It was the first time the government had ever made public copies of top-secret orders seeking wiretaps of an American under the Foreign Intelligence Surveillance Act.
Nigeria has been derided internationally for her weak mechanism for fighting corruption, but the Chairman, Senate Committee on Anti-Corruption and Financial Crimes, Senator Chukwuka Utazi, in this interview with CHUKWU DAVID, says the recent signing into law of the Nigeria Financial Intelligence Unit (NFIU) Act and appropriate action on the Mutual Assistance and Criminal Matters Bill, the anti-graft war will get a boost
President Muhammadu Buhari recently signed into law the Bill on Nigeria Financial Intelligence Unit (NFIU). How do you feel about this since you vigorously pursued the passage of the bill?
Well, I am happy that the President did what he should be doing as a President. His duty is that whether he introduced executive bill or a private member’s bill has been passed by the Parliament, it is his normal routine duty to append his signature to it. And being in the vantage position I find myself as the Chairman, Senate Committee on Anti-Corruption and Financial Crimes, I have to do it. And because of that position, I have travelled on behalf of this country to different parts of the world, especially with Transparency International, to Commonwealth Headquarters in London, USA, always attending Financial Action Task Force Meetings in Paris and all that. I discovered that this is very important.
Since Nigeria returned to the practice of democracy, the United Nations has always wanted us to sign the United Nations Convention against corruption, which Nigeria signed as a member state in the year 2000, and then came up with the ICPC and the EFCC Acts. And since they saw that it was difficult for Nigeria to combine the anti-graft agency with the Nigeria Financial Intelligence Unit, they raised questions all these years. So, since 2003 to present, the international financial community has not been happy that our NFIU was domiciled in the EFCC because of the abuses.
And following that non-compliance by Nigeria, last year July, they suspended Nigeria from the Financial Action Task Force and the EGMONT group for failure to give the financial unit the autonomy it deserves. I am happy that within one year we were able to get the bill passed. The NFIU Bill was the fastest bill passed by this Senate since inception. It took eight working days to get it done. It was because of the local politics here that it had to last this long. This matter shouldn’t have entered 2018 but politics is part of our life here, it is part of what we are doing. I am happy that it pleased God to use me at do this job. I am satisfied.
The deadline given to Nigeria to get this done was December last year but we exceeded it. Was there any penalty for failure to meet the deadline?
You see, immediately this difficulty came to the fore, and as a result of the meetings I attended last year in Paris, I wrote the Vice President’s Office about the problems. He read the letter and convoked a meeting. It is not his duty; the duty of solving this problem was between the three line ministries of Finance, Interior and the Attorney-General’s Office. So, after my travels and all the letters I wrote the ministries were not forthcoming, I wrote the Office of the Vice President. He immediately intervened, convoked a meeting, called the three line ministries, with the EFCC and the ICPC. We met and discussed the issues. After that, he set the Presidential Ad hoc Committee on the repositioning of the NFIU and made me its Chairman. And because I was in London attending the international meeting when the appointment came, I had to hurriedly come back and work within one month he gave the Committee to do the job. I worked with this Committee and we were able to do the job effectively.
By first week of September 2017, the report was presented. But we had hiccups here and there. Once this Committee was put in place, I decided to take the wind out of the sails of the EGMONT group by notifying them the efforts being made by Nigeria.
First of all, I told them that the Senate had passed this bill into law and the House of Representatives was also doing their bit. You know that this is a bicameral legislature. I also photocopied the letter of appointment by the then Acting President and sent to them because the President was at that time out of town.
So, I sent the letter to them, showing them the efforts. Once the bill was passed, I sent them a copy. When the House of Reps passed their own, I sent a copy to them. I kept them informed at every step of the way towards getting things done. So, when they met April this year that they were threatening, because of the information I had already given them, they could not do anything to us. But they demanded that I should keep them abreast of what we were doing. So, once we consolidated the two bills by the House and the Senate, I gave them conference report. And once we transmitted the copy to the Presidency, I gave them a copy immediately. When the Presidency raised some issues on grey areas in the bill because of the mistake on being specific about the fines that are going to be paid by people who violate the law, we came back again, returned it to the two chambers. We followed it through and now, within one year of this trouble Mr. President has put his pen on paper. I am very grateful that he did that.
