Interrogating Keyamo’s ‘convenient’ reading of the ‘doctrine of necessity’
By Abdul Mahmud
In the widely publicized television interview granted to the political pundit, Seun Okinbaloye, my friend and colleague, Festus Keyamo SAN, was credited by to have argued that the refusal or should I say the inadvertence of the President to secure approval from NASS before payment was made for the Tucano helicopters could be excused on the ground of the doctrine of necessity.
That said, my purpose here is not to engage Keyamo, as he is, like every citizen of our country, entitled to his opinion- at least I grant him that basic right to freedom of expression- no matter how obsequious, but to address some of the questions that have arisen from his interview, particularly his defense of the President, using the doctrine of necessity.
The questions are:
1) Can the decision of the President to purchase the Tucano helicopters without recourse to NASS and the constitution be justified by the doctrine of necessity?
2) If the event Keyamo argued about is unforeseen by the constitution, can extra-constitutional remedy be applied to address it?
3) Does Keyamo’s justification meets the conditions set out for invoking the doctrine of necessity?
4) Can the President depart from the express provisions of the constitution where there is no lacuna in the constitution or where the constitution provides an alternative?
5) Can the President claim powers which the constitution does not grant to him?
I shall return to the questions later.
For us to understand Keyamo’s doctrine of necessity, it is important we have a grasp of what the doctrine is and is not, it is important we give clarity to the idea of constitutionalism in a democracy. The hallmarks of a constitutional democracy are the doctrines of separation of powers, checks and balances that the constitution promotes, secures and defends. What makes constitutional democracy what it is, is this: that the branches of government, including what the French scholar, Michel Foucault famously described as governmentality, must exercise their powers only to the extent and limit granted to them by the constitution, with each branch serving as checks and balances. Here, constitutional democracy is established and strengthened by what I have over the years consistently described as the four pillars of constitutionalism: separation of powers, checks and balances, bill of rights, and citizens’ participation. Here, it is the these pillars that secure constitutional democracy.
Some scholars, notably Ackerman, Paulsen, and Gross, have argued that the constitution as the basic law does not always foresee every circumstance or provide for every situation that may endanger public order and safety; and that certain unforeseen circumstances or situations “may justify governments’ departure from the express provisions of the constitution in order to save the state”. Ackerman, in particular, argues that in the event of the occurrence of an unforeseen event, emergency constitutions should readily address whatever problem the state is confronted with. For Ackerman emergency constitutions exist as substitutes locked away in the recesses of states, that can be fetched in the time of crisis. Other scholars, largely legal positivists argue that extralegal or extra-constitutional regimes can be established by developing a new meta-constructionist schema outside the constitution. For these scholars, the state, from its source and formation, is a product of historical necessity, so the meta- construction must recognize the fundamental necessity of the state, recognize the imperatives of that meta-construction that seeks to justify or validate extra-constitutional acts necessary to preserve the constitutional and political order and to secure the stability of the state. To these scholars the doctrine of necessity lends itself out as a meta-tool for addressing situations not contemplated by the constitution. Thus, from the foregoing, Keyamo’s doctrine of necessity fits poorly into the arguments of the doctrinaire of necessity, considering the sophistication of the theoretical postulations of Ackerman and others.
Now, I return to the questions outlined above. But, first, it is important to clarify the meaning of necessity, at least in the context of the necessity doctrinaire. For our purpose, necessity is recognized, at least in the realm of public law, “as a justification for an action otherwise unlawful but necessary to preserve the state”.
Now the questions and my answers:
Can the decision of the President to purchase the Tucano helicopters without recourse to NASS and the constitution be justified by the doctrine of necessity?
