The Constitution and Presidential Powers, By Ifeanyi Uddin

The recent spat between the newly appointed defence minister, General Aliyu Gusau (rtd.) and the military chiefs of staff over reporting lines has resonated in the most unlikely places. I believe, the most startling of these resonances, is the possibility that the office of the federal minister of (or for) defence, at least, until now (and since 1999) has been a sinecure. That is, “a job or position in which someone is paid to do little or no work”.

If, and this is the argument most eloquently made by the Chief of Defence Staff, Air Vice Marshal Badeh, both our constitution and its associated statutes (the Armed Forces Act) describe a line of command (and control) that goes unmediated from the President to the service chiefs, then what have our defence ministers since we commenced this new republic, been up to? Clearly, they could not have been responsible for much. One possibility is that they only gave public expression to the results of conversations between the commander in chief and his men. But isn’t this why there is a minister for information?

Even if less assertive defence ministers before General Gusau had found a less “in your face” way of meeting with the commanders of the armed forces, or were perhaps more (amenable to) adept at passing operational instructions to the service chiefs (without passing through the defence chief), this procedure could not have satisfied the requirements of efficiency, and or of the need to de-layer the chain through which final decision making on these issues goes through. Need we be reminded, here, that our experience of the military’s incursion into politics, means that a key requirement of a properly functioning democracy, is the subordination of the military hierarchy to civilian oversight?

It is easy to argue that, in part because of its provenance (written at the behest and guidance of a military administration), our constitution was always going to fail this test. Still, because our constitution fails several other tests, much bigger concerns arise. If for no other reason, we have only recently come to learn that within the understanding of operators of the constitution, a presidential directive (it is an executive presidency, remember) does not have the force of law — at least until it appears in a gazette.

The same document, too, also has that clause that appears to legitimise child marriage. And who knows what other limpet mines are concealed in its inner reaches. I often suffer from a sense that the biggest problem with our constitution is this understanding that it must solve all of our existing problems and many others that its framers imagined.

Alternatively, what is the point of insisting on a minister from each state? Neither the need for efficiency, nor a narrower span of control is answered by this profusion of ministers. It may be that we thereby nod in the direction of inclusion. But then as government completes the transition from public provision of services to provision by the private sector, a lot of these ministers would increasingly have a very light plate, if any at all. The minister of communication is an interesting case in point. What does she do, when most of her remit have independent regulatory structures in place?

Nonetheless, the constitution can only carry that much blame. In conversations leading up to writing this piece, a friend asked which constitutional provision allows the kind of harassment by law enforcement agents, which invariably ends with the purported law breaker, now turned victim parting with a bribe? His point? That the meaning of a constitution is fully served, once it describes a broad spatio-temporal dimension, within which sane folk may be expected to conduct themselves properly.

In this particular case, even when Section 217 of the Nigerian constitution, and Section 7 of the Armed Forces Act, may be interpreted to mean that only the president has the powers to issue directives to the military chiefs; the same constitution also allows the president to delegate his powers to ministers. Somewhere in all these details, there must be a mean.

Nonetheless, only a constitution drafted by the military could then have thought it meet and proper to circumscribe the president’s powers by including a list of offices that responsibility over the military chiefs could be delegated to!


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