Olanipekun Urges Caution over Calls for Buhari’s Impeachment

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Says executive, legislature should take governance more seriously and stop toying with Nigeria’s present, future

Tobi Soniyi, Abimbola Akosile and Akinwale Akintunde

Former President of the Nigerian Bar Association (NBA), Chief Wole Olanipekun SAN, saturday counselled the National Assembly against impeaching President Muhammadu Buhari for authorising the withdrawal of $496 million from the Excess Crude Account without approval of the legislature. Olanipekun said the move would be inappropriate at this time, given “the current critical period of deep security crisis” that the nation had found itself in.

Olanipekun gave the advice in an email response to THISDAY enquiries yesterday, just as the Socio Economic Rights and Accountability Project (SERAP), a civil rights organisation, and two other senior advocates, Festus Keyamo and Mike Ozekhome, offered divergent views on the import of the legislature’s angst over the extra-budgetary expenditure by the executive.

The president had in separate letters to the two chambers of the National Assembly, penultimate week, sought approval for the $496 million paid to the United States government for the purchase of 12 Super Tucano military aircraft without appropriation. But the federal legislators took offence, accusing the president of spending such a huge sum without appropriation, and proposed to kick-start impeachment proceedings against him for perceived breach of the 1999 Constitution, as altered.

The Senate and the House of Representatives have, however, referred the matter to their committees on Judiciary, and Rules and Business, respectively, for advice on the way forward.

Olanipekun, in his response to THISDAY enquiry, noted that the proper thing would have been for the executive to seek legislative approval in the form of a supplementary budget for a specific vote for the purchase of the Tucano fighter jets from the United States. However, the lawyer noted that it was not every constitutional breach that should lead to impeachment or provoke threats of impeachment. He said the impeachment power donated to the National Assembly by section 143 of the constitution should not be used as a sword but rather appreciated and utilised as one of the key elements of checks and balances between the three arms of government.

Apparently admitting that there had been an infraction of the constitution, Olanipekun said, “Section 59 of the constitution gives and provides elaborate procedures through which the National Assembly can perform its legislative functions, including passage of money bills, whether in the main or supplementary budgets. It is after the bill so passed has been signed and become law that any fund from the consolidated fund can be spent, and not before. The proper thing would have been for the executive to seek legislative approval in form of a supplementary budget for a specific vote for the purchase of the aircraft.”

But he cautioned against wielding the big stick, saying, “While one is not encouraging impunity or continuation of it, we must bear in mind that while the impeachment provision is legal and constitutional, impeaching the president at this critical point when the country is in deep security crisis can neither be prudent nor expedient.”

Olanipekun admonished the executive and legislature to take governance more seriously and stop toying with the present and future of Nigeria, pointing out that the duty of government is to protect the lives and property of the citizens.

He said, “In Nigeria of today, life has become so cheap and brutish, as we see and hear of hundreds of Nigerians being slaughtered on daily basis, and government isn’t doing much to halt this gradual descent to a state of anomie. TS Eliot, the renowned poet, would appear to have us in mind when he composed that epic poem titled Murder in the Cathedral, depicting the murder of Archbishop Thomas Becker in Canterbury Cathedral in the dark age of 1770.”

Urging restraint and reacting to the incessant killings by suspected herdsmen, Olanipekun said, “I will seriously counsel against the impeachment of the president, while I will urge the president to take decisive actions on the massive killings going on in Nigeria. The National Assembly has the power to invite the president to come and address it on the security situation in the country, and I don’t see anything wrong in the invitation already extended to the president in this regard.”

Expressing similar views, the Executive Director of the Socio Economic Rights and Accountability Project, Mr. Adetokunbo Mumuni, said he thought that government would have been more preoccupied with formulating and implementing policies that would positively impact the lives of the people.

“I don’t know whether we can probably say that the priority of Nigeria now is the buying of helicopter. There are a number of monumental things to do with the money that will impact on the lives of the ordinary Nigerians. Those are the types of expenses that I support,” he said.

Recognising the legislature’s power of appropriation, Mumuni said it would be inappropriate for the executive to spend public funds without appropriation, explaining that could amount to a breach of the constitution, which could not be overlooked in a democracy.

But the Director of Communications of the Muhammadu Buhari Campaign Organisation, Mr. Festus Keyamo SAN, in an interview with THISDAY, defended the extra–budgetary expenditure, saying it is excusable under what he called the doctrine of necessity.

Mumuni said: “The president acted under what we call the doctrine of necessity. In law, there is a doctrine called the doctrine of necessity. The doctrine has wide implication. Some of my colleagues have interpreted it in a narrow sense.

“The doctrine of necessity applies when state actors take decisions that may not be totally in tune with the constitution and those decisions are designed to save the country as a whole, to save the entity known as the Federal Republic of Nigeria and to protect lives and property; those kinds of actions are covered by the doctrine of necessity.”

Keyamo Illustrated his position, “In 2010, the country was rudderless, there was no president because (Umaru) Yar’Adua had vanished, nobody heard from him and by the constitution he ought to have transmitted a letter to the National Assembly to enable Jonathan act as president. Jonathan could not function as acting president, they were forging Yar’Adua’s signature in Appropriation Bill; the country was almost collapsing.

“These same senators sat down and said, gentlemen, we need to put aside the constitution right now to save this country from collapsing. What did they do? They invoked the doctrine of necessity and made Jonathan the acting president. It was unconstitutional. There was no provision like that. They now have to regularise it by amending the constitution to say that if a president does not transmit letter within a particular time, automatically, the vice president becomes acting president. It was later they regularised the constitution to take care of that situation.

“It has happened in many situations. In this situation, can it be said that the president acted in order to save the country from collapsing?”

Taking an opposing view, another senior lawyer, Chief Mike Ozekhome SAN, told THISDAY that the purchase of the Tucano aircraft without appropriation was a violation of the constitution.

“This is a serious breach that cannot be overlooked,” Ozekhome said, adding, “A pre-emptive withdrawal of $496 million as he (President Buhari) has done without any prior National Assembly approval has exacerbated the impunity and this is impeachable under Section 143 of the 1999 Constitution that defines a ‘gross misconduct’ as a ‘grave violation of the provisions of the constitution, without naming what acts amount to grave violation.

“Of course, dipping fingers into the national treasury and yanking out $496 million without National Assembly approval is an act amounting to a grave violation of the constitution. Two-thirds majority vote of members of the National Assembly is needed to remove him from office.”