$496m Tucano Aircraft Deal: Buhari goofed on due process, say lawyers

With angry members of the National Assembly allegedly collecting signatures to impeach President Muhammadu Buhari for the legislative bypass in the ongoing $496m Tucano aircrafts deal, legal practitioners insist that failure to seek approval before spending by the President has rendered the transaction ultra vires, hence unconstitutional.

According to them, the country’s constitutional framework makes it incumbent on the president to spend only with legislative approval, even as one of them maintained that anticipatory approval can only be tenable if there were previous approvals that were inadequate to cover a particular expenditure.

With a suggestion that laws could be made to accommodate purchase of military hardware that require confidentiality, another lawyer, however, stressed that since politics is about compromise, the lawmakers may excuse the present constitutional breach if the President avails a tenable reason for his action.

For Port Harcourt-based lawyer, Festus Ogwuche, Buhari’s action is an outright disregard for the Constitution, which he swore to uphold, just as he commended the NASS for the moves to impeach him.   
 
He held that under democracy, three arms of government ought to interface and as such, if Mr. President had acted in national interest, he would have carried the other arms of government along, particularly the legislature.
 
“To say that Mr. President may have acted in an emergency situation or national interest is nothing but bunkum,” he stated adding that if Mr. President was concerned about peace in the country, he ought to have taken decisive action against Fulani herdsmen.
 
Ogwuche also wondered why Mr. President embarked on such purchase without any announcement as done by other nations of the world. “When other countries want to buy arms from the U.S. it is always in the news. How come Mr. President made such a bogus and outrageous purchase without even the other arms of government knowing?” He asked

For Ilorin-based Senior Advocate of Nigeria (SAN), Mallam Yusuf Ali, according to the 1999 constitution, “There must be appropriation under the law before any money can be spent. There is nothing like ‘approval’ under the constitution. The constitution says any money belonging to the federation that must be spent, must be budgeted, deliberated and passed, after which it becomes law upon the president’s assent before it can be spent. 

“Strictly speaking, no money of the federation can be spent without appropriation, not even a kobo. In addition to that, there is no sense of urgency that would warrant spending outside appropriation because we are not at war.”He continued: “You can only procure with appropriated funds. It is only when money has been budgeted and appropriated that you can talk of procurement. So you cannot put the cart before the horse,” he stressed. 

Citing Sections 4, 5 and 6 of the 1999 constitution, which talks about the doctrine of separation of powers among the three arms of government, an Abuja-based lawyer, Victor Ozegbena accused Buhari of undermining the role of the National Assembly in the purchase of the controversial aircraft.  

While stating the compelling need for the NASS’ nod to be sought before the deal, he added, “Section 80, Sub-section 2 and 4 are emphatic that no money shall be withdrawn from the Consolidated Revenue or any public fund, except in the manner prescribed by the National Assembly. So, in my opinion, the President ought to have approached the National Assembly before making any moves.
 
“Although the constitution empowers the President to authorise withdrawal of money as prescribed in Section 82 of the constitution, it must have the blessings of the National Assembly in fulfillment of the doctrine of separation of powers.  This is the beauty of constitutional democracy,” he stated.Speaking in similar vein, the former dean, faculty of law, University of Lagos (UNILAG), Prof Oyelewo Oyewo, affirmed that the laws are very clear on the procedures for expenditure of public funds. The executives, he noted are the ones that propose expenditure, which must go by way of appropriation bill to the legislature. 

“What that means is that there can be no expenditure without legislative approval. Every expenditure from public fund is conditioned upon appropriation by the National Assembly, and this has been affirmed by decisions of the highest court in the land under the 1999 constitution. 

“There are many cases on this issue, but the most popularly cited one is the Attorney General of Abia State Vs Attorney General of the Federation. So, it is very clear that you cannot spend without legislative appropriation,” he said. 

Although he admitted that “anticipatory approval” is novel in our laws, he however, noted that it could be justified if it is a prospective expenditure that requires subsequent legislative approval, based on approval in principle, through allocations in previous years that have not been exhausted. 

“The bottom line is that our constitutional framework makes it mandatory for the President to spend only after legislative approval. Anticipatory approval can only be justified if there had been some previous approvals that were inadequate to cover a particular expenditure.”

He suggested that laws could be made to accommodate purchase of military hardware that require confidentiality, saying, “I think lawmakers should pass a bill to enable the executive and the legislature interact confidentially on the need to procure military hardware. This is because when you bring such into the Procurement Act, there are special provisions for them. So, if the procurement Act makes special provisions for security contracts, then the National Assembly should make specific laws so that this kind of unilateral exercise of executive powers can be subjected to legislative oversight,” he stated. 

Chief Albert Akpomudje, a SAN is of the view that Buhari realises that he should not have spent any money without prior approval of the legislature, that is why he spoke about anticipatory approval. “What he has not said is what was the urgency that he could not wait for the National Assembly to approve before spending the money because he does not have the power to spend without approval,” he declared. 

Akpomudje, however, stated that since politics is about compromise, the lawmakers may let the constitutional breach go, if the President avails a tenable reason. “But I want to say that such a situation is not healthy for the system because already the relationship between the executive and the legislature is not looking cordial. So, when the executive is deliberately doing things that are against the provisions of the constitution, it is inviting more problems. The President must be really careful about things like these in his own interest,” he advised.  

“Democracy recognises three arms of government. Each must operate on its own. But the three must cooperate. If the executive spend that kind of money without appropriation, or the consent or approval of the National Assembly, it is a violation of the Constitution, and an encroachment into the area of the legislature, which should not be allowed to continue under a democracy,” was how Chibuike Nwokeukwu stated his position.

The SAN continued: “But in view of the current state of the nation, I would recommend that the transaction should be nullified and appropriate steps taken in a fresh process that would ensure that the irregularities are regularised.”

Pointing out that spending unbudgeted funds constitutes an impeachable offence, he added: “Owing to the present state of the country, let them adopt a political solution in resolving the problem, and thereafter call the President to order. 

“For those who are saying Obasanjo, Yar’Adua and Jonathan did similar thing in the past, I will say that even if they did it unchecked, it is not a justification for Buhari to do it. That someone stole and was not caught is not a reason for another to steal and when caught, refers to those who stole and were not punished,” he counseled.  

As tempers continue to rise over the issue, Abuja-based lawyer, Abubakar Sani, is appealing that the President should be spared because he did it in good faith. “It is clearly unconstitutional … and completely wrong under the constitution to spend without legislative appropriation.

“Even the monies that the NNPC is spending in the name of operational cost should have been appropriated. I don’t know the terms of that contract between Nigeria and America and the urgency; I don’t know who is advising the President.  Constitutionally, every expenditure should be appropriated by the National Assembly. It is an impeachable offence, but they will politicise it. The only way to remove Buhari is at the next election,” he concluded.