Presidency, NASS’ standoff on Oteh: Who does law side over budget impasse?

By STEPHEN UBIMAGO 

Oteh in the eye of the storm

The refusal by President Goodluck Jonathan to sign the appropriation bill into law, which had since been passed by the House of Representatives on December 20, last year, was reportedly founded on three grounds of dissent.  

Aside from the disagreement over the issue of oil benchmark, which the federal lawmakers had raised from $75 to $79 p.b., and the question of appropriation for constituency projects, resulting in the injection of an additional N63 billion to the N4.924 trillion originally proposed by the presidency, there was also the thorny issue of zero allocation for the Securities and Exchange Commission (SEC).

Whereas some compromise had ostensibly been achieved on the first two areas of disagreement, the problem of zero allocation to SEC has however, remained practically unresolved.

Recently, the House of Representatives gave the indication that as long as President Jonathan obdurately stuck to his guns of keeping Ms. Aruma Oteh as the director general of SEC, despite a resolution of the House to the contrary, so long will it maintain its position of zero allocation to the Commission.

A motion sponsored by the House’s Deputy Minority Whip Garba Datti, under Matters of Urgent Public Importance, had said this much. “The motion urging the removal of Ms. Arunma Oteh is hinged on the fact that her appointment as director-general of the SEC was a gross violation of the Commission’s Act as she does not possess the minimum professional qualification prescribed for appointment to that position,” the motion read. “Once again we urge Mr. President to implement the resolution of the hallowed chambers by removing Ms. Arunma  Oteh.”

This latest move against Oteh came barely 48 hours after the House received a request for an amendment to the 2013 budget from President Jonathan.

It will be recalled that the Ad Hoc Committee on the Investigation of Near Collapse of the Nigerian Capital Market, chaired by Hon. Ibrahim Tukur El-Sudi, for whom Hon. Herman Hembe was substituted as chair following Oteh’s bribery allegation against the latter, had last year passed a resolution urging President Jonathan to remove the SEC DG from office over incompetence. Her want of the statutorily prescribed professional qualification for the office formed the basis of the House’s contention that the woman was lacking in ability.

However, President Jonathan has remained unfazed, scarcely looking eager to show Oteh the way out; and not infrequently saying through his spokesperson Dr. Reuben Abati that the House resolution is merely advisory. In fact he has left no one in doubt of his displeasure over the House’s stance, declaring it’s frustrating the operations of SEC.

But the question to be asked is: ‘Has the president infracted any extant law in respect of its treatment of the House resolution concerning Oteh as only advisory?’ It is doubtful. Nor, on its part, does it seem the House has acted ultra vires for declining to make appropriation for SEC in the 2013 budget, irrespective of the pet object.

According to section 80 (3) of the 1999 Constitution (as amended) : “No moneys shall be withdrawn from any public fund of the Federation, other than the Consolidated Revenue Fund of the Federation, unless the issue of those moneys has been authorised by an Act of the National Assembly.”

Also driving home the point, s. 80 (4) states: “No moneys shall be withdrawn from the Consolidated Revenue Fund or any other public fund of the Federation, except in the manner prescribed by the National Assembly.”

From the above constitutional provisions, it goes without saying that no moneys may be appropriated for any purpose, which has not been so prescribed by the National Assembly in an Act of parliament.

Thus the federal lawmakers have the constitutional power to withhold funds for the operation of SEC.

To yet bolster the point, House Minority Leader Mr. Femi Gbajabiamila is said to have referred the president to Section 21 of the Fiscal Responsibility Act, which, according to him, empowers the National Assembly to appropriate funds to SEC. “The Act is very clear on this. It clearly says that the minister (finance) shall present the budget of SEC for appropriation by the National Assembly,” he stated.

According to the said s. 21 subsections (2) and (3) of the Fiscal Responsibility Act: 

(2) “Each of the bodies (SEC inclusive) referred to in subsection (1) of this section shall submit to the Minister not later than the end of August in each financial year: (a) An annual budget derived from the estimates submitted in pursuance of subsection (1) of this section; and (b) Projected operating surplus which shall be prepared in line with acceptable accounting practices.

(3) “The Minister shall cause the estimates submitted in pursuance of subsection (2) of this section to be attached as part of the Appropriation Bill to be submitted to the National Assembly.”

Arising from the above is an affirmation of the point that no appropriation of moneys, within any fiscal year, for the operations of any government agency as identified in the schedule to s.21 of the Act (referred to as “the Corporations”)  can be done devoid of the authorization of the National Assembly.

While the federal legislators, following their probe of the capital market, seemed to have zeroed on Oteh as the major problem, or rather a critical part of the problem, in the light of her alleged incompetence or lack of professional qualification as statutorily prescribed; the presidency seems to be saying, ‘the Investment and Securities Act (ISA), which grants it power to hire and fire the SEC director-general, provides for the warranting conditions and the rules as to how the SEC DG may be removed from office.

