Open Letter to the Acting President

Nigeria’s constitutional arrangement has been tested or better is still being tested. The present arrangement was never a product by the people and for the people. It was never promulgated by the people. It was simply dictated by the military or better by one man pretending to be the people. That said it is all that we have for now. It should also be pointed out that no constitution is perfect. If there was one then the US constitution should never have been amended. We recognise that we have erred or better that those framers of the constitution are not infallible. The framers at any event only operated within the remit handed over to them by the ‘all knowing’ military. However whatever the shortcomings of Nigeria’s constitution or any constitution for that matter it assumes civilized operators. It is this implicit assumption that self corrects an otherwise imperfect constitution. Therefore the drafters of the Nigeria’s constitution did not envisage that those called upon to operate the constitution on behalf of the people could be so primitive. That the operators could only construe the constitution to the detriment of the people! That they could only maximise the interest of one man and those who feed fat on the back of one man! It is on that note I will now proceed to comment briefly on the imperfection or otherwise of s145 of the constitution.

Section 145 says “whenever”. This operating word “whenever “is indicative of its discretionary provision. The discretionary powers it vested on the president do not mean it is imperfect or wrongly worded. The drafters did not envisage that the discretionary provision could be seized upon by one man to hold on to power whether or not he is in a state of coma. The drafters assumed the civility of the operator to recognise that it is absolutely imperative to inform the peoples’ representative of his intention to proceed on leave be it sick leave or rest leave. The drafters never envisaged that the operator couldn’t care less whether or not his exercise of the discretionary power was for the people or for a few cabal. It would amount to abuse of discretionary power therefore for such discretionary power to be exercised for the interest of one man. Such abuse of discretionary powers was outside the contemplation of the drafters of the constitution. If so then the exercise of the power could only be for positive purpose. Therefore though discretionary there is also a duty not to abuse the power. It is analogous to the discretionary powers vested in the courts. However such powers are subject to judicial review at least here in England. It could only be subject to judicial review to prevent abuse. Where a judge is found to have abused the exercise of his discretionary powers his orders will be set aside.

The conclusion to be drawn therefore is that it is within the competence of the judiciary in its role as a check on the executive to review the executive’s exercise of power. And to set aside where such power has been abused. The courts should be call upon to review Yaradua’s exercise of the discretionary powers vested in him by s145. No doubt the courts should set aside his decision not to transmit his intention to relocate to Saudi Arabia under the protection of the Saudi King. By this singular act Nigeria has lost its sovereignty and by the same token Yaradua has lost his presidency. In my humble opinion I submit that such court judgement should be as follows:

1. It is ordered that president Yaradua shall transmit his desire to continue to be on leave in Saudi Arabia to the National Assembly by 4pm on Friday 26 February 2010 failing which the matter should be referred to the National Assembly for sanctions.

2. where by 4pm on Friday 26 February 2010 Yaradua fails to obey the court order then the National Assembly shall bring sanctions to bear for his breach of the court order and by the same token his breach of the constitution.

Some may argue that events have overtaking the proposed procedure. I agree no less. I have only made this proposal here to concede the point to those who have claimed that the motions of the Senate and Federal House of Reps were not sufficiently legal. The proposal here serves to highlight how it may have been done better. That said I do not necessarily subscribe to the notion that the National Assembly is not competent to confer acting presidential powers on the Vice President on the back of necessity. The doctrine of necessity is an ingenious tool that enables operators to get out of the box to solve a problem where there is a logjam. We must ask the critics of the motions to provide their alternative solution to the logjam. Where s.145 has become in operational, s144 has become in operational and s146 is no go area what should have been done? Sweep the problem under the carpet and with it drift Nigeria into the unknown. Never again must Nigeria experience the likes of Babangida and Abacha! A resort to such dark ages was proving to be the most feasible solution.

Furthermore, Nigeria is not USA. Nigeria does not have the foundation of USA. Nigeria does not have the same civilised operators of the US model. Nigerians forebears and present operators were trained in the Westminster model. The drafters of the constitution should have married the US model and the Westminster model and not simply copy the US model without the necessary training and understanding of the US model. With all due respect that an Act of Parliament may be subject to judicial review under the US model flies it the face of common sense. Act of Parliament represents the will of the people. How could the will of the people be subject to judicial review? The people could do no wrong. To say that the peoples’ will may be amenable to judicial review is to say that the people lack the freedom and free will to revise a previous decision. The constitution is nothing but a previous decision or existing decision. The people could decide anytime to amend section s145 having found out that it does not work in practice in Nigeria. Under the Westminster model Act of Parliament is supreme! The writer is aware that a motion is not the same as an Act of Parliament. That as a matter of strict legal interpretation a motion is an opinion. That said the motions passed represent the opinion of the Nigerian people through their representatives in Parliament. As a matter of opinion the people of Nigeria have decided to move on by conferring on the Vice President the powers of the President to make good that which was contemplated by the drafters of the constitution or better to solve their present predicament. Therefore, Goodluck Jonathan, do not fetter yourself. The people of Nigeria have spoken. They have conferred on you the powers of the President to bring the ship of state safely to shore. Do not rock the boat.

