Pilot Law

Veto power in a democratic dispensation

 

Democratic governments are generally organised on a tripod of legislature, executive and the judiciary with each arm of government assigned clear constitutional mandates for effective running of the system and balance of power. In spite of this power distribution, there are bound to be overlaps which are exploited by the political class. This situation is not different from what is at play in Nigeria where the legislative powers are given to the National Assembly while the executive powers are assigned to the President and Governors at the federal and state levels respectively albeit symbolically. The judicial powers are vested in the courts. For governance, the various arms of government for the purpose of power balancing and checks are given authority to override each other, especially the executive and the legislature. These two arms are focused because the judiciary is seen as the junior partner in power dynamics. To that extent, Presidential law making is regarded as a check on the legislature but there is need to ensure that such checks do not create conflicts between the executive and the legislature. This power matrix has however created a number of conflicts in the governance of Nigeria, especially because of the attitude of the rest of the political class.
Concept of veto power: Veto power is regarded as the most effective weapon in the arsenals of the President in the ever unending battles between him and the lawmakers and it is regarded as creating the President as the 3rd branch of the legislature, especially in a bi-camera legislative arrangement.  In its usage, it is not limited to law making but extended to policy issues. The doctrine comes from the Latin word ‘vetare’ meaning “I forbid” and traceable to Ancient Rome and England. It was acknowledged to have first emerged in early Roman Republic established in 509BC and designed to reduce the arbitrary use of political power. The concept of veto actually started with Le roi S’avisera, which translates to “the king will think it over” Thus, from being thought over, it dovetails into total withholding of assent.
In the American experience, initially there was no reason to use veto power as a means of balancing the interest of opposing social classes as done in Rome until the doctrine was introduced to South Carolina, Massachusetts and New York with clear vetos granted to the chief executives of the three states. It was eventually agreed that there was need to protect the executive against power encroachment of the congress. At the level of international law, the veto power was introduced into the administration of the United Nations Security Council with five permanent members invested with the power to stall the passage of any substantive resolution of the United Nations.  The permanent members are China, France, Russia, United Kingdom and United States of America.
More than 50 years after that resolution, nothing appears to have changed. The recent crisis in Syria where display of power and exercise of veto has stalled peace in the country is a case in point. The crisis imposed on the world community by the big five appears to even be more than what the remaining member states are inflicting especially the issue in a competition for superiority among the big five to the neglect of the entire world community. This is why there is need to examine the concept in Nigeria.
Veto power in Nigeria: As earlier indicated, the major issue for the exercise of veto is with respect to legislation in Nigeria. As it is generally acknowledged, law making is the prerogative of the National Assembly as far as the issues in the Exclusive Legislative List are concerned while the State Houses of Assembly are vested with powers to make laws for the States. In the 1979 Constitution, Section 55(4) provides that the President may refuse to assent to a Bill passed by the National assembly and where this is done, the National Assembly by a vote of two-third of members override the President’s veto.  This provision was replicated in Section 58(4) and (5) of the 1999 Constitution. This issue of exercise of veto power by both arms of government appears to be more pronounced on the passage of Appropriation Bill since the advent of the Fourth Republic. The question has always been whether the National Assembly has the power to tamper with or in any way juggle the figures in the Appropriation Bill. A new lexicon was added to this as “budget padding”, which some have argued is a criminal act. It is my humble view that the National Assembly has the right to tinker with any law presented to it either as a private member bill or as an executive bill. Appropriation Act cannot be an exception. This position is not shared by the highly revered scholar, Prof Ben Nwabueze, who argued that the National Assembly lacks power to increase the total amount in the Appropriation Bill. This position was complemented by Amaza that increase in budget is unrealistic. This position was however modified by Udofa that where the increase in the budget is not unreasonable then no harm would be occasioned. As late as 20th June, 2018, President Buhari expressed his frustrations on the increment to the 2018 Appropriation Bill by the National Assembly to the tune of N508 Billion, which he said has fundamentally altered the essence and goals of the budget. It is our humble view that what is playing out is existence of government within a government. It is even more confounding, if one considers that it is the same political party that is in charge of both the executive and legislative arms of government. What we have in Nigeria is essentially breakdown of communication between the two arms of government and clear lack of synergy within the political fold. This is definitely not good for our democracy. It is very important in the interest of the Nigerians that elected the President and members of the National Assembly for the two organs to fashion out a synergy to work together to deliver on good governance for which they were elected in the first place. For three years, the present leaderships have traded blames to the detriment of the Nigerian masses. Enough is enough.
The dynamics of the exercise of veto power in Nigeria is that where within 30 days of the presentation of a bill to the President for his assent, the Bill is not returned to the National Assembly as signed, then the President would be presumed to have withheld his assent and same could be passed by the two-thirds majority of the National Assembly. In reality, it has been generally difficult for the National Assembly to muster the required number to override the President’s veto. There is however the need in our view to retain this power as it has a way of checkmating the excesses of both arms of government. It may however be necessary to introduce line veto as the case may be. Line veto gives the President to assent to a Bill but withhold the signing of specific provisions of the Bill. If this is done, the bickering may be reduced and the government business will not be hooked, jeopardised or stalled. The alternative is pocket veto, which is essentially withholding assent until it is too late for it to be passed or dealt with within the legislative session.
