An Appraisal of the Courts and Constitutionalism in Nigeria: a Decade of Democratic Governance
CHAPTER ONE
OBJECTIVES OF STUDY
Basically, this work aims to unravel the concept of constitutionalism by a critical look at the principles of Impeachment as well as Separation of Powers. These two concepts are technically related and there have been several controversies whether they are duly practiced according to the provisions of the Constitution. It is remarkable to stress that the stringent principles of compartmentalization of powers have not been religiously adhered to by most presidential government in the world; this fact is reinforced by the trends in the Federal Republic of Nigeria and the United State of America.
More so, tyranny and totalitarian tendencies are two elements which are most threatening today and they are fast encroaching on the territories of our communities. This assertion will be viewed from the political, social and legal prism in line with the concept of constitutionalism. On the whole, this conceptual analysis is primarily intended to provide for audiences who do not have access to Academic journals. It is also aimed at making the concepts less cumbersome to understand by drawing illustrations from avalanche of judicial cases.
CHAPTER TWO
THE JUDICIARY
INTRODUCTION
It is a trite fact that democracy is basically characterized by three distinct arms of government. The principle of separation of powers brought the independence of each arm of government, which are;
i. The Legislature ii. The Executive iii. The Judiciary
The Legislature is responsible for making laws and the Executive is charged with the implementation of such law, while the Judiciary is responsible for the interpretation of the law in consonance with the provisions of the constitution. Hence, in line with the doctrine of separation of powers, which is a cardinal feature of a democratic system, the Nigerian Constitution guarantees the independence of the Judiciary.
The function of the judiciary is to provide judicial justice, which is only a part of justice. The areas of an individual‟s life in which he expects the state to provide justice in modern society are, at least, as wide as those interfered with by the state. The more complex economic, social and other activities get in the society, the wider are the areas of their lives in which people demand that the state would provide justice. The demands for justice include the protection of the individual’s right against the state as well as against his fellow citizens.[1]
However the provisions covering these areas of justice are not, and cannot be put in one neat pile in the constitution. In any event, it is not all the protections that a person enjoys or to which he is entitled to enjoy that are contained in the constitution. While many of them are contained in the general law, there are large numbers of individual‟s right that are not protected or adequately protected, whether in the constitution or in the law.
THE JUDICIARY AS AN ARM OF GOVERNMENT.
The judiciary is the arm of government concerned in this piece and it is that arm which interprets the law and adjudicates in judicial matters. It is expedient to point out that for the nascent democratic rule to survive in Nigeria, there must be a virile and dependable judicial system. A judicial system that would not only be independent but stands as the watchdog and hope of the common man.
The 1999 constitution provides for federal and state courts, as well as election tribunals. At the apex of the Judiciary is the Supreme Court. The constitution provides that „the judicial powers of
the Federation shall be vested in the courts to which this section relates, being courts established for the Federation‟[2]
Also, the constitution further provides as follows:
The judicial powers of a State shall be vested in the courts to which this section relates, being courts established, subject as provided by this Constitution, for a State.”[3]
The courts to which this section relates, established by this Constitution for the Federation and for the States, specified in subsection (5) (a) to (1) of this section, shall be the only superior courts of record in Nigeria; and save as otherwise prescribed by the National Assembly or by the House of Assembly of a State, each court shall have all the powers of a superior court of record.”[4]
Nothing in the foregoing provisions of this section shall be construed as precluding:- the National Assembly or any House of Assembly from establishing courts, other than those to which this section relates, with subordinate jurisdiction to that of a High Court; the National Assembly or any House of Assembly, which does not require it, from abolishing any court which it has power to establish or which it has brought into being.[5]
CHAPTER THREE
IMPEACHMENT OF ELECTED OFFICERS
INTRODUCTION
It is a notorious fact that democracy in Nigeria postulates that election and impeachment are the only two means of enthroning and dethroning a government. In view of this, attempt will be made to define impeachment, being the subject matter and election as the antecedent to impeachment, as there cannot be an impeachment without a previous election.[1] Hence, this study shall attempt to discuss in details and give analysis of impeachment and its procedures which include the grounds for impeachment.
The 1999 constitution is not the first provision for statutory basis for impeachment in Nigeria. In other words, the reality and perpetration of impeachment in the fourth republic under the 1999 constitution is not a new ideology in the Nigerian constitutional and democratic development. Sections 132 and 170 of the 1979 constitution make adequate provisions for impeachment of the president and governors which is to a large extent replicated by Sections 134 and 188 of the 1999 constitution. It is necessary to mention that these two provisions are similar to a large extent but there are some important differences between the two.
It is also worthy to note that there has not been an impeachment of a president in the history of Nigerian democracy. Thus, impeachment in this regard is meant to refer to the removal of governors and perhaps members of the legislative houses. However there were attempts in the early part of the fourth republic to impeach erstwhile President, Chief Olusegun Obasanjo, but it went down the drain because the requirements of the provisions of Section 134[2] were not adequately met. This goes a long way to show that the Constitution serves as an incorruptible arbiter in impeachment proceedings. The question now is, was the Constitution allowed to play its noble role in the recent past fleet of impeachment of state governors in Nigeria?. In the light of this, this study will attempt to examine some of the impeachment processes and the procedures involved in line with the provisions of Section 188 of the 1999 constitution in order to weigh their justification.
