Jun 20, 2018

Strengthening Nigeria’s Democracy, True Federalism And The Freedom Of The Common Man’s Last Hope | Obaloluwa Adeleke





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. 



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.


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;

1.     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)

3.     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.

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. 

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;

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; 

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 

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.

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.

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.

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.

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. 


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.


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.

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.


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.


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.

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. 

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.


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.


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.


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.


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.


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. 





is a Partner at Awosika Adeleke Ojo 

Source: LinkedIn 
Reactions: