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The limit of separation of powers

For the record, it seemed, ordinarily, Justice Ahmed Mohammed of the Federal High Court, Abuja, nullified the attempt of the National Assembly to usurp the functions of Independent National Electoral Commission (INEC). Indeed, the judge himself might not be aware that he (has), through that judgement, made a fundamental judicial pronouncement, which put his name in history to establish the fact that even though power is distributed among the three arms, none of them is unquestionable in a court of law. Justice Ahmed, therefore, re-stablished that the judiciary is supreme among the executive, the judiciary and National Assembly. Very often, the executive is dragged to court, thereby creating the wrong impression that the other two are above the law.

democracyIf the judiciary itself could be challenged in law courts on any of its controversial decisions, why should the National Assembly delude itself no legislative action of the chamber could be challenged in court? The only condition lately established in two different rulings is that for a judge to be criminally liable, he must have been initially faulted by the National Judicial Council. And where were these National Assembly members when, in 2011, Justice Ayo Salami challenged in a court of law his unsolicited promotion from the presidency of Court of Appeal, where he was trying candidate Muhammadu Buhari’s election petition against INEC’s declaration of Goodluck Jonathan as winner of the 2011 presidential election? The stain the trial inflicted on the judiciary forever remains indelible as the trial was adjourned at every hearing, until Justice Salami attained retirement age. The point of interest here is that the powers that be never wanted the Justice Ayo Salami case to be tried, since the merit was clear. But at the same time, none of the defendants ever claimed that their action was outside the court’s jurisdiction.

When the suit challenging the validity of National Assembly’s purported amendment of the Electoral Act (to the effect of reversing the sequence of the next general election) was filed before Justice Ahmed Mohammed in Abuja, there were nuances in the public and the media that, owing to some ignorantly misunderstood separation of powers, the amended Electoral Act, being a legislative action, could not be challenged in court. In fact, unconfirmed contents of a letter of protest by the leadership of National Assembly to Nigeria’s Chief Justice were also said to have held that position, especially as the trial judge, Ahmed Mohammed, granted injunction halting National Assembly from proceeding with any action on the amended Electoral Act, until the case ended. There had to be a reaction in this column intimating the Chief Justice (who, with due respect, must have known) and many baby lawyers that the matter of the supremacy of the judiciary as the last arbiter on any controversy in Nigeria, including any law existing or in the process of legislation, had been settled by Justice Dadi Onyeama in 1961. With the latest ruling, Justice Ahmed Mohammed must be acclaimed for his courage for putting his name in history (like Justice Onyeama) in affirming the supremacy of the judiciary.

What we have been witnessing from the National Assembly since 2015 is either arrogance of power or confusion between power to legislate for good governance for the larger interest of society and ambition to grab power for mere aggrandisement. It might even be necessary to amend the Electoral Act. But why on the eve of the next general election? Furthermore, the National Assembly, since 2015, spent hundreds of millions of naira purportedly in amending Nigeria’s Constitution. Why did they fail to amend the Electoral Act all along? There was also the self-serving attempt of the National Assembly to compel the President to attach or stipulate which portfolio was to be allocated to any minister sent for screening. It can only be hoped these guys (in the National Assembly) would not dare, on that account, refuse to screen ministers in the future. What section of Nigerian Constitution compels the Nigerian President to specify portfolios for his chosen ministers to be screened? Another self-serving ploy to be employed for lobbying as was demanded before the screening of Nasir el-Rufai, who called their bluff under Obasanjo’s administration?

Among members of the National Assembly are former governors. How many of these former governors, in their days, ever specified portfolios to the list of commissioners they sent to their respective house of assembly for screening? The conduct and performance of the National Assembly provoke anger and loss of confidence in their capability. The lucky thing is that the Nigerian Constitution contains checks and balances. Without such, like the judiciary scrutinising the reasonableness and compliance of every arm of government with the Constitution, our National Aseembly would have run away with anything for their own benefit. Had the judiciary upheld their claim of being above leashing, what would have been our fate as ordinary Nigerians if a law legalising rape, murder, looting of the treasury, election rigging, etc, came into effect? Did they not contemplate immunity and pension for themselves? That is why separation of powers has limit and does not extend to licenciousness like legislating strictly for the interest of a tiny, insignificant group finding themselves in places largely not on merit.

