Government, as we have come to
know it today amongst other things exists to ensure the realisation of societal
values such as protection of rights, preservation of lives, maintaining
law and order, and providing basic human and social amenities, to name a few.
However, the government itself must be protected so as to safeguard against it
(government) destroying the values it was originally set up to protect.
know it today amongst other things exists to ensure the realisation of societal
values such as protection of rights, preservation of lives, maintaining
law and order, and providing basic human and social amenities, to name a few.
However, the government itself must be protected so as to safeguard against it
(government) destroying the values it was originally set up to protect.
In a bid to find a working
balance for the preservation of government itself, what we have come to know
commonly today as the “Doctrine of Separation of Powers” was created alongside
other concepts as a solution to protecting government from itself while ensuring
the realisation of societal values.
balance for the preservation of government itself, what we have come to know
commonly today as the “Doctrine of Separation of Powers” was created alongside
other concepts as a solution to protecting government from itself while ensuring
the realisation of societal values.
The doctrine of Separation of
Powers simply means the devolution of state powers and functions among the
three independent and separate organs of government, the Executive, Legislature
and the Judiciary. The concept of Separation of Powers however has been
mixed up with other concepts like checks and balances, wherein the organs of
government perform distinct functions different from the others, thereby
preventing the concentration of unbridled power in the hands of a single branch
of government, preventively forestalling the evolution of autocratic
institutions. In emphasising the foregoing, the Court of Appeal in the case of Hon.
Abdullahi Maccido Ahmad v. Sokoto State House of Assembly & Anor (2002, 44
WRN 52) held Per Salami JCA that the doctrine of separation of powers has three
implications to wit;
Powers simply means the devolution of state powers and functions among the
three independent and separate organs of government, the Executive, Legislature
and the Judiciary. The concept of Separation of Powers however has been
mixed up with other concepts like checks and balances, wherein the organs of
government perform distinct functions different from the others, thereby
preventing the concentration of unbridled power in the hands of a single branch
of government, preventively forestalling the evolution of autocratic
institutions. In emphasising the foregoing, the Court of Appeal in the case of Hon.
Abdullahi Maccido Ahmad v. Sokoto State House of Assembly & Anor (2002, 44
WRN 52) held Per Salami JCA that the doctrine of separation of powers has three
implications to wit;
1.
The same person should not be part of more than one
of the arms or division of government;
The same person should not be part of more than one
of the arms or division of government;
2.
One branch should not dominate
or control another arm. This is particularly important in the relationship
between (the) executive and the courts; (emphasis mine)
One branch should not dominate
or control another arm. This is particularly important in the relationship
between (the) executive and the courts; (emphasis mine)
3.
One branch should not attempt to exercise the
function of the other.
One branch should not attempt to exercise the
function of the other.
With the advent of the Fourth
Republic, Nigeria inherited the 1999 Constitution of the Federal Republic of
Nigeria as altered (the 1999 Constitution) from the last Military Government,
which reflected, though in more subtle tones, the autocratic-style system of
government ran by the Military between the years 1983 – 1998. While the people
clamoured for and were promised a Federal system of governance in the in-coming
democratic government to be ushered in, the Constitution drafted by the
Military government fell short of the expectations of Nigerians. The
shortcomings of the Constitution would later be revealed in coming years.
Republic, Nigeria inherited the 1999 Constitution of the Federal Republic of
Nigeria as altered (the 1999 Constitution) from the last Military Government,
which reflected, though in more subtle tones, the autocratic-style system of
government ran by the Military between the years 1983 – 1998. While the people
clamoured for and were promised a Federal system of governance in the in-coming
democratic government to be ushered in, the Constitution drafted by the
Military government fell short of the expectations of Nigerians. The
shortcomings of the Constitution would later be revealed in coming years.
There has been growing public
clamour for urgent Constitutional amendments to address several inadequacies of
the Constitution. Issues around true Federalism (proper devolution of powers
amongst the federating units), and balance of powers amongst the arms of
government particularly financial autonomy for the arms of government at the
State level topped the list of constitutional amendments sought by the people.
clamour for urgent Constitutional amendments to address several inadequacies of
the Constitution. Issues around true Federalism (proper devolution of powers
amongst the federating units), and balance of powers amongst the arms of
government particularly financial autonomy for the arms of government at the
State level topped the list of constitutional amendments sought by the people.