Do not fetter yourself. Do not play second fiddle to pretenders to the throne. There is no throne in Nigeria. Nigeria is a democracy or so we are made to believe. There can be no two presidents at the same time. You are the President of Nigeria whilst Yaradua resides in Saudi Arabia. Whenever he comes back and transmits to Parliament his readiness to function as president, his readiness shall be subject to medical review. Though I must add as far as this writer is concerned he has lost his presidency. Period.

Please do not betray the trust the people have reposed on you. Leave up to expectation and curb the office of “first ladyism and its attendant sycophancy” (Wole Soyinka to Babaginda) The office of first lady is extra constitutional. It is beyond me that Nigeria could acquiesce in the Turai’s arrogation of presidential powers to herself. She has not got the peoples’ mandate to rule Nigeria. She could not simply carry on accessing confidential information. She could not simply park the presidential jet at her beck and call. The funds being expended in Saudi Arabia by one family is needed at home to attend to infants without milk and medication. Please be more conscientious than those in Saudi Arabia fritting away our hard earned resources. The Nigeria people demand to know the bill so far incurred in Saudi Arabia. It is part of your responsibility to account to Nigeria.

Furthermore try hard to make a difference in Nigeria. You only need to attend successfully to two areas. These areas are electricity and fuel. If you solve these two problems then Nigeria may accelerate to the 5 th most industrialised country within 8 years. However, do not believe that government is the solution. Government is the problem. You may approve 1 trillion US Dollars for electricity so long as government is the operator the 1 trillion will produce less electricity. So much money has been poured into electricity since Yaradua was unleashed by the cabal on Nigeria. There is nothing to show for the billions. With more money we have less electricity! It is shameful and unacceptable. Do not approve any further funds for electricity or fuel supply. Sir may I proceed by proposing two short remedies to these problems.

There is one and only one solution: a complete deregulation of the sector. Government price fixing will continue to discourage investors and labour opposition to a price hike will do more harm than good. Apparently labour means well for Nigerians but their opposition to a price hike will bring about undesired results. Profit is a necessary incentive to attract competent and technically viable commercial enterprises into the market. Government as the dominant if not the only player in the system is an avenue for massive corruption. Therefore any call for continued government expenditure is a call to leave intact the avenue for massive corruption. Those who make such calls do so to continue to give vent to corruption. There is no alternative to a private sector led solution to the electricity problem. Government has tried for 50 years without any solution another 50 years will still not produce any results.

Labour should be persuaded to see the merit in an alternative approach. We must do to electricity what we did to the telecom industry. The solution is simple: You should without further delay bring a bill before the National Assembly to completely deregulate the sector or if people have become allergic to the word “deregulation” to completely liberalise the sector. The proposed bill should contain sweeteners to lure competent and technically sound entrepreneurs into the system. Then we should proceed to engage in very serious negotiations with such firms so as to bring them into the industry. Such firms must be allowed to install prepaid meters. If we can use very successfully prepaid meters such as pay as you go or pay as you can or pay as your pocket allows or pay in accordance with your personal needs in the telecom sector why not electricity sector that is more fundamentally important. The alternative government ownership is 500 times more expensive than a hiked tariff. Labour opposition to a hiked tariff is misplaced. Without a hiked tariff there will be no investors. Without investors electricity growth will continue in the negative. Negative level production would mean the use of alternative generators that is 500 times more expensive than the hiked tariff that labour has sworn to oppose. Labour should be brought along and persuaded to see the merit in an alternative solution to Nigeria’s energy requirements.

To hold unto the current system is to continue to create a vent for corruption. Those who call for more funds to maintain existing facilities know better than labour. They do so to maintain and source a den for corruption. If labour is in the business of helping Nigerians they ought to support an action plan that is 500 times cheaper.