Definitely, that is going to help boost the fight against corruption because financial intelligence network is the heart of the fight against corruption because the illicit financial flows out of this country can never be tracked except through this means. So, it is very important. All the offshore transactions both by the multinational corporations that are avoiding payment of taxes in Nigeria can now are held accountable in the country. We hope that by the time EGMONT group convoked their meeting this year, they will hear the cheering news. My office is already connecting them. I believe that they have read our efforts on the social media and I will still write them that the deed has been done. This 8th Assembly is already winding down and by the time we come back from the primaries almost all the members will be out for re-election bid for those who are coming. And then when we come back, the budget will come, and you know that it drags. So, we don’t have the time.
I understand there is another bill in this regard?
The other very important bill in this fight against corruption especially offshore is the Mutual Assistance and Criminal Matters Bill, which the Senate has also passed. But we have issues with the House of Reps. I hope the House of Reps will also do their bit and am not tired raising alarm. Last time when this one was stocked, I raised alarm and you people helped to get the alarm heard everywhere. Am also begging this time to go back and help us to get the House of Reps to bring these two bills to be one, and once we have done that, the world will start respecting us. We will stop the bits and pieces of signing of MoU each time we are looking for our finances; the funds that have been frittered out of this country and domiciled into many bank votes outside the country. In December last year, at the Global Forum on Assets Recovery in Washington, D.C., we signed a Memorandum of Understanding with the United States and the United Kingdom in their help to get that done.
In each meeting we asked our Attorney-General to come. We shouldn’t be doing that because the United Nations Convention already has something in place -the Mutual Assistance in Criminal Matters Act; you just pick it and domesticate it. It is very voluminous but I was able to impress on the leadership of the National Assembly, not minding the logjam between the Executive and the Senate leadership here. I told them that this is our country we have to fight and get things done, we must do our bit, and they listened. At the thick of the Code of Conduct Tribunal trial of the President of the Senate, I told them to get all those things and leave the rest to God. If God wills that you would succeed. But the job has to be done.
The Senate President and the leadership listened and asked me to bring up all the anti-corruption bills and I did. And those bills were made to occupy the centre point of what we are doing by giving express instruction to the Rules and Business Committee to always take our bills. And each time they also committed it to the Senate Committee on Judiciary, Human Rights and Legal Matters, which I’m a member by virtue of being a lawyer. We also handled that expeditiously. So, the only problem we are having is that there is foot-dragging from the House of Representatives. By the time they do their bit we will be okay. When you attend meetings outside Nigeria, they start looking at you as a serious country, not the way they look at us now as if we are wearing black dresses; they wonder what is happening to us here. The perception we have of ourselves here is not what we have out there.
There is no respect for this country abroad. Out there, people look at us as if we are coming from the moon. But we don’t understand it. Those of us who go outside are not bold to stand on any issues. You just bring any issue and they just look at the Chairman, ask whether they have exhausted items for discussion. It is painful but I am happy that with this step we have taken the world will know that we are becoming serious. If we get the remaining two bills into law, this place will be okay.
Once you have this mutual assistance law in place, any country where you fritter anything, the Attorney-General will just start the process, and it will be done because they will just assist you. So, nobody will ask you to start writing a memorandum of understanding. They will follow what the law as stated. Then when you get the MoU they ask you to sign, it is belittling; it is demeaning because if you want to take the proceeds of the money recovered and somebody would tell you how to spend the money. The country gets humiliated but once you have proceeds of crime law then it is already known the way you are going to do it. You have people who are going to manage the money, and not the anti-graft agencies that collect all those fines or property.
Recently, the South-Eastern governors told the Federal Government that they don’t want ranching or open grazing in the South-East. Don’t you think that it will be better if the states make legislations banning open grazing like some states have done?