The face-off on veto power was also witnessed in Nigeria with regards to the alteration of the Constitution of Nigeria where it was argued by some that the President’s signature was not necessary before it can come to effect. The question we need to ask is whether the alteration to the Constitution was by way of law making? In our view, this is in the affirmative. If that were so then, the argument with respect cannot find any plausible foundation to hang. As a part of the dynamics of the exercise of veto power in Nigeria, the executive has capacity to make laws without reference to the law makers. This is also another constitutional check by Section 32 of the Constitution, the President has the power to make regulations with respect to Chapter 3 thereof and then lay it before the National Assembly without more. The Supreme Court has even held that the President has wide powers while modifying existing laws to bring same in conformity with the Constitution. In AG Abia V. AG Federation Iguh JSC held that the separation of powers of the National Assembly may be restricted by the Constitution and that this was effectively done by Section 315 of the Constitution. This is a tactic endorsement by the third arm of the government that there indeed exists senior/junior partner relationship in government branches. This state of affairs has led to a misuse and abuse of the constitution in Nigeria.
Use, misuse and abuse of veto power in Nigeria: The concept of veto power has been misused and abused by the Nigerian political class as it appears the essence and goals of providing for the doctrine in our constitutions is clearly defeated. For the avoidance of doubt, veto is expected to serve as a check of abuse of power on the part of the two arms of government that are supposed to be partners in ensuring that the citizens received good service for their investment by voting for the government. What it appears the political class in Nigeria is seeing is opportunity to blackmail, arm strung and whip each other back to line. This in our view is a clear misunderstanding and misinterpretation of the constitution.
In her recent book, Prof. Okonjo-Iweala posited that the legislature is only interested in “the size of its own budget: the nature and size of the capital budget, particularly investment projects; and the number and geographic location of these projects. This negative perception of the National Assembly has seriously undermined whatever good work it may be doing. In the view of many Nigerians, the National Assembly constitutes a clog in the wheel of progress. In spite of all the negativity, it is our humble view that the National Assembly is serving to provide salutary effect on our body polity. There is tendency for executive to be authoritarian, draconic and greatly abuse the citizens, in the collective wisdom of all Nigerians as represented in the Constitution; there is need for the checks and balances that the National Assembly is providing in spite of its weaknesses and imperfections.
Politics has to consider which sort of constitution suits which sort of civic body. The attainment of the best constitution is likely to be impossible for the general run of states; and the good law-giver and the true statesman must therefore have their eyes open not only to what is the absolute best, but also to what is the best in relation to actual conditions.
Indeed, in the immortal words of Prof. Nwabueze, the legendary constitutional scholar that:
To the extent that the National Assembly in Nigeria under the current democratic dispensation is acting like one controlled by a party in opposition to the president’s party, it is doing a fine job, provided it is able to resist the temptation to carry opposition to the point of capricious confrontation in defence of its independence. Independence of the organs is a principle instituted by the constitution, not for the sake of self-aggrandisement, but as a bulwark for the people against autocracy.
If there is no check as it is presently provided, the rule of the jungle is likely to be the order of the day. The question we need to ask is whether there is indeed any need for the idea in a democracy.
Veto power anti-thesis to democracy?: If we consider the idea of consensus in decision making as the hallmark of democracy, it is likely to argue that the idea of veto power is undermining the entire essence of democracy. It has however been perceived that veto is also a recognition of the rights of the minority, not only to have their say but also to have their way. The balance of power is viewed from the perspectives of equality in the matrix as none is seen as senior or junior in the eyes of the law. This is the theoretical underpinning of the power distribution and to that extent, each arm of government represent equal force in terms of population and strength. The argument of this equation is that the President is elected by majority of lawful votes of the citizen and that the members of the National Assembly have been voted to represent their various constituencies which cumulated into the single constituency of the President.
If the two arms are equal in terms of representation then, democracy expects equal force of operations. To that extent, the application of veto power within the context of the Nigerian democratic experiment is sanctioned, especially in the light of constitutional provision.
Whilst it may not be fair to conclude that veto power is anti-thesis to democracy in Nigeria in the light of the need to ensure that both arms of government are not allowed to be dictatorial on the affairs of the nation, there is need for responsible leadership on the part of both arms to ensure that the ultimate interest of the citizen is the determinant of the exercise of the veto power and not vain glory or mere power tussle.
Conclusion
The originators of the concept or idea of veto power came up with the design to protect the citizens from abuse of power. This abuse is however the basis of the application of the concept in Nigeria to the detriment of the citizens for which the concept was designed. The protection envisaged for the President by exercise of veto power is to ensure that he/she is not weakened, blackmailed or constrained to take decisions that will ultimately affect the citizens negatively. In the same vein, the legislature is empowered to override the veto to ensure that the citizens are not short changed by the capricious acts of a President if his/her decision to exercise veto is for fancied ego.
This principle need be emphasised in the operations of our nascent constitutional democracy which is still forming.
If we must be on the road to real constitutional democracy where veto power will serve the purpose for which it was provided by the Constitution, the citizens must be eternally vigilant by ensuring that the right calibre of people are given the mandate to rule us. After all, a set of people deserves the kind of leaders they have as followership determines leadership.

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