This paper says that in light of the Nigerian constitution’s clause that stipulates that certain public officials cannot be prosecuted while in office and Nigeria’s regular courts inability to stem corruption in the land that officials could still be prevented from stealing by tweaking administrative rules and regulations and applying them on public officials.
Nigeria Could Be Properly Managed Through Administrative Law
Ozodi Thomas Osuji
What I want to talk about is how Nigerian technocrats could have used administrative law to checkmate the constitutional clause saying that sitting governors etc. cannot be prosecuted for what they did in the line of their duties. I want to show how despite that vexing clause we could prosecute the thieving executives if we had well horned technocrats running the affairs of Nigeria’s fourth branch of government, the bureaucracy.
If you are not schooled on the nature and purpose of the bureaucracy please start your education by reading Max Weber, On Bureaucracy, then proceed to Peter Drucker’s writings on management, Warren Bennis books on Leadership, my books, especially Nigeria’s Political Economy, The Art of Leadership for Africans (which I believe is probably the best introduction to supervision, management and leadership), and M. J. Balogun on Nigeria’s Public Administration.
Bureaucracies are not part of formal government. The formal part of government is the legislative, executive and judicial branches. The bureaucracy is established to enable the executive branch execute the laws and polices made by the legislative branch.
Laws made by the legislature and signed by the president are called statutory laws (as opposed to constitutional law….there are all kinds of laws, including common law, Romano-Napoleonic law, admiralty law, equity law, positive law, natural law, administrative law, business law/contracts, criminal law, torts, family law etc.).
In the context of Nigeria the National Assembly and the President makes statutory laws and the bureaucracy implements them. Before we get to the actual functions of the bureaucracy let us pause and see how laws are made in a democracy.
Nigeria (before the military interregnum) used to make laws as the British did in their Parliamentary system. Nigeria is now imitating the USA, so let us see how the Americans make their laws.
In the USA we have a Congress composed of two branches, the House of Representative and the Senate. There are 435 members of the House of Representatives (each member generally representing about 500, 000 people) and 100 members of the Senate (two senators come from each state regardless of the state’s population).
Theoretically, any member of either House could introduce a Bill that could eventually become law. I said theoretically for the average member of Congress could spend 30 years in Washington and have not seen one of his Bills passed into law! The Bills that eventually get passed into laws are usually those introduced by the President, the powerful chairmen of the various Congressional committees, and, get this, top bureaucrats and interest groups! Hence in America we say that the Iron Triangle of Bureaucrats, Congressional chair persons and interest groups rule the land; never mind what they tell you about democracy as rule of the people by the people and for the people.
The law making process is as follows. A member of either House introduces a Bill (what he would like to become law). The Speaker (actually the clerk of the House) reads it (generally, to an empty House since most members do not hang around to hear it read, they are there to make speeches or vote on Bills). The Bill is read and then the speaker has it in his office. If he deems it useful he would decide what committee should look into it but if not he simple kills it, throws it into the Waste paper basket… where most proposed bills end up!
Assuming that the Speaker deems the bill useful he sends it to the appropriate committee. Let us assume that the Bill has to do with International Relations, so it goes to the House/ Senate committee on International Relations. The Chairman receives it. He studies it and if he deems it useful he schedules a public hearing on it (most are deemed useless and thrown into the Waste paper basket and die there). The Bill then is scheduled for public hearing. It is advertised in the various Congressional publications.
Interest groups naturally see such Bill and call to schedule testimony on behalf of or against it. Theoretically, every American can request to testify for or against any bill (use your imagination to figure out who, in fact, has the resources to go to Washington to go testify).
So, a hearing date is set and folks come and testify for or against the bill. The hearing may last several days, even weeks. When the hearing is over the Chairperson of the committee decides whether to call for a vote on it or not. He generally kills many of those bills without even calling for a vote! If he does call for a vote the committee members (generally around 19, with the majority party having more members, depending on their number in the House or Senate…at present it generally breaks down to 11 Republicans and 8 Democrats). There are all kinds of committees: standing committees (each supervises a specific Government department) with their sub-committees and ad-hoc committees set up to deal with specific issues and then sunset (go out of existence).