As a result, the 8th National
Assembly embarked on addressing these issues. The product of this exercise led
to the passage of twenty three (23) Bills, a number of which were recently
assented to by President Buhari. Most popular of those Bills is the “Constitution
of the Federal Republic of Nigeria, 1999 (Fourth Alteration, No. 27) Act” which
effectively reduces the constitutional age for running for public offices and
has been colloquially termed “Not To Young To Run” Bill. Others include;
Assembly embarked on addressing these issues. The product of this exercise led
to the passage of twenty three (23) Bills, a number of which were recently
assented to by President Buhari. Most popular of those Bills is the “Constitution
of the Federal Republic of Nigeria, 1999 (Fourth Alteration, No. 27) Act” which
effectively reduces the constitutional age for running for public offices and
has been colloquially termed “Not To Young To Run” Bill. Others include;
1.
The Constitution of the Federal Republic of Nigeria
(4th Alteration) Act, No. 4 which amends Section 121(3) of the 1999
Constitution to allow State Legislatures, Judiciaries and Independent Electoral
Commissions draw their statutory allocations directly from the Consolidated
Revenue Fund of the Federation and no longer through that of the State;
The Constitution of the Federal Republic of Nigeria
(4th Alteration) Act, No. 4 which amends Section 121(3) of the 1999
Constitution to allow State Legislatures, Judiciaries and Independent Electoral
Commissions draw their statutory allocations directly from the Consolidated
Revenue Fund of the Federation and no longer through that of the State;
2.
The Constitution of the Federal Republic of Nigeria
(4th Alteration) Act, No. 21 which amends Section 285 of the 1999 Constitution
regulating the determination of pre-election matters; and
The Constitution of the Federal Republic of Nigeria
(4th Alteration) Act, No. 21 which amends Section 285 of the 1999 Constitution
regulating the determination of pre-election matters; and
3.
The Constitution of the Federal Republic of Nigeria
(4th Alteration) Act, No. 16 which provides that a person (either Vice
President or Deputy Governor) sworn in to complete the tenure of an elected
President or Governor can only be re-elected into that office for not more than
one term. This effectively resolves a highly contentious issue in Nigeria’s
politics.
The Constitution of the Federal Republic of Nigeria
(4th Alteration) Act, No. 16 which provides that a person (either Vice
President or Deputy Governor) sworn in to complete the tenure of an elected
President or Governor can only be re-elected into that office for not more than
one term. This effectively resolves a highly contentious issue in Nigeria’s
politics.
Being constitutional
amendments, the Bills in line with the provisions of Sections 9(1), 9(2) and 58
of the Constitution had received the support of a minimum of two thirds
majority of the members of each of the Federal Legislative Chambers as well as
the approval of more than two thirds of all the thirty-six States in Nigeria
before presidential assent was granted.
amendments, the Bills in line with the provisions of Sections 9(1), 9(2) and 58
of the Constitution had received the support of a minimum of two thirds
majority of the members of each of the Federal Legislative Chambers as well as
the approval of more than two thirds of all the thirty-six States in Nigeria
before presidential assent was granted.
SEPARATION OF POWERS IN NIGERIA
PART 2 of the 1999 Constitution
sets out the framework for separation of state power in Nigeria. Sections 4, 5
and 6 of the 1999 Constitution clearly devolves the Legislative, Executive and
Judicial powers of the Nigerian State on the three organs of government, that
is, the Legislature, Executive and Judiciary both at the Federal and State
levels respectively.
sets out the framework for separation of state power in Nigeria. Sections 4, 5
and 6 of the 1999 Constitution clearly devolves the Legislative, Executive and
Judicial powers of the Nigerian State on the three organs of government, that
is, the Legislature, Executive and Judiciary both at the Federal and State
levels respectively.
Nonetheless, in the independent
exercise of their individual functions, the Constitution allows for
interdependence between the different organs. This interdependence is founded
on the doctrine of checks and balances which although recognises the division
of state powers and functions among the organs of government, it does not allow
exclusive control of those powers in the arms of the organs. For example,
Section 5(4) of the Constitution does not allow the President exercise his
powers to declare war without a majority vote of the National Assembly.
