On April 9, President Muhammadu Buhari’s Senior Special Assistant on National Assembly Matters (Senate), Ita Enang, lied to worried and inquisitive Nigerians that the president was yet to authorise the payment of $469m from the Excess Crude Account (ECA) to buy 12 Super Tucano military jets from the United States government. It turned out that as far back as February, despite repeated denials, the president had both approved the said sum and authorised disbursement. It was only the Defence minister, Mansur Dan Ali, who somewhat truthfully hinted early February that the procurement had been done in order to meet the deadline set by the American government for the deal to be consummated.
It is unlikely that Sen Enang, who is himself very conversant with legislative appropriations process, did not know that the approval had been given and the payment made. Nor is it likely that he does not know the gravity of the executive branch arbitrarily and unilaterally authorising the disbursement of funds not appropriated. The special assistant knew; he only chose to lie. Here is what he said when the public initially suspected that the president had made the unauthorised disbursement of ECA funds: “…That the said sum has not and cannot be approved for spending by Mr. President. That in accordance with best practices, Mr. President, having received approval of the sum from National Economic Council made up of all the governors, now had a meeting with the Minister of Defence, service chiefs and the Inspector-General of Police, among others, to collate the needs of each of the services and the money available for appropriation…As of now, the process of approving the money for use is inchoate and still undergoing executive standard operating procedure before laying same before the National Assembly for appropriation.”
When Sen Enang told this open lie, members of the National Economic Council (NEC), the president himself, and the vice president already knew that the money had been disbursed. They chose to keep quiet, associated with the lie, and perhaps sought for ways to blunt both public and legislative reactions to the unlawful use of ECA funds. The governors who in December authorised the withdrawal of $1bn from ECA on the grounds that previous governments periodically accessed the account for one reason or the other also knew by experience in their states that the executive arm, in this case the president, could not spend a kobo without appropriations. Instead, they incredibly decided at a meeting headed by the vice president that their collective assent was as good as legislative assent because no one complained when previous governments made similar withdrawals.
To put the whole matter at rest, and knowing that the infernal lie told by Sen Enang and connived at by the presidency could not be sustained for too long, the president finally wrote to the National Assembly this April to inform them that he had spent the money from ECA, and asked for their understanding. Other than implying that the urgency of the spending necessitated the illegality, the president offered no other substantial or persuasive reason for breaching the constitution. According to him: “I wish to draw the attention of the House of Representatives to the ongoing security emergencies in the country. These challenges were discussed with the state governors and subsequently, at the meeting of the National Economic Council on 14th December, 2017, where a resolution was passed, with the Council approving that up to US$1 billion may be released and utilised from the Excess Crude Account to address the situation… 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.”
The president continues: “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 writing, 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.”
There is no question that the president knowingly and subversively took the money from ECA. But nothing justifies it: no emergency, no urgency, no security situation. There was nothing to suggest that since the governors decided on that course of action last December, the president didn’t have enough time to present a supplementary estimate to be thoroughly scrutinised by the legislature. He missed the point by giving the impression that critics who denounced the executive arm for disbursing ECA funds were unmindful of the country’s security situation, or insensitive to the urgency of making the military purchases. Critics in fact sensibly suggested that though the motive of the purchase was sound, it was nevertheless wrong to eye the ECA fund meant for the three tiers of government, let alone make the disbursement outside due process. For neither the president nor the governors, nor yet the local councils, approximated the legislative assemblies of their various tiers. Moreover, even the seller of the jets, the US, would be privately appalled by the illegitimacy of the process through which the $469m was released. Such flagrant abuse could never be countenanced in the US. It also beggars belief that those who kept the money feigned ignorance of the proper process by which the funds are to be shared constitutionally between the three tiers of government
It is disturbing that President Buhari, sitting at the head of a government that prides itself on being ethically different from its predecessors and intolerant of past abridgement of financial regulations, could countenance that constitutional affront. By his letter to the legislature, he seems to think that both the urgency of the purchase and the intensity of the insurgency problem justified the spending from ECA. It is even worse that he indicated in his letter that he expected the legislature not to turn down his request, hence his approval of the unlawful ECA spending. This unilateral action is truly shocking. How could he tell the mind of the legislature? Does he not know what the law say very clearly? The truth is that the Buhari presidency and the federal government under him, including the cabinet and security agencies, think very little of the legislature. They think that if the public were forced to choose between the executive arm headed by the ‘saintly’ President Buhari, and the parliament headed, for instance, by the Machiavellian Bukola Saraki, the public would sack the parliament and embrace the executive. This is the classical beginning of fascism.
It is also strange that with all the lawyers and constitutional experts around the president, he could still subvert the constitution in the manner he has done. This speaks to the lack of cohesion in the government — in such a manner that suggests only a few people carried away by the importance of their offices take decisions for the presidency and present a fait accompli to the rest of the cabinet — or to perhaps the fear of confronting the president and educating him on the dangers of flouting the constitution and diminishing the importance of the parliament, as his government and cabinet have serially done.
A far more disturbing truth is that, given the arguments and logic of some of the governors rationalising the ECA spending, there are indeed very few democrats presiding over the affairs of their states in this Fourth Republic. The Governor of Jigawa State, Muhammadu Badaru, for instance, simplistically argues: “We forget easily. If you recall, we have been battling with approval from America to buy these equipment in 2014. We have been begging America to sell this equipment to us. We tried Dubai, they could not allow us; we tried a factory in Brazil, the federal government tried, we couldn’t get it. America still could not sell to Nigeria. Then luckily, President Trump said it was okay to buy. So we had to quickly buy before they change their minds. Because there is also deadline and this is a state to state transaction, no middleman, and we are all here concerned about security and they are raising questions on way and manner you protect people. This is an emergency situation.” The puerility of Mr Badaru’s logic is numbing. No less bewildering is the Ebonyi State governor, Dave Umahi, who sheepishly suggested that critics of the spending as well as the National Assembly should not just look at the law but the interest of Nigerians. Awful!
The National Assembly knows that it can only cry itself hoarse over this needless controversy. To impeach President Buhari, even if the divided legislature can be coaxed into unity, will be nigh impossible, not because an impeachable offence has not been committed but because the presidency seems to be counting on the masses who can neither understand the illogic of the ECA spending nor appreciate the role of the parliament in sustaining democracy. Had the people been educated enough to know that it is the parliament that sustains democracy — not the executive, not the judiciary, as important as they are — they would have found a way to force the resignation of the government. But the government is counting on the people’s ignorance to constitute a deterrence to the legislature, or if push comes to shove, join hands with the Buhari presidency in sacking parliament.
The NASS will have to find a way of saving face on this appalling matter. The cards are stacked against them. Meanwhile they can legislate away the temptations that so easily take the Buhari presidency prey, such as ECA itself. There is no reason for the dedicated. If President Buhari cannot discipline himself and his government to find legitimate and constitutional ways of raising money to execute their agenda, and the governors are either too obtuse or too timid to think straight, and the people will not eschew sentiment in public discourse, it is time for the legislature to anticipate other possible temptations beguiling the presidency and remove them.