An Appraisal Of The Courts And Constitutionalism In Nigeria; A Decade Of Democratic Governance

Project and Seminar Material for Law

An Appraisal Of The Courts And Constitutionalism In Nigeria; A Decade Of Democratic Governance


Abstract


Democracy is undoubtedly the commonest system of government mostly practiced in virtually all the countries of the world because it ensures the observance of people‟s rights and freedom. It is however basically characterized by three independent arms of government namely; the Legislative, Executive and the Judicial arm of government. While the Legislature is responsible for making laws and the Executive is charged with the implementation of such law, the Judiciary is responsible for the interpretation of the law in accordance with the provisions of the Constitution. 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 Judiciary as an arm of government owes an essential duty to interpret the provisions of the law when they are in question, thus the court (judiciary) is referred to as the last hope of the common man.

Be that as it may, the idea of constitutionalism is yet another concept that primarily operates in a democratic setting. Constitutionalism however connotes the belief in a democratic government where the affairs of the state are operated according to the provisions of the law. Basically, this work will adopt a purposeful effort to scrutinize the liberal constitutionalism and capture its salient features not merely as an imposition of limitation on exercise of powers, but also as a mechanism for accountable and developmental exercise of powers. Although some Critics had severally argued that the principle of constitutionalism is rarely observed in this part of the world.

From the foregoing, the object of this work is principally in two folds. Firstly, to appraise the judiciary as an arm of government, vis-à-vis the Nigerian legal system. It is a common knowledge that the function of the judiciary is to provide judicial justice to the people where the circumstances so demand. Secondly, this work will make a deliberate attempt to properly examine the concept of Constitutionalism in our contemporary society. To this end, it is apposite to bring to the fore some concepts which are intricately intertwined with the principle of Rule of Law and how the courts had reacted to them in the last ten years.


Chapter One


General Introduction

1.0.0 Introduction

Government is universally accepted to be a necessity since man cannot realize himself except within an ordered society. Yet the necessity of government creates its own problems for man; the problem of how to limit the arbitrariness inherent in government and to ensure that powers is to be used for the good society. It is the limit of this arbitrariness of political power that is expressed in the concept of Constitutionalism. However Constitutionalism recognizes the necessity of the government but insist upon a limitation being placed upon its powers. It connotes in essence the limitation in government; it is the antithesis of arbitrary rule1.
Constitutionalism simply means a belief in a constitutional government.2 The Constitution of the Federal Republic of Nigeria is popularly known as the organic and fundamental law in the realm of legislation in Nigeria. While the Nigeria constitution defines the framework, the exercise of the governmental powers and the limits of each arm of government, the courts are eminently placed in a position to interpret how these governmental powers can be exercised by the various arms of government in accordance with provisions of the Constitution.

It is a common knowledge that the judicial powers of the federation are vested in the courts established for the federation as enshrined in the constitution which 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‟.3 Therefore it is the role of the judiciary (the courts) as an arm government and the provisions of the Constitution that has formed the basis of this project work. Under the 1999 Constitution, while law making is generally the exclusive preserve of the legislature, interpretation of same is reserved exclusively to the judiciary as represented by the court. Thus the various Courts of records in Nigeria perform a very formidable role in this regard. The focus of the Project work is to scrutinize the extent of the applicability of some selected Constitutional doctrines and principles since the coming back of democracy in 1999.

Basically, two points which are apt to obscure the concept of constitutionalism require to be cleared at the outset and this concern its relationship first, with the Constitution and second with democracy4. Abraham Lincoln described democracy as the government of the people, by the people and for the people. It is necessary to mention that the term Constitutional government is apt to give the impression of a government according to the provisions of the Constitution; that there is a formal written Constitution according to those provisions does not necessarily imply that the government is a constitutional one5. Again the determining factor, is does the Constitution impose limitations upon the powers of the government? However, in a bid to properly evaluate the concept of constitutionalism in our contemporary society, one must bear in mind that certain elements are germane to the discourse.

To this end, it is apposite to bring to the fore some concepts which are intricately intertwined with the principle of Rule of Law. In a nutshell, this project work focuses on certain constitutional concepts and how the judiciary had reacted to them in the last ten years. These concepts may include:

  • Removal of the Executives (Impeachment) and
  • Separation of Powers

It is relevant to mention here that since the coming back of democracy in 1999, the Supreme Court and other Courts of records including the tribunal had given several decisions; the constitutionality of which is in doubt. In view of this, this project work shall examine and analyze the applicability as well as the reasonability of the above mentioned knotty constitutional issues which had appeared before the courts in the last ten years.


1.1.0 Background Of The Study

The Constitution of a nation is a blend of strict laws or legal concepts or principles and political conclusions6. The strict legal principles and concepts include issues like the Separation of powers and the removal of executive officers. Apparently, these two principles are product of constitutional government, the proper practice of which is in doubt in our nascent democracy.

However, it cannot be over-emphasized that the concept of constitutionalism is a subtle item in the appraisal of our present Government. It is relevant to mention that a political situation will be well-suited if the administration of governance is predicated on the strict provisions of the law. It is interesting to aver that Nigeria is more than fifty years as an independent nation and we have practiced democracy intermittently for more than twenty years starting from 1960. Despite that fact, we still have not got it right. It is this unfortunate misery that forms the background of this project.


1.2.0 Aims And Objectives

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.