I should say that before it gets to voting, the committee chair (actually Congressional staffers working for the committee) would have rewritten the Bill to take into consideration the consensus of the testimonies they received (let us cut out the bull crap and say it as it is: the bill is redrafted to reflect the Chair person’s and relevant public and or special interest groups desires). Okay, so a vote is scheduled and it is voted on.
If the Bill obtains a majority vote in the committee, the chairperson then reports the Bill out to the full House. The speaker schedules a full House debate on it. He may schedule the debate immediately or a year from now or never. Most bills that pass out from the committees are not scheduled for full House debate and voting. As noted, only those Bills supported by powerful persons (the President, interest groups, and top bureaucrats) see the light of day. During full House debates members speak on behalf or against the Bill. Members are free to introduce amendments and riders to the Bill (and those are voted on before proceeding). Upon completion of such debates the Bill is redrafted in light of the amendments and riders and then voted on by the entire House.
Generally, many amendments are made to the Bill so that what comes out is remotely like what it was when introduced. A lot of logrolling, bargaining and trading offs are made. You know what they say; laws are made as compromises between warring parties. You must compromise or else you alienate powerful persons and if you do so they would go to war with you (as in civil wars…politics is war by nonviolent means…remember this reality when you are tempted to ride roughshod on other people’s opinions).
The United States Senate is a different animal; it has unusual rules that to the ordinary person seem undemocratic. For example, it has something called filibuster. Here, any Senator can prevent a Bill agreed to by the majority from passing out of the Senate. A Senator can just bring many books to the Senator floor and start reading them aloud and no one can stop him from doing so. His goal is to avoid a vote on a Bill he knows that there is a majority in favor of. He is filibusting the Bill. The only way that you could bring a vote on the Bill is to have what is called supermajority, sixty plus votes, and if you do you call for a vote to shut the man up. If you have the votes you proceed, if not you have to live with his forever reading or talking. In the past Southern crackers, white racists, used to use this method to prevent civil right Bills from passing the Senate!
It should also be noted that at the House level Southern redneck Congressmen who generally were the chair persons of the various House committees killed civil rights bills by not bringing them to vote. That was why the only way Schools were desegregated was through the Judiciary (see the 1954 Warren Court ruling on Brown versus Topeka, Kansas Board of Education…the 1857 Dred Scot ruling and the 1896 Ferguson ruling had made segregation, aka Jim Crow the law of the land, defeated the objective of the Civil War and its immediate Reconstruction Era politics of racial equality).
So a compromised Bill is passed out of the lower House. As the process is going on in the House of Representative it is also going on in the Senate. After the two Houses have passed out their respective Bills, they set up a conference committee to reconcile whatever differences they have. The reconciled Bill is then voted on again by the full House and Senate. If it passes it is sent to the President to sign it into law or veto it.
If the President does not sign the Bill into law Congress can vote on it again and if two thirds vote in favor the president’s veto is overridden and the Bill becomes a statutory law of the land.
The legislative process briefly summarized above applies to Congress, state legislatures, county councils and city councils. This is how laws are made in these United States of America.
In the British variation Parliament contains both the legislative and executive branches (even judicial branch in the House of Lords), so whatever Bill passes out of Parliament…actually, the House of Commons…is sent to the Queen to sign it into law; she has nominal powers and cannot not sign such a Bill.
If you have any brains you must have figured out that since many persons are involved in the legislative process that the eventual legislation (law) is written in such a way that no one is displeased. The legislation is usually amorphous and seems to say nothing. Consider the Affordable Health Care Act by the Obama administration (derisively called Obamacare by Republicans).
On the surface the Act seems wish-washy, saying nothing. But wait a minute, you haven’t seen anything yet. You have not understood how America works; when Secretary Sibelius and her technocrats are done writing the rules and regulations based on that seeming innocuous Congressional Act they would have ensnared every American into its tentacles (no wonder those who are operating under John Locke’s limited government illusion in the age of mass society are fighting it, trying to defeat it before it takes away what they say is left of their freedom!).
