The President's executive power to amend laws
By
IN a country with a formal democratic framework of constitutional government, autocracy usually has its incipient beginnings in the executive field. It manifests itself in the ruler establishing a personal mastery over all the processes of executive government, untrammelled by rules. The rules embodied in the Constitution and other laws for the conduct of public affairs are gradually but systematically manipulated to achieve results desired by the ruler until they cease to have relevance as active principles in the administration of government. Supposedly independent agencies and functionaries established by the Constitution and invested with functions necessary for the maintenance of democracy - the police service, civil service, electoral, fiscal and population commissions, the police commander, the accountant-general, etc - are manipulated and turned into subservient instruments of the ruler to rubber-stamp his personal wishes and decisions.
Thus, whilst rules, as abstract prescriptions in the Constitution and other laws, are important in the concept of constitutional democracy, what is supremely more important is their observance in the actual conduct of government. Constitutional democracy is not defined merely by the existence of a Constitution as a supreme law, which establishes organs and institutions of government, defines their relations inter se, prescribes and limits their powers and the procedure for exercising powers, provides for the election of their primary functionaries, guarantees the fundamental rights of the individual, etc., it is defined more essentially by the actual observance of the rules in the practice of government. Rules are of little value if they are not the active instruments governing the conduct or actions of the rulers.
Government according to rules imply, of course, government by institutions established by the rules, i.e. institutional government. Rules and institutions are inextricably intertwined. Political institutions have been defined as "an impersonal system of rules and offices that effectively binds the conduct of individuals involved in them ... In an effectively institutionalised state, the rules are respected by all persons no mater how important they may be; indeed the rules in a well-established state with a strong institutional tradition appear entirely natural."
Constitutional government is thus by definition institutional government, and personal rule is its very antithesis. This is so because under personal rule, as Jackson and Rosberg write in their book, Personal Rule in Africa (1982), "persons take precedence over rules, the officeholder is not effectively bound by his office and is able to change its authority and power to suit his own personal or political needs. In such a system of personal rule, the rulers and other leaders take precedence over the formal rules of the political game; the rules do not effectively regulate political behaviour, and we therefore cannot predict or anticipate conduct from a knowledge of the rules. To put this in old-fashioned, comparative government terms, the state is a government of men and not of laws."
Government in a regime of personal rule is uncertain and problematic because "it is largely contingent upon men, upon their interests and ambitions, their desires and aversions, their hopes and fears, and all the other predispositions that the political animal is capable of exhibiting and projecting upon political life;" and further because it is restrained, to the extent that it is restrained at all, only by "private and tacit agreements, prudential concerns and personal ties and dependencies rather than by public rules and institutions." And it is dangerous because of its tendency to give rise to an assault, sometimes even a tyrannical assault, on human rights and to the privatisation of the state.
But the ultimate objective of an emerging autocracy is to extend the ruler's control into the legislative field. For, it is only when that object is attained that autocracy becomes fully effective and full-blown. The move by President Obasanjo to extend to the legislative fields his control of government affairs in Nigeria is thus true to pattern, and should not surprise us. Yet it is a cause for alarm.
It is with dismay, therefore, that we read in the newspapers of Friday, July19, 2002 about an Executive Order issued by the President, entitled: "Allocation of Revenue (Federation Account, etc. Modification) Order 2002." The Modification Order changes the existing formula for revenue sharing among the constituent governments in the Federation, as enacted by the Allocation of Revenue (Federation Account, etc) Act Cap. 16, Laws of the Federation; it increases the federal government's share from 48.5 per cent to 56 per cent.
The change followed from the decision of the Supreme Court in the Resource Control Case, which declared unconstitutional and void the 7.5 per cent of the revenue in the Federation Account allocated as "Special Funds" to certain specified purposes, such as the Federal Capital Territory and Stabilisation Account. The intention and purpose of the Executive Order is thus to make good for the federal government, the loss of revenue occasioned by the court's decision by adding the 7.5 per cent to its 48.5 per cent share to bring its share to 56 per cent. The change in the sharing formula effected by the Executive Order was made purportedly pursuant to Section 315(2) of the 1999 Constitution, which authorises the President (or Governor) to adapt existing laws in order to bring them into conformity with the Constitution.