HISTORICAL DEVELOPMENT OF IMPEACHMENT
Impeachment of an elected public officer is a very serious and weighty business. Comparative constitutional analysis reveals, according to Professor Philips,[3] that the first ever recorded case of impeachment in history occurred in 1376 when two British Lords and Fox Commoners were charged with removing staple from Calasis (the nearest French Pot to England under British control between 1347-1558) lending the King‟s money at usurious interest and buying Gown debts for small sum and then paying themselves in full out of the treasury.
Thus it can be said that the concept of impeachment originated from England, although the concept is considered obsolete in British Constitutional history today. However, many of the American Constitutional governments and states adopted the impeachment concept in their constitutions. It is worthy to mention that it is from the American Constitution of 1787 that the 1999 Nigerian constitution borrowed the concept of impeachment.
Throughout the history of the USA, there has been about fourteen impeachments, most of which were concerned with judicial office holders. There was also the impeachment of a senator in 1978 and the impeachment of former President Andrew Johnson is also well-known. In recent times, there was the unsuccessful impeachment of President Bill Clinton[4]. Etymologically, the concept of impeachment derived its origin from Latin expression, which explains the idea of being caught or entrapped and it is analogous to the modern French verb “impeache” which means to prevent and the English word impede.
CHAPTER FOUR
THE DOCTRINE OF SEPERATIONE OF POWERS
INTRODUCTION
Among the numerous political theories operating in a democratic setting, none deserves to be more accurately developed than the principle of power division and separation. In Montesquieu’s[1] conception, when legislative and executive powers are united in the same person or in the same body of officials, there can be no liberty, because fears may arise, lest the king or senate should enact tyrannical laws or execute them in a tyrannical manner.
In Similar vein, the Constitution, in order to curtail the excesses of the executive which has overtime personified the government and arrogated to itself the bulk of governmental powers, devised more stringent measures.[2] This accounts for the reason why the Constitution also contains some elements that gives the legislature powers to act as watch-dog over the executive. Therefore, the legislative oversight functions will check the executives and prevent it from violating the rights of citizens; this in a way actualizes the goal of a democracy. Though, the arbitrariness of the legislators can also be checked by the executive.
It is however suggested that power should be dispersed and not concentrated; the theory of separation of powers has been a theory of the Constitution that has, ipso facto curtailed the operation of arbitrariness. It is the postulation of James Harrington devising three intertwined concept of rotation in office, freedom of electors and lastly separation of powers that gives hint on the doctrine.[3] It became more developed in John Locke’s compartmentalization theory[4].
Separation of powers in Calvert’s conception is the ultimate authority distributed among different entities none of which is subject to control within the sphere of the other.[5] Sabine agreed with this and added that it is for the sake of freedom[6]. The articulation of Blackstone, burke and John Rousseau added impetus to the theory[7]. Separation of powers has been agreed to mean the division of governmental powers into the three branches of; legislative, executive and judicial powers. According to Ben Nwabueze82, he opined that „not even the sternest critics of the doctrine of separation of power can deny its necessity as regards all government functions‟
HISTORICAL DEVELOPMENT OF SEPARATION OF POWERS
An excursion into the historical significance of this doctrine has shown that the separation of powers is not a toddler doctrine; it was developed over many centuries[8]. The term separation of powers was coined from “trias political‟ by Louis de second at, BARON DE MONTESQUIEU
in the 18th century in the “Spirit of the Laws” which is regarded as one of the greatest works in the history of political theory and jurisprudence, which inspired the declaration of right of man and the Constitution of the USA[9]. The doctrine is however traceable to British parliament‟s gradual assertion of power and resistance to royal decrees during the 14th century. English scholar, James Harrington was one of the first modern philosophers to analyze the doctrine in his essay Common Wealth of Ocean 1656. Harrington building on the work of earlier philosophers ARISTOTLE, PLATO AND NICCOLO MACHIAVELLI[10], described a
utopian political system that included a separation of powers. English political theorist John Locke gave the concept of separation of power more refined treatment in his second treatise of government 1690.
CHAPTER FIVE
CONCLUSION AND RECOMMENDATION
CONCLUSION
The thrust of this work has successfully evaluated the concept of constitutionalism with the instrumentality of the doctrines of Impeachment and Separation of Powers. These two doctrines as the case study in this work were chosen for the widely held perception of Nigerians that our democracy is flawed. Undoubtedly, a lot has been said about these two doctrines that constitute the subject matter of this project. For instance as it was noted in Chapter four, that the governmental practice of power separation has entirely been demystified with the exposition on judicial independence and legislative oversight functions which were instrumental to crystallization of the relationship of the three arms of government from legal, political and socioeconomic perspectives. It must be added here that it is antithetical to the working of democracy to concentrate power in a single organ.
