By Mohammed Adamu
I SHOULD not tire to quote David Ingram, who said: “The American founders believed that a constitution that placed unlimited power in a legislative majority will inevitably result in tyranny, instability and lawlessness”. The American founders, in reaching this conclusion, had discovered that their “optimistic faith in the capacity of ordinary citizens to exercise judicious self rule, collided with their pessimistic appraisal of a humanity driven by self interest”. And so even in the democratic effort to liberate the people, ‘democracy’, left in the wrong hands, has equal potentials to enslave them. This paradox about democracy being both a liberating and an enslaving power, may have moved the theologian Reinhold Niebuhr to say that “Man’s capacity for justice makes democracy possible, but (that) man’s inclination to injustice makes democracy necessary”. And it is between these extremes of ‘democratic possibility’ and ‘democratic necessity’ that Abraham Lincoln still found a pessimistic midpoint to suggest that rather than persist in raising a monstrous democratic child sometimes it is better to ‘throw the baby with the bathe water’.
In fact, it was the reason Lincoln said, at his first inaugural, that whenever a people “grow weary of their existing government, they can exercise their constitutional right of amending it, or their revolutionary right to dismember or overthrow it”. But in the eyes of the philosopher Immanuel Kant, Lincoln would be more a ‘reactionary’ than a ‘revolutionary’ to have prescribed ‘remedy’ only after ‘harm’, when he should be recommending ‘safeguard’ against ‘harm’. Kant was the radical who said that democracy is like a swimming pool, and that although it is desirable for every nation to take a plunge, yet he warned “stay out of it if you are sure to get drowned”. It is an irony of a monumental proportion that democracy in Nigeria is bent on taking us where even jack-booted military dictatorship had not, namely into the deeper Kantian waters! We have consistently failed to develop a utilitarian brand of democracy that benefits all –or even if one that merely avails a greater number. We seem perfectly okay stuck, as we always are, with a system that is always ‘motion without movement’. As if ‘democracy’, like they say of ‘virtue’, is its own only reward.
Ruling by special decrees
Once it was an un-elected, incurably adventurist military minority that we had to worry about –grabbing power and ruling by special decrees. But now it is a freely elected legislature in a so called democracy that we are having to keep a watchful eye over, -lest what Rousseau and Locke conceived as the touchstone of democratic liberty (the legislature), become, in our pathetic case, an enslaving power. In fact, this alone is a veritable yardstick for measuring how much we have retrogressed –coming all these years from a checkered era of aberrant military dictatorship to a now-blossoming dictatorship of the legislature. If we have to fret, as we do now, over those we ‘willfully’ elected, as much as we fretted years ago, over those who used guns and jackboots to rule us, then democracy, for all its vaunted egalitarian virtues, has not availed us at all. When so called ‘representatives of the people’ begin to feel no longer obligated to respect the will of those who elected them, a dictatorship of the legislature is afoot. In retrospect I said when I wrote the three-part series ‘NASS and the dictatorship of the legislature’ (09/03/10) that our “parliament enjoys full legislative, quasi-legislative and quasi-judicial powers” and the combined effect of which rather than serve as “a sobering stimuli for good”, has become “an intoxicating force for bad”. That sooner or later “there is always the inherent danger that such a legislature (especially in poor, culturally-inhibited democracies like ours) will come to the full realisation of the extent of its legislative powers’ -its capacity to liberate or to enslave” those who elected it- and that it will opt, always to do the latter.
Such unrestrained or un-restrainable legislature necessarily drifts into egotism, arrogance and greed, and for which, as we all can see, no member of NASS loses sleep over. There is an apparent helplessness –or may be incapacity- on the part of the executive, and to that also a sickening lack of will on the part of the citizens, to call our legislature to order concerning its many indiscretions, or to subpoena it to account, concerning its greed.
For the umpteenth time, we are finding ourselves in the conundrum of a systemic gridlock. Those who should attend to the needs of society via the instrumentation of legislation, themselves now constitute the problems that bedevil society. We are collectively in a bind because our so called legislators are the inordinate beneficiaries of this gridlock and will not therefore legislate to remove it. If you think that the legislature has unfettered powers, well then you have to include also the fact that they alone also have the power to legislate to reduce fetter those powers. Our democracy has created a legislature without an Achilles heels. Our Constitution, wittingly or unwittingly, has placed ‘unlimited power’ in an arrogant and greedy legislature. The NASS makes what can be described as ‘fait accompli-laws’; namely laws that the President must either peacefully assent to, or in the event that he dares to veto, the legislature itself can –by its constitutional power of override- peaceably breath legislative life into. And so where a private member initiates a bill, which is passed by both chambers but which is vetoed by the President, an override of that veto by NASS has the effect of bringing the un-assented bill willy-nilly into force. This underscores the irrelevance of the President in the chain and processes of law-making –because technically the legislature can initiate, process and approve a legislation all by itself without the input of Mr. President.
