 4.Mulikat Akande-Adeola
Abiodun Awolaja examines the claims and counter-claims on the practicality of the theory of separation of powers as it affects operations of the executive/legislative functions in the polity.

THE leadership of House of Representatives is currently embroiled in an epic battle with the Presidency strictly over questions of survival. In this battle, the doctrine of the separation of powers has been a lethal weapon. The doctrine, which rests squarely on the premise that excessive power is corruptive and destructive, suggests, rather controversially, that the functions of government are clear cut and should be handled by specialised arms. Unfortunately, the political realities do not favour such a neat compartmentalisation anywhere in the world. That much was noted by President Goodluck Jonathan on Monday, 28 May, when he joined issues with the Speaker of the House, Honourable Aminu Tambuwal, over party supremacy, following the allegation by the Speaker that the president had refused to assent to bills passed by the National Assembly, although the House was alone in its claim.

The Speaker’s timing and the event he chose to vent his spleen on the president were clinical. His topic was “Our Democracy: Progress and Challenges,” and the event was the national symposium to mark the 2012 Democracy Day, at the Banquet Hall, State House, Abuja, an event meant, among other things, to showcase the achievements of his party in the last one year. In the same style of the coup that he hatched against his party to emerge Speaker, Tambuwal chose the occasion to demonstrate his belief that that the president was abdicating its duty as regards giving assents to bills passed into law by the National Assembly.

While enumerating what he called the challenges facing the legislature, Tambuwal said “another challenge is the issue of assent to bills passed by the National Assembly. Inasmuch as it is the constitutional duty of the legislature to pass laws, it is equally the constitutional responsibility of the president to assent to same.” He then grumbled that the legislative process had become cumbersome because some of these bills had to be re-introduced, de novo.

“This is not a healthy situation for the executive/legislature relationship, neither does it portray our democracy in good light amongst the comity of nations. Once the process is sabotaged by circumventing any of these, democracy is undermined and all sorts of problems begin to manifest.’’

The Speaker was not yet done: “It is, however, important to state for the benefit of the public that under the doctrine of separation of powers, once the legislature has passed resolutions on the recommendations of such investigative reports turned in by its committees, implementation is the statutory duty of the executive.

“I wish to allude to the issue of budgeting. The executive arm of government is made up of only two elected functionaries, to wit the president and the vice (sic), whereas the National Assembly is a body of 469 elected functionaries. The adage, two heads are better than one, is reinforced by that which says he who wears the shoe knows better where it pinches and both favour the position of the elected representatives. In the people’s wisdom enunciated in the 1999 Constitution (as amended), the legislature has the final say on the budget document by way of a veto where the right of final say is resisted. The National Assembly has acted responsibly and cautiously in the exercise of this power in the belief that the executive will come to terms with this reality before long.”

Apparently attempting a reprisal attack on former President Olusegun Obasanjo, who earlier told him (Tambuwal) to vacate the Speakership seat to allow for implementation of the zoning formula of the Peoples Democratic Party (PDP), the Speaker declared: “In the 1999-2007 Obasanjo dispensation, there was reckless executive interference in the affairs of the National Assembly on the one part and the federal and state government relations on the other. I am proud to say that things have since changed for the better. Between the 2007 – 2011 Yar’Adua/Jonathan years and to date, the Federal Executive has exercised commendable maturity in ensuring that it does not interfere in the affairs of the National Assembly.’’

Tambuwal’s submissions appeared to come against the run of play, looking at the conduct of the current executive since its inception in 2011. The Speaker himself was to acknowledge the changing times when he compared executive/legislature relationship in the Yar’Adua/Jonathan era with that of the Obasanjo era. He submitted it was better under the present atmosphere. What then could have prompted the practical vote of no confidence in the executive as contained in the Speaker’s speech on May 28?