Nature, purpose and limits of adaptive legislation by the executive in a constitutional democracy
By governmental practice that has become customary in many countries in the former British Empire, the Executive is usually empowered by the Constitution to make adaptations in existing laws necessary to bring them into conformity with a new order established following a change from one system of government to another under a new Constitution, such as occurred in Nigeria in October 1960, October 1963, October 1979 and May 1999. In line with this customary practice, all our Constitutions from 1960 have always given the Executive the power to make the necessary adaptations in existing laws. The practice is predicated upon expediency because of the intricate nature of the task.
Section 274(2) of the 1979 Constitution, following the wording in the earlier Constitution of 1963, empowered the President (or the Governor of a State), by order, "to make such changes in the text of any existing law as he considers necessary or expedient to bring that law into conformity with the provisions of the Constitution" (emphasis supplied). The reference to textual changes indicates the nature and scope of the power, as being limited to clerical or verbal changes, like changing names, titles and designations, substituting appropriate functionaries and so on. This is exemplified by an order by the Governor of Kaduna State under the provision in Section 274(2), whereby the title, Chief Justice, in any existing law of the state, was changed to Chief Judge, Military Governor, Executive Council or Governor in Council to Governor, Minister to Commissioner, Native Authority to Local Government Council, North-Central State to Kaduna State, and Edict to Law. (See KDS L.N. No. 15 of 1980.)
The provision (s. 274(2) was not intended to authorise changes of substance or policy in the law. Deletion or repeal otherwise than for the purpose of effecting such clerical or verbal changes was thus outside its pale. To make changes in the text of a law - that is, in its wording - presupposes that the law continues in force with all its substantive provisions. If the law or any of its substantive provisions is abrogated, the text will not be there to be adapted to bring it into conformity with the Constitutions.
It is necessary to distinguish the power of adaptations vested in the President or Governor under the provision of Section 274(2) and the provision under subsection 1 of the same section. Section 274(1) provided that "an existing law shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of this Constitution," and "modification" was defined in Section 274(4) as including "addition, alteration, omission or repeal." Since the word "modification" did not appear in Section 274(2), its definition in Section 274(4) was for purposes of Section 274(1) only. It is not permissible to apply in the interpretation of a provision the definition of a word not used in it. The provision in Section 274(1) together with the definition of "modification" in Section 274(4) is directed, not to the President or Governor, but to the courts as to how to interpret existing laws. Only a court can, in the exercise of its interpretative jurisdiction, say that an existing law has been impliedly repealed by the Constitution. The power of the President or Governor under Section 274(2) did not enable him to modify an existing law by repeal or by the addition or omission of anything of substance.
Now, it needs hardly be said that the making of alterations, deletions and additions in existing laws or their repeal for the purpose of bringing them into conformity with the Constitution embraces a considerable part of the legislative power vested in the National Assembly and the State Houses of Assembly. The extent of legislative power, which this will put in the hands of the President and the state Governors must be viewed in the light of the fact that the military government, which preceded the 1979 Constitution (and the 1999 Constitution as well) was an absolute, autocratic one, and had enacted many laws, which may not be in conformity with the democratic standards of the 1979 Constitution. Suppose, then, the President or Governor took the view that any of these laws was in conformity with the Constitution, did the power vested in him by Section 274(2) enable him to repeal it either in whole or in part? To admit that he could was to subvert one of the central planks - the separation of powers - upon which the whole constitutional edifice was built. A President or Governor endowed with such wide legislative powers was not the type contemplated by the Constitution - one who, in the words of Chief Justice Fatayi-Williams, "can only exercise executive powers." Such certainly is not the meaning or the intention of the adaptive power.
It was thus a usurpation of the legislative power vested in the State House of Assembly for the Governor of Kaduna State, shortly after the transition from military rule to civilian democratic government in October 1979, to have used his power of adaptive legislation under Section 274(2) of the 1979 Constitution, to make changes of substance in the existing laws of the state. Purporting to act under Section 274(2), he issued the Local Government Edict (Modification) Order, 1979 repealing the provisions of the Local Government Edict (now adapted to read Law) relating to emirate or traditional councils, nominated councillors and traditional presidents of local government councils. The effect was that these bodies and offices were thereby abolished. Also repealed by the Modification Order were the provisions in the Local Government Edict empowering the Governor to approve the election of chairmen of local government councils and to determine their terms and conditions of service. These repeals and abolitions which, as they clearly went beyond the power of adaptive legislation, were a usurpation of legislative power, provoked a massive counter-usurpation of the Governor's executive power by the State House of Assembly, thus intensifying the crisis that had held the state in its stranglehold since the transition, the culmination of which was the impeachment and removal of the Governor.
