Last week, our discourse revealed that the judiciary in Nigeria is a distinguished institution. The fact that few bad eggs are in the system (as in every system), does not give the executive the audacity and effrontery to pull it down. It will not bode well for the synchronicity and synergy of our body polity, especially between the three arms of government. Today, we shall conclude our discourse with examples of the operation of this hallowed doctrine of separation of powers and its in-built checks and balances in Nigeria.
How separation of powers and checks and balances operate in Nigeria
The Constitution of the Federal Republic of Nigeria, 1999, practically accords the concept of separation of powers a two- pronged approach. State power has been separated and dispersed both vertically and horizontally. Vertically, this power has been divided, separated and dispersed in terms of the different levels of governance; namely, the Federal Government, state government and the local government.
The different governments are to a large extent, autonomous of one other; and at the same time, each is controlled within itself. In addition, power at the federal level of governance is further divided, separated and dispersed horizontally into different departments of government in terms of the traditional three organs of state; namely, the legislature, executive and judiciary. This is aimed at securing the rights of the people and fostering their active participation in governance issues.
Furthermore, on the vertical dimension, the governments of the states check the Federal Government, and vice versa. The Constitution’s supremacy clause gives federal laws primacy over state laws; but where the Constitution is silent on which of the governments have the power to legislate on a matter, the power is deemed residual in the States governments. On the horizontal dimension, the executive, legislature, and judiciary check each other. For example, the President nominates members of the Supreme Court on the advice of the National Judicial Council (NJC), but the National Assembly must confirm such appointment before such a judge can be deemed properly appointed.
Even though the President is Commander-in-chief of the Armed Forces, he does not have the power to declare a state of war between the Federation and another country except with the sanction of a resolution by both Houses of the National Assembly (Senate and House of Representatives), sitting in a joint session. Similarly, except with the prior approval of the Senate, the President cannot draft any member of the armed forces on combat duties outside Nigeria. The President can, in turn, veto bills passed by the National Assembly; but the National Assembly can override such veto with a two-thirds majority vote in both chambers. The superior Courts of records can, on the other hand, declare legislation null, void and unconstitutional and of no effect whatsoever. In the same vein, the NASS can, under sections 88 and 89 of the Constitution carry out oversight functions over executive actions.
There are a multitude of other checks too numerous to list here. To prevent its self-aggrandisement, the legislature was made bicameral, with each chamber responsive to different passions (electorates). Thus, checks and balances operate between different levels of government (Federal vs. State and Local); between different branches of government (Executive vs. Legislature vs. Judiciary); and between different institutions within a branch of government (House vs. Senate).
Horizontally, each of the three branches has a corresponding identifiable function of government and each must be confined to the exercise of its own function and not allowed to encroach upon the functions of the other branches. Furthermore, the composition of these three branches of government must be kept separate and distinct, with no individual being allowed to be a member of more than one branch at the same time.
The Federal Executive consists of the President, the Vice President, the Attorney-General, Ministers and Special Advisers. None is a member of the National Assembly or of the Judiciary. In this way, each of the branches shall be a check to the others and no single group of people will be able to control the entire machinery of the state. In addition to the above three perspectives of the horizontal separation of powers, the architecture and design of the Constitution take a plural approach to the organisation of the legislature in the form of a bicameral institution, thus creating a further bifurcation or dispersal of power.
The theory and practice of separation of powers and checks and balances is the most veritable context in which the Judiciary can perform its constitutional responsibility of stabilizing the political system, thus, achieving sustainable democracy and good governance in Nigeria. The courts in exercise of their power of judicial review are constantly called upon to scrutinize the validity of instruments, laws, Acts, decisions, and transactions.
In the exercise of the jurisdiction, the courts can declare them invalid or ultra vires and void, not only when they are unconstitutional in terms of being in conflict with the provisions of the Constitution, but also when they offend against the rules of natural justice of audi alteram pertem or nemo judex in causa; or if they offend against the rules of fairness; or otherwise offend against the rule of natural justice. All these are in the realm of administrative, and not constitutional law. The court can by its power of judicial review, set them aside.
