Doctrine of Necessity: Festus Keyamo Is Putting It To You That Buhari Was Constitutionally Wrong But Legally Right.

Festus Keyamo

The debate has raged on the legality or otherwise of President Muhammadu Buhari approving payment for 12 Tucano aircrafts without the consent of National Assembly as required by the 1999 Constitution. It has led to at least one motion of Impeachment on the floor of the House of Representatives while an online petition has been gathering signatures.

President Buhari has written to the National Assembly explaining his decision as being due to a deadline that could not have accommodated politics; he has asked the legislature to grant retrospective approval for the purchase already made. Standing on Buhari’s excuse and explanation, Festus Keyamo, the recently appointed spokesperson of the president’s 2019 bid, has gone one step further to provide a legal defence for his boss.

These were his words speaking on Channels TV’s Sunday Politics over the weekend:

“I think what has happened in the past one week is pure politics and it’s just a storm in a tea cup. Because if you follow the politics of the excess Crude Account since the time of Obasanjo 2004 when the account was opened, all the past presidents have spent from that ECA without reference to the National Assembly. They only go to the National Economic Council made up of all the Governors in the federation; they agree on how the money should be spent and the money is spent

Proceeding, Mr Keyamo said “that it is not all Constitutional infractions that amount to gross misconduct that will lead to the impeachment of the president. There is what is called in law the doctrine of necessity. The doctrine of necessity is wide enough to accommodate all instances where you may have to bypass and compromise constitutional provisions in order to achieve a greater good, to achieve something that will make the country survive.

“The doctrine of necessity should not be given a narrow interpretation to include only the change of power. It applies to any infraction at all that is carried out that is done for the purpose of achieving a greater good. It is not legal gymnastics; anybody can Google the doctrine of necessity so it doesn’t look like we are bamboozling Nigerians.”

In other words, Mr Keyamo, a Senior Advocate of Nigeria, recognises and even affirms that the president’s payment for the Tucanoes was unconstitutional but ‘okay’ due to “necessity”?

“Nigerians should understand that the president acted under necessity and in this case there was justification for what the president did and that is found in the doctrine of necessity” Keyamo said.

But how does the doctrine cover the president in this case where there is a clear stipulation in the Constitution on spending process?

Keyamo stressed that “We have been struggling to buy those airplanes since the time of President Jonathan. They are the airplanes required in modern times to fight insurgency”. The lawyer observed that the past administration before Buhari’s could not get the aircrafts due to allegations of human rights abuses but that “perhaps” the record has improved under this administration, hence leading to the US agreeing to sell.

It is, in the first place, doubtful that the human rights stumbling block that prevented the purchase under President Jonathan has become less of an issue under Mr Buhari. Watch groups have reported cases of abuse in Nigeria since 2015, notably the alleged massacre of members of the Islamic Movement of Nigeria. And as has been pointed out by some, the present willingness of the US to sell weapons to Nigeria probably has more to do with President Donald Trump’s ‘America First’ campaign to bolster and give evidence of military manufacturing in America than any other concern for international security. Also naive is the claim that modern airplanes will solve insurgency when the decades-old socio-economic causes of disillusionment and deviance in the young insurgents remain unaddressed.

However, the main issue here is the contrivance of the so-called ‘doctrine of necessity’ as justification for President Buhari’s manifestly unconstitutional act. After it was employed to deal with the palpable and self-evident crisis of Umaru Musa Yar’adua’s elongated absence in 2010, there has been no major mention of the doctrine in the past decade. But while it was used then to solve a problem that had not been foreseen by the nation’s laws without amounting to an illegality in itself, Mr Keyamo uses it presently in clear contravention of a stipulated point of law. To invoke a deadline (which could have been met had the Executive utilised it’s 55 days judiciously) as the trigger for necessity and bypass the Constitution should be worrisome; it provides an unstable precedent for further contraventions of the Constitution in the future.

Mr Keyamo’s main argument seems to be that since Obasanjo did it, so can Buhari. That would certainly unfortunate coming from (1) an ardent supporter of administration which promised “change” and (2) a lawyer. How can a nation move forward with its democratic experiment if the occupants of its high offices flagrantly break the law and defend themselves on the basis of past aberrations?

The Delta-born SAN had one other justification for Buhari discarding the Constitution for the Tucanoes the existing ‘cold war’ of sorts between the Executive and Legislature. So will the president make all further appointments in future ahead of the legislature’s approval? Will the 2018 Budget go into “necessary effect” if it is not passed by June 12 (the date the last was signed by VP Osinbajo in 2017). And what does all of this say about the leadership of the president in his party which has the majority in the National Assembly

Democracy relies on courtesies and political sensitivity between both arms of government and in relation to the wider public to take root. Mr Keyamo saying “Nigerians should understand” is the Nigerian elite-speak for ‘putting it to the masses’ that they are not intelligent enough to understand what it takes to lead Nigeria aright. It is a condescending jab, and also a new low for one whose rise to fame has been on the basis of standing by the law and with the people.

It is also one that should be rejected as a dangerous termite eating up the woods of what is still a fairly built-up democracy.


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