Similarly, by the provisions of Sections 143 and 188 of the 1999 Constitution,
the Legislature is empowered to conduct impeachment proceedings against a
President, Vice President, Governor or Deputy Governor for gross misconduct in
the performance of the functions of his office. See ATTORNEY GENERAL OF THE
FEDERAL REPUBLIC OF NIGERIA & ORS v. ATIKU ABUBAKAR & ORS (2007) 10
NWLR (PT. 1041) 1S.C. Section 4(8) of the Constitution also subjects the
exercise of legislative powers by the Legislature to the jurisdiction of the
courts of law and judicial tribunals established by law. In elucidating the
purpose of this power of court, the court in the case of Honourable Godwin
Jideonwu & Ors v. Governor of Bendel State & Ors. (1981) 1 NCLR 4, held
inter alia that the constitution clearly sets out the powers of the three arms
of government, and if the legislature passes any law which is beyond its
competence, and which it has no jurisdiction to pass, whether or not it was
passed by all the members of the House of Assembly, any member of the House of
Assembly or an affected member of the public can challenge it in court, and
nothing prevents the court from setting it aside and declaring it ultra vires
the legislature (i.e. beyond the powers of the legislature). Also, in the case
of Attorney-General of Bendel State v. Attorney-General of the Federation and
22 Ors. (1982) 3 NCLR 1, the Supreme Court held that by virtue of Section 4(8)
of the 1979 Constitution, the courts of law in Nigeria have the power and duty
to see to it that there is no infraction of the exercise of legislative power,
whether substantive or procedural, as laid down in the Constitution. If there
is any such infraction, the courts have the power to declare any legislation
passed pursuant to it unconstitutional and void.
exercise of their individual functions, the Constitution allows for
interdependence between the different organs. This interdependence is founded
on the doctrine of checks and balances which although recognises the division
of state powers and functions among the organs of government, it does not allow
exclusive control of those powers in the arms of the organs. For example,
Section 5(4) of the Constitution does not allow the President exercise his
powers to declare war without a majority vote of the National Assembly.
Similarly, by the provisions of Sections 143 and 188 of the 1999 Constitution,
the Legislature is empowered to conduct impeachment proceedings against a
President, Vice President, Governor or Deputy Governor for gross misconduct in
the performance of the functions of his office. See ATTORNEY GENERAL OF THE
FEDERAL REPUBLIC OF NIGERIA & ORS v. ATIKU ABUBAKAR & ORS (2007) 10
NWLR (PT. 1041) 1S.C. Section 4(8) of the Constitution also subjects the
exercise of legislative powers by the Legislature to the jurisdiction of the
courts of law and judicial tribunals established by law. In elucidating the
purpose of this power of court, the court in the case of Honourable Godwin
Jideonwu & Ors v. Governor of Bendel State & Ors. (1981) 1 NCLR 4, held
inter alia that the constitution clearly sets out the powers of the three arms
of government, and if the legislature passes any law which is beyond its
competence, and which it has no jurisdiction to pass, whether or not it was
passed by all the members of the House of Assembly, any member of the House of
Assembly or an affected member of the public can challenge it in court, and
nothing prevents the court from setting it aside and declaring it ultra vires
the legislature (i.e. beyond the powers of the legislature). Also, in the case
of Attorney-General of Bendel State v. Attorney-General of the Federation and
22 Ors. (1982) 3 NCLR 1, the Supreme Court held that by virtue of Section 4(8)
of the 1979 Constitution, the courts of law in Nigeria have the power and duty
to see to it that there is no infraction of the exercise of legislative power,
whether substantive or procedural, as laid down in the Constitution. If there
is any such infraction, the courts have the power to declare any legislation
passed pursuant to it unconstitutional and void.
From the preceding discussions,
it is clear that Separation of Powers and the doctrine of checks and balances
abhors the dominance of one organ over the other organs. This was restated by
the Court of Appeal in the case of Hon. Abdullahi Maccido Ahmad v. Sokoto State
House of Assembly & Anor (Supra) where the court held that one branch of
government should not dominate or control the other arm.
it is clear that Separation of Powers and the doctrine of checks and balances
abhors the dominance of one organ over the other organs. This was restated by
the Court of Appeal in the case of Hon. Abdullahi Maccido Ahmad v. Sokoto State
House of Assembly & Anor (Supra) where the court held that one branch of
government should not dominate or control the other arm.