My answer is NO. The principle of supremacy of the constitution envisages that the three branches of government must exercise their powers only to the extent and limit guaranteed by sections 4, 5, and 6 of the constitution. The constitution in section 1(1) declares and affirms its supremacy over all authorities and persons thus: ” This constitution is supreme and its provisions shall have binding force on all authorities and persons through out the Federal Republic of Nigeria”. Discerning this important opening section of the constitution it stands to reason that all laws and actions of personages of the state must be in accord with the provisions of the constitution. Further more, a careful reading of section 5(1) (b) of the constitution shows that the President’s powers “extend 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, power to make laws”. Clearly, from these cited provisions, it is clear that the President must exercise his executive powers within the precinct of the constitution. He cannot go outside the constitution or can explanations be made for his executive actions using the doctrine of necessity that has no foundation in the constitution. Note: executive powers, which include the power to enter into commercial transactions on behalf of the state, reside in the President by virtue of section 5(1) of the constitution, subject to the powers of appropriation, authorization and or approval of NASS preserved by sections 80(3) and (4) of the constitution. To wit:
(3): No moneys shall be withdrawn from any public fund of the Federation, other than the consolidated Revenue Fund of the Federation unless the issue of those moneys has been authorized by an act of the National Assembly;
(4): No moneys shall be withdrawn from the Consolidated Revenue Fund or any other public fund of the Federation except in the manner prescribed by the National Assembly
Let’s note that the doctrine of necessity does not apply where the substantive law provides no alternative, where the constitution states or provides steps to be taken in a prescribed manner “to protect or preserve the functions of the state in the event of the occurrence of an exceptional circumstance, or where there is no reasonable course available”. On this point of principle, Section 80(3) and (4) does not provide other alternatives for withdrawing public funds beyond that prescribed by NASS. The operative verb, SHALL, in subsections (3) and (4) does not give room to the President to depart from the mandatory injunction of section 80. Nor does it establish basis for the exercise of extra-constitutional powers and the invocation of the doctrine of necessity, particularly where the constitution sets out in section 305(1) and (2) the limits of his powers in a state of emergency. If one central condition for invoking the doctrine of necessity is the presence or occurrence of an extraordinary event, the emergency that Keyamo appears to frame his doctrine of necessity does not exist because no actual emergency has been declared or proclaimed by the President pursuant to the exercise of his powers under the aforesaid section 305 of the constitution.
Let’s assume that a national emergency exists and let’s also assume that the power to use “extraordinary measures to restore peace and order” under section 305(3) (c) of the constitution exists, can the President’s inadvertence now be excused on the basis of the fictional doctrine of necessity? Keyamo’s doctrine of necessity makes no sense of the theory of the state of exception.
If the event Keyamo argued about is unforeseen by the constitution, can extra-constitutional remedy be applied to address it?
There is no lacuna in the constitution to warrant the invocation of the doctrine of necessity. My simple answer here is that sections 1, 4, 5, 11, 80 and 305 do not allow the President go outside the constitution to invent a fictional meta- tool to address a non-existent problem. Our country’s constitutional order is founded on the principle of legality- a principle that is time-honoured, that ensures that all actions of the personages of the state, including the organs of state, must be sanctioned by the law.
Does Keyamo’s justification meets the conditions set out for invoking the doctrine of necessity?
No. The conditions for invoking the doctrine of necessity were set out by the appellate court of Grenada in Mitchell and Ors v Director of Public Prosecutions and Anor (1986) RC (Const) 35, 88-89 as follows:
1) An imperative necessity must arise because of the existence of exceptional circumstances not provided for in the constitution for immediate action to be taken to protect or preserve the functions of the state;
2) There must be no other course of action reasonably available;
3) The action must be proportionate to the crisis unforeseen by the constitution;
4) It must not be the sole effect and intention which is to consolidate the revolution;
5) It must be used to promote the rule of law and the existing legal order;
6) It is a doctrine that the court applies
I leave the reader to apply any of the conditions in order to make sense of the doctrine of necessity.
Questions 4 and 5:
Can the President depart from the express provisions of the constitution where there is no lacuna in the constitution or where the constitution provides an alternative?
Can the President claim powers which the constitution does not grant to him?
My answer is no, for reasons that I advanced in my answer to question (1) above.
Ours is a constitutional democracy, and to accept Keyamo’s doctrine of necessity is to provide justification for violating the constitution. A final point, here. The President in his letter to the National Assembly accepted that error, occasioned by the exigencies of the transaction, was made by his presidency. Governments are like human beings and they are prone to errors; but the President has done the right thing by accepting that the payment for the Tucano helicopters was made in error. If I were an aide of President, but, unfortunately, I am not, I would ask him to set a meeting up with the leadership of NASS, outside the prying glares of television cameras and say sorry. As they say in my part of our country: sorry nor be say you weak.
Needless digging deep with a doctrine that makes no sense of our constitutional theory and practice!
God bless Nigeria.
Abdul Mahmud is a lawyer, activist and poet