When laws are passed by the legislature they are then sent to the appropriate department (aka ministry) to write them into administrative rules and regulations. The top bureaucrats go to work rewriting them, turning them into rules and regulations, what is actually put into practice.
The Obama care law was sent to the Secretary of the Department of Health and Human Services, Kathryn Sibelius. Obama hired her for a reason, you know. She was the insurance commissioner of Kansas and later its governor. So she knows a thing or two about insurance. You get the point?
Sibelius and her top bureaucrats have been busy transforming Obama care into administrative rules and regulations, aka administrative law. When they are done writing those rules and regulations they take them to Congress. Congresses advertises them for John Public who does not agree with the regulations to come and register their complaints. Since no one wants to fight another war on completed wars what Congress does is gazette the rules for 90 days. Most people do not understand bureaucratic gabled gook language so the public generally does not say much about those rules. In 90 days they go into effect and become the operating rules of the land (similar procedures take place at the states, counties and cities; at the city level laws are called ordinances).
The salient point is that it is at the administrative law level that American laws have teeth and can bit you. Consider the 1970s Congressional Act on drivers purchasing automobile insurance. Constitutionally, you cannot mandate Americans to buy anything (as Obama is about to find out if the Supreme Court strikes down the mandate part of his health care policy). So, what did Congress do? It passed a law requiring motorists to assume fiducial responsibility for accidents they caused. That was it, simple and amorphous.
The law then goes to the department of transportation (and their state counterparts). It is here that rubber hits the road. Top bureaucrats wrote regulations based on the amorphous law saying that you could buy a minimum automobile insurance of $250,000 or make private arrangements to have that sum available should you become involved in accidents. Neat, eh?
So you ignore buying that minimum insurance and drive your car around and kind of think that you are smart for you outsmarted the law. Then you get into an accident and the police man’s first question is: insurance papers, please? If you do not have it he asks another question: do you have proof of ability to pay for $250, 000 damages for injuries to the victims of your accident? If the answer is no, you are off to the Big House, your city’s Hilton Hotel for disobeying the law!
What is the point: The seeming amorphous law in effect required you to have auto insurance without saying so in many words!
Do you see how administrative law has transformed a seeming harmless statutory law into a law with teeth that would bite you?
Do you get the point? Let me break it further down for you. Bureaucrats, aka technocrats are the ones who actually write rules and regulations that make society work! Legislations are products of too many interests groups hence tend to be amorphous but administrative rules tend to be specific hence respond to actual needs of society. We live in the age of administrative law, law made by bureaucrats (if you want to be a smart aleck you could say law made by bureaucrats that is in the spirit of statutory and constitutional laws of the land).
And before we move on let me define political power. Power generally is the ability to get people to do what ordinarily they would not like to do (authority is exercising power legitimately, as allocated to your political or bureaucratic office); political power includes, as Harold Lasswell said, making decisions on who gets what, when and why. Politics has to do with leaders taxing the people, generating revenue and distributing that revenue to their goals and objectives. If you have power your goals and objectives (agenda…the media will talk about your agenda and public policy will reflect your wishes) are funded but if you are powerless your issues are ignored (the press will not even know that you exist).
In God’s supposed own country, USA, African American issues are generally ignored (Obama notwithstanding policemen are still arresting black kids and sending them to jail; one out of every four black kids under age 24 is either in jail, prison or is supervised by parole and probation officers).
Politics has to do with exercise of coercion, the ability to use organized power (such as military, police, courts, prisons etc.) to get folks to do what they may not want to do or, putting it brutally, arrest, jail and or kill them!
Politics is war, literally, not figuratively (Von Clausewitz defined war as politics by other means; actually it is the other way around; politics is war by other means). That war is most evident when it comes to financial issues.