If you have been following the activities of the South-East lawmakers in the National Assembly, I inclusive, you will discover that we have handled this issue and rested it. The reason is that I brought a bill after the attack in 2016 of Nimbo and Abi communities in Uzouwani Local Government Area, part of Enugu North Senatorial District. When they attacked, I first brought a motion to the Senate. And after that, as a lawyer, I said that it was not just mourning and crying, I had to do something substantial. So, I brought a bill, and within the same period, Senator Barnabas Gemade also brought a bill, and Senator Rabiu Kwankwaso also did. At the end of the day, we had to review the laws because if you want to make a new law, you have to review the existing ones, look at the Constitution. So, when we reviewed the law, we discovered that livestock is a residual legislation. And anything residual that is not in concurrent or exclusive, we have no business there. The residual goes to the states.
Land Use Act as amended domiciled the land with the states. So, Federal Government is not there. Therefore, there is nowhere local governments can legislate on grazing. That one has been rested. That was why the bills died naturally both in the House of Representatives and the Senate. So, anybody who is talking about the Federal Government bringing a bill on grazing is ignorant, and that person is not even following what we are doing in this place. So, for the states, it is within their right to do that but even at that, last week we brought the report of the security summit we had and raised the issues there. There were very salient points in that report by the Ad hoc Committee headed by the Senate Leader, Dr. Ahmad Lawan.
I have said it as a lawyer that the work they did was fine but beyond that this 8th National Assembly that is receding had a very important burden on its shoulders, and that burden is to review the 1998 ECOWAS Protocol that guarantees free movement to all the countries of West Africa. It is that Protocol that was put in place, that treaty that was signed during the period of General Abdulsalam Abubakar that is abused today. The President of the country has talked about it when he was in the US that most of these invaders are coming from Libya and Francophone countries in the horn of Africa. All of them are breaking in here and causing havoc. Now that we have known the source of our problems, as the saying goes, problem known is half solved, it is therefore our duty to reveal the protocol, to stop such movement of foreigners that are coming and giving us headache in our country because national interest is number one. We have always said that Africa is the centre piece of our foreign policy, yes but not at the expense of Nigeria’s national interest. And I have challenged the Senate; I have also asked my staff here to review that ECOWAS Protocol and come up with something that can solve that problem permanently.
Secondly, we are spending so much money. The trouble of the $25 billion contract signed by the NNPC for search for oil in the Chad basin came to the fore as a result of the disagreement between the Minister of State, Petroleum and the GMD of NNPC. But I say if we can devote one fifth of such money to re-grass the desert. And I said that if Israel that is living in the desert has been able to re-grass their area and make it green, that today Israel is the world exporter of fruits and vegetables across the world, I don’t see the reason why the desertification that is encroaching in the northern part of the country cannot be halted. Lip service is our major problem in this country. We reorder our priorities. That is the problem in this country; that is the challenge of leadership and today it is a major issue that is facing all of us. Everybody is now crying.
The unity of this country has never been questioned as it is today. And what is the main problem? Herdsmen and their cattle. So, why can’t we devote such huge sum of money to do that? And I say we have to do it. They say cattle rearing is a way of life of the northerners. I say yes, we have several ways of life. We were going naked before but are we still going naked today. Before now we killed twins, are we still killing twins today? Before now we trekked and rode on the back of horse, are we still doing that? Bicycle is no longer in vogue; we use different brands of vehicles today. We have moved to a new level of life. So, the herdsmen in the North whose type of farming is cattle rearing are welcome but the new method of farming in that area should be upheld, and we expect the elites from the North to educate their brothers that they have to ranch; that’s the only way to go.
Many countries of the world which have more cattle than us are ranching. They don’t go out disturbing anybody because it is a form of business. Once you ranch, you have feeds for your cattle and the children that don’t go to school will now have a settled community, and go to school. That’s what we want for our people and that’s the only way we can get things done here. The greater parts of landmass in Nigeria are in the North; re-grass the land and let them stay in the North. You don’t go to the North- Central, South-East and South -South and chase people away from their farms. You won’t be doing your own business and infringing on other people’s right of doing their own business or earning a living. This disagreement that is happening here is challenge of leadership; it rests squarely on the table of leadership, not even the cattle rearers themselves because if the leadership makes policies that can stop this, there will not be any problem between the herdsmen and the resident farmers in their localities in all parts of the country. If we play politics with this then the issues will continue as a recurring decimal, with attendant loss of human lives and property.
You raised a motion on the floor of the Senate last week on the “need for emergency reconstruction of the runway of the Akanu Ibiam International Airport, Enugu, with the controversy surrounding the budget for the airport runway in the 2018 budget, what is the hope of giving it the needed urgent attention?
Well, first of all, it is part of our duty as representatives of our people, that if we find anything pertaining to the welfare of the people, we raise it. Like I said when I was presenting the motion, the pilot of Air Peace flight that was going to Enugu alerted us that they had made report to all the authorities that should be informed about the deplorable state of the Enugu Airport runway, and having failed, they are now bringing their complaint to the domain of the passengers, and that anybody who is listening should take it up. He also warned that if we don’t do anything about it, nobody should complain tomorrow if anything happens.
So, I was alarmed because that was the first time I was getting such from a pilot. But I heard that the same pilot and others have been doing the same. Then I started making inquiries and I discovered that they said that the Akanu Ibiam International Airport is the worst runway in the country, and that things are not changing. A lot of things are in total disrepair in that place.
So, I decided to, by way of motion, to take the matter up with the Ministry of Transport especially the Ministry of Aviation, so that they have to look at the issue and solve the problem before we start talking of loss of life.
And Senator Ibn Na’Allah, who is also a licensed pilot, confirmed the bad nature of the tarmac, that it is undulating. It doesn’t even have a surface. That thing can make you lose friction while the aircraft is landing or taking off. It can also make planes taking off to lose speed, that if it is supposed to take off within five minutes, it takes longer than 15 minutes because it didn’t gather enough speed because of the bumpy nature of the surface, and it can cause accident.
So, this is very important and I have raised the issue and called on the Federal Ministry of Transport, with emphasis on Aviation, to take up this issue as a matter of urgency. That airport is an old one because it is the first in the whole South-East. When it was constructed, it was very small aircrafts that used to land there. Today we are having bigger air planes that carry up to 400 to 500 passengers at a time. And with the problem of the water level of that place, being very shallow, the concrete surface and the asphalt hold water in between. If any heavy plane lands on it, it will cascade and create bumps. So, it is very important that we look at this issue.
So, we expect that with the assistance of the media the authorities in charge will take action. More so, with my South-East colleagues in the Senate, we are also going to book appointment to see the Minister of Transport in the coming week to further discuss this issue, so that while the resolutions of the Senate will be going to their table, we will also visit them to handle the matter very expeditiously so that we don’t get into trouble as a consequence.
Then the issue of budget for the airport, I won’t want to say anything until we see the Chairman of the Senate Committee on Appropriations. There are lots of issues that came up in the discussion of what actually happened in the additions and deductions here and there. The Appropriations Committee Chairman, Senator Goje, has not been around; he has been out of the country for some time now. We have issues to take up with him, not until we see him and sit down with him and ask him questions, it will be preemptive to start talking about it now. So, keep your gunpowder dry, let’s wait for Goje to come back, and we will take it up from there.
The Minister of Information and Culture, Alhaji Lai Mohammed, has admonished Nigerians in Diaspora to stop depending on Social Media for news about the country.
The minister gave the admonition in Washington at a meeting with the Nigeria Ambassador to USA, Justice Sylvanus Nsofor and the Embassy’s members of staff.
The News Agency of Nigeria reports the meeting is on the sideline of a High-Level Roundtable attended by the minister, organised by the Atlantic Council, an American think tank on international affairs.
Mohammed said that social media are, largely purveyors of fake news and misinformation, which could threaten the peace of a nation.
He said: “Fake news and misinformation when mixed with hate speech threaten the peace, unity, security and corporate existence of Nigerians.
“Many people in the Diaspora depend a lot on Social media for news about Nigeria. However, 80 per cent of what you read on social media is fake.
“Please, we implore you to visit our website fgnnformation.iapp where you cab find information that is genuine about Nigeria.”
Mohammed stressed that social media is aggravating the Nigeria situation creating the impression that the country is at war, ethnic and religious crises.
