Buhari broke the law by ‘withdrawing $462 million' without approval

On April 13, 2018, President Buhari sent a letter to the leadership of the national assembly.

This letter was received by the Office of the Speaker of the House of Representatives on April 17.

The president's letter

The president’s letter to the national assembly read in parts: "It would be recalled that, for a number of years, Nigeria had been in discussions with the United States Government for the purchase of Super Tucano Aircraft under a direct Government-to-Government arrangement.

“Recently, approval was finally granted by the United States Government, but with a deadline within which part payment must be made otherwise, the contract would lapse.

“In the expectation that the National Assembly would have no objection to the purchase of this highly specialized aircraft, which is critical to national security, I granted anticipatory approval for the release of US$496,374,470.00. This was paid directly to the treasury of the United States Government”.

What the preceding paragraph means is that Buhari already paid this money to the United States government for the aircraft before even sending his letter to the national assembly for approval.

Reasons Buhari decided on anticipatory approval

I can understand why Buhari did what he did. The president desperately wants towin the war against Boko Haram. This Super Tucano specialized aircraft will go a long way in helping the president achieve that objective of decimating the blood thirsty terrorists in line with his election campaign promise.

One of the reasons why the war against Boko Haram suffered under Goodluck Jonathan was because soldiers often complained that they couldn’t match the sophisticated weaponry of the terrorists.

Billions of dollars meant to equip soldiers allegedly disappeared into the bank accounts of army generalsunder Jonathan. But that's a subject matter for another day.

We also know how parliament can be slow and tardy when it comes to matters of urgent national importance. Lawmakers would rather fight over a mace, throw chairs at themselves or appropriate more money for themselves for invisible constituency projects, than deliberate on how to expeditiously deal with a request that will help Nigeria in its insurgency war.

What the law says

But all of the reasons above do not make the president’s anticipatory approval right. The law says Buhari got this one wrong.

Sections 80 (3) and (4) of the 1999 Constitution reads inter alia:

(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.

Besides, money from the ECA belongs to the three tiers of government. Which implies that the president should have sought the approval of the national assembly and those of the 36 State Houses of Assembly before handing over the $462 million to the United States.

It is called a joint account or consolidated revenue account for a reason.

The money in the ECA doesn’t belong to one tier of government. It belongs to the three tiers of government in the federal, State and local governments.

Checks and balances

In a democracy, the president of a country doesn’t have limitless powers and there are checks and balances to avoid precisely what Buhari just did. The framers of the constitution weren’t dumb when they inserted the sections cited above.

Buhari’s action is therefore ultra vires to the extent that lawmakers didn’t approve the money for the purchase of the fighter aircraft.

In future, instead of going down the path of illegality or anticipatory approval, the president should lobby and cajole lawmakers on a matter this important and urgent. Surely, they would take a break from fighting over a mace to listen to him.

While we badly want to defeat Boko Haram, we shouldn’t be trampling on the laws of the land in order to attain that objective, just so we don’t set a bad precedence.