This is the area you must strive to succeed. Government again here is the problem and not the solution. Critically examine the role of NNPC. The question is: should NNPC have any role in the production, transmission and distribution of refined petroleum products? The answer in my humble opinion is a resounding no! NNPC as a player if not the dominant player in the petroleum downstream sector is the problem. It is absurd for NNPC to aim at acquiring the private owned gas/filling stations in pursuit readiness for deregulation of the sector. Such a move will result in the opposite. In short NNPC monopoly of the distribution units to the final consumer is the very opposite of deregulation. It is aimed at frustrating the efforts of government and others who have professed deregulation as the solution to fuel scarcity in the country. It is beyond me how the NNPC leadership was able to convince people to accept such diabolical strategy as the best preparation for deregulation. It is even more disturbing that he received applause in the various fora where he has offered a socialist policy as the best enabling environment for a market driven distribution network. Sir, free market is at the heart of a deregulated regime. NNPC taking monopoly of the retailer units is rather a strengthening of the present system that has failed us wholly. The vigorous pursuit of monopolised down stream petroleum sector is responsible for the recent fuel scarcity nationwide that has embarrassed the government.

NNPC Managing Director has argued for NNPC to continue to lead the sector as the best means to ensure the success of the planned deregulation. He went further to argue that it is of strategic importance for government to remain the dominant player in the system. This is laughable! Strategic importance! This was the same phobia the military drove into Nigerians in order to conquer the people. The same harbingers of strategic importance stole the whole money that belongs to Nigeria and went and dumped the money in Europe and America. This is not how to protect a nation strategically. The government near monopoly of production, transmission and distribution of the petroleum sector has resulted in massive importation of fuel. The massive importation of fuel is most devastating to the nation’s strategic planning. Has it ever occurred to anyone that the exporters of refined petroleum product may cease to supply us? Where that happens what would happen to our national security. I have always wondered where Nigeria will find the fuel to power the tanks and the air fighters should we be over run one morning by say Cameroon. Where is the strategy for a Nation that has not the necessary energy to drive its own industry? The notion that we cannot get anything right until government is involved is completely idiotic. It is a notion sold by those who have realised that the only means for them to have relevance is to be directors of inefficient government businesses. These are the people that are of the greatest strategic danger to Nigeria. Those who continue to man government businesses without the necessary skills save that they happen to have been born in a particular geographical region. NNPC I was made to understand was to be managed by those with the best technical qualifications in engineering. If so, how did a political science gradate manage to come to head NNPC with the attendant consequential failure? Such harbingers of state controlled economy will continue to do so in order to create relevance for inconsequential elements. They are those that do mean Nigeria well.

That said people some people in connivance with labour and other interests group have driven the phobia into Nigerians that a deregulated down stream sector will spell economic disaster for Nigeria. The absurdity of their logic stinks to the high heavens. I do not subscribe to the notion that a deregulated downstream petroleum industry will necessarily result in higher pump price. If anything a deregulated regime will bring down the pump price. The pump price will go down because of increased supply and competition. It is my very strong position that a regulated regime is responsible for high pump price. Proof that this must be so:

Sir, the present subsidy regime is unfair. At least Yaradua has meant to address this monster they call petroleum subsidy. I have learnt that you remain very loyal to Yaradua. If so the best form of that loyalty would be to ensure that the only policy he was sincere and honest to carry through to the letter is implemented immediately. Do not fetter yourself, do not be intimated, go now and remove the subsidy. Permit me sir, to address the reasons I believe the subsidy regime is unfair:

the subsidy goes to 30 people and not Nigerians. Sir, spend the trillions that have been paid to few Nigerians in the name of subsidy to subsidise Nigerians directly. This should be in the form of welfare payments to Nigerians to ameliorate any harsh effects of inflation generally and not just pump price in particular. Allow deregulation so that market forces should efficiently allocate the scarce resources and therefore eliminate scarcity and black market prices. Then the trillions that would have been used to subsidise 30 people should be paid DIRECTLY to Nigerians as welfare benefits as it is the practice in the top 20 economies a club we seek to join in 2020. The top 20 economies allow the market to work without distortions and then cushion harsh realities of life by paying unemployment benefits to those who are out of work, child care benefits to those with dependent children, housing benefits to those who cannot afford the open market rate and pension benefit to the elderly. Where this is done then the subsidy will go round the majority of Nigerians who fall below poverty line and not necessarily workers who manage to live above poverty line. The method for dishing out any benefits should be means tested. Pay out the trillions as welfare payments to all Nigerians who meet the means test and not just workers who constitute 5% of the population. A trillion Naira will pay average benefits of N40, 000.00 a year to 20,000 Nigerians per each local government. The effect of paying about N3, 300.00 a month to 20,000 people in each local government of the Federation would be a thousand times better than giving the same amount of money just to 30 people in the name of subsidy. Those who disagree must provide effective counter argument.
Subsidy displaces the incentive to attract private capital to generate the petroleum downstream. Please if in doubt see the modest gains in the telecoms industry
outside the subsidy government continues to pour billions into refurbishing of refineries without any corresponding returns either by way of refined petroleum or returns to the treasury of net profit. What is difficult to understand is that the operators of the refineries from the directors to the workers and labourers continue to win the argument that the only solution to scarcity of petroleum products is a continued pouring of government and tax payers’ funds into refurbishment of obsolete refineries. Yet each time they receive in the funds, the refineries continue to perform less and yet insist each time successfully that they and they only have the solution. They are the problem and not the solution. They know they are the problem but labour does not know they are the problem or pretends not to know. The problem cannot be the solution. The solution to a problem is to try a different mechanism different from the present system. The present system is the fuel subsidy and the solution must be something different and that something different is the market characterised by free entry and free exit. Therefore government plan to licence people en mass to bring in the product and/or to produce the product is laudable and must be pursued vigorously and without fear of labour. Government must lead and not surrender to special interest group supported by labour albeit in ignorance. It is submitted that the same solution has been tried over and over again with same result. No fuel! With the support of Labour organisation and a section of the media they win the argument with the result that no progress is made and no locally produced refined petroleum. Yet all the groups continue to insist that the present regime is the best for Nigeria. Yet the rest of Nigeria continues to swallow this position sink line and hooker.
No fuel because with the support of Labour the refineries produce nothing. Result! Massive importation of refined petroleum with our hard earned currency. Our hard earned currency pumped into other economies where the refined petroleum is obtained. Those economies continue to get richer at the expense of Nigerians. Yet Labour would have us believe that this is the best way to help the masses. And the NNPC leadership would have us believe that it is the best strategy for Nigeria. It is a strange way to help Nigerians by funding other refineries where that in turn employ their own people in those refineries while Nigerians have no refineries to work because none is functioning as result of the subsidy regime. Yet the organised labour and a section of the media continue to say that it is the best way to help the “masses” Yet we continue to swallow this line sink and hooker.
The countries that export refined petroleum to Nigeria continue to expand their refining capacity with private capital which is forbidden in Nigeria. Yet we go cap in hand to countries that export to us (who are able to so because of private capital) to give us refined petroleum.

For too long labour has been able to arm twist government to implement its policies. Not jus this present government but also preceding governments. The notion of a listening government is misleading. Listen to what? I fail to subscribe to the notion that a responsible government is one that listens to opposition’s criticism whether or not such criticism is constructive or whether or not such criticism is pure politics or sound economic thought. Government cannot simply be run on the basis of threats from opposition. A labour movement that successfully imposes its policies on government is the de facto government. To the degree that government ends up operating labour’s policies to that degree is labour the de facto government in Nigeria. Do not allow labour to run your government. You have been given the mandate to govern and produce results where others have failed. Please do not disappoint us.

A regulated regime lacks the capacity to generate economic activity which is primary to poverty alleviation and not the subscription to a socialist policy that has failed where it has been practiced. A country without economic activity is a primitive economy and a primitive economy can only afford primitive standards for the people. A regulated regime is responsible for black market and black market in turn generates scarcity and scarcity in turn generates higher than market pump prices. The notion that government is the be all and end all of economic panacea is simply misplaced. The notion that unless government pours the entire resources of the nation into refineries that produce nothing Nigeria would be strategically in danger is simply fraudulent or at best self deceptive. The central ownership, production and distribution of petroleum products to about 140 million people have not worked and will not work. To pretend otherwise is disservice to the people will pretend to serve. I have no respect for a system that places the entire resources of the nation in the hands of one man in the name of Federal Government controlled NNPC to dispense at will. We must get out of the box and learn to do things differently. Government’s initiative is the correct direction. This is the only rational direction in the circumstance.

Your objective and target must be to run an economy that is so robust that the entire crude oil production will not be sufficient for local consumption. A very buoyant economy will gulp 6 million barrels of oil a day. We only produce about 2 million barrels a day. Therefore without private capital the capacity to refine 6 million barrels of oil a day will be hopelessly non existent. A nation that produces 2 million barrels of oil a day and exports all cannot be said to be developed. Such economy falls in the brackets of bottom 20 economies of the world. The very large economies and successful economies where we all love to go keep our children and families and looted public funds are driven by private capital. They are not run by one NNPC manager who keeps the funds for 140 million people under his pillow to dispense according his whim and caprice. With all due respect such a system is very primitive. The notion of asking government to name the cartel responsible for scarcity, fraud and racket is beside the point. To defeat the cartel is to allow free entry, free exit and to empower ordinary citizens with private capital. Put in place the necessary legal frame work to ensure and give confidence to potential investors. Please formulate a system that will enable investors to recoup their cost and make profit. Without the profit incentive no business man will expend energy and time to run the petroleum down stream.