While s. 3 (1)(b) of the ISA provides for the Commission a Board to be comprised, among others, of the director-general as chief executive and accounting officer; s. 8 (1) provides that: “A member of the Board shall cease to hold office if he (a) becomes of unsound mind; (b) becomes bankrupt or makes a compromise with creditors; (c) is convicted of a felony or any offence involving dishonesty; (d) is guilty of serious misconduct in relation to his duties; or (e) is a person who has a professional qualification, and is disqualified or suspended (other than at his own request) from practicing his profession in any part of Nigeria by the order of any competent authority made in respect of him personally.”

From the foregoing provisions, it may safely be submitted that the question of “competence or professional qualification pursuant to s. 3(2) (a) of the ISA” does not prima facie feature among the conditions that could warrant dangling the guillotine over the neck of a SEC DG.

Besides, it is provided in s. 8 (2) ISA that “The President may at any time and upon the recommendation of the Minister remove a person to whom subsection (1) of this section applies: Provided no full time member of the Board of the Commission shall be removed from office without the approval of the Senate.”

A literal statutory construction of the foregoing provision is to the effect that, one, only the minister of finance, not the National Assembly, has the statutory power to recommend the removal of the Commission’s director-general.

Two, the only power statutorily granted the National Assembly in respect of a director-general’s removal is that of assent or approval or endorsement. In other words, unless and until the parliament approves the removal of a SEC DG, his/her removal cannot be perfected.

However, the argument has also been canvassed that the “and,” which appears in the phrase in s. 8 (2) to wit, “The president may at any time ‘AND’ upon the recommendation of the Minister remove...,” may indeed be construed as a disjunction, that is, an “AND/OR,” and not just a conjunction, that is simply “AND.”

In other words, the proper construction of the provision furnishes us two interpretative possibilities.

1. Either “The President may at any time remove the DG...;” or

2. “The President may at any time remove the DG upon the recommendation of the minister of finance...”

While the implication flowing from the second arm of the disjunction has been dealt with in the preceding analysis; it does seem that the plausible construction that may be afforded the second arm of the disjunction is that the president, without recourse to ministerial recommendation, may suo motu take action against a SEC DG if he’s satisfied that by virtue of the provisions of s. 8 (1), he/she is good for disengagement.

Head or tail, therefore, the National Assembly is in no place within the perimeters of the ISA to recommend to the president the sack of Arunma Oteh. It can only act when or after the job (of sacking) has been done by way of giving or staying assent.

However, the construction of s.8 (2) so as to pass as a disjunction, which, under its first arm, empowers the president to act suo motu pursuant to s.8 (1), can also mean he is at liberty to take non-obligatory advice from any quarter, including the National Assembly.

Nevertheless, members of the House may be right as it is a question of fact and not of law that based on parameters as provided in s. 3(2) (a) of the ISA, Ms. Oteh was at no time qualified for the office of SEC’s director general.

According to the said s. 3(2)(a), a candidate for the post of SEC’s DG must, aside from possessing a university degree, boast not less than 15 years cognate experience in capital market operations, a statutory qualification Oteh obviously lacks.

But such sudden discovery of the true state of affairs is apparently tendentious as it is belated, a crying over spilt milk.

It is a fact that Oteh was, on the floor of the National Assembly, cleared, being found fit and proper to assume the post of SEC’s DG when in 2010 late President Umaru Musa Yar’Adua, pursuant to s. 5(1), put her up for confirmation before the Senate.

Interestingly, the same parliament that had once found her fit and properly, having done its due diligence, would turn around to impugn her qualification.

The charge may therefore be apt that the lawmakers are at once approbating and reprobating over the competence of Oteh. And if the doctrine of estoppel is anything to go by, the parliament should be deemed estopped from further parading the woman as unfit having once confirmed her as competent by way of her clearance on its floor.

Clearly, whereas parliament has no power to recommend the sack of Oteh, it does obviously have the constitutional power to withhold budgetary allocation to Oteh’s SEC. The goal of using the move to muscle the president to sack her is by the way.

Nonetheless it is expected that in the exercise of their statutory powers, public officers in the country must act bona fide, judiciously and judicially, as any further delay in passing the appropriation bill into law may further hurt the national economy adversely.

    

Amnesty for Boko Haram? Legal bellyache of a call

Pastor Ayo Oritshejafor, president of the Christian Association of Nigeria (CAN), and Alhaji Sa'ad Abubakar III, Sultan of Sokoto. leader of Nigerian Muslims

By STEPHEN UBIMAGO

The recent call by the Sultan of Sokoto and president-general of the Nigerian Supreme Council for Islamic Affairs, Alhaji Muhammad Sa’ad Abubakar III, that President Goodluck Jonathan should grant “total amnesty” to the dreaded Islamist terror group Boko Haram, which purportedly has, in the last three years, been responsible for the death of over 4000 Nigerians in the north, has indeed stirred the hornet’s nest.