Should these fellows be pitied or condemned in their presumed invincibility under the so-called separation of powers? Critically examined, the findings will be either ignorance or chronic amnesia. Again, during their sabre-rattling on impeaching Buhari, nuances were planted in the media and among the public that, should they carry out their impeachment threat, no court of law could inquire into their action. First of all, the court ruling aganst the National Assembly on the futility of the purported amendment of the Electoral Act must have tamed National Assembly members that the judiciary can inquire into any legislative act, including proceedings of an impeachment. It is all part of the limit of separation of powers. For their education, in case they are hell-bent on the impeachment move, the first thing they must ensure is strict compliance with the requirements of the Constitution in all such matters. The venue of impeachment proceedings, the number of votes cast for and against impeachment and the dramatis personae. Those who were power-drunk in the past and rampaged all over the place in violation of the Constitution were effectively checked by the law courts.

Have National Assembly members forgotten or are they ignorant of these episodes so recent in our political history? Whichever one of them (senators) was a victim and a court of law did not only inquire into clearly established non-compliance with the Constituton in his purported impeachment? Joshua Dariye is the name of former Governor of Plateau State. Former President Olusegun Obasanjo, through the EFCC, under Nuhu Ribadu, blackmailed and intimidated ONLY five members members of the Plateau State House of Assembly to impeach Governor Dariye. Could only five members be two-thirds of at least 20 members of the Plateau State House of Assembly as required under the Nigerian Constitution in all impeachment proceedings? As governor, Dariye was one of those accused of not supporting Obasanjo’s third term ambition. On the ground, among others, that five was not two-thirds of over 20, the court nullified Dariye’s alleged impeachment. Is the National Assembly under the illusion that no court can inquire into its (Assembly’s) impeachment proceedings?

A similar violation of the Constitution was committed in another Obasanjo-instigated purported impeachment of former Oyo State Governor Rasheed Ladoja. Those employed to carry out the unconstitutional impeachment could not risk the anger of Ladoja’s supporters at the proper venue, Oyo State House of Assembly. Instead, the political hatchet men employed against Ladoja were transported to and hidden in a hotel in Ibadan, where they claimed to have impeached Governor Ladoja, one of those accused of not supporting Obasanjo’s third term ambition. A court of law in Ibadan nullified the so-called impeachment on the ground, among others, that the excercise took place at a wrong venue, instead of the Oyo State House of Assembly
In a third case, former President Obasanjo employed the collaboration of the then EFCC boss, Ribadu, and claimed to have removed Vice President Atiku Abubar from office. The court later ruled only the National Assembly could remove a Vice President from office. All these landmark judgements also constitute the limit of separation of powers. There is nothing absolute about it. It is more worrisome because we operate a written Constitution. On the other hand, for over 1,000 years, Britain has been operating an unwritten constitution without any clash on separation of powers among the monarchy, the ececutive, judiciary and parliament.

The constant brickbats from the National Assembly can only be amusing. The same laws, which operate at the federal level, also apply at the stale level. Again, in the Senate are former governors who, in their time, completely reduced state houses of assembly to echo chambers of the governors. Which state house of assembly in Nigeria ever risks impeachment threat against any governor? Only the few virtually physically intimidated during the Obasanjo era. Otherwise, state houses of assembly are lifeless under governors. And when these same governors migrate to the Senate, they still aim at pushing the executive around. They cannot have it both ways.

Post script: Governor Ayodele Fayose is gradually earning some distinction. His victory in the 2015 governorship election was alleged by political opponents to have been assisted by high-ranking military officers, some of whom have since been named and disciplined. Now outgoing, Fayose, like his contemporaries, personally chose a successor but with finesse. In a rare case among state governors, he chose his deputy, Olusola Kolapo Eleka. This is unlike the disharmony, if not mutual hatred, which finally separates state governors and their deputies. This development has generated public interest in the outcome of the imminent governorship duel in Ekiti State.

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1 Comment

  1. Adeola 11th May 2018 at 4:31 pm

    Great piece from a great scholar.

    Thank you Chief

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