The magnanimity of the presidency and the recent grant of two loans of $40 million to Ghana and $5 million to Sao Tome and Principe have formed the topic of discussion at numerous forums in the country in recent times. Many, whilst recognising the purport of the loans have questioned various aspects of the country's recent generosity. One of the key issues that have been raised in the course of discussions has been the legality of the grant of the loans. There has been criticism of the manner in which the presidency has undertaken these particular transactions. Many believe, with good reasons, that the presidency did not have the constitutional powers to grant the loan, however well intentioned it was. That position now appears to be confirmed by the Senate when, on 17 August 2004, it emerged from a sitting with the declaration that the offer of the loans to both countries was unconstitutional. It nevertheless went on to approve the loan. We believe that to avert a constitutional crisis, the approval of the Senate was inevitable because, as it was, the loans had already been accepted by the respective countries and the terms and conditions already agreed upon. In fact, it was quite apparent that the countries that were the beneficiaries of these loans had already begun to make their plans in accordance with the benefit that the loans would confirm them.
It appears that the Senate reached that conclusion following recommendation provided to it by some of its committees including those on the Foreign Affairs, Judiciary, Human rights and Legal matters. The report was presented to the Senate by the Foreign Affairs Committee chairman, Senator Jubril Aminu. Ostensibly, the Senate considered its position by reference to the powers conferred on it by the Constitution. The only power to disburse loans in this manner must be exercised in accordance with the provisions of the 1999 constitution. Section 164 (2) of the constitution expressly provides that the federation may make external grants to a foreign state or any international body in furtherance of the foreign policy objectives of Nigeria in such sum and subject to such terms and conditions as may be prescribed by the National Assembly. The provision clearly envisaged a process where the presidency would place before the National Assembly, an appropriate request that, we imagine, would set out the basis and rationale for seeking to make the said loan. Quite clearly, the process prescribed by the constitution was not followed. This, in itself, is an anomaly that ought to have raised serious question marks as to whether the country's obligation to meet that promise can or should be carried out at all. The omission by the presidency to follow this course of action in circumstances in which it may well have obtained the same result if the correct procedure had been followed, is to be deplored. It may well be that the Presidency had intended to circumvent the kind of unhelpful scrutiny and supervision which the National Assembly giving rise to delays and inaction which the National Assembly has sometimes been responsible for but the critical issue here is not whether the reasoning behind the granting of the loans was well founded. The issue of concern is that the disregard for the provisions of the constitution clearly offends the provisions of the constitution and will not endear the presidency to those who believe that its responsibility is to uphold the supremacy of the constitution as provided in section 1 of the same constitution. This action represents an unjustifiable act by the presidency to erode the powers of the National Assembly in circumstances where such right and discretion is exclusive to the National Assembly. This much has also been recognised by the Courts particularly in the observation of Brett, JSC in Attorney General of Eastern Region V Attorney General of the Federation [1964] SC231 and 232. There is no body or authority that has the authority to dictate to the National Assembly exactly how those powers ought to be exercised and indeed what materials it is to take into account when exercising this power or what sources of information it is to rely on. It remains their prerogative. The fact that it was not consulted at all in the first place, either formally or, as it seems, informally is conduct to be deprecated.
The view that the National Association of Seadogs ("NAS") holds is the main foreign policy objectives to be accomplished by the generosity of the presidency may be germane but due process must be followed. The commercial expediency of granting the loan is an entirely different matter particularly in the current economic climate where several as sectors of the economy are massively under funded in the circumstances that continue to prejudice the existence of the average Nigerian. It seems clear that the due diligence objectives which this Government has appeared to champion elsewhere have been, quite sadly ignored in this regard.
NAS views with some concern the exercise of executive powers in this manner. It is a very unhappy development that appears to have been handled by the Senate with some dignity, in the recognition that it probably could not adversely affect the implementation of that decision. All this type of action does is to further undermine the concept of separation of powers that government has persistently tried to lead Nigerians to believe actually exists. It erodes the confidence of the Nigerian in the democratic structures and undermines belief in the trueness of the institution of democracy in Nigeria. Genuine belief and confidence in the existence of these democratic structures would remain distant unless the executive actively refrains from this pattern of leadership. In truth, there is nothing to be gained by one arm of government undermining the other. All it does is leave the Nigerian with the view true democracy remains the virtue of dreams.
Signed:
ANDREW OBINNA ONYEARU
NAS Capone
National Association of Seadogs (NAS)
August 2004