JUDICIAL AUTONOMY
It is an undeniable fact that
for the judiciary to live up to its responsibilities, it must be able to
perform its constitutional functions fairly, independently and transparently
without fear or favour from any external body, institution or arm of
government. True independence connotes an organ’s ability to perform its
functions without any other organ holding sway or having an opportunity to
exercise undue influence over it.
for the judiciary to live up to its responsibilities, it must be able to
perform its constitutional functions fairly, independently and transparently
without fear or favour from any external body, institution or arm of
government. True independence connotes an organ’s ability to perform its
functions without any other organ holding sway or having an opportunity to
exercise undue influence over it.
By virtue of Section 81(3) of
the 1999 Constitution, the organs of government at the federal level all have
financial autonomy, hence, they are able to exercise of their constitutional
functions and powers without any external piper calling the tune. The
Constitution provides that budgetary allocation for the judiciary is paid
directly to the National Judicial Council for disbursement to heads of courts.
There is no similar provision under Section 121 of the 1999 Constitution at the
state level. Budgetary allocations for States are paid into the Consolidated
Revenue Fund of the State under the control of the Governor who then disburses
to the other organs of government. This system has however fostered a situation
of the piper calling the tune and has placed the Judiciary in very difficult
positions in times past, threatening the very fabric of Separation of
Power and checks and balances at the State level, which our democracy ‘rests
on’. We have therefore seen State Executives wielding enormous powers to
the detriment of the other organs because they play the role of the piper
calling the tune which the Judiciary and Legislature are sometimes forced to
dance to.
the 1999 Constitution, the organs of government at the federal level all have
financial autonomy, hence, they are able to exercise of their constitutional
functions and powers without any external piper calling the tune. The
Constitution provides that budgetary allocation for the judiciary is paid
directly to the National Judicial Council for disbursement to heads of courts.
There is no similar provision under Section 121 of the 1999 Constitution at the
state level. Budgetary allocations for States are paid into the Consolidated
Revenue Fund of the State under the control of the Governor who then disburses
to the other organs of government. This system has however fostered a situation
of the piper calling the tune and has placed the Judiciary in very difficult
positions in times past, threatening the very fabric of Separation of
Power and checks and balances at the State level, which our democracy ‘rests
on’. We have therefore seen State Executives wielding enormous powers to
the detriment of the other organs because they play the role of the piper
calling the tune which the Judiciary and Legislature are sometimes forced to
dance to.
In a democracy, the
independence of the judiciary is sacrosanct and cannot be compromised for any
reason whatsoever. Therefore, the Constitution of the Federal Republic of
Nigeria, 1999 (4th Alteration) Act, No. 4 which amends Section 121(3) of the
Constitution, granting financial autonomy to the State Judiciaries and which
was recently signed into law by President Buhari is crucial to the
strengthening of our democracy. The State Judiciary is now empowered to prepare
and submit before the State House of Assembly its budget for each year. Amounts
standing to the credit of the State Judiciary as budgetary allocations would
henceforth be paid directly to the Judiciary and no longer into the
Consolidated Revenue Fund of the States under the control of the State
Governors. In the same vein, the Constitutional amendment also grants financial
autonomy to the State Legislatures and State Independent Electoral Commissions.
Thus, all three organs are financially autonomous and none occupies a dominant
position. It is hoped that this amendment would further empower the organs of
government at the state levels to fully carry out their functions and exercise
their powers under the constitution to uphold the doctrine of Separation of
Power and checks and balances so as to foster a thriving democracy.
independence of the judiciary is sacrosanct and cannot be compromised for any
reason whatsoever. Therefore, the Constitution of the Federal Republic of
Nigeria, 1999 (4th Alteration) Act, No. 4 which amends Section 121(3) of the
Constitution, granting financial autonomy to the State Judiciaries and which
was recently signed into law by President Buhari is crucial to the
strengthening of our democracy. The State Judiciary is now empowered to prepare
and submit before the State House of Assembly its budget for each year. Amounts
standing to the credit of the State Judiciary as budgetary allocations would
henceforth be paid directly to the Judiciary and no longer into the
Consolidated Revenue Fund of the States under the control of the State
Governors. In the same vein, the Constitutional amendment also grants financial
autonomy to the State Legislatures and State Independent Electoral Commissions.