1.3.0 Focus Of The Study

Under the study of Constitutional law, it is not expected to exist without giving due regard to the extent of compliance with the provisions of such Constitution. Attention will therefore be focused on the extent to which the provision of the Constitution operates. Constitutionalism is the extent of adherence to the provision of the constitution in the operation of any legal system. It pre-supposes the existence of a constitution whether such is written or otherwise.

However, what is of crucial importance is that in the governance of the state, the operators of the system give due regard to the intendment of the framers of the constitution. Essentially, this work shall focus on the doctrines of Impeachment and Separation of Powers in a bid to evaluate the concept of constitution. Also, the attitude of the courts through relevant judicial cases will be examined to appraise the subject matter. It is pertinent to mention that constitutionalism is promoted by Separation of Powers, because through such doctrine, the judicial arm of government vested with interpretation of the constitution is allowed to be governed freely only according to known canons of legal interpretation7.


1.4.0 Scope And Limitation Of Study

This work will encapsulate the historical background, jurisprudential basis as well as the extent of practicability of some selected Constitutional concepts. As it was noted earlier, this will include the doctrines of Impeachment and Separation of Powers. In the same vein, the functions of the judiciary in necessary circumstances will be religiously examined in this work as enshrined in the 1999 Constitution of the Federal Republic of Nigeria. It will not only be limited to the opinions and postulations of the lawyer, political scientists and sociologist but a wide spectrum of ideas will be embedded in the work. It will also adopt a broader view of these subject matters by dwelling on the series of decided cases and scholarly postulation of acclaimed authors to debunk the concept of constitutionalism.


1.5.0 Research Methodology

The methods of research to be employed are basically analytical and critical, by the use of primary and secondary source of law. The primary sources will include textbooks, Archival materials as well as internet materials. Secondary sources may include journals and observations, while judicial positions will be drawn from law reports. Statutes will be the guide to the legal posture on the theories to be espoused. The sources are essentially in-exhaustive but the foretasted were the means through which the bulk of information was garnered. The Research findings will be further scrutinized by ascertaining or negating their suitability to the current terrain. More importantly, empirical findings were made through an update of events in the globe.


1.6.0 Literature Review

The scope of this work has made it almost impossible not to refer to texts of some celebrated authors like Prof. Ben Nwabueze8 in his book titled “Constitution in the Emergent States” where he wrote on the concept constitutionalism vis-à-vis the principle of separation of powers as well as checks and balances. He did well by not attempting to divorce the two concepts, though the tone of his writing was skeptical in the beginning. The book displayed the ingenuity of the learned author where the concept of constitutionalism was evaluated in relations to several constitutional theories.

Moreso, there was an assumption that the audience had a preconceived notion of what the constitutionalism connotes. In the naming of Nigerians who are vast in the knowledge of constitutional law, mention must be made of late Prof. John Ademola Yakubu9 whose book, “Constitutional law in Nigeria”, will aid this research by it simplicity and directness. It is though open to criticisms by reason of it restriction, the learned professor can also be said to have adopted verbatim from several other texts On the whole, the chapters on separation of powers as well as Removal of the Executives are in no small measure relevant.

Finally Ese Malemi10 in his book titled “The Nigerian constitutional law” shows a coherent arrangement of thoughts and issues, it is a well researched work and clearly explains the attributes of constitutionalism. It is important to stress that this project work did not unravel what constitutionalism means in clear terms, though this was done by implication. It is however humbly submitted that constitutionalism means the administration of governmental affairs according to the provisions of the law.


1.7.0 Definition of Terms

In this work, except as otherwise stated, the following terms mean:

Ab initio:

From the beginning

Bicameralism:

The division of the legislative body into two chambers

Constitution:

The organic and fundamental law of a nation or state.

Constitutionalism:

The belief in constitutional government.

Court:

An organic body with defined powers, meeting at certain places and times for the hearing and decision of cases brought before it.

Democracy:

The government by elected representatives of the people

Executive:

The arm of government that executes the law of a nation

House of Assembly:

The legislative body of any of the states of the Federal Republic of Nigeria

Impeachment:

Removal of elected public officers

Inter alia:

Among other things

Ipso facto:

By the fact itself

Judiciary:

The arm of government that interprets the law of a nation

Jurisdiction:

The power and authority of a court to hear and determine judicial proceedings.

Legislature:

The arm of government that makes the law of a nation

National Assembly:

The legislative body of the Federal Republic of Nigeria comprising the Senate and the House of Representatives

Parliament:

In England, the body that makes law

Tribunal:

A quasi-judicial court

Vis-à-vis:

In relation to each other


1.8.0 Conclusion

The Rule of law is one fundamental principle of any good governance. Governmental powers and actions should be based on law. This indeed is the basis upon which so many other principles are found. It therefore calls for an in-depth analysis to understand the synergy between the provisions of the constitution as well as such other doctrines that will be later discussed in this project. This chapter has been able to reveal so far, the significance of this discourse especially in times like this (Civil rule).


Chapter Five


Conclusion and Recommendation

5.0.0 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 emphaticallyat 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.


5.1.0 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:

  1. 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.
  2. 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.
  3. 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 attached thereto.
  4. 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.
  5. 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. 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:

  1. 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
  2. That the judiciary should be given more powers to check our executive officers and
    legislators.
  3. That one organ of government should not control or interfere with the work of another.
  4. 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.
  5. 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 is too wide and should be limited to such phrases that will not encourage the indiscriminate use of this legislative discretion.


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