The CFRN is the grundnorm as it is supreme over any individual because even the government is a creation of the Constitution and not a creation of itself. Therefore, all the Constitutional provisions must be complied with in the discharge of official duties at all levels of government. In the light of this, it is clearly observed that the impeachment proceedings conducted in Nigeria in recent times have been so tainted with gross constitutional irregularities and often jumpstarted by personal vendetta. However the mode with which impeachment proceedings are being conducted in contemporary Nigerian society leaves more questions than answers.
Furthermore, it was also observed that powers may be limited by dividing it, not among different organs of the same government, but among different territorial units of government. However, the limiting of government is said not to be the weakening of it. It suffices therefore that the operation of Separation of Powers negates the principle of parliamentary supremacy which is gradually coming to extinction in most nations around the globe even in the common wealth countries. It goes without saying that the legal motivation given to practices of power separation has an inestimable impact on its continuance.
Finally, it is believed that the audience has a well-grounded conception about what is meant by the idea of Constitutionalism. It is sincerely hoped that the virtues of the concept will be put into practice in order to accomplish the goals of democracy. However, for democracy to thrive in any society, the rule of law must be upheld. It must be stated emphatically at this juncture, that this heavy duty to achieve the objectives of democracy properly lies on the power brokers, clergy men, the government and the passionate people of Nigeria.
RECOMMENDATION
Apparently, the analysis of Nigerian socio-political landscape vis-à-vis impeachment and separation of powers has been a focal point in this discourse. The descriptive conceptualization of constitutionalism adopted in this paper, clearly raises the problems of governance under a constitutional democracy, a problem commonly faced by most African states. The thrust of this paper is essentially in two folds; first to locate the constitutionality of some past notable impeachment proceedings in Nigeria, and secondly to examine the true practice of the doctrine of Separation of Powers. Therefore, recommendations and conclusion shall be made in respect of both doctrines that were used to elucidate constitutionalism in Nigeria.
It is apposite to state that, the gale of impeachment in the Nigerian polity has brought dishonor on our judicial practice. This is evident in the barren manner in which some judicial officers ignored constitutional provisions and played to the gallery. This flippancy is sometimes excused by the argument that the court has no business with impeachment proceedings though this controversy has been settled in chapter three of this work. It is pertinent to note here that we cannot afford to throw caution to the winds and give the political act an open cheque without necessary checks and balances. Hence, it is suggested that:
- Notwithstanding the political nature of impeachment, due procedure should be followed and that the court should be in a position to pronounce on whether or not the laid-down procedure has been religiously observed.
- All commissions directly concerned with elected officers by virtue of their functions should carry it out without directly or indirectly passing through other institution unduly or in such a way as could lead to breach of law.
- The role of political parties in impeachment process is another worrisome one. It is therefore recommended that clause expressly barring political parties from interfering in impeachment matters should be included in the constitution and a penalty attachedthereto.
- Specific roles should be spelt out in the constitution for deputy governor. The rationale is that the non-availability of constitutional roles for deputy governors leaves them at the mercy of the governor making them vulnerable to impeachment.
- Though impeachment is a political trial, which is within the domestic domain of the legislature. It however recommended that where an impeachable offence is criminal in nature, the court should be made to interfere, thus ceding criminal matters to the domestic domain of the court.
It must be added here that it is antithetical to the working of democracy to concentrate power in a single organ. The problem of insecurity and suspicion which is a fear often exercised by those different organs at particular times could be a product of the uncertainty in equality amongst them, particularly in the relationship between the executive and the legislature.[1] It has been noted that the doctrine of the separations of powers is to make the separation a more effective instrument of constitutionalism. In view of this, it has been recommended that:
- If we must sustain our democracy and see it last like that of developed countries, then judicial activism has to be an attribute of our judiciary
- That the judiciary should be given more powers to check our executive officers and legislators.
- That one organ of government should not control or interfere with the work of another.
- Anti-graft agencies should be autonomous creation of the law not in any way an auxiliary to the executive. The provision of the EFCC Act should be reviewed in the light of this recommendation.
- The Independence of the judiciary should be guaranteed at all times, by ensuring security of tenure for judges.
It is trite that the law will not be an engine of fraud; it is therefore amazing that the provision of our constitution has in no small measure aided the legislature in bringing to bear their whims and caprices especially in the avalanche of impeachment cases. It is therefore necessary to lend credence to the idea that postulated that the term gross misconduct in our Constitution[2] is too wide and should be limited to such phrases that will not encourage the indiscriminate use of this legislative discretion.
REFERENCES
- Adeoye Ademola “Impeachment of Governor Abdulkadir Balarabe Musa of Kaduna State” Wusen Publishers 2002.
- Ali Yusuf “Separation of Powers under the 1999 Constitution of the Federal Republic of Nigeria:A Critical Review” Ilorin Bar Journal Vol 1 No.2 August 2002.
- Jegede Oarhe, “The Paradox of Impeachment in Nigeria Nascent Democracy”. The JURIST Vol. 12 2007.
- Joel Nwokeoma “The judiciary‟s Redemptive Role in Nigeria‟s Democracy” Patrioni Books, Lagos 2002.
- Salaman Haman “The impeachment power of the Legislature; Comparative Analysis” Federal Ministry of Justice 2006.