Thus, all three organs are financially autonomous and none occupies a dominant
position. It is hoped that this amendment would further empower the organs of
government at the state levels to fully carry out their functions and exercise
their powers under the constitution to uphold the doctrine of Separation of
Power and checks and balances so as to foster a thriving democracy.
Notably, a very crucial Bill on
devolution of powers from the centre to the federating units which was
presented to the National Assembly was not passed into law as the Senate voted
against it in 2017, although the House of Representatives had resolved to
revisit it nothing new was done with it. This Bill on devolution of powers
seeks to move items on the exclusive legislative list of the Constitution to
the concurrent legislative list, thus giving more powers to States.
devolution of powers from the centre to the federating units which was
presented to the National Assembly was not passed into law as the Senate voted
against it in 2017, although the House of Representatives had resolved to
revisit it nothing new was done with it. This Bill on devolution of powers
seeks to move items on the exclusive legislative list of the Constitution to
the concurrent legislative list, thus giving more powers to States.
For the most part, this Bill is
by far the most important of all Bills considered on the floor of the National
Assembly during this Constitutional Amendment process as it would have given us
true federalism in all its glory. However, the country has taken several
positive steps in the right direction with the hope that the proper devolution
of power to the federating units would happen sooner than later. It is only
then that true federalism can begin to thrive in Nigeria.
by far the most important of all Bills considered on the floor of the National
Assembly during this Constitutional Amendment process as it would have given us
true federalism in all its glory. However, the country has taken several
positive steps in the right direction with the hope that the proper devolution
of power to the federating units would happen sooner than later. It is only
then that true federalism can begin to thrive in Nigeria.
YOU TOO CAN BE PRESIDENT.
The Constitution of the Federal
Republic of Nigeria, 1999 (Fourth Alteration, No. 27) Act, specifically amends
the provisions of Sections 65 (1)(b), 106(b), 131(b) of the 1999 Constitution
which prescribes the minimum qualifications for election into the Federal and
State Legislative houses and the office of the President.
Republic of Nigeria, 1999 (Fourth Alteration, No. 27) Act, specifically amends
the provisions of Sections 65 (1)(b), 106(b), 131(b) of the 1999 Constitution
which prescribes the minimum qualifications for election into the Federal and
State Legislative houses and the office of the President.
The amendment effectively
reduces the minimum age requirement for eligibility to contest for the office
of the President from 40 years to 35 years while that of the Federal and State
Legislative Houses has been effectively reduced from 30 years to 25 years.
However, the minimum age requirements for eligibility to contest for the office
of the Governor of a State and a seat in the Senate was retained at 35 years.
reduces the minimum age requirement for eligibility to contest for the office
of the President from 40 years to 35 years while that of the Federal and State
Legislative Houses has been effectively reduced from 30 years to 25 years.
However, the minimum age requirements for eligibility to contest for the office
of the Governor of a State and a seat in the Senate was retained at 35 years.
Following the passage of this
Bill into law, the participation of younger Nigerians in politics is no longer
limited to the exercise of the civic right to vote, the horizon has been
broadened. The opportunities for younger Nigerians to run for office, bring in
qualitative leadership and implement fresh ideas and policies now exist. It is
therefore left for the youths to rise to the occasion, take advantage of this
amendment, engage in the electoral process from the driver’s seat, change the
game and bring about the desired change we all yearn for.
Bill into law, the participation of younger Nigerians in politics is no longer
limited to the exercise of the civic right to vote, the horizon has been
broadened. The opportunities for younger Nigerians to run for office, bring in
qualitative leadership and implement fresh ideas and policies now exist. It is
therefore left for the youths to rise to the occasion, take advantage of this
amendment, engage in the electoral process from the driver’s seat, change the
game and bring about the desired change we all yearn for.
THE GOOD-LUCK IMBROGLIO
There’s also the Constitution
of the Federal Republic of Nigeria (4th Alteration) Act, No. 16 which provides
that a person (either Vice President or Deputy Governor) sworn in to complete
the tenure of an elected President or Governor can only be re-elected into that
office for not more than one term. This effectively resolves the highly
contentious issue that created a lot of political tension and was litigated in
the run up to the 2015 general elections. The amendment provides that in such a
situation the Vice President turned substantive President or Deputy Governor
turned substantive Governor can only run for office once. The rationale behind
this is that since the President and his predecessor in office ran on the same
electoral ticket, he is only entitled to a second electoral ticket as the
Constitution delimits the numbers of times a person can run for the Office of
the President and Vice President, Governor and Deputy Governor to two.
Furthermore, allowing such a person to run more than once would amount to him
or her been sworn into office three-times, a situation which the 1999
Constitution does not provide for.
of the Federal Republic of Nigeria (4th Alteration) Act, No. 16 which provides
that a person (either Vice President or Deputy Governor) sworn in to complete
the tenure of an elected President or Governor can only be re-elected into that
office for not more than one term. This effectively resolves the highly
contentious issue that created a lot of political tension and was litigated in
the run up to the 2015 general elections. The amendment provides that in such a
situation the Vice President turned substantive President or Deputy Governor
turned substantive Governor can only run for office once. The rationale behind
this is that since the President and his predecessor in office ran on the same
electoral ticket, he is only entitled to a second electoral ticket as the
Constitution delimits the numbers of times a person can run for the Office of
the President and Vice President, Governor and Deputy Governor to two.
Furthermore, allowing such a person to run more than once would amount to him
or her been sworn into office three-times, a situation which the 1999
Constitution does not provide for.
Another key amendment towards
strengthening our democracy is the Constitution of the Federal Republic of
Nigeria (4th Alteration) Act, No. 21 which amends Section 285 of the 1999
Constitution regulating the determination of pre-election matters. Undoubtedly,
there is no strong democracy without a seamless electoral process. To this end,
this amendment is very important in ensuring seamless electoral processes by
making substantive provisions for the timely hearing and determination of
pre-election matters before the conduct of elections.
strengthening our democracy is the Constitution of the Federal Republic of
Nigeria (4th Alteration) Act, No. 21 which amends Section 285 of the 1999
Constitution regulating the determination of pre-election matters. Undoubtedly,
there is no strong democracy without a seamless electoral process. To this end,
this amendment is very important in ensuring seamless electoral processes by
making substantive provisions for the timely hearing and determination of
pre-election matters before the conduct of elections.
Hitherto, there has not been
any law stipulating the time frame within which an aggrieved person can
approach the court for redress on pre-election matters such as the nomination,
disqualification, substitution and party sponsorship of candidates as well as
the period within which the court ought to have finally determined the suit.
This new amendment introduces six (6) new paragraphs which provide for the
specified period of time within which a pre-election matter can be instituted
and determined by the court, as well as the institution and determination of
any appeal arising from such pre-election matter. The amendment particularly
empowers the court to suspend determination of any interlocutory applications
or preliminary objections until delivery of final judgment so as to ensure that
time is not tactically wasted and the court can resolve the suit within the
specified timeframe.
any law stipulating the time frame within which an aggrieved person can
approach the court for redress on pre-election matters such as the nomination,
disqualification, substitution and party sponsorship of candidates as well as
the period within which the court ought to have finally determined the suit.
This new amendment introduces six (6) new paragraphs which provide for the
specified period of time within which a pre-election matter can be instituted
and determined by the court, as well as the institution and determination of
any appeal arising from such pre-election matter. The amendment particularly
empowers the court to suspend determination of any interlocutory applications
or preliminary objections until delivery of final judgment so as to ensure that
time is not tactically wasted and the court can resolve the suit within the
specified timeframe.
CONCLUSION
It is hoped that these new
amendments would serve as a catalyst for the much needed and desired growth and
strengthening of our democracy and its institutions, although true Federalism
is still yearned for.
amendments would serve as a catalyst for the much needed and desired growth and
strengthening of our democracy and its institutions, although true Federalism
is still yearned for.
