By Dr. Ali Ahmad

Synopsis

The concept of separation of power among the three arms of government is clear. Flowing from this concept, and in the struggle between rival or competing interests for the control or hijack of governmental power, a stronger arm at a point tries to arrogate to itself the power of the other, in a phenomenon now known as usurpation of power. But another new, previously unscripted phenomenon but that is fast gaining notoriety, has emerged. It is dubbed neutralisation of power, and that is where the power of the other arm is not usurped or exercised by the stronger arm but, instead, that other arm is prevented subtly or openly, from exercising its own constitutionally guaranteed power. Only the legislature in Nigeria is in the receiving end of power neutralisation from mainly the executive arm (e.g. complete lockdown and teargas operation on legislators, refusal to attend to invitations or summons lawfully issued, or disregarding resolutions) and by the executive enlisting the assistance and cooperation of the judiciary (e.g. issuing interim orders to scuttle parliamentary invitation or to stop parliamentary inquiry). It is concluded that the Judiciary should desist from participating in neutralising the power of the legislature and leave the executive and legislative arm, both populated by politicians to their game of power struggle. Left unchecked, neutralisation of legislative power, especially by the judiciary, might prove too dangerous for the sustenance of democracy and freedom in countries whose democratic institutions are just emerging.

The all-important constitutional concept of separation of power is the hallmark of the presidential system of government. This is unlike the Westminster parliamentary system where executive and legislative powers are fused in the parliament.[1] With the presidential system, executive and legislative powers are separated. It is appreciated by all that separation of power is at the heart of the presidential system. [2]

By separation of power, it is meant that governmental powers[3] are separated to allow each of the three branches of government viz., the legislature[4], the executive[5] and the judiciary[6], exercise the power allocated to each without any member of the other arms egregiously participating in the exercise of the power of the other.[7] It is elementary to note that separation does not mean to be aloof and to not cooperate or work with other arms; that would stall any government. However, it seems a sizeable number of Nigerians have a problem relating theory with the practice of separation of power. They find it hard to understand how to keep power separated and at the same time cooperate meaningfully to achieve the aim of governance. To them, you either totally fuse legislative and executive powers (in this case by ceding the power to the executive) or you need to construct a wall of demarcation between them.

Governor Balarabe Musa’s Regime during the Second Republic typifies this mind set.[8] To most Nigerians, the objective is to exercise such power irrespective of whether it achieves any good at the end. Power is either separated to allow no rapport, or it is fused, such that the other arms, especially the legislature, are subservient. Examples abound in our state legislatures: the House of Assembly must be cowed and become an appendage akin to another Ministry under the executive. If the Assembly resists and seeks a little mind of its own, then it is recalcitrant and antagonistic and will be treated as an opposition and starved of funds. To gladiators of power in majority of the states in Nigeria, power is either fused or exclusively separated. However, neither is true representation of the principle of separation of power in theory and practice around the world.

Professor Ben Nwabueze, SAN has dealt extensively with the concept of separation of power[9] and the effect of such separation.[10] He identified, in the unavoidable struggle by each arm to arrogate all powers to it alone, the practice of what was referred to as usurpation of power.[11] Usurpation of power occurs where an arm of government usurps and appropriates the power of the other. For instance, while it is only the legislature that may appropriate money to be spent on any item,[12] the President and State Governors are in the habit of spending money not so appropriated. A most recent example was the widely condemned instance when President Muhammadu Buhari spent a total of $496 million to purchase Tucano Aircraft from the United States without requisite appropriation.[13] Conversely, in El-rufai V. The House of Representatives,[14] the Court of Appeal wasted no time in nullifying the decision of the legislature by holding that the legislature could not ban a former Minister of the Federal Capital Territory from politics on account of having found him culpable of corruption. That was judgmental, an exclusive preserve of the judiciary. Furthermore, in Governor of Kaduna State V. House of Assembly Kaduna State, the court nullified a law by which the legislature transferred to itself powers of the governor to create emirate or traditional areas and to prescribe composition of their governing councils.[15] Another law, though now rested, was the 1961 Emergency Powers Act, which empowered the Governor-General in Council to amend, suspend or modify any law for the peace, order and good government of Nigeria. [16]

However, an emerging phenomenon in Nigeria, also flowing from power struggle among the three arms, is what may be referred to as neutralisation of power. As will be explained hereunder, the only arm of government that suffers power neutralisation is the legislature. That it is the one that suffers this fate is a paradox given the primal place that the legislature occupies in a constitutional democracy. The legislature is the embodiment of the will of the people; it is the difference between an autocracy and a democracy. The stronger the legislature, the more stable are various democratic institutions.

