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Editor's note: In this piece, Opatola Victor offers his nonrecreational mentation of Sections 11(4) and 305 of the Constitution and uses it to explicate wherefore the President lacks law authorization to motion the Rivers State budget.
Under Nigeria’s constitutional arrangement, the national and authorities governments run wrong intelligibly defined jurisdictions and powers. The powers and responsibilities assigned to each tier are not lone chiseled but besides deliberately separated to forestall organization overreach and to sphere the country’s delineation of powers. One of the clearest illustrations of this part lies successful the question of who has the authorization to motion a authorities fund into law.
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In the discourse of the existent exigency regularisation successful Rivers State, the writer argues that, though illegally, some the Senate and House of Representatives person passed the state’s appropriation measure portion purportedly acting nether conception 11(4) of the 1999 Constitution and the circumstances of the declaration of authorities of exigency nether Section 305 of the Constitution. However, this improvement raises a captious law question: Can the President of Nigeria motion a authorities fund into law? The answer, simply put, is no.
To recognize why, it is important to analyse the ineligible model wrong which this concern arises, peculiarly Sections 11(4) and 305 of the Constitution.
Section 11(4) of the 1999 Constitution (as amended) empowers the National Assembly to marque laws for a state.
“at immoderate clip erstwhile immoderate House of Assembly of a State is incapable to execute its functions.”This proviso is simply a stopgap measure. It is designed to support legislative continuity successful a authorities experiencing organization legislative disruption. However, critically, the subsection besides includes a precise deliberate regularisation and caveat: it expressly states that:
“Nothing successful this conception shall beryllium construed arsenic conferring connected the National Assembly powerfulness to region the Governor oregon the Deputy Governor of the State.”This regulation is simply a large proviso. It reflects the Constitution’s underlying presumption that adjacent successful situations wherever a authorities legislature is incapacitated, the enforcement limb of the authorities authorities remains intact and continues to function. In different words, the Governor and Deputy Governor are expected to stay successful office, and their law responsibilities are not to beryllium interrupted oregon reassigned.
One of those responsibilities is the assent to bills passed by the legislature. Under the Constitution, nary measure becomes instrumentality successful a authorities without the Governor’s signature. This applies arsenic to appropriation bills and budgets. The National Assembly whitethorn walk laws connected behalf of the authorities legislature nether Section 11(4), but the powerfulness to assent to those laws and thereby marque them operative remains squarely with the Governor.
Section 305 provides the President with the authorization to state a authorities of exigency successful immoderate portion of the federation wherever determination is simply a breakdown of instrumentality and order, earthy disaster, oregon immoderate different superior concern requiring urgent national intervention. This declaration indispensable person the support of the National Assembly and is mostly intended to alteration the national authorities to assistance successful restoring bid and governance.
However, the Constitution does not envisage that a authorities of exigency nether Section 305 gives the President the powerfulness to suspend oregon region elected officials specified arsenic Governors oregon dissolve State Houses of Assembly.
In the lawsuit of Rivers State, however, the exigency regularisation has reportedly resulted successful the suspension of some the Governor and the House of Assembly, with an Administrator present installed successful their place. This script is highly problematic from a law perspective. The displacement of the elected Governor severs the ineligible and procedural nexus required to implicit the law-making process for the state.
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Where the National Assembly has passed the Rivers State 2025 budget, the earthy adjacent measurement would beryllium for the Governor of Rivers State to motion it into law, fixed the proviso successful conception 11(4) of the Constitution. But determination is nary validly elected Governor presently functioning successful that capacity. If the President attempts to motion the appropriation measure into instrumentality successful spot of the state’s Governor, that enactment would deficiency law backing.
The President, arsenic the caput of the national executive, has nary ineligible oregon law relation successful the execution of authorities laws. He is not a substitute Governor. His powers, portion wide-ranging wrong the national jurisdiction, bash not widen to signing authorities budgets oregon assenting to authorities laws; this is our law design.
Some whitethorn reason that since Section 305 allows the President to declare a authorities of emergency and Section 11(4) allows the National Assembly to legislate for the state, the President can measurement successful and motion those laws successful the lack of a Governor. This mentation is some unsafe and flawed. Section 11(4) is premised connected the continued beingness of a functioning enforcement astatine the authorities level. The instauration of conception 11(4) collapses erstwhile that premise is nary longer valid. Once the Governor is suspended, Section 11(4) becomes inoperable, due to the fact that determination is nary 1 to instrumentality the laws passed. The Constitution did not contemplate a concern wherever some the legislature and the enforcement of a authorities are displaced and substituted.
On the different hand, Section 305 does not supply the President with the authorization to presume the relation of a authorities Governor. If some Sections are interpreted to run simultaneously successful a concern wherever the full authorities authorities has been suspended, the effect is law confusion. The national authorities becomes some the lawmaker and the instrumentality enforcer for the state, collapsing the precise thought of federalism.
Who signs the Budget into law?
The Constitutional occupation gets adjacent deeper, due to the fact that arsenic it stands, the fund itself is connected faulty ground, due to the fact that the President has nary Constitutional powers to contiguous Rivers State's fund to the National Assembly to statesman with. Now, successful a concern wherever the National Assembly has passed the Rivers State budget. Who volition motion it? Neither the Governor nor the President tin motion it into Law. The Governor cannot motion it into Law due to the fact that helium did not contiguous it to the National Assembly, if the proviso and caveat successful conception 11(4) was to beryllium followed past lone the Governor tin contiguous the fund to National Assembly; this is truthful acold the National Assembly is operating nether 11(4) to legislate for Rivers State. On the different hand, the President cannot motion Rivers State fund into instrumentality due to the fact that the Constitution envisages that whenever the National Assembly triggers conception 11(4) into operation, past the Governor indispensable beryllium successful office, and by truthful doing, motion the fund into law. Also, and please, decidedly not the sole head who has nary electoral legitimacy.
Conclusion
To enactment it mildly, you cannot usage Section 305 (emergency powers) to region a State Governor, past crook astir and usage Section 11(4) to walk a fund of the aforesaid State. Where the President has suspended the Governor nether the guise of conception 305, past Section 11(4) cannot beryllium triggered oregon used, due to the fact that it envisages that a Governor is successful the spot and functional. To bash truthful would beryllium to upend the Constitutional operation and make a unsafe precedent. It would mean that the national enforcement tin wholly and unilaterally administer the affairs of a state; that is not lone unconstitutional, it is undemocratic. The people, portion voting, understood the quality betwixt voting for a Governor and voting for a President.
Opatola Victor is simply a ineligible practitioner with Legalify Attorneys and tin beryllium reached via [email protected]Disclaimer: The views and opinions expressed present are those of the writer and bash not needfully bespeak the authoritative argumentation oregon presumption of Legit.ng.
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Source: Legit.ng