Apart from members of the Christian community, who have roundly lashed out at the Sultan for what they’ve described as an insensitive call considering the otherwise sustained onslaught of the group that has left thousands of Christians maimed and killed; others says the call is ill-conceived as it is no more than yielding to the blackmail strategy of the extremist cult.

However, there are those who have extolled the Sultan for the call, saying it is courageous and presents a veritably alternative to the gunboat measure, which the government has hitherto been pursuing since its deployment of the Joint Military Task Force (JTF) to smother the many flashpoints strewn across the troubled region, especially in parts of the north-east, Borno State being Boko Haram’s operational capital.

Very representative of arguments opposed to the Sultan’s are those recently canvassed by members of the Christian prelature through the Christian Association of Nigeria (CAN).

In a statement made available to newsmen and signed by its general secretary, Dr. Musa Asake, CAN said it was puzzled by the statement credited to the Sultan that the Islamist militant group, Boko Haram, should be granted “total amnesty” for the sake of peace in Nigeria, since, according to him, “the bottom line of the problem facing us has been injustice meted out to people who are not supposed to.”

“We wonder what the Sultan meant by injustice in relation to the activities of Boko Haram sect when members of the group are a bunch of fundamentalists who have killed, maimed, deformed Christians and made orphans and widows of otherwise peaceful and lovely families,” CAN declared.

“The Sultan should be told that we have since found out that the attacks are primarily targeted at Christians and their Churches. Who then is suffering injustice? Who needs justice? Christians or those killing and bombing Churches?”

President Jonathan has however said his government is willing to grant amnesty and enter dialogue, but not with a faceless group.

“Boko Haram is still operating as a ghost and federal government will not negotiate or grant amnesty to any faceless groups or individual,” he stressed, while recently speaking in Damaturu, the Yobe State capital, during an interactive session with the people as part of his one-day official visit to the state.

Aside from the supposed strategic significance of the move as advanced by protagonists of amnesty-for-Boko Haram, yet another argument to bolster the call is the one credited to the director of Muslims Rights Concerns (MURIC) Prof. Ishaq Akintola.

Short of charging that failure to grant amnesty to the outlawed group is tantamount to double standards, Akintola noted ironically, “We are willing to grant amnesty in one case but determined to 'crush' with military might in another,” adding therefore that the terrorist group should be granted the type of amnesty, which the Federal Government then headed by a Muslim, declared for the Niger Delta militants.

Ostensibly, at the heart of arguments is the question of ‘policy precedent’ to wit, ‘Amnesty was granted insurgents in the Niger Delta. A pattern therefore has been established for addressing insurgency of all hue in the country; hence the militants currently operating in the north are equally as good for similar amnesty gesture.’

“Precedents work like fire,” notes Abuja-based lawyer Garba Irunoje in an informal chat with our correspondent. “Indeed the entire superstructure of Nigeria’s judicature or hierarchy of courts is grounded on the doctrine of precedent. This is the DNA our legal systems acquired from the English Common Law system, being an offspring.”

In Nigeria, Judicial precedents or stare decisis works as to constitute an authority, a legal principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts.

In OSAKUE v. FEDERAL COLLEGE OF EDUCATION (TECHNICAL) ASABA (2010) 10 NWLR (Pt.1201) 1 at 34, the Nigerian Supreme Court per Ogbuagu (J. S. C.) defined stare decisis thus: “Stare decisis means to abide by the former precedents where the same points came again in litigation. It presupposes that the law has been solemnly declared and determined in the former case. It does preclude the judges of the subordinate courts from changing what has been determined. Thus under the doctrine of stare decisis, lower courts, are bound by the theory of precedent.”

Pertinent to note also is that statutes form only a part of the sources of law in Nigeria. However, statues over which there have been no judicial pronouncements or interpretation are nearly meaningless. These pronouncements deriving from courts’ application of established judicial principles and interpretation of statutes constitute Nigeria’s organic system of Case Law.

They are laws in the sense that they are of binding effect down the courts hierarchy, arising from the doctrine of judicial precedent or stare decisis, the words originating from the Latin maxim Stare decisis et non quieta movere: “To stand by decisions and not disturb the undisturbed.”

The point to be made from the foregoing is that although the Nigerian legal system is oiled by the doctrine of precedents, its application, however, is by no means haphazard. They are only “binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts.”

It has thus been argued that since the facts pattern of the Boko Haram insurgency is not on all fours with the facts of the case in the Niger Delta insurgency, it misses the point to apply the same amnesty measure to the former.

