Lured Into Breach by Circumstances

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President Muhammadu Buhari’s recent anticipatory approval of $496 million for the procurement of 12 Super Tucano aircraft from the United States government without legislative approval has generated serious concerns, writes Abimbola Akosile

Some weeks back, when news filtered in that President Muhammadu Buhari had ordered the withdrawal of $1 billion from the Excess Crude Account (ECA) for the procurement of arms to fight insurgency in the North-east part of the country, the presidency had quickly come out to deny it, noting that the president would not do any such thing until he had obtained the approval of the National Assembly.

Interestingly, days ago, the president by his own writing, admitted to granting “anticipatory approval” to the tune of $496 million for the procurement of 12 Super Tucano aircraft from the United States government without legislative appropriation, an action that breached provisions of section 80 (3) & (4) the 1999 Constitution as altered, which forbids withdrawal of funds from the Consolidated Revenue Fund without legislative authorisation. The payment was done almost two months ago.

Buhari’s reasons for this breach are in two parts. First, he cited the need to meet the deadline given by the US government for the aircraft order. His other reason was that he was seeking the inclusion of the amount in the 2018 Appropriation Bill that the National Assembly was yet to finalise and the expectation that the parliament would not object to it.

In his letter addressed to the Speaker of the House of Representatives and obtained exclusively by THISDAY, the president said, “It would be recalled that, for a number of years, Nigeria had been in discussions with the United States Government for the purchase of Super Tucano Aircraft under a direct Government-to-Government arrangement. Recently, approval was finally granted by the United States Government, but with a deadline within which part payment must be made otherwise, the contract would lapse.

“In the expectation that the National Assembly would have no objection to the purchase of this highly specialised aircraft, which is critical to national security, I granted anticipatory approval for the release of US$496,374,470.00. This was paid directly to the treasury of the United States Government.

“I am therefore seeking approval of this House for the sum of US$496,374,470.00 (equivalent to N151,394,421,335.00) to be included in the 2018 Appropriation Bill, which the National Assembly is currently finalising. The balance of the requirements for critical operational equipment is still being collated from the different security services and will be presented in the form of a Supplementary Appropriation Bill, in due course.”

Naturally, the lawmakers in both chambers of the National Assembly considered the president’s action sheer indiscretion and are already gearing up to take on the Executive for what they call brazen disregard for the power of the legislature in the governance of the country.

In fact in both chambers, some members have called for the impeachment of the president for the perceived breach of the Constitution.
However, the Senate last Thursday referred the matter to its Committee on Judiciary for advise on whether indeed there had been a breach of the Constitution; if so, under what circumstances did the breach occur; whether the circumstances justified the breach; and what in the circumstances should be done by the legislature.

Not a few analysts thought Senate President Bukola Saraki in swaying the Senate away from a motion for the impeachment of the president for the breach of the Constitution, only wanted to buy time to allow temper to cool over the matter.

But whether temper would have cooled by Tuesday when the committee is expected to lay its report remains to be seen as the situation in the House of Representatives seems to be more emotive with virtually all the members that contributed to the debate last Wednesday threatening fire and brimstone.

Already summoned by the House to come and explain his concrete response to the unceasing carnage in the country, particularly in Benue, Plateau, Taraba and Zamfara States, the president would need his political team to put on their thinking cap to survive the coming weeks that are loaded with potential bile.

Analysts wonder how the president could have fallen into this grave breach of the constitution, asking what the urgency was in paying for a purchase that the government had been discussing with the US government since the administration of former President Goodluck Jonathan.

In any case, argued some critics, these products would not even get to the country before 2020, therefore, the excuse for deadline could be regarded as lame because if government was up to it itself, it had enough time to fulfil all requirements, including prevailing on the legislature for an expeditious approval before traveling the unconstitutional route.

The assumption that he was seeking the inclusion of the money in the 2018 Appropriation with the understanding that the parliament might not object, according to the critics, do not hold water since the president ought to have included the expenditure in 2018 Appropriation Bill, US Congress sale approval having been given in August last year. They contend that the president behaved naively in assuming that the legislature would give automatic approval to an extra-budgetary request that opposition parties and social critics already oppose on the grounds that it is meant to finance his 2019 presidential re-election campaigns.

“The question begging for genuine answers is, how the president allowed himself to be misled into such a gross but cheap constitutional trap, knowing full well that such is not the kind of money to be spent without appropriation, more so the kind of appropriation that transcends the confines of the National Assembly, because it is from the Excess Crude Account and would demand the consent of state assemblies too,” asked one unanimous analyst.