The National Assembly can make laws, limiting the powers of both the executive and the judiciary. It can remove a member of the judiciary by a vote of two-third and can impeach the President for gross misconduct or for the violation of the Constitution of the Act of the National Assembly. Some members of the Legislature and Judiciary have been charged and are being prosecuted by the Executive arm of government before courts of law. No arm of government is supreme or immune from checks and balances by the other arm. This is in line with the doctrine of separation of powers as espoused by Philosophers and Jurists such as Aristotle, Saint Augustine, John Calvin, Hans Kelsen, John Locke, A.V. Dicey; and of which the fore-most proponent is the French Jurist Philosopher, Baron de Montesquieu in his timeless treatise, “the Spirit of the Laws”.
When properly observed and practised, the doctrine of separation of powers, with its inherent checks and balances, will undoubtedly enthrone and deepen democracy, rule of law, human rights and good governance.
Sounds and Bites
There are two sides to every coin. Life itself contains not only the good, but also the bad and the ugly. Let us now explore these.
“Never mind your mockers, face your maker. Your success will mock them in return.”
Thought for the week
“The care of human life and happiness, and not their destruction, is the first and only object of good government.”
Declaring state of emergency in Anambra State? Oh, no please!
Recently, the Attorney-General of the Federation flew a kite to the effect that the Federal Government may declare a state of emergency, “to ensure necessary security is provided, and in terms of ensuring protection is accorded to lives and properties”. This is towards the forthcoming governorship election, especially “if there is failure on the part of the state government to ensure the sanctity of security of lives, properties and democratic order”.
Declaration of a state of emergency is, however, a serious constitutional matter within the purview of Section 305 of the 1999 Constitution. It cannot be done with a knee-jerk approach as the Attorney-General appears to suggest. Certain conditions must be met.
Section 305 permits the President to declare a state of emergency by way of official Gazette. But, two-third majority of the National Assembly (NASS) must ratify the executive proclamation within two days. This shows it is not solely an executive fait accompli. The legislature must be fully involved.
The section permits such declaration if the federation is at war; or if the federation is in imminent danger of invasion or involvement in a state of war; or if there is an actual breakdown of law and order and public safety in the federation, or ANY PART THEREOF, in such proportions as require extraordinary measures to restore peace and security.
A state of emergency may also be declared if there is clear and present danger of the above scenarios; or a disaster or natural calamity affecting the community or a section of it occurs; or there is occurrence of any other public danger that constitutes threats to the existence of the Federation.
The President can also declare a state of emergency under Section 305(4), where the Governor of a state with the sanction of resolution supported by two-thirds majority of the House of Assembly, himself requests the president to so proclaim a state of emergency. Such a state of emergency lapses after months; or if the president revokes it by instrument published in the official Gazette; or if the NASS in session does not support it within two days; or the NASS not in session fails to support it within 10 days.
Surely, widespread threats to lives and properties of innocent citizens, as seen in the above constitutional provisions can lead to a declaration of a state of emergency, especially if it can be demonstrated that there has been actual breakdown of public and public order. Such does not appear to be the situation in Anambra State as at now.
I personally, do not like what is going on in Anambra state, all because of a mere governorship election. Why do people have to maim, burn and take the precious lives of citizens just because of a mere gubernatorial election? Do you kill innocent citizens because you want to serve them? Is it a matter of overblolated ego? Is it money? I am not aware Anambra has tons of it? Is it show of bizarre wealth? Just why the incessant killings, and to achieve what? Why turn an otherwise peaceful state into a field of killings and an odeon of grisly bloodbath just for a four-year governor’s seat?
The Federal Government will run into a serious moral and legal cul de sac if it ever contemplates a declaration of a state of emergency, the kite of which was flown by Abubakar Malami, the Attorney-General of the Federation. For one, the governor has not declared he can no longer contain the ugly situation. For another, the Federal Government will certainly be accused of barefaced duplicity, crass inconsistency and ignoble selectivity, which it is now infamous for. The question will be, why declare a state of emergency in Anambra over sporadic killings in a few weeks, when you have refused to declare it in many northern states where Boko Haram killings, banditry and serial kidnappings and rape have been the order of day for years.
I would seriously advise the Federal Government against it, as it would exacerbate an already ugly situation and engender more tension and insecurity. It would give a readymade alibi for another Federal Government invasion of the entire South East, in the form of operation “Python Dance”, etc. So, stop!!!