MIKE OZEKHOME san, ofr
Back Page Columnist

Separation of powers, checks and balances (part 3)

Introduction

In our last two outings, we discussed the doctrine of separation of powers, the present Nigerian judiciary, vis-à-vis the government’s anti-corruption fight; the doctrine of the rule of law as it relates to the doctrine of judicial review, etc.

 

Today, we shall conclude our discourse having started with the place of the judiciary in separation of powers, checks and balances last week. Please, read on.

 

The place of the judiciary (continues)

Fourthly, the judiciary adjudicates on disputes between states, between the state and individuals, between individuals and corporations or corporate entities, among others.

 

The judiciary determines the meaning of the laws of the country. In Attorney General of Lagos State v. Attorney General of the Federation and 35 others, 27a, the Supreme Court held that Section 2(2) of the 1999 Constitution of Nigeria re-enacts the doctrine of Federalism.

 

According to the Supreme Court, in that case, the section not only ensures the autonomy of each government in the sense of being able to exercise its own will in the conduct of its affairs within the Constitution, free from direction by another unit of government; but also shows that none of the government is subordinate to the other.

 

With knowledge of the sacred roles and powers of the Nigerian judiciary, one would wonder what then would have given the government of the day the impetus to treat judges with such brutality on the 7th of October, 2016.

 

Make no mistake about this: We are under no illusion of the endemic nature of corruption in our society. We understand that corruption is a menace to our society and that it must be rooted out one way or the other. We know, also, that this monster must be killed before it kills us all.

 

However, the point to be noted, and a very critical one at that, is that we no longer live in a draconian and unregulated Hobbesian society as some government agents insist on showcasing. We live in a democratic society governed by laws and rules.

 

To act outside the laws of the land, irrespective of the grievous nature of the circumstance, is to unwittingly invite anarchy into the land. Former US President, Theodore Roosevelt (1858 – 1919) once said, “No leader is justified for malfeasance on the ground of expediency. “

 

Nigerians of all shades have come out to say, that the way and manner the justices and judges were brutally assailed and arrested in the ungodly hours of the nights (between 1am and 5am), was degrading, cruel, appalling and demean the exalted office of judges.

The point to be made is that: it is not the affected judges that were debased by the actions of the DSS on Friday, 7th October, 2016, but the entire judiciary, the entire body of judges, the entire Bench, who before now enjoyed some air of respectability in the public glare, which is in consonance with the nature of their job. To derisively lower the estimation of judges and the judiciary in the eyes of the public is one of the greatest mistakes of this government.

 

Because someday, somehow, judges would have the opportunity to remind this government the principles of separation of powers, in a way that may not be as unpalatable as the so called “sting operation” by the DSS.

 

We practise constitutional democracy. Anything outside this is an anathema. If a dog defecates on the floor, and a cleaner in an attempt to evacuate the faeces of the dog, uses her hands instead of a piece of cloth, she would have done the right thing in trying to evacuate the feces; but by using her hands to evacuate the faeces, she would have employed the use of the wrong method.

 

This analogy aptly captures the modus operandi of this government in its fight against corruption, particularly as it relates to the unwholesome attack on the judiciary. The intentions are right, but the modus operandi is abysmally wrong!! The judiciary in Nigeria is a distinguished institution.

 

The fact that a 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.

 

Examples of the operation of separation of powers and checks and balances in Nigeria

 

The Constitution of the Federal Republic of Nigeria, 1999 practically gives 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 governments and the Local governments.

The different governments are to a large extent, autonomous of one other; at the same time that 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 the where the Constitution is silent on which of the governments have the power to legislate; the power is deemed residual in the State 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, but the National Assembly must confirm before such a judge can be seen as properly appointed.

 

Even though the President is Commander- in-chief, 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 of both Houses of the National Assembly, sitting in a joint session; and except with the prior approval of the Senate, the President cannot draft any member of the armed forces on combat duty outside Nigeria.

 

The President can veto bills passed by the National Assembly, but the National Assembly can override the veto with a two-thirds majority in both chambers, and the superior Courts of records can declare legislation null, void and unconstitutional and of no effect howsoever.

 

There are a multitude of other checks too numerous to list here. To prevent its selfaggrandisement, 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.

 

According to the provision of the Constitution, the Federal Executive consist 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 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 dispersal  of power.

 

Conclusion

 

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 because they are unconstitutional in terms of the provisions of the Constitution but because they offend against the rules of natural justice of audialteram 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 law, 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. No arm of government is supreme or immune from checks 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 foremost proponent is the French Jurist, 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 undoubted enthrone and deepen democracy, rule of law, human rights and good governance. (Concluded).

 

 

 

And this

Crack your ribs

“A husband said to the wife…. The man said may God wipe away crime from our society…. Your amen was the loudest. Do you realize that you are the wife of a Lawyer?”- Anonymous.

 

THOUGHT FOR THE WEEK

 

“On the mountains of truth you can never climb in vain: either you will reach a point higher up today, or you will be training your powers so that you will be able to climb higher tomorrow”. (Friedrich Nietzsche).

 

Last line

 

God bless my numerous global readers for always keeping fate with the Sunday Sermon on the Mount of the Nigerian Project, by humble me, Chief Mike Ozekhome, SAN, OFR, FCIArb., LL.M, Ph.D, LL.D. Kindly, come with me to next week’s exciting dissertation

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