At that event however, President Jonathan did not find Tambuwal’s allegations funny. Although he did not directly join issues with him, he chose to educate the Speaker on the practicality of the separation of powers. He said: “The Speaker made reference to bills, for example. We all belong to political parties, but the judiciary does not belong to parties. Every political party has a manifesto and those who contest elections to hold any office, whether in the executive arm of government as president, vice-president, governor or those who contest election to be in the legislative arm of government, either as a legislator or councillor, are supposed to campaign based on the party manifesto and that is why individual governors don’t have their separate manifestoes.

“When we are elected into office, both arms of government are supposed to work together to make sure that the party manifestoes guide our actions. If that is true, how do we separate them?”

He said: “Let me talk about separation of powers which, in some cases, sounds even absurd. How separate are these powers? Yes, you can separate the judiciary to some reasonable level but can you really separate the parliament from the executive and have a stable government? That is one of the greatest challenges we have and especially in Nigeria.

“I believe if the parliamentarians and those in the executive maintain that theoretical divide, then this country will continue to have problems. If we begin to see this clear division, we are exposing the National Assembly for people who are anti-government to use. It is not good to always celebrate the separation; when we begin to celebrate the separation, those outside government would use National Assembly against the Executive.”

The Jonathan/Tambuwal encounter raises issues of presidential power in handling budgets, oversight functions of the National Assembly and, of course, presidential assent to bills. In the light of the court ruling that presidential assent is required even for constitutional amendment, it would really be disturbing if the president had not been assenting to the bills passed by the National Assembly. However, in the event that the president refuses his assent to a bill, the National Assembly could, by a two thirds majority, override his veto.

The question succinctly raised by Jonathan’s response to the Tambuwal charge rests squarely on the practicality of the theory of separation of powers in a political entity. The theorist might have analysed what is, but the duty of the practitioners of the political systems, according to an informed opinion is to identify what should be. In essence, as identified by opinion moulders; the theory is better practiced as interdependence of powers rather than separation of powers.

As noted by a legal practitioner, Oladele Osinuga, “In the 1999 Constitution, only three other bills of the National Assembly require the president’s (express) assent. These are: (1) a bill for an Act for the purpose of implementing a treaty pursuant to Section 12 titled Implementation of treaties, 2) a bill for an Act pursuant to Section 58 titled Mode of exercising Federal Legislative power: general and 3) a bill for an Act pursuant to Section 59 titled Mode of exercising Federal Legislative power: money bills. There are similarities between the provisions of Section 58 (4), (5) and Section 59 (4). The common feature being that, an Act can become law where the President fails to signify his assent after the bill has been passed by two-thirds majority of both houses. For Section 58 (4) and (5) this is two-thirds majority passed by each houses whilst Section 59 (5) provides for by two-thirds majority of members of both houses at such joint meeting.

“However this two-thirds majority is not a requirement for an Act pursuant to Section 12. In fact Section 12 stipulates that a majority, which in the absence of any other reading should be construed as a simple majority, ratifies a bill. A notable feature of an Act under Section 12 is there are no provisions for it becoming law if the president fails to assent unlike the provisions explicitly stated in Sections 58 and 59. In essence, this is the only provision of the Constitution where the assent of the President is mandatory.’’

The following questions then arise: How many bills passed by the House/National Assembly has the president refused to assent to and what were his reasons? Has the Speaker and/or the House or National Assembly leadership discussed the issue with the president, and, if so, have they got a negative response? Did the president send the bills back to the National Assembly, pointing out the grey areas so that they could be resolved, since he is not a rubber stamp of the legislature and could exercise his discretion with respect to whether or not to assent to a bill? Has the Speaker raised such issues with the Senate President and what was his response? These questions, and many more, would become necessary because all the major actors in the National Assembly are, like the president, members of the same party.

Investigations however indicate a deeper political prognosis being the catalyst of the Jonathan/Tambuwal spat. While Tambuwal emerged as Speaker against the dictates of the PDP leadership, he has since decided to rely on the influence of minority parties and a handful of PDP members to sustain his leadership. In that wise, some analysts read his outburst against the Presidency as a way of sustaining his relevance in the perception of the opposition group which remains the backbone of his tenure so far. There are claims that since the Speaker could easily bring such issues to the notice of the president, being his party leader, what is the justification for taking them to the public first.