Neutralisation of legislative power is fast becoming widespread in Nigeria, but before delving into the discussion, it is pertinent to emphasise that the executive and judiciary are to a large extent not subjugated to the spectre of power neutralisation.

The Executive

The executive enjoys unfettered ability to exercise its powers. The power to run and steer government belongs to the executive exclusively, with the exception of a few administrative powers donated to the heads of the other two arms to be exercised only within the confines of their jurisdictions. [17]

Being the most visible arm of government that exercises governmental power under the presidential system, the executive branch seems to represent and symbolise the government. Its relationship with the other two arms is therefore marked by a situation where one powerful arm encroaches or neutralises the powers of others. The other two arms are neither in a position nor able to retaliate. It is difficult to imagine an arm of government neutralising the power of the executive.

The Judiciary

With respect to judiciary, it exercises its power and guides it so jealously like no other arm does. No arm of government has the ability to neutralise or render ineffective the exercise of judicial power. Judiciary does not only protect its interpretative and dispute-settling powers, it expands them. Of all the three arms of government in Nigeria, the judiciary is reputed to be the most protective of its powers. It guards its judicial powers with extreme jealousy, frowning at any pretence by other arms, especially the legislature, to exercise it. It is therefore even more improbable that judicial power will be subject to neutralisation by the other arms.

Neutralisation of Legislative Power by the Executive and Judiciary

The next germane issue is to elaborate on how the executive and, in certain instances, the judiciary either directly or indirectly work to neutralise the power of the legislative arm. Neutralisation occurs in a situation where an arm of government seeks to prevent the legislature from exercising globally accepted legislative power and role. Our Constitution also recognises the power,[18] role,[19] and functions[20] of the legislature. However, neutralisation is not common in developed democracies but is becoming a trait of the Nigerian democratic firmament.

One major difference that separates developed and emerging democracies is the attempt by one arm to unlawfully prevent or scuttle the exercise of power by another arm. The situation here is different from usurpation of power where, for example, the executive tries to promulgate a law or spend public fund that has not been appropriated by the legislature. The issue here is a situation where the executive or judiciary seeks to prevent the legislature from exercising its legislative power or to make rudderless the potency or effect of that power.

The executive and, to some extent, the judiciary always targets the legislature more than the legislature can or has ability to stop the other two arms from exercising their powers. It may actually be a convenient barometer of choice when determining maturity of a country’s democracy to consider how often an attempt has been made against the legislature to prevent or illegally stop it from exercising its powers.

In Nigeria, two methods have been used to undemocratically neutralise the power of the legislature. It is either through by brutal force or through the judiciary. An example is when legislature was shut down and teargas was used on legislators during the First Republic. Similarly, shortly before the 2015 general elections, this ugly incident repeated itself where the police ordered withdrawal of security details of the then Speaker of the House of Representatives, Right Honourable Aminu Waziri Tambuwal, teargased legislators at the precinct of the National Assembly and locked up the National Assembly.[21] This was done to prevent the House of Representatives from considering certain issues related to change of its majority leader. The gory incident in 2016 of locking up for several days the entire leadership of the Zamfara House of Assembly by the Chairman of Nigeria’s Governor’s Forum the SSS Headquarters in Abuja is still fresh.[22] They were locked up to neutralise their power to cause inquiry into some expenditures by the Governor. The Speaker of Kogi State House of Assembly was literally forced out of his office by five of the members backed by the Police Force, [23] the National Assembly passed a resolution and a court issued an order for his reinstatement but the executive branch refused until the Speaker ultimately resigned. [24]