Consolidate your power. Dissolve without further delay the cabinet and appoint new ones at the same time. Some members of the cabal have dared you to dissolve the cabinet. They want to test your resolve and will power to carry through positive advice. If you submit to them then you would have failed. Sir those daring you are cowards. Upon you dissolving the cabinet they will be the first to come cap in hand to beg for one job or the other. If they are so good at doing jobs why can’t they succeed at private level? These are groups of incompetent money guzzlers that have no place in your administration. They have neither knowledge nor the skills to take Nigeria out of the woods. They offer their geographical place of birth as their skills. They could only be directors in government establishments. Upon appointment they seize the funds meant for drugs for expectant mothers, babies, school children, schools and universities, roads, water and electricity and siphon same to Europe to expend on frivolities and nauseating behaviours condemned by the very morals they profess. They are prodigious and fit for nothing. Against popular opinion I submit that you retain R Lukman the Petroleum Minister to carry through the liberalisation of the petroleum downstream. He is the only cabinet member committed to the liberalisation of the petroleum down stream or the only one who understands how to work it. Without the liberalisation of the petroleum downstream you will not go far. Sir do not yield to intimidation. Do not allow labour to talk you out of this very important exercise.
once a new cabinet is constituted it should invoke s144 by passing a resolution that meets the reality on the ground. My humble understanding of the resolution to be passed by the cabinet under s144 is not a mathematical or medical question. A lot of debate and energy has been expended as to the duty of the cabinet within the meaning of s144. It is my humble opinion that most of the argument is misplaced. Section 144 places a duty on the cabinet to exercise a discretion as to whether or not the president is permanently incapacitated such that he could not carry on to exercise the functions of the president. It is a legal question and not a medical question. The cabinet is expected to reach a decision on the balance of probability as to the fitness of the president in office. On the balance of probability therefore could it be said that a president who has been unable to attend to his duties for 3 months is fit and proper to continue in office. It is submitted the answer is no. A president that has lost his capacity so much so that he is now under the protection of another state is on the balance of probability not fit to continue in office. What his doctors say is immaterial to this consideration. It is after the cabinet’s decision that the medical test comes in to test the probability. And the setting up of the panel to test the probability is vested in the President of the Senate and not the cabinet. No doubt Mr President of the Senate will do the needy thereafter. He has no discretion in the matter. It is a mandatory duty vested on him by s144. Panel will be constituted by Nigerian doctors not Saudi doctors. It is nauseating to hear that unless Saudi doctors permit: Yaradua cannot do this or that. Nigeria’s constitution does not provide for Saudi doctors. It is another abuse of office for the President of Nigeria to be at the mercy of Saudi doctors. Give me a break!
dismiss with immediate effect the Governor of Central Bank of Nigeria. Sound regulatory duty is not a function of semantics. With all due respect Sanusi lacks basic knowledge of Company Law. Sanusi will do himself a lot of good if he could pick up a standard text of Company Law. His comments and actions are so revolting that I have no intention to waste energy on further comments. He leaves me in no doubt that he is sponsored by the cabal to destroy private enterprise. How a man whose qualifications are 6 years of Sharia studies in Sudan could be said to be eminently qualified by the National Assembly is beyond me. Sir what was wrong with Soludo? Why was it necessary to change Soludo?

Sir, 20,000 jobs have been lost in one fell swoop! The entire economy will crash if you leave this man one day extra in office. Sir, do not listen to some militarised psyches who parade themselves as experts who continue to tell Nigerians that Sanusi is on the right path. These were the same people who are applauded the military when they overthrew Shagari’s government. They applauded “I Brigadier Sanni Abacha …..hospitals have become mere consulting clinics…” Where did it lead us? Given the advantage of hindsight all those who led Nigeria (including Shagari) before Babangida and Abacha may be forgiven. The appropriation or creation of money or whatever semantics is employed to flatter to deceive has no place in a civilised democracy. That a central bank governor could simply go to the vaults of the bank and emptied out the money without first obtaining the approval of the National Assembly is reminiscent of Idi Amin Dada of Uganda! Any purported laws in our books to support such Idi Amin like actions are inconsistent with democratic ideals and should be repealed forthwith.