The 1999 Constitution has altered the wording in its corresponding Section 315(2), which empowers the President (or the Governor of a State) to make by order "such modifications in the text of any existing law as (he) considers necessary or expedient to bring that law into conformity with the provisions of this Constitution" (emphasis supplied). The change in wording from "changes" in Section 274(2) of the 1979 Constitution to "modifications" in Section 315(2) of the 1999 Constitution has serious consequences. It imports into the provision in Section 315(2) the definition of "modifications" in Section 315(4)(c), thereby enabling the President (or Governor) to make changes of substance in all laws existing on May 29, 1999 by "addition", alteration, omission or repeal" as he considers necessary or expedient to bring them into conformity with the provisions of the Constitution. It invests him with the power of substantive legislation derived, not from delegation by the National Assembly, but directly from the Constitution.
In effect therefore, the change of just one word, from "changes" to "modifications", has, perhaps without intending it, subverted the exclusiveness of the National Assembly's power to "make laws for the peace, order and good government of the Federation" (Section 4(2), an exclusiveness, which the separation of powers contemplates and affirmatively requires. This is particularly the case because, although Section 315 appears in a Part of the Constitution headed, "Transitional Provisions," no date is fixed on which the power is to cease to be exercisable. On the contrary, it is, by the express terms of Section 315(2), exercisable "at any time;" it is thus a continuing power, unlimited as to time and covering the entire body of existing laws. Its duration was limited to six months by the 1960 Constitution and three years by the 1963 Constitution.
The President would have been acting like a true constitutionalist and in the true spirit of the separation of powers underlying the Nigerian Constitution, if he restricted his power of adaptive legislation under Section 315(2) to purely verbal or textual changes in existing laws. Regrettably, not being a true constitutionalist, he has not done so, as is shown by his recent Executive Order.
A looming fresh confrontation between the President and National Assembly on account of the Modification Order
Understandably, the Modification Order made by the President has excited hostile reaction from the National Assembly. The newspapers have reported the Chairman of the House Committee on Information, Hon. Farouk Lawan, speaking on behalf of the House of Representatives, as having denounced the Modification Order as a usurpation of the legislative power vested in the National Assembly by the Constitution. The Order is indeed, manifestly, a usurpation. It goes far beyond what could possibly be predicated on Section 315(2) of the Constitution.
Even with the use of the word "modifications" in the 1999 Constitution in place of "changes" in the 1979 one, Section 315(2) authorises only such "modification," whether by way of "addition, alteration, omission or repeal" or other form of amendment, as may be "necessary or expedient to bring that law into conformity with the provisions of this Constitution." According to the definition in the New Webster's Dictionary, to conform is to bring into correspondence, to comply with requirements. There is no provision of the Constitution that fixes the federal government's share of the money in the Federation Account as 56 per cent or any other percentage for that matter. The Constitution only provides in Section 162(3) that "any amount standing to the credit of the Federation Account shall be distributed among the Federal and State Governments and the Local Government Councils in each State on such terms and in such manner as may be prescribed by the National Assembly." So what provision of the Constitution is the existing Revenue Allocation Law being modified to bring it into conformity with by the increase of the federal government's share of the money in the Federation Account from 48.5 to 56 per cent? Only the National Assembly can, in the exercise of its power under Section 162(3) above, decide how the 7.5 per cent "Special Funds" allocation is to be re-allocated.
The muddle of the loss of revenue suffered by the federal government as a result of the Supreme Court's nullification of the 7.5 per cent "Special Funds" allocation was entirely of the President's own making. He brought the suit in the Supreme Court - quite unnecessarily. He should not, in an attempt to get out of that muddle, plunge the country into a far worse muddle, such as the looming confrontation with the National Assembly on the matter portends to be. Being a palpable illegality, usurpation of legislative power by the President is not a permissible way out of the muddle. In this connection, the words of Justice Louis Brandeis of the U.S. Supreme Court, quoted and requoted by other Justices of the same court, must be constantly kept in mind. "The doctrine of the separation of powers," he said, "was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but by means of the inevitable friction incident to the distribution of the governmental power among three departments, to save the people from autocracy."
Feb 2003