Buhari’s government by vetoes and executive orders

Buhari’s government by vetoes and executive orders

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President Muhammadu Buhari will be sworn in for his second and final term in office this week, on Wednesday, 29 May. Four years ago, he assumed office amid great hope. Over these four years, I have discussed extensively his administration’s performance in many areas – the economy, national security, corruption, political and institutional reforms etc. However, one area I haven’t given much attention to is the art or process of government.

But this is important because government effectiveness, which refers to the ability to get things done, is not just about outcomes, but also process. In fact, process matters a lot because unless you get the process right, the outcome won’t be right or effective. And when it comes to process, the two critical tools of government are policies and laws. Indeed, the whole essence of government is to make policies and enact laws that improve everyday lives.

Laws are particularly important because critical reforms can only succeed and endure if they are underpinned by proper legislation, that is, if they are enacted into law! Which is why a serious government must have a proper legislative agenda and engage constructively with the legislature to ensure its priority policies are given relevant legislative or statutory backing. Surely, a president that can’t secure critical legislation for his government’s agenda will fail, whatever else he says or does. Indeed, as the Times of London once wrote:“The first six months of a presidency are a precious opportunity to enact critical laws”.

But President Buhari came to power without a serious legislative agenda. His attitude to legislation was lackadaisical, cynical and dismissive. As we know, he frittered away the first six months of his presidency during which he made no single legislative proposal. Indeed, over the past four years, given the irreparable breakdown in relations between the presidency and the National Assembly, Nigeria has had a very dysfunctional government. The legislators failed to pass several critical bills, and the president vetoed many of the ones they passed, while using Executive Orders instead of proper legislation to make laws.

Let’s start with the legislature. Truth is, the so-called 8th National Assembly is a failure in value for money (VfM) terms. The annual budget of the National Assembly was N140 billion in 2018, and a senator receives, according to a recent report, N14.25 million total package a month, while a member of the House of Representatives receives just a little less. With such huge resources, hardly anyone can say that the National Assembly has been productive!

In a recent front-page story, this newspaper wrote that “500 bills are pending at 8th National Assembly” (BusinessDay, 13 May 2019). Some of the pending bills relate to critical economic and business reforms, such as tax relief for industrial development, stamp duties, which several foreign investors have highlighted as a major obstacle to doing business in Nigeria, and transparency in the petroleum industry, another area where reform is widely believed to be badly needed.

Last week, I wrote that the US Central Intelligence Agency (CIA) said in its 2019 World Factbook that piracy is too rife in Nigeria and that “Nearly half of all reports of vessels being fired upon occur in Nigerian waters”.Yet, despite the impact of piracy on foreign direct investment and Nigeria’s image, passing the “Suppression of Piracy and other Maritime Offences Bill” is not a priority for the legislators. Another example. Nigeria signed the Paris Climate Change Agreement in 2015, with President Buhari and Senate President Bukola Saraki attending the conference. Yet, four years on, the Climate Change Bill to implement Nigeria’s commitments is still languishing in the National Assembly.

All of this points to a dysfunctional legislative process. If a legislature cannot prioritise the passage of critical bills, without sacrificing proper scrutiny and quality, it’s certainly not fit for purpose.Yet, in fairness, that’s not to say that the National Assembly has not passed bills since its inauguration in 2015. Of course, it has! And some important bills too!

Which brings us to the territory of presidential vetoes. According to several newspaper reports, President Buhari rejected at least 41 bills passed by the National Assembly since 2015. Recently, this newspaper pleaded in an editorial: “Mr President, please sign the waiting bills into law”(BusinessDay, 16 May 2019). Of course, that plea is understandable when you consider that the bills that President Buhari vetoed related to the much-needed electoral reforms, the much-needed transparency of the petroleum sector and the much-needed transformation of Nigeria’s unattractive business environment.

Take the electoral bill. Virtually all major observers in this year’s general election attributed the huge irregularities that marred the elections and undermined their credibility to flaws in the electoral laws. Yet, President Buhari rejected four versions of the Electoral Act (Amendment) Bill. What about the business environment? How could a president whose administration talks a lot about the ease of doing business refuse to sign into law the Companies and Allied Matters Bill that received significant inputs from the private sector as well as international organisations, such as the UK Department for International Development? The same can be said of President Buhari’s refusal to assent to the Petroleum Industry Governance Bill. Everyone talks about the opacity of the petroleum sector. Yet, President Buhari won’t touch any reform of the sector with a barge pole!

Of course, a president can veto a bill if it’s not in the national interest. But which of the vetoed bills was not in the national interest? And if there were constitutional or drafting concerns, shouldn’t a sensible executive work with the legislature to rectify them? But it seems that President Buhari’s refusal to assent to the bills was idiosyncratic and self-serving, for instance, rejecting the Petroleum Industry Governance Billapparently because it reduces his powers as the minister of petroleum!

But while President Buhari was rejecting bills passed by the National Assembly, he was creating his own laws, using Executive Orders. At the last count, there were 7 of them. Yet the truth is that Executive Orders have limited use, namely, “to direct or instruct actions of executive agencies or government officials or to set policies for the Executive Branch to follow”, according to Black’s Law Dictionary.

Far-reaching and long-lasting reforms can’t be done through executive orders, which can be terminated with a stroke of the pen. For instance, all of President Obama’s executive orders were cancelled in one day, with a stroke of the pen, by President Trump. But when Trump wanted to abrogate the Affordable Care Act (“Obamacare”), he had to go to Congress, which refused to repeal it. So, the Buhari administration is misguided by trying to use executive orders, rather than statutes, to achieve major reforms.

What’s more, executive orders lack legislative scrutiny and, thus, shouldn’t be used to create criminal offences or change fiscal rules. For instance, Executive Order 6 which effectively freezes the assets of individuals facing corruption allegations or charges seeks to pre-empt or override the powers of the courts. A far-reaching instrument like that which, creates criminal offences, should have undergone legislative scrutiny. Clearly, Executive Order 6 amounted to, as the Nigerian Bar Association said, “attempts at decree-making”. The intention of Executive Order 7, which allows private companies to construct roads was good, but because the companies would recover their costs through tax reductions, the executive order has fiscal implications and raises transparency issues that require legislative scrutiny and oversight.

President Buhari has run a personalised first term, characterised by vetoes, executive orders, disregard for the rule of law and a breach of the principle of separation of powers. He must not repeat any of these in his second term!

 

Olu Fasan

 



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