Even then, use of force is not as widely used to neutralise power as is the use of courts for the same purpose. Sadly, many judges have allowed their courts to be used undemocratically to neutralise exercise of power by the legislature. The courts are eager to issue interlocutory orders stopping the legislature from performing its constitutional functions of investigation or sitting at plenary or even voting on an issue. Thus, a former Minister of Petroleum obtained an interim order of court approving her contention that the Nigerian legislature could not invite her for questioning in an investigate matter relating to her Ministry.[25] A former head of the EFCC similarly got the nod from the court to agree with him that the legislature could not invite him to testify in a matter that seeks to unravel his involvement in the disappearance of recovered loots by the Commission.[26] The court also issued an order that the House of Representatives could not take a vote on removing its Majority Leader and appointing a new one.[27] The orders were always interlocutory or interim, but that is all anyone requires to stymie or neutralise the power of the legislature.

An important point must be made here that the courts have unfettered right to declare null and void the result of any investigation or any proceedings or any manner of voting of result thereof, what courts in developed democracies do not do is attempt to stop the action of a whole arm of government, in this case the legislature, from exercising its constitutional powers. Legislature is co-equal with the other two arms and this practice can only be likened to an attempt at stopping an on-going proceeding in another court of equal jurisdiction.

The only justification that the Nigerian courts rely upon to neutralise legislative power is that not doing so will, in their estimation, amount to ousting the jurisdiction of the court and, the reasoning goes, this is contrary to the provisions of Section 6(6) of the Constitution.

Specifically, Section 6 (6)(b) of the 1999 Constitution has been invoked by the courts to rightly nullify any attempt to oust the jurisdiction of the courts. [28] But the ouster clause argument is not relevant here since no one is claiming that the courts lack jurisdiction to entertain matters relating to exercise of powers by the legislature. The contention is that while it does so, the courts cannot legitimately stop the legislature from commencing, continuing or concluding the exercise of its own powers. It is the right time of exercise of jurisdiction that is the issue, not ousting jurisdiction. Anike Nwoga V National Assembly, was an atypical decision. [29] It correctly held that a lawsuit was incompetent that sought to nullify a bill before the National Assembly completed exercising its power of legislation. The bill in question sought to amend a provision of the Electoral Act, 2010 to reorder the sequence of elections, instead of starting with the presidential election to commence with that of Houses of Assembly. Justice A. M. Liman of Federal High Court, Enugu held that the matter was at that point not justiceable. The typical decisions stop the legislature from proceeding, on one ground or the other.

The most notorious of such cases is the recent Accord Party V. National Assembly[30], where Justice A. R. Mohammed assumed jurisdiction on the same subject matter of the Bill seeking to amend the Electoral Act accordingly. Justice Mohammed misconceived the decision of the Supreme Court in A. G. Bendel State V A. G. Federation[31] where Eso, JSC stated:

"If in the process of the exercise of the legislative power by the National Assembly, there is such a Constitutional defect as to lead to an interpretation to the effect that a Bill was not passed according to law, that is, it does not follow the procedure laid down under the constitution for the passing of a Bill, then the Bill which has passed through such exercise is null and void." [32]

It is not so difficult to differentiate Bendel and Anike. In Bendel’s Case, the Supreme Court rightly declared the money Bill null and void because the Bill did not comply with requisite legislative process. The Court determined the process and not the content of the Bill. Justice Mohammed overreached himself when he opened the Pandora’s Box and interpreted clauses of the Electoral Act Amendment Bill 2018. Courts do not interpret bills, only laws. [33]

Certainly, the ouster clause argument cannot be justification for the neutralisation of legislative power. A more plausible justification here is that courts fall back to their inherent powers to do what they consider to be in the interest of justice. The Constitution acknowledges the “inherent powers and sanctions of a court of law” in Section 6(6)(a) of the 1999 Constitution. While the ouster clause is backed up in Section 6(6)(b) of the Constitution, Section 6(6)(a) gives support for the inherent powers of the court.