Governments have the ability to appropriate money from the people and spend it as they see fit. Force is used in this appropriation matter. Come to Congress and visit the appropriation committee and see men at war, literally. Republicans do not want to tax the rich and Democrats want to tax the rich. The battle lines are drawn and the masses are given false consciousness as to what is going on. Unfortunately, the rich and powerful always wins. Even the sweet talking feckless Obama extended George Bush’s tax break for the rich (a situation where the multi- millionaire Mitt Romney pays fourteen percent tax rate while his lowly secretary may pay over thirty percent tax rate; welcome to the real world; whoever told you that life is fair, Jimmy Carter asked?). Let us move on, shall we?
Where are all these seeming rambling leading us, you ask? Hang on, big boy and learn a thing or two about how real America works. Nigeria writes a convoluted Constitution (the US constitution is only twenty pages long but the Nigerian constitution is ninety pages…too verbose) and gives criminals in politics opportunity to loot the national treasury and there is nothing any of us can do about it. Smart bureaucrats, if they have the interest of the nation at heart, could still pack those politicians asses to the Big House!
Nigeria comes to America and hires some self-promoting Nigerian big shots and pays then big bucks as its top technocrats. I have Olusegun and Okonjo Iweala in mind. Now, suppose these clowns are really top technocrats what would they do?
Let me tell you what I would do (and I have been a technocrat at the highest levels, director of government agencies, for 15 years). They would survey the lay of the land. They would read the Nigerian constitution, the statutory laws of the land and other laws. They would know that whoever wrote that piece of crap (the part that executives are not to be prosecuted while in office) wrote it to benefit the thieves of Abuja, the various state governors and Local Government council chair persons. The Machiavellian clause says that no sitting head of state or governors could be prosecuted for crimes committed while in office. Great, I say. The battle is then joined. Let us see if we can use law to outwit legal bandits. We can use administrative law to overcome the handicap we were given by Nigeria’s constitution.
It takes good thinking to catch thieves. What would I do if I worked at the ministry of finance at Abuja? I would (in collaboration of other bureaucrats, of course) write Administrative rules and regulations (and get the legislature to approve them. The administrative laws would say , inter alia, that when governors come to pick up the monthly checks allocated to them by the Federal government that the ministry has a right to audit how they spend that money.
The ministry would write a regulation that says that federal moneys given to a governor must be accounted for and the ministry reserves the right to come, at any time, to audit how its money is spent. Whoever picks up that check signs his consent to this administrative rule?
And here is the coup de grass. It would say that if a penny of the money received from the ministry is found inappropriately spent the ministry would demand it reimbursed immediately! Failing to return the misspent money the ministry, via law enforcement agencies of the Federal government, would place a lien on the signee’s properties and eventually (via court of law) sale them off to recoup the misspent money (and failing to recoup all of it the person does jail time).
So, the governor of Igwe Ocha (Port Harcourt) waltzes to Abuja and picks up his state allocations. (if I may ask: why give federal monetary allocations to governors; why not to state treasuries, or simply wire them to state bank accounts and demand monthly financial statements on how the states spend such moneys; don’t folks go to school and study simple accounting procedures like keeping daily accounting journals, accounts receivables, accounts payables, budgets, monthly financial statements, quarterly and annual reports etc. for those who fund the states?
God, these people’s inabilities to do the obvious make me sick to my stomach!
Anyway, good for the big boy governor; he is now a rich boy, rich with our public wealth! But, wait; three months later, federal certified public accountants come marching to his state (relevant ministry) to audit how the federal funds were spent. If he is unable to account for how every penny is spent the Feds put a lien on his properties (bank accounts, domestic and overseas included). If he fails to return the missing penny those properties are seized and sold off to collect what is owed the Feds (and eventually he is sent to “Abuja Hilton to enjoy his much deserved vacation”, if you know what I mean!).
The point is that whoever gives the funds makes sure that they are properly spent. You don’t just give governors money and sit back as they misspend it and see yourself as having done your work.
Mrs. Iwuala presented herself to be a technocrat; if she was she could have brought some fiscal sanity into Nigeria by merely tweaking administrative law. But, no, she has not done anything to checkmate Nigeria’s thieving politicians. Under her financial watch Nigerian Politicians are as thievish as ever.
