Claims of president’s dictatorship and the nature of presidential powers under the 1999 Constitution

The recent political climate has witnessed claims on one side that the President is a dictator. This opinion appears to be championed by the former President Obasanjo. The President’s supporters, however, debunk the allegation and contend that the President has been to a large extent tolerant. He is also said to be exercising his powers in line with the provisions of the Constitution. Against this backdrop, this piece is intended to make an expository analysis of the nature of presidential powers under the Constitution.

Undoubtedly, section 5 of the 1999 Constitution vests executive power of the Federation in the President. This implies that the President is the original owner of the executive power. He may exercise the powers either directly or through the Vice-President, or Ministers or Public Officers in the service of the government of the Federation. Precise delineation of executive power is not that easy. Opinions are sharply divided on this. While it is contended on one hand that vesting executive power in the President is just an amplification of to the title ‘Chief Executive’. So, whatever is not expressly granted in the Constitution or a Statute cannot be fairly attributed to be within the President’s executive power. For instance, after vesting executive power in the President, the United States’ Constitution grants specific powers to the President i.e. power to reprieve offences, supreme commander of the army and so on. However, the other opinion is that the vesting clause implies ‘a grant of all the executive powers of which the government is capable of’. These divisions can be seen in the US cases of Myers v. United States 272 US 52 at 229-30; Youngstown Sheet v & Tube Co. v. Sawyer 343 US579 at 640. It can be said clearly that the vesting clause is a grant of all executive powers except as limited by the Constitution.

The second leg of the section of the Nigerian Constitution makes further amplification on the nature of the President’s executive power.  These are the execution of the laws made by the National Assembly and execution and maintenance of the Constitution. Executing the laws made by the National Assembly shows that the President largely derives its power from the laws made by the National Assembly. Truly, laws need to be executed before it can work. Otherwise, it will remain in the statutes books. For instance, University of Ilorin Act was executed by building of structures in the University, the appointment of Vice-Chancellors and Principal Officers of the University, recruitment of staff and admissions of students into the University and so on. All these are executive actions which are within the prerogative of the President. Once the law is enacted, the President has constitutional powers to execute such laws even without an express grant of such powers by the statute. This is because the Constitution has granted the President the power to execute all laws of the National Assembly.

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The other power of the President i.e. execution and maintenance of the Constitution deserves some amplifications because this is the main presidential power. Undefined remarkable powers can be derived from this clause. This makes Nigeria’s President even more powerful than his American counterpart. The US President could not even claim the power of Maintaining the Constitution (as different from executing it), which is not in the US Constitution, through his oath office which is to preserve, protect and defend the Constitution. Thus, the clause ‘execution and maintenance of the Constitution’ has imposed certain key duties on the President. These duties are: (a) duty to execute governmental business in all its ramifications; (b) duty to protect instrumentalities of government and its property; and (c) duty to preserve the government and the nation.

(a) Duty to execute governmental business in all its ramifications: This can be examined from the government’s duty to realise planned and balanced economic development, harness the nation’s resources for common good, not to concentrate the nation’s wealth in the hands of few individuals, provide adequate food, shelter, reasonable minimum wage, sick benefits, old age care, (section 16 of the Constitution) and ensure the security and general welfare of the people (section 14(2)(b) of the Constitution). This duty also includes the power to establish ministries, and departments (section 147 of the Constitution), direct and control the use of police force (sections 214-215); suppress insurrection using the army (section 217), conduct international relations on behalf of the nation (section 12), appoint and remove ministers and heads of agencies and departments (section 171), manage the country’s funds (section 80-85), and so on.

(b) Duty to protect the instrumentality of government and its property: This implies the power to protect government’ properties and those who run government. Orderlies or legal bodyguards can be provided for the president, the members of the legislature and judges as instrumentalities of government. This can be done without express authorisation by legislations. This is part of the execution of the government. In the US case of Cunningham v Neagle, 135 US 1 at 83, a bodyguard assigned to a judge killed a litigant who wanted to kill the judge he was protecting. It was argued that no law as at then permitted the President to assign a bodyguard to a judge. The US Supreme Court held that this is part of the President’s power to execute the Constitution by protecting the property and instrumentalities of government.

(c) Duty to preserve the government and the nation: Every sovereign state has a paramount duty to preserve the government and the nation. In fact, in the US case of Chae Chan Ping v. United States 130 US 581, it was held that all sovereign states must preserve its independence and secure the nation against foreign aggression and encroachment. In the view of the US Supreme Court, “this is the highest duty of every nation, and to attain these ends, nearly all other considerations are to be subordinated.” This is why the President is empowered to declare a state of emergency subject to the approval of the National Assembly under section 305 of the 1999 Constitution. He is also permitted to use ‘extra-ordinary measures’ to either avert any public danger which constitutes a threat to the existence of the Federation or to restore peace and security in the Federation or any part thereof. In doing this, he may interfere with or restrict certain fundamental rights (though not all, see section 45 of the Constitution).

The question is why is the President vested with these wide powers? Can’t these excessive powers lead to dictatorship? Well, these seem not to be the concerns of the counter-majoritarian who believe that power belongs to the people. And as such, it must be exercised by the people through their elected representatives, not the unelected judges. It is believed that the President is directly elected by the majority of the people and will be accountable to them on his stewardship periodically especially during elections. He is thus exercising executive power on behalf of the people. This is why the section 134 of the 1999 Constitution stipulates that a person shall not be deemed to be elected as the President of Nigeria unless he not only has majority of votes cast at the elections, he also has not less than one-quarter of the votes cast at the election in at least two-thirds of all the states in the Federation and the Federal Capital Territory.  That explains the vesting of these executive powers in the President.

More so, many people do not know that it is only the offices of the President, Vice-President, Governor and Deputy Governor that the occupants are required to be citizens of Nigeria by birth (sections 131(a), 177(a), 142(2),187(2)). President of the Senate, Speaker of the House of Representatives, are not required to be citizens of Nigeria by birth. In fact, legislative members generally need not be citizens of Nigeria by birth (sections 65(1)(a), 106(1)(a)). They could be citizens of Nigeria by Registration or Naturalization (sections 26, 27 of the Constitution) subject to the caveat under section 307 of the Constitution. Even judges are not required to be citizens of Nigeria by birth (sections 231, 238, 250,254B, 256, 261, 266, 271, 276 and 281). All these justify the vesting of executive powers in the President.

 

From the foregoing analysis, it can be said that the nature of presidential powers under the Constitution makes Nigeria’s president very powerful; even more than his counterpart in the United States. Although he needs to exercise his executive powers subject to the provisions of the Constitution and the law, the Constitution has nevertheless clearly vested enormous powers in the President. Apart from the general executive power granted to him, the Constitution also confers on the President the power to execute the laws made by the National Assembly and the power to maintain and execute the Constitution. Maintenance and execution of the constitution, therefore, imposes some other powers or duties on the president. This includes duty to execute governmental business in all its ramifications; duty to protect instrumentalities of government and its property; and duty to preserve the government and the nation. Sometimes, he can exercise executive powers not expressly granted in the Constitution or legislation so long as the exercise of such powers is not inconsistent with the constitution and it is necessary for the purpose of exercising his power to maintain and execute the Constitution. The reason for this is mainly because the President is believed to be elected by the majority of the people of Nigeria. He will also render the account of his stewardship periodically to the people usually during elections. The people who are the original owners of the power may thus withdraw the power from a recalcitrant president or give him another mandate if he is believed to have fairly exercised the power on behalf of the people.

 

A.O. Sambo is a lecturer in the faculty of Law,  University of Ilorin.