He noted that Nigeria is at peace, safe for investment and government is working very hard in its fight against corruption and to ensure security and the economy improve.
He said: “When you go by social media, the impression you get is as if Nigeria is at war and as if Muslims are killing Christians and about ethnic war.
“However, hose disgruntled politicians have now tried to factor ethnicity and religion into the situation that we have in the country.
“Our challenges have nothing to do with religion or ethnicity.”
Mohammed said the Farmer/Herders clashes were not new and the first case was reported in 1947 even before Independence.
He said the challenge is compounded by population growth, climate change and in some cases, pure criminality.
Mohammed said: “There was, however, a lot of misinformation on this. For instance, the two Rev. Father that were killed in Benue were not killed by Herdsmen but by militia.”
The minister said the government is deploying various mechanism to end the clashes.
He said: “The government has taken the bull by the horn, deploying both military and police to curtail the crises.
“New Battallion are set up and new police formation. The military and Police have swung into action and the tempo has been going down.
“On the economy front, Mohammed said the country is recovering very fast and all the indices is very positive.
“Foreign reserve has gone up from 23 billion dollar to about 47 billion dollar, we have gained 24 steps up in the world bank ranking on ease of doing business.
“Our stock exchange was ranked to be one of the six best in the world last year, return on investment is over 30 per cent.
“On Agriculture, our Anchor Borrowers Programme has been a huge success.
“In 2015, we had only five million rice farmers, today we have over 11 million rice farmers.
“In 2018, rice importation has drastically reduced; the government is working to give subsidy to farmers to bring down the cost of local rice.”
Speaking on corruption, the minister said the country had made a lot of headway as confirmed by the recent conviction of high profile corrupt people.
The minister said some of the challenges being witnessed are because corruption is fighting back, but the government will not be deterred.
Mohammed said the most potent tools of fighting corruption is the Executive Order No 6, signed recently by the President Muhammadu Buhari.
He said: “The Order restricts dealings in assets suspected to be proceeds of corruption.
“It means is that when you are being investigated for corruption, you will not have access to the proceeds until the matter is completed.
“The important thing about this is that we do not want a situation whereby a person being investigated for corruption is using that same money to fight the government.
“We do not want situation where corrupt official on trial will transfer the money to other jurisdiction and when found guilty, we will not find the money in the kitty.
“There is also the issue of security; we find out that a lot of the unrest is being financed by proceeds of crime.”
He said those criticising the Order, were the guilty, who did not want to be caught.
Mohammed said contrary to the recent scathing report by Amnesty International, Nigeria did not have a policy of impunity or violation of human rights and the country abhors any human rights violation.
The Ambassador thanked the minister for the visit and called for more engagements of international think tanks to correct the wrong notions about Nigeria.
Is owning an article of clothing with a team’s insignia a good enough reason to cheer for them?
I recently wrote about how it might be a good idea to transfer one’s soccer allegiance to the hometown Fort Worth Vaqueros, given that they had qualified for their playoffs. Even as Team USA was conspicuously absent in Russia this World Cup, the Vaqueros were traveling to Laredo where their conference’s top seed unfortunately eliminated them.
So with soccer still left to play on the other side of the world, what was one to do? I had actually struggled with choosing a side to support since the tournament began.
My niece had a shirt for the French team, plus she studies French in high school and is a bit of a Francophile. So, naturally, she picked France as her team. It was as good a reason as any. I think it’s ok to root for a team because, all other things being equal, you own something bearing their logo. I got a Leeds United shirt as a present once. I’ve never been to Leeds, but if I happened to be in a pub and second-tier English soccer showed up on the telly, I’d probably pull for them if they were involved.
I did own an England shirt from a trip over there, and I have friends who live in the UK, so the Three Lions would have made a reasonable choice for my allegiance. I’m a Liverpool supporter, so I also tend to favor squads with Reds on them. Seven nations had at least one Liverpool man on the roster, though, so that didn’t help as much. Club loyalties did help me choose whom to root against, however. I wished failure on Uruguay because of the presence of the disgraced (at least in the eyes of a Liverpudlian) Luis Suarez. La Celeste exited in the quarters, defeated 2-0 by France. I was also pleased to see Spain dismissed by the low-ranked hosts in the round of 16. It was nothing against Spaniards in general, but I did not want to see Sergio Ramos come out on top after his questionable aggression knocked Mo Saleh out of the Champions League final.