And then she has the audacity to ask Americans to allow her to superintend how their moneys contributed to the World Bank would be given to third world thieving leaders to spend without checks and balances (as apparently she does in Nigeria).
If experienced technocrats tweaked administrative law, the no prosecution clause in the Nigerian constitution would have been sidestepped. But no such remedy has been tried and yet we are told that these clowns who call themselves top technocrats are what they sold themselves as.
Now, do you see why some of us consider Iwuala a piece of shit? She is a piece of shit, literally. And the same applies to the other so-called top bureaucrats in the Nigerian government. If Ngozi had brains the first order of business she would have engaged in was to help establish administrative law in her ministry; she would have helped establish administrative courts and helped appoint administrative judges in those courts. The courts would then haul governors who misspent federal funds to them and adjudicate whether they appropriated public funds for private uses and if found guilty punished. Or did the constitution require governors and the president to be thieves, is that what it means to be law enforcers in Nigeria?
Anyway, the lady minister did not institute anything that those of us in the business of management consider must dos yet she masquerades around fancying herself some kind of big shot and making demands that she be paid in US dollars. I would send this clown packing to wherever she came from, today, not tomorrow!
Where in hell did these clowns go to school, anyway? And regardless of where they went to school hasn’t any one taught them how bureaucrats write administrative laws to correct whatever does not work in statutory and constitutional laws?
Boy, oh boy, I wish that I am still interested in management and went and whipped some asses at Abuja (when I turned forty-something my mind began seeking spiritual matters and I kind of ignored my training on administrative matters).
Nigeria’s regular judicial system, from the Supreme Court to the local magistrate court, appears to have become a clown wagon full of corrupt judges. These clowns play at being judges but do not do their jobs of making sure every person plays by the rules (or else get sent to the big house). Consider that Nigeria’s inspector general of police, Tafa Balogun, was caught with billions of naira in bribe money in his possession and instead of been severely punished he was slapped on the wrist. The governors simply transform public money entrusted to their care to personal money. The public prosecutors and judges do nothing about all these incredible corruption going on in the land.
It is now considered pointless expecting the regular courts to do something about the runaway corruption in the land (it takes years to even schedule court hearings and after all the rigmarole the thieving politicians are not punished). Why bother with these clown judges?
Let us simply look elsewhere for justice in dealing with our corrupt officials. In this paper I am advocating that each department (aka ministry) establish its own administrative courts and have its own administrative judges to administer the rules and regulations of the department. Those who deal with the department must obey the rules and regulations of the department. If they are guilty of malfeasance they, to the extent administrative courts can punish folks, are punished.
Generally, administrative courts do not have the authority to send folks to jail and prison but at least they can make sure that those who deal with the departments they oversee do so legally. If folks who deal with a department are judged guilty of breaking the department’s rules then they should be given whatever punishment the administrative courts can administer and thereafter charged to regular courts for penal punishment.
And, if as usual the regular courts and their clown judges fail to send these folks to jail, well, what is the alternative? Revolution!
The level of corruption in Nigeria is now intolerable and something serious must be done about it. Let us begin by utilizing administrative courts to see if we can stem the absurd level of corruption in the land.
If experienced hands who are committed to transforming Nigeria into a land of honest men were in charge of Nigeria’s bureaucracy, since Nigeria’s politicians are essentially criminals in politics, they would have used tweaking of Administrative law (rules and regulations and administrative courts and their administrative judges) to checkmate the thieving politicians and side stepped the Constitutional stipulation that they not be tried while in office. They could have found ingenuous ways to bring the criminals of Abuja to law. Instead, some of these clowns join the thieving crowd while deluding the gullible masses into believing that they are superstars in what they claim to do. They do not know what they claim to know how to do. They, along with their thieving politician bosses, need to be carted to prisons!
Ozodi Thomas Osuji, PhD (UCLA)
April 12, 2012
Dr. Osuji can be reached at 562-612-0294 or 213-330-5497.