Main­tain­ing the prin­ci­ple of separation of pow­ers in Nige­ria

The pow­ers of the courts do not ex­tend to deter­min­ing the con­sti­tu­tion­al­ity of a bill yet to be passed or re­strain­ing the Na­tional As­sem­bly from pass­ing an 'un­con­sti­tu­tional' law.

Financial Nigeria Magazine - - Contents - A Fi­nan­cial Nige­ria colum­nist, Fun­mi­layo Odude is a La­gos-based le­gal prac­ti­tioner, and a pub­lic af­fairs an­a­lyst.

The prin­ci­ples of separation of pow­ers and checks and bal­ances fa­cil­i­tate the ef­fi­cient work­ing of – and har­mo­nious in­ter­ac­tion be­tween – the three arms of gov­ern­ment in a fed­eral or pres­i­den­tial sys­tem like ours. How­ever, there is a del­i­cate bal­ance to be main­tained such that in the process of check­ing the ex­cesses of a par­tic­u­lar arm or branch of gov­ern­ment, one branch does not usurp the pow­ers or en­croach on the func­tions of the other. Each arm must main­tain its in­de­pen­dence and con­trol.

But in Nige­ria, that bal­ance has been stretched in many in­stances. The pres­i­dency is­sues ex­ec­u­tive or­ders that read more like leg­is­la­tion; the Na­tional As­sem­bly – un­der the guise of in­ves­ti­ga­tions car­ried out un­der Sec­tion 88 of the Con­sti­tu­tion – is­sues di­rec­tives to heads of min­istries and agen­cies of gov­ern­ment that are un­der the ex­ec­u­tive arm. We might, how­ever, have crossed the line this time with the court or­der re­strain­ing the Na­tional As­sem­bly, al­beit tem­po­rar­ily, from amend­ing an Act.

All the saga sur­round­ing the pro­posed amend­ments to the Elec­toral Act 2010, part of which in­clude a change to the se­quence of the gen­eral elec­tions – which has al­ready been an­nounced by the In­de­pen­dent Na­tional Elec­toral Com­mis­sion (INEC) – seem to stem from a self-serv­ing po­lit­i­cal agenda. It is no longer news that the Pres­i­dent has re­fused to give as­sent to the pro­posed bill. The Na­tional As­sem­bly has re­acted by mak­ing a move to gather two-thirds ma­jor­ity votes in both leg­isla­tive houses to over­ride the Pres­i­dent's veto.

In­deed, the Na­tional As­sem­bly is within its pow­ers to make and amend laws. Sec­tion 4 of the Con­sti­tu­tion vests the leg­isla­tive pow­ers of the Fed­eral Repub­lic of Nige­ria in a Na­tional As­sem­bly that con­sists of the Se­nate and the House of Rep­re­sen­ta­tives. Sec­tion 6 vests the ju­di­cial pow­ers of the fed­er­a­tion in the courts.

Thus, in the dis­tri­bu­tion of pow­ers amongst the branches of gov­ern­ment, the courts are vested with the ex­clu­sive right to de­ter­mine jus­ti­cia­ble con­tro­ver­sies be­tween cit­i­zens and be­tween cit­i­zens and the State.

The ques­tion that is to be an­swered is whether in the course of deter­min­ing a con­tro­versy sub­mit­ted to it for ad­ju­di­ca­tion, the courts can pre­vent the Na­tional As­sem­bly from car­ry­ing out its own func­tion.

Dis­pleased by the pro­posed amend­ments to the Elec­toral Act, the Ac­cord Party has filed a suit at the Fed­eral High Court Abuja against the Na­tional As­sem­bly, the At­tor­ney Gen­eral of the Fed­er­a­tion and INEC. A Van­guard News­pa­per re­port of 14th March, 2018

showed that the suit chal­lenges clause 25 of the Elec­toral Act Amend­ment Bill 2018, which man­dates INEC to fol­low a par­tic­u­lar se­quence of elec­tion.

The suit also main­tains that INEC has con­sti­tu­tional pow­ers to or­ga­nize, un­der­take and su­per­vise elec­tions and this would in­clude deter­min­ing the se­quence, and fix­ing the dates, of elec­tions. Fur­ther­more, it ar­gues that the Na­tional As­sem­bly in pro­mul­gat­ing clause 25 of the Amend­ment Bill in­ter­fered with or cur­tailed the pow­ers, rights and dis­cre­tions of INEC, thus mak­ing it un­con­sti­tu­tional, null and void.

The suit is seek­ing dec­la­ra­tions to that ef­fect as well as or­ders of per­pet­ual (per­ma­nent) in­junc­tions re­strain­ing the Pres­i­dent (rep­re­sented in the suit by the At­tor­ney Gen­eral of the Fed­er­a­tion) from as­sent­ing to clause 25 of the Bill and the Na­tional As­sem­bly from pass­ing it into law with a two-thirds ma­jor­ity.

On 14th March, 2018, the Fed­eral High Court in Abuja made an or­der re­strain­ing the Na­tional As­sem­bly from pro­ceed­ing with pas­sage of the Bill into law un­til the fi­nal de­ter­mi­na­tion of the suit. The court, main­tain­ing that the or­der did not amount to grant­ing the re­liefs sought in the suit, stated that it was nec­es­sary to pre­serve the sub­ject­mat­ter of the suit be­fore it as there would be noth­ing to de­ter­mine if the Na­tional As­sem­bly is al­lowed to pro­ceed with pass­ing the Bill.