Besides, it was also understood that the House did not take the Senate into confidence in making the declaration. The Senate came up a week later to put a lie to the charge of dereliction of duty by the president. Chairman, Senate Committee on Rules and Business, Senator Ita Enang, who addressed Senate correspondents, said that most of the bills complained about by the Speaker had lapsed since they were bills of the Sixth National Assembly. In the rules of the National Assembly, any bill whose passage procedure is not completed at the expiration of the life of an Assembly cannot be carried over to the next Assembly. Legislative work would have to start all over again on any such bill.

Enang explained that since most of the bills were bills passed in the Sixth session, they lapsed at the commencement of the Seventh Session and some of them have been re-introduced in the new session. Some of the bills, according to investigations were passed during the Yar’Adua presidency, while some were passed under the Jonathan presidency but they could not be assented to at the end of the life of the Sixth National Assembly in May 2011. It was gathered that the controversy on some of the bills affected the presidential assent, thereby stalling the process of such bills becoming laws.

The Senate therefore explained that there was no axe to grind with the president over the bills in question since many of them have technically lapsed. According to the upper chamber, those the legislators feel strongly about have been introduced afresh with some already at the Second Reading stage.

On that account, a number of political watchers further observe that the Jonathan/Tambuwal open disagreement borders on party discipline. Those who hold this view believe that if the Speaker had any issues with the president, his office and his being a member of the ruling PDP gives him many opportunities to discuss his observations in private. “Politically, the Speaker’s position appears constantly threatened because his emergence as the Speaker was in clear violation of the zoning principle as enshrined in Section 7:2c of the party’s constitution, and in defiance of the people of the South-West geopolitical zone of the country. He needs to reassure his backers that he was at loggerheads with the Presidency so as to sustain his position,” an observer said.

With the opposition parties constituting almost half of the House of Representatives, it is imperative for Tambuwal to continuously appease them and doing so means being at perceived loggerheads with the executive.
The Speaker had, in a pursuit of ambition which did not take the multi-ethnic complexities of the country into consideration, went ahead to stage a coup against his own party and the South-West geopolitical zone by upstaging the anointed candidate, Mulikat Akande-Adeola, even when he knew that the speakership position was a concession for the South-West after it failed to clinch the Senate presidency arising from the failure of the PDP senators from the zone to return to the National Assembly via the April general election. However, he preferred to band together with the Action Congress of Nigeria (ACN) Reps to vote for him in defiance of the PDP. A political analyst, Dele Ore, who described Tambuwal’s emergence as a national descent into anarchy, had captured the scenario thus: “The rebellious attitude, gangsterism and subterfuge of those who are supposed to make laws for all Nigerians to obey speak volumes of most members of the current House led by Tambuwal himself, a speaker who should be above board, but was reduced to a subterfugium, smuggled into the hallowed chamber to steal party mandate. How can he now morally legislate for the people to obey when he himself is indisciplined?’’

Shockingly, the PDP which had rejected Tambuwal’s emergence on June 6, capitulated on June 7 when, in company with the new Deputy Speaker, Emeka Ihedioha, he visited the party’s headquarters, to explain that his emergence was not meant to spite the party but was a move to strengthen the legislature.

However, 12 months on, the ghost of Tambuwal’s offence against the South-West and the PDP has continued to haunt him, notwithstanding that the House, under him, has been trumpeting its radical Legislative Agenda. At every turn, the threat of possible impeachment move against Tambuwal is raised as a way to ensure the opposition parties, whose votes brought him into office bond together to frustrate such moves.

The alleged impeachment threat has been consistently coming to the fore since the House dabbled into the probe of the oil subsidy scheme in January. Even when the bribery saga involving the sacked chairman of the ad hoc committee on petroleum subsidy, Honourable Farouk Lawan and billionaire businessman, Femi Otedola, chairman of Zenon Oil blew open, the talk was diverted to a possible impeachment move against the Speaker, thus necessitating the vote of confidence passed on him by his colleagues during the emergency session of June 15.