Unfortunately, if one wanted to select sides to cheer against, the tournament gave you lots of options. Soccer still has its demons. In fact, there were enough controversies associated with this World Cup to justify a dedicated Wikipedia page, and even it doesn’t quite get all of them.
It started even before the tournament was played. Potential FIFA corruption hangs over any big international soccer event. The governing body likely avoided hints of impropriety in awarding the 2026 World Cup to a joint North American bid. It was an easily justifiable decision, but it served to underscore the controversy associated with the recent choices of Russia and Qatar as hosts.
Swiss players of Albanian descent provoked Serbian supporters with hand gestures, and the Serbian federation got fined for their own fans’ behavior as well. I reconsidered my allegiance to Liverpool defender Dejan Lovren of Croatia after reading about a questionable choice of celebratory songs on his part.
One of the most popular memes to come out of the tournament involved one of the world’s best players. But it had nothing to do with spectacular goal-scoring or inspired defending. It had to do with another of the sport’s black eyes: flopping. The internet mocked Brazilian star Neymar incessantly for reacting demonstratively to on-pitch transgressions against him. Embellishing one’s injury has a long and inglorious tradition in soccer, and the game could have done without high-profile reinforcement. It definitely didn’t make me want Brazil to advance.
For sure there were many things that reminded me what I love about association football. There were beautiful goals – a Cristiano Ronaldo free kick especially sticks out in my mind. There was genuine emotion from players and fans and some crucial games that were tightly contested right to the end. We even had upsets. But there was a lot of misconduct, too.
This competition was (hopefully) unique in that my home team, the USA, didn’t qualify. As I was choosing whom to support, it was often not easy. When so many teams and players disqualify themselves from one’s allegiance, a person is really left with a Seinfeldian choice: just root for the clothes.
Several years ago (way back in 2013) Parliament passed the Protection of State Information Bill (widely known as the Secrecy Bill). For some bizarre reason, President Jacob Zuma did not ever sign the Bill into law. But not assenting to and signing a Bill into law constitutes an egregious power grab – because the president does not have a right to veto legislation that has been passed by Parliament.
We all know that former President Jacob Zuma was not a president with a well-developed respect for his solemn obligation to uphold and defend the Constitution. In many respects Zuma was a constitutional delinquent while in office.
The most infamous example of this lack of respect for his constitutional obligations was his failure to stop the use of state funds to renovate his private home, thus allowing himself to be unlawfully enriched as a result. Consequently, the state paid for renovations at his private home that had nothing to do with his security. (The state even paid for the construction of a swimming pool, which – in mini-Trump style – some of his defenders laughably tried to convince the public was a “fire pool”.)
Because of this constitutional delinquency the Constitutional Court held in the judgment of Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others that:
“The President’s failure to comply with the remedial action taken against him by the Public Protector is inconsistent with his obligations to uphold, defend and respect the Constitution as the supreme law of the Republic; to comply with the remedial action taken by the Public Protector; and the duty to assist and protect the office of the Public Protector to ensure its independence, impartiality, dignity and effectiveness.”
But a far odder example of former President Zuma’s constitutional delinquency has gone largely unnoticed. This is his failure to assent to and sign the Protection of State Information Bill into law.
Although the version of the Bill eventually passed by Parliament was not as draconian as the version first tabled, I continue to have grave doubts about the constitutionality of parts of the Bill. If brought into effect it might well insulate the intelligence service from even the limited scrutiny it is currently subjected to and may also provide powerful mechanisms to allow the state top hide corruption and maladministration. As I summed it up in May 2013: “New Improved Secrecy Bill: Still Bad, Still Unconstitutional”.
This means I have mixed feelings about reminding anyone that the secrecy bill was never signed and that this constitutes a fundamental constitutional dereliction of duty on the part of both the former and the current presidents. But because this power grab by the president could occur again in another setting, it is important to remind everyone of the principle involved, which is that the president may not ignore his or her constitutional obligations.