The legislature’s power of oversight over both the executive and the judiciary, desirable as it is in any democracy, has been turned, here in Nigeria, into an instrument of criminal extortion and a weapon of legislative blackmail. No less so is the power of the legislature to authorise executive and judicial spending. In fact, over the years, this power has been deployed vengefully, arbitrarily and with impunity. The levers of NASS’ power to initiate impeachment proceedings against willfully erring presidents should long have been throttled by the 7th Assembly, if on no one, at least on an incorrigibly sinning Jonathan. But it was not so used; because the sins of Jonathan were sins against the ‘people’; -not against the interests of the ‘people’s representatives’. Thus, where a corrupt and un-disciplined Jonathan was deemed not grossly mis-conducting enough to be impeached, a Spartan and disciplined Buhari who is all fangs and talons against corruption, is thought candidate enough. Buhari they say is towing with the raw nerve of a stealthily desperate Saraki NASS, and is thus ripening himself by the day for plucking. It is the unpredictable molten anger of the Buhari ‘mob’ that the Saraki parliament is scared stiff about.
Legislating for self
If our legislators are not busy ‘abrogating’ unfavourable electoral laws to pave way for their political ambition, they are desperately attempting to ‘amend’ the Criminal Code to escape justice; or they are pushing to ‘enact’ a new Constitution to invest themselves with immunities against the scrutiny of the other arms of government or the harangues of what they believe is a ‘meddlesome’ court of public opinion. They have attempted many times in the past even to make laws ousting courts’ jurisdiction and have in fact severally defied many an order of court. In fact, the Ghalli Assembly had the nerve to tell Nigerians that the NASS even as it was immune to the inquisition of other arms of government, it was constitutionally also incapable of probing itself. And remember that the Saraki Assembly had recently told us that the criminal conspiracy to forge the Standing Rules of the Senate was merely the ‘internal affairs’ of the Senate, resolvable by its Ethics and Privileges Committee. These committees have shaped up to become the legislators’ veritable cat’s paws, always available to pull members’ inordinate political chestnuts out of every smoldering fire of parliamentary inquisition.
What can a president do?
In fairness to the president, without the people as alternate court of public opinion, backed by an unbiased media, it is practically impossible that any executive or judicial arm of government can check a dictatorship-bound legislature. And like I once said in the concluding part of another piece ‘NASS and the dictatorship of the legislature’: “Only where the people are politically conscious and capable of being self-willed into progressive action, can they assume that ultimate sovereign role of checking the legislature”. To keep the legislature’s balance between the intoxication of ‘unlimited power’ and the sobriety of democratic deference to the will of those who elected them, is primarily the duty of the people and not solely of the President. Sovereignty as they say belongs to the people. And it is because of the absence of a mature ‘people’s dictatorship’ in Nigeria that sovereignty still remains trapped in a terribly self-serving legislature, -and which now, under Saraki, has an asphyxiating stranglehold on the jugular of our democracy. In another three-part series titled ‘NASS: Incentive or systemic drag?’, I said “Genuine democracy is never attained only on the altar of a strong and vibrant checks and balances; nor by the good intention only of a strong, patriot-president; nor yet by the pen power of an uncompromising media intelligentsia; but genuine democracy is attained by the people themselves participating, monitoring, guarding and whenever necessary, ready to swing” in defense of the system.
Nonetheless a ‘strong President’ –which evidently Buhari has not been shaping up to be- backed by the preeminent might of an executive that controls ‘man, money and machinery’, can also be a check even on the most cantankerous legislature. And maybe it beggars repeating that the President exercises powers which are not contemplated by the Constitution, and which are not necessarily in conflict with it. Not only can he veto a bill passed by the legislature, he can also refuse to implement a law which has become so by reason that his veto was overridden –provided he proves his action is in the national interest. But because this power is rooted more in convention than in the letter or spirit of the law, the President will require a vibrant court of public opinion –ready not only to sing, like we only do, but also to swing. When selfish legislative gangsterism is bent on sinking your democracy, maybe “the time has come” as Hue Long would say, “for all good men to rise above principles”.
It is about time!
OUR legislators have this nauseating penchant for drawing the sword whenever a legislative power that they arrogate to themselves is put to the test; sometimes even by the most innocuous of democratic challenges requiring merely a due diligence test by the courts. And they are quick always to cite threat to the ‘independence’ of the legislature’, warning – whenever they do so- that the entire system of representative government may be brought to a sudden end. In truth, theoretically or even in practice, there is no such thing as ‘independence’ of any of the arms of government. No one arm of government is ‘independent’ of the others. The doctrine of separation of powers did not envisage that; nor has the practice of democracy in whatever garb made such utopia possible. The three arms of government are mutually inter-dependent, with each enjoying a sphere of independence subject to the constitutionally permissible interference of the others.
If the arms of government were to be independent of one another, in a manner that precludes interference in the affairs of one by another, the legislature –more than any- stands to lose the most on the scale of constitutional ‘checks and balances’ that the three arms of government are constitutionally obligated to undertake -for and against each other. The legislature’s power of oversight of Executive and judicial functions, of investigation, of reprimand, of subpoena and of arrest would necessarily be untenable if every arm were to cry ‘independence’ at the slightest interference – or fear of possible interference – by another.