President Muhammadu Buhari is seeking emergency powers to aid his plan to stimulate the economy. An Emergency Economic Stabilisation Bill 2016 is to be presented to the National Assembly when it resumes on September 12. If passed, the bill will give the President powers to set aside some extant laws and use executive orders to roll out an economic recovery plan. Is the President’s proposal legal? JOSEPH JIBUEZE sought lawyers’ views.
When the National Assembly resumes from its vacation on September 12, it will receive a bill seeking emergency powers for President Muhammadu Buhari. Under the Emergency Economic Stabilisation Bill 2016, the President will be seeking powers to set aside some extant laws and use executive orders to roll out an economic recovery plan.
The economic team, it was learnt, believes the President needs emergency powers to tackle recession urgently, which some of the extant laws will not permit. Last month, Finance Minister Mrs Kemi Adeosun told the Senate that the country is “technically in a recession.” She had said: “Is Nigeria in recession? Technically. If you go into two quarters of negative growth, technically, we are in recession. But I don’t think we should dwell on definitions. I think we should really dwell on where we are going.”
Buhari will be seeking powers to abridge the procurement process to support stimulus spending on critical sectors of the economy; make orders to favour local contractors/suppliers in contract awards; abridge the process of sale or lease of government assets to generate revenue; allow virement of budgetary allocation to projects that are urgent, without resorting to the National Assembly.
He will also embark on radical reforms in visa issuance at Nigeria’s consular offices and on arrival in the country. In addition, the President will compel some agencies of government, such as the Corporate Affairs Commission (CAC), the National Agency for Foods Administration and Control (NAFDAC) and others, to improve on their operation time for the benefit of business.
The extant law on procurement does not allow contract award earlier than six months after decision. Part of it is a mandatory advertisement of the contract for six weeks. The economic team has found this to be unacceptable, given the present circumstance.
Although the President has the power to order the sale or lease of any government asset to raise cash, “the procedure is cumbersome and long”. If granted emergency powers, the President plans to ease the process.
The US example
The President of the United States possesses certain powers to act in emergency situations. Though such “emergency power” is not specifically expressed in the Constitution, the Executive Branch is designed to be able to act quickly in times of war or national emergency.
Because emergency power is not specifically stated in the Constitution, its scope is somewhat limited, typically extending only to situations that compromise or threaten the safety or well-being of the public.
Emergency powers, however, require legislative backing. Former US President Harry Truman declared emergency powers when he seized private steel mills that failed to produce steel because of a labour strike in 1952.
With the Korean War ongoing, Truman asserted that he could not wage war successfully if the economy failed to provide him with the material resources necessary to keep the troops well-equipped.
The U.S. Supreme Court, however, refused to buy the argument. The justices, in a 6-3 decision, held that neither law nor any claimed emergency powers gave the President the authority to unilaterally seize private property without Congressional legislation.
The Philippines example
President Rodrigo Duterte of the Philippines recently proposed that he be granted emergency powers to resolve traffic congestion. The proposal is before his country’s Senate Committee on Public Services. The first hearing on the proposed emergency powers was held on August 10.
Under the proposal, Duterte will be empowered to use alternative modes of procurement for government projects. Courts may also be barred from stopping certain projects.
The proposed emergency powers include favouring direct contracting over public bidding for transportation-related projects, opening private sub-division roads to traffic, and removing transport terminals and public markets on busy highways.
According to a study by the Japan International Cooperation Agency (JICA), the Philippines economy loses 2.4 billion pesos (about $51,762,648) daily due to traffic gridlock, hence the need for the emergency powers.
Does Buhari need emergency powers?
Although the National Assembly is yet to receive the proposal, some senators have reportedly criticised it, saying if passed, the President could turn into a dictator. According to them, if given further powers, the executive could reduce the National Assembly to a rubber stamp.
Others may have tacitly welcomed it. Senator Enyinnaya Abaribe, was quoted as saying: “Until I see the law, that is when we can talk about it. Anything that will push the country out of the present economic woes, the National Assembly will support.”
But, the Democratic People’s Congress (DPC), in a statement by its chairman, Rev. Olusegun Peters, said the Federal Government should focus on diversifying the economy and come up with sound economic policies and actions.
“Any attempt to give the President more powers will lead to tyranny and autocracy which is unacceptable in a democracy. Buhari did not seek extra powers to crush Boko Haram insurgency and will not need emergency powers to revamp the economy,” DPC said.
A former ambassador and Deputy Permanent Representative of Nigeria at the United Nations, Oladapo Fafowora, in his column, wrote that he found the claim that the President needed extra powers to tackle economic problems astonishing.
“In fact, I consider it dangerously delusional. It is a populist economic strategy that will attract some support from the public who, in their desperation, will clutch at any straw now in the hope for a dramatic transformation of the economy after decades of neglect and mismanagement.
“But I do not think that giving the President wider emergency powers and impunity over the economy now will produce any significant change in the economy. He knows he does not have a magic wand to accomplish that,” Fafowora wrote.
He added: “Instead of giving the President wider emergency economic powers, what the country needs are reformed state and public institutions that can be relied upon to function more effectively.”
What do lawyers think?
Lawyers are divided on whether the President needs emergency powers. Dr Joseph Nwobike (SAN) and Dr Babatunde Ajibade (SAN) do not see anything wrong with the President being granted emergency powers to fix the economy. But former Nigerian Bar Association (NBA) President Joseph Daudu and Mallam Yusuf Ali (SAN) hold different views.
Nwobike said: “There is absolutely nothing wrong with the purported legislative proposals, by way of the executive bill, being made by the President. The responsibility to pass, with or without any modification, or to reject it is that of the National Assembly.
“I believe that, in its consideration of the bill, the National Assembly would certainly be guided by national interest and the constitutionality of the relevant contents of the bill.
“Although blind political considerations would certainly come to play, given our past experiences, I am confident that the two chambers would be properly guided by the need to move Nigeria’s democracy forward.”
On whether such powers would be constitutional, Nwobike said: “It is difficult for anyone to comment on the constitutionality of the proposals, since the explanatory notes and the bill itself have not been officially put in the public domain.
“However, it appears to me that this President, being a powerful and executive president, already has a wide range of executive and quasi legislative powers to drive away the current economic hardship and depression that we are currently facing.
“In any event, if he requires legislative authorisation to give effect to his constitutional powers, I think that the proposals should be patriotically considered.
“The paramount highlight in the foregoing exercise, for both the legislature and judiciary, is that the President must be denied unbridled and Ergdogan powers.”
Ajibade sees nothing wrong in granting the President emergency powers if that is what is required to revive the economy. Asked if he had backed the proposal, he said: “A qualified ‘Yes’, because I don’t have a full grasp of all the proposals.”
He continued: “But the aspect of it that struck me, that I thought is definite something we need to look at is the area where, due to statutory bottlenecks, government is having challenges with reflating the economy because they have to go through so many procedures.
“We are in an emergency situation and if government has to go through a six-month procurement process before it can carry out specific things that will assist the economy to move forward, I think that that is worth looking at even if temporarily.”
The Public Procurement Act (PPA) 2007 does not allow for contract award earlier than six months after procurement/contracting decision has been taken, as there is provision for a mandatory advertisement of the contract for six weeks, thereby making the procurement cycle long.
The Bill also points out that the ceiling on 15 percent of contract sum for Advance Payment/Mobilisation provided in the PPA is inadequate and cannot mobilise contractors to sites and ensure timely execution and delivery of projects.
Analysts say the law already provides for restricted tendering, direct procurement, and emergency procurement under Sections 40, 42 and 43. To them, this could be explored to fast-track contract awards without passing the rigours of the tendering process.
Besides, they said the relevant sections of the PPA can be amended– including increasing the Advance Payment to the proposed 50 percent – to bring them in line with current realities.
Daudu: “I don’t see the need for emergency powers to fix the economy. There’s probably something they’re not telling us. But it didn’t take extra-ordinary situations to get us into where we are.
“What the nation needs is a foreign exchange policy works and keeps the naira at a comfortable rate for manufacturers to be able to carry on production. Do they need emergency powers to sit down and devise a policy that works?”
On the need to speed up the procurement process, Daudu said the Federal Government did not always comply with the law.
“I think that the issue of procurement has been followed more in the breach than in compliance. The last administration kept awarding the contracts at the Federal Executive Council meetings. At that point, there was already a departure from the statutory provisions of procurement.
“That cannot be the only reason why such extra-ordinary measures are being sought. If you check the laws on procurement this time can also be abridged,” Daudu added.
Ali said the until the Bill is forwarded to the National Assembly, it remains in the realm of speculation. He, however, thinks that if there are any laws hampering economic progress, they could be amended.
“My understanding of emergency power is something that was not provided for. Even if the National Assembly says some laws should be suspended, there must be a law to back it. If, for instance, the Companies and Allied Matters Act is to be amended to limited the requirements for company registration, it cannot be done by fiat.
“That is why we must wait and see exactly what the president wants, because emergency means something that was not envisaged by existing laws. That is why I want to err on the part of caution rather than making a blanket comment,” Ali said.
