Opinions

Of $496M Tucano aircraft, doctrine of necessity

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7 years ago

It must be stated from the outset that the “Doctrine of Necessity” is not expressly contained in the 1999 constitution of the Federal Republic of Nigeria, as amended. It derives its origin from the writings of medieval jurists such as Henry De Bracton and to some extent, Ivor Jennings. The doctrine is rarely used because of the despotic nature of some leaders who may want to hide behind it to violate their country’s constitution such as the one we have at hand in Nigeria; wherein President Muhammadu Buhari spent a whopping sum of $496 Million of Nigerians funds not appropriated for and without recourse to the National Assembly. The Doctrine of Necessity is the basis on which extra legal actions by state actors, which are designed to restore order, are found to be constitutional.” This universal definition of the doctrine is hinged on Bracton’s maxim which says that which is not otherwise lawful is made lawful by necessity.” The significant feature of doctrine of necessity is the tactical and well reasoned circumvention of the constitution or some aspects of the rule of law in order to get out of political quagmire; especially to satisfy the exigencies created by certain circumstances outside the contemplation of the constitution or the rule of law.

The Bracton maxim was substantially used in the 1954 judgment in which the Pakistani Chief Justice, Mohammed Minur validated the extra constitutional use of emergency powers by Governor-General of Pakistan, Ghulam Muhammad who on October 24, 1953 dissolved the Constituent Assembly and appointed new Council Ministers on the grounds that existing one no longer represent the people of Pakistan. The nucleus of the legal battle was whether or not the Governor-General had the powers to dissolve the Assembly, after his objection to the country’s constitution which the ousted Assembly was about to adopt. The lesson here is that the case bothers on illegality and deliberate attempt to adopt a constitution that does not represent the interest of the Pakistani People. This has no bearing with spending of funds not approved in a budget without recourse to the National Assembly. Another classical case in which the doctrine of necessity was invoked happened in Grenada in 1985, wherein the High Court of Grenada validated the legal existence of a Court then trying for murder the persons who had conducted a Coup against former leader, Maurice Bishop. A rare case indeed and cannot be compared to Buhari’s negligence and/or out right disregard for separation of powers.

Back home in Nigeria, the doctrine of necessity was applied for the very first time on 9th February, 2010 wherein the joint session of the National Assembly passed a resolution making Vice President Goodluck Jonathan, the Acting President and Commander-in-Chief of the Armed Forces of the Federal Republic of Nigeria. The decision of the National Assembly was applauded by Nigerians because of the ample evidence that Section 145 of the 1999 Constitution, as amended, was not about to be violated. The then president, Alhaji Umaru Yar’Adua, who for 78 days had been in Saudi Arabia for medical treatment, had refused to formally empower the vice president to exercise powers as Acting President. From the examples cited above, it can be safely asserted that the doctrine of necessity is not and can never be a cheap tool which state actors can arbitrarily and/or arrogantly invoke to oil their political egos and/or display their large appetite for totalitarianism.

President Buhari may invoke the doctrine on the grounds that all efforts made to ensure that the National Assembly approves the $496 million so as to meet the deadline imposed by American government, failed to yielded deserved result. But this was never the case. The National Assembly was deliberately ignored only to ask the same Assembly to insert money already spent into a bill. As rightly opined by the Senate President, Bukola Saraki during plenary, there was sufficient time for President Buhari through his Senior Special Assistant on National Assembly Matters to deliver the letter requesting for the urgent approval of the money in question before it was illegally spent. The distance between the National Assembly and the Presidency cum Aso Rock Villa is less than 45 minutes, traffic inclusive. Police escorts from the Presidency will make the journey even faster. But Mr President deemed it fit to ignore the National Assembly in this matter. Buhari Must be told that “he who goes to equity must come with clean hands.” His action and inaction amounts to reckless breach of the 1999 constitution and must resign or be removed. From September to February is exactly six months, a period more than enough for the National Assembly to deal with such emergency situation considering the fact that insecurity has become the major problem bedevilling the nation. But alas, Buhari deliberately refused to involve the federal lawmakers.

The learned silk, Festus Keyamo, is one of the best brains not only at the Bar but in dealing with national issues and more importantly his roles in nation building. He had solid legal mentorship from one of the best legal luminaries, Chief Gani Fawehimi of blessed memory. Not only did Keyamo earn accolades from Nigerians in time past due to his proactive roles in human rights activism, he fought for the enthronement of democracy in Nigeria. But strangely, partisan politics that is about to strip the SAN of his hard earned integrity. Keyamo must be told that the Buhari administration has failed Nigerians woefully. For Keyamo to face television cameras in bright jackets to cajole Nigerians, trying to do the job Alhaji Lai Mohammed is avoiding, is to say the least very sad and unfortunate for an inner bar member of his status. The doctrine of necessity that was allegedly invoked by President Buhari as presented by Keyamo constitutes a disservice on his part to the people of Nigeria; a deliberate attempt for a Senior Advocate of Nigeria to aid the executive arm of government in violating the 1999 Constitution. Keyamo is aware that President Buhari can only invoke the doctrine of necessity as a state actor after all genuine efforts made by the executive arm of government failed to yield the desired results.