CJN: Presidential power in constitutional democracy

The present crisis involving the judiciary and the President exposes the depth of lack of institutional knowledge of the underlining principles and practices of constitutional democracy. Although our democracy has lasted for two decades continuously it still shows signs of military dictatorship and civilian autocracy.

Anyone who reads the script of the presidential address suspending Justice Walter Onnoghen as Chief Justice of Nigeria and appointing Justice Tanko in acting capacity will easily perceive that President Buhari and his aides grossly misunderstand the nature and extent of presidential power in a constitutional democracy. This gross misunderstanding now threatens the legitimacy of the 2019 elections and the stability of politics post-2019.

In his address, the president explained his frustration at the Supreme Court’s failure to align with his agenda of fighting corruption. This failure consists in an unacceptable reliance on technicality. In the matter at bar, the President is angry that instead of the Chief Justice of Nigeria resigning his position once the allegations of false declaration were levelled against him, he has orchestrated circus of legal defense to the point that entire administration of justice is exposed to ridicule. In the president’s view, it will be irresponsible of him to allow the CJN degrade administration of justice. So, he must save the judiciary from itself. This is both arrogant and condescending. There is nothing more daring recently than that speech. It read like a coup speech. The Nigerian Bar Association (NBA) has denounced the suspension as a coup against the rule of law. Perhaps, the writer of the presidential speech intended it so.

Devoid of the possibility that the unprecedented suspension of the head of the judiciary by the head of the executive was just one outcome in a series of gangster politics (and many believe it is just political gangsterism), it is difficult to understand how this action can be justified in law and logic. First, there is an allegation of a crime against the Chief Justice. No matter how weighty the allegation, it remains an allegation until the tribunal or a regular court convicts him. The President cannot convert a weighty allegation into a conviction with incandescent rage. The civil servant who sits as the Chairman of the ‘administrative’ Code of Conduct Tribunal cannot create a conviction without a proper trial. So, the defense that the President acted in furtherance of a constitutional provision that requires the removal of a CJN ‘guilty of a crime’ does not avail since no conviction has been established.

Except we agree that this unconstitutional and illegal suspension of a CJN is plain mischief we have to argue that perhaps the President and his team lacks a proper understanding of the powers of the President in constitutional democracy. The President is a constrained character in a constitutional democracy. As Archie Brown, Oxford’s Emeritus Professor of Politics, argues that “the best known presidency of all, that of the United States is an office which domestically constrains its leader more thoroughly than do the limitations on the power of most European premiers”. In his book, “The Myth of the Strong Leader: Political Leadership in the Modern Age’, he argues that presidents in constitutional democracies like the US are mostly frustrated persons who must learn to negotiate and compromise. This remarkable constraint is a result of the institutionalization of the doctrine of separation of power in constitutional democracies.

The Nigerian constitution gives textual clarity to this constraint when in Section 5 it subordinates the exercise of executive power of the President to two incidents. First, the power can only validly be exercised if it accords with strict provisions of the constitution. Secondly, or if it is in accordance with an Act of the National Assembly. So, arguably, there is no inherent presidential power. All exercises of presidential power must be based on express constitutional or statutory authorization. In his classic, Presidential Constitution in Nigeria, Professor Nwabueze argues that although the precise meaning of executive power of the president under Section 5 of the constitution is imprecise, it does not make the president the government itself or a political sovereign. It only ‘extends to the execution and maintenance of this constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has for the time being the power to make law” (Section 5(1)(b)).

Presidential power has been characterized as power to execute in three offices. First is the office of the Chief Executive. The president as chief executive of the federation manages the domestic policies such as to achieve strategic goals. This is almost akin to the corporate chief executive. The second office is the office of the Commander-in-Chief of the Armed Forces. Here, the president commands the military to protect the territorial integrity of the country in war and peace times. This function only relates to management of the Armed Forces which the constitution has further constrained in the principle of co-management in declaration of war and deployment of troops. The third office is the sole organ. This relates to the president’s exclusive management of foreign policy. But even at this, the constitution subordinates this power to approval of National Assembly whenever the president signs a treaty and wants it to become law in Nigeria.

So, this powerful office of the president is not that powerful. It is circumscribed constitutionally by the power of the legislature and the judiciary to co-manage the commonwealth. The doctrine of separation of power means that a president remains at the mercy of his other institutional competitors. Every successful president has learnt this bitter truth and has succeeded in his or her agenda through the pragmatic use of leadership. Great presidents in modern times are those who have developed the skill sets that enable them to mobilize public opinion and derange institutional conspiracies of the other branches and move the ball to the goal-post. Whether it is FDR, Lyndon Johnson in the United States or OBJ and GEJ in Nigeria, they succeed by leveraging on the reach and influence of the office rather than ramming through the institutional barriers. The rule of law in constitutional sense now stands for the power of judicial review. This means that the executive president has to be confined to the express terms of his constitutional authorization. President Truman learnt the realities of his weakness harshly when the US Supreme Court reversed his interference with the steel industry during the period of national emergency. Rebuffing Truman, the Supreme Court held that the president’s power to act must “either issue from an Act of Congress or from the Constitution”.

But a constrained president is not totally helpless. Successful presidents know how to leverage on the charisma and resources of that office to achieved desired results. They often resort to the Bully Pulpit to win the war of ideas and insights against institutional competitors. Reagan identified the value of this strategy and resource of presidential power. Those who lack the gift of garb employ the pragmatism of negotiation and penetration. They make others do the bidding in the promotion of their vision through incentivizing them. This may be the politics of pork and barrel. But the point is that executive action no longer rests on overwhelming use of coercion. Again, the notion of imperial presidency is now discarded as technology and the democracy reshape governance in modern times.

Evidently, President Buhari feels exasperated by a judiciary that has not played ball, whether in the many instances he tried to upset electoral defeats or now that his prosecution of allegedly corrupt politicians is held back by legal procedure. His speech shows he would not mind getting rid of judicial irritation by any means necessary. But in his irritation, he contravenes the constitution and deranges the concept separation of power which is at the heart of justice and freedom in modern society. Just like Truman lost his cool and abused presidential power by grabbing the power of judiciary, President Buhari has stepped into the legal fray and overruled as it were the judiciary. Just like the US Supreme Court did, the Nigerian Supreme should restore the constitutional order and design and remind the president that though he is powerful, he is not as powerful as he thinks.