The distinctions are limpid: There were definite causes, which the militants in the Delta claimed they were fighting for, and which held a semblance of value that arguably could be universally appreciated. They claimed they were pushing for “Resource Control,” “True Federalism,” and “Economic Emancipation” for the teeming unemployed youths of the oil-rich region; and were opposed to “Environmental Degradation” owing to crude oil exploitation.

Their modus was essentially to inflict economic sabotage on the nation. They claimed a determination to paralyse the Nigerian economy by destroying crude mining platforms and distribution infrastructure, which criss-crossed the region; as well as abduct expatriate oil workers employed by the multinational oil companies, who reportedly were responsible for the degradation of the environment without paying adequate compensation to their host communities.

That the so-called noble cause for which the militants in the Niger Delta fought was hijacked and skewed by some criminal elements is however beyond contention, yet their leadership were neither faceless nor unidentifiable as the likes of Asari Dokubo, Henry Okah, Boy Loaf, among others were household names.

The foregoing facts, however, can hardly be said to parallel patterns established in the case of Boko Haram, which transliteration reads ‘Western education is forbidden.

Following past bombing onslaughts, spokespersons of the violent sect had gone on to urge President Goodluck Jonathan to convert to Islam otherwise the blood-spilling will continue.

In not paying regards to the Constitution, which under s. 10 declares Nigeria as a secular state, or even s. 38 that guarantees the fundamental right to freedom of conscience and religion for every Nigerian, the group ostensibly aims to levy a revolution on the country, contrary to s.37 of the Criminal Code and s.1 of the Terrorism Prevention Act, 2011.

For whatever its worth, the sect pursues its aim with a blood-curdling, murderous streak. Scores of churches have been torched in bombing expeditions as thousands of Christian faithful were maimed and killed by the sect members. Security operatives were also killed; foreigners were abducted and butchered; schools were invaded and innocent students were mauled in their campuses; members of the clergy and heads of traditional institutions opposed to their style were brought into their fire line.

In short, the sect appears single-mindedly pursuing a nihilist campaign!

It will be recalled that the amnesty granted the militants in the Niger Delta did not come without conditions. Neither was it ever solicited from any quartre. The regime of President Umar Musa Yar’Adua, of its free volition in a strategic move, presented it as both a palliative and an instrument for negotiating peace. This sharply contrasts with the case of Boko Haram, which in a seeming presumptuous gambit had blatantly demanded that government should grant them amnesty even while still actively bellicose.

Implied in their demand is that their heinous crimes against humanity should be deemed forgotten and forgiven just like that, as though they never occurred – an apparent attempt to force the government and Nigerians, directly and intermediately offended by their deadly acts of terror, into amnesia or denial.

It will however be recalled that Yar’Adua, following the ponderous air, land and naval bombardment he ordered against Gbaramatu Kingdom in Delta State in 2009 that left the community in smithereens, had called on the insurgents in the then troubled region to come forward and lay down their arms in places across the region earmarked by the government for the purpose.

Upon their positive response to the call, the government promised to extend amnesty and rehabilitate them. A time ceiling was imposed for compliance, after which expiration the gesture was to be withdrawn. As would be obsereved in the case of the Niger Delta, it was the Yar’Adua government that called the shots and tabled the terms of engagement. Not the other way round.

In Boko Haram’s case, however, it appears the latter is the party dictating the terms, imposing a venue like Saudi Arabia as their preferred location for talks, with the northern leadership amplifying their predilections.

Against the backdrop of the foregoing, then, the divergent nature of the facts pattern in the two cases has tended to cast aspersion on the propriety of applying the amnesty measure to Boko Haram.

“People are always citing the example of the militants in the Niger Delta. It wouldn’t solve any problem,” says Chief Gani Adetola-Kaseem, a Senior Advocate of Nigeria (SAN), in a chat with us. “If you grant amnesty to Boko Haram, other insurgents will rise up either in that same zone or in other parts of the country, and you cannot say ‘no’ to another group.”

Others have argued that rather than any so-called amnesty, proper criminal trial should commence immediately against members of the group who have been caught and in security custody, since judicial proceeding in a competent court has a way of unearthing otherwise hidden facts. And this could go a long way in unraveling the sect.

Speaking in this regard in an exclusive chat with us, Chief Bolaji Ayorinde (SAN) said, “When the most heinous of crimes is put to a proper trial in a competent court, the society ultimately benefits. And you will find out that at the end of the day the society will be better for it. We can even prevent the re-occurrence of the criminal act, because there has been a proper trial.

“A good example is the unfortunate case of Clifford Orji, who we were informed at the time, while in prison custody, never went through trial. With a full trial, there could have been revelation as to how he got into the alleged crime. There were rumours as to him having “sponsors.” All that could have been established if there had been a proper trial.”