Which­ever ex­pla­na­tion ac­com­pa­nied the court's or­der and for how­ever short or long the du­ra­tion of the or­der, the fact is that the court has or­dered the Na­tional As­sem­bly not to pro­ceed with pass­ing a bill into law un­til it de­ter­mines the con­sti­tu­tion­al­ity or oth­er­wise of the pro­vi­sions of the bill. If that sounds like a usurpa­tion of the pow­ers of the Na­tional As­sem­bly or at the very least, an at­tempt to con­trol the ex­er­cise of those pow­ers, it is be­cause it is.

In the same week this or­der was made, the pub­lic hear­ing at the House of Rep­re­sen­ta­tives on the con­tro­versy sur­round­ing the pre­ven­tion of a Uni­ver­sity of Ilorin law grad­u­ate from be­ing called to the bar over her re­fusal to re­move her hi­jab was post­poned in­def­i­nitely. The hear­ing was post­poned as a re­sult of an or­der by the Fed­eral High Court re­strain­ing the Na­tional As­sem­bly from pro­ceed­ing with it pend­ing the de­ter­mi­na­tion of a sub­stan­tive suit be­fore it.

Apart from briefly not­ing the le­gal dis­par­ity in ask­ing the court to set aside a Bill that has no force of law as yet, the mer­its of the case by Ac­cord Party, be­ing a live is­sue be­fore a com­pe­tent court of law, would not be con­sid­ered in this ar­ti­cle. The is­sue at the mo­ment is whether the or­der made by the court is within the pow­ers of the court or it amounts to an in­fringe­ment on the pow­ers of the Na­tional As­sem­bly, in which case the court ex­ceeded its pow­ers.

Un­doubt­edly, courts of law have in­her­ent pow­ers to grant ex-parte in­junc­tions (or­ders made with­out hear­ing the op­pos­ing par­ties and meant to last for a very short pe­riod of time). The ex­er­cise of these pow­ers is at the dis­cre­tion of the judge who is to ex­er­cise them ju­di­cially and ju­di­ciously. Though there are le­gal prin­ci­ples gov­ern­ing the grant­ing of such in­junc­tions, the ra­tio­nale be­hind them is that the de­lay to be caused by pro­ceed­ing with the or­di­nary le­gal pro­ce­dure (putting the op­pos­ing sides on no­tice and al­low­ing for the time given to them to file their re­sponse) would cause such a se­ri­ous and ir­repara­ble dam­age or mis­chief to the plain­tiffs. The idea is to pre­serve the sta­tus quo un­til a date or un­til fur­ther pro­ceed­ings in the suit.

It is also not in doubt that courts have the pow­ers to de­clare any law made by the Na­tional As­sem­bly null and void to the ex­tent of its in­con­sis­tency with the Con­sti­tu­tion, be­ing the grund­norm from which all other laws and acts de­rive their le­gal­ity. I do not, how­ever, be­lieve that those pow­ers ex­tend to deter­min­ing the con­sti­tu­tion­al­ity of a bill yet to be passed, or re­strain­ing the Na­tional As­sem­bly from pass­ing an 'un­con­sti­tu­tional' law. Those acts, apart from been pre­ma­ture, would amount to telling the Na­tional As­sem­bly what laws to make.

The courts them­selves from as far back as the 1980s' set down three guid­ing prin­ci­ples to en­sure the work­a­bil­ity of the doc­trine of separation of pow­ers: 1) that each of the three branches of gov­ern­ment must be in the hands of dif­fer­ent per­sons; 2) that no one branch has con­trol of the other; and 3) that no one branch per­forms the func­tion of an­other. Each arm of gov­ern­ment is sep­a­rate and equal and no arm can take over the func­tions con­sti­tu­tion­ally as­signed to the other.

Not­with­stand­ing the equal­ity of the three arms of gov­ern­ment, there is still the lack of fi­nan­cial au­ton­omy for the ju­di­ciary in Nige­ria. It is, how­ever, not a good enough rea­son to al­low the lines to blur even fur­ther.

With the time­frame within which this Bill must be passed for it to have ef­fect on the 2019 elec­tions (Ar­ti­cle 2(1) of the ECOWAS Pro­to­col on Democ­racy and Good Gov­er­nance pro­vides that “no sub­stan­tial mod­i­fi­ca­tion shall be made to the elec­toral laws in the last six (6) months be­fore the elec­tions, ex­cept with the con­sent of a ma­jor­ity of po­lit­i­cal ac­tors.”), one can al­most sense a game in­volv­ing tim­ing at play here.

The po­lit­i­cal in­trigues, though largely un­ex­cit­ing due to the lack of a ro­bust and fierce op­po­si­tion, are needed for a strong demo­cratic sys­tem. They must, how­ever, never un­der­mine the core prin­ci­ples and val­ues upon which our demo­cratic sys­tem stands. We must not al­low pol­i­tics to be played to the detri­ment of prin­ci­ples such as separation of pow­ers.

The Bill that has given rise to this quag­mire might not be of much in­ter­est to the reg­u­lar Nige­rian who thinks this is all a 'po­lit­i­cal fight.' Nev­er­the­less, we must be wary of set­ting prece­dents that might be dif­fi­cult to over­turn.

We must not al­low pol­i­tics to be played to the detri­ment of prin­ci­ples such as separation of pow­ers.

Nige­rian Pres­i­dent Muham­madu Buhari

Nige­rian Se­nate Pres­i­dent Bukola Saraki

Nige­rian Chief Justice Wal­ter Onnoghen

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