A South African president does not have the power to veto a Bill passed by Parliament and cannot in effect veto such a Bill by indefinitely failing to assent to and sign it. In terms of section 79 of the Constitution, the president is allowed, first, to refer a Bill (duly passed by Parliament) back to the National Assembly (NA) to reconsider any sections of the Bill if the president has reservations about the constitutionality of such sections. This President Zuma in fact did with the Secrecy Bill, after which Parliament tinkered with the Bill and passed it again. That was towards the end of 2013, almost five years ago.
Second, the president can also refer the sections he or she believes to be unconstitutional to the Constitutional Court for a decision if he or she is not satisfied with the response of the National Assembly. In this regard section 79(4) (read with section 237) of the Constitution explains what must happen next. Section 79(4) states that:
“If, after reconsideration, a Bill fully accommodates the President’s reservations, the President must assent to and sign the Bill; if not, the President must either (a) assent to and sign the Bill; or (b) refer it to the Constitutional Court for a decision on its constitutionality.”
As the wording makes clear, the president has no choice in the matter. If he or she does not refer the Bill to the Constitutional Court, the president must assent to and sign the Bill. In the USA, with its more robust system of checks and balances, the president has a right to veto a Bill whose content he or she fundamentally disapproves of. Such a veto kills off the Bill unless the veto is overridden by the Senate but only if the Senate passes the same Bill with a two thirds majority.
South African presidents do not have this power. They cannot veto a Bill because they do not like its content. They can only refer those parts of the Bill first to the National Assembly and then to the Constitutional Court, but only if they truly have reservations about the constitutionality of these sections.
As section 79(5) makes clear, if the Constitutional Court finds that the sections referred to it are constitutional, the president must assent to and sign the Bill. In Ex Parte The President of the Republic of South Africa, In Re: Constitutionality of the Liquor Bill, the Constitutional Court held that:
“It is moreover clear that the President is empowered to refer a matter to this Court in terms of section 79 only if his reservations concerning the constitutionality of the Bill are not fully accommodated by Parliament. If the President has no reservations concerning the constitutionality of the Bill, or if his reservations have been fully accommodated by Parliament, the referral would be incompetent. In the circumstances, the presidential power is limited under section 79(4)(b) to the power to refer a Bill to the Constitutional Court ‘for a decision on its constitutionality’ with respect to his reservations…. Section 79(5) obliges the President to sign the Bill only if this Court decides that the Bill ‘is constitutional’. If it withholds such a finding — whether because the legislation is unconstitutional as whole, or only in part — the President may not sign the Bill.”
Section 237 of the Constitution makes clear that the president cannot delay assenting to and signing a Bill for almost five years. The section reads as follows: “All constitutional obligations must be performed diligently and without delay.”
The president has a constitutional obligation either to refer a Bill already referred to the NA to the Constitutional Court, or to assent to and sign it. He or she has a duty to do so diligently and without delay. One could argue that the president has many tasks to fulfil and that he or she should be given a month or two to assent to and sign Bills passed by Parliament. But no one would argue that not assenting to and signing a Bill almost five years after it was passed comply with the duty to act diligently and without delay.
By not assenting to and signing the Secrecy Bill then President Zuma (and now President Ramaphosa) have arrogated to themselves powers they do not have. By doing so they are encroaching on the separation of powers as they are exercising a power (to decide on whether a Bill should be passed or not) they do not have, a power the Constitution bestows on Parliament.
This means that President Cyril Ramaphosa has now inherited this constitutionally delinquent action from his predecessor. This does not absolve him from acting. But neither does it mean that he is required to sign the Secrecy Bill. He is entitled in terms of section 79(4) of the Constitution to refer the various sections of the Bill that may be unconstitutional to the Constitutional Court for a final decision.
This referral to the Constitutional Court needed to have happened speedily and without delay (but it has not). For President Ramaphosa to become constitutionally compliant he either has to assent to and sign the Protection of State Information Bill (not ideal), or he needs to refer the sections which might be unconstitutional to the Constitutional Court for a final decision (obviously the better options).
What he is not permitted to do is to delay the matter any longer. DM