The inherent powers of the court are not defined in the Constitution but the courts themselves in Nigeria and indeed in other developed and democratic countries have elucidated upon it beyond any doubt for many centuries. Rules of courts, being internal codes or regulations of the court system further contain similar elucidation. The British Normandy-era or Europe Enlightenment-era courts and judges never extended the province of “inherent powers of sanctions of a court” to issue interim orders stopping a parliament from commencing or concluding its work! More importantly, I am yet to stumble on a case in the United States of America where a court granted an interim order stopping the Congress from exercising its powers. None. This led us to advocate that the court should by itself refrain from issuing interim orders against the legislature.[34]

It seems to me that we have pushed the province of the “ouster clause” and “inherent powers of the court” too far in Nigeria to scuttle exercise of constitutionally guaranteed power of the legislature in a manner that has wreaked havoc on the development of our democracy. The courts have, in my humble view, overstretched their use of judicial power of issuing interim orders to constantly neutralise the exercise of power by the legislature. The inherent powers of the court in Nigeria, as in other advanced democracies, to issue interim orders should stop where the constitutional power of the legislature begins. The legislature has power to summon anybody and to investigate anything[35] and no court, democratically speaking, should be able to stop that. Although the court may subsequently declare such summon or investigation null and void, it should not be able to stop it.

It is very rare for a Nigerian court stopping any President or Governor from carrying out any appointment or holding a meeting or arriving at a decision or function enjoined by the Constitution. To our own estimation, this attitude of the courts is far more like non appreciation of the ethos of democracy and its culture than of engaging in a conspiracy against the legislature. The hysteria for unduly invoking ouster clause or inherent powers of the court against the legislature may be explained as being fallout of long engagement of the military in power and the then practice of suspending the constitution and enacting obnoxious laws and decrees. However, times have changed, democracy is here to stay and so judicial attitude to interpretation must also change, since they have nothing to fear like the military lurking somewhere.

So much has been said for active neutralisation of legislative powers through our courts but the executive has devised another means of scuttling legislative power through passive neutralisation. This one is when the executive brazenly disregards the resolutions of the legislature. Compared with the active method of going through the judiciary, this is the passive, do-noting method. I believe a big threat to the promise of consolidating our democracy in Nigeria is the wilful disregard of resolutions of the legislature by the executive. This completes the circle of neutralization of legislative power. On the one hand, when the legislature is about to exercise its legislative powers, the courts operate to stop it. On the other hand, when the legislature urges the executive to do an action, it neutralises legitimate power by simply ignoring the resolution or directive.

It was stated above that the presidential system of government presupposes that each arm performs its function unfettered and that each will accord the others due respect and regard for the purpose of ensuring smooth running of government. All these assumptions are intrinsic and are a matter of course with the parliamentary model since some members of one arm belong and perform the functions of the other. This seemingly intractable problem of the presidential model in Africa does not exist with the parliamentary model because government ministers would have participated in the deliberations and debates in parliament leading to the adoption of the resolutions. Unless each arm performs its functions without let or hindrance, and unless each arm accords the others due respect and regard, delivery of governmental development policies and programmes cannot run smoothly. The people, and not those in power, will suffer for it.

With the presidential model of government, the assumption is that the executive will take resolutions of the legislature seriously and try to implement them or give reasons for not being able to do so. It becomes a monumental waste of time, energy and money for 109 senators or 365 elected members of the House of Representatives to engage in heated debates on ways to move the country forward or to manage and adopt report of an investigative committee, only for the executive to negate and neutralise that power by doing nothing. It is not only disrespectful, it is wasteful of taxpayers’ money.

Even more disrespectful is the escapism of the Nigerian executive and even some senior lawyers that resolutions of the legislature, which were always supported by most members of the ruling party in the legislature, are not laws and as such they are not binding on it.[36] But the resolution on the famous "Doctrine of Necessity" was quickly implemented by the executive. [37] This deliberate avoidance aimed at emasculation of the legislature or neutralising its powers explains the dominant relationship between the executive and the legislature. Nigeria changed its model of government to the presidential one without averting its mind to the unwritten tradition that no one challenges or gives orders to the ruler king. With the parliamentary system, the ruler king or Prime Minister agrees to the order being made but it comes from an external or independent body in the Presidential system and that does not seem palatable to the African powerful, kingly-minded presidents.

However, in developed democracies, the executive disregards a clear resolution of the legislature to its own political detriment. A resolution that is carried means it is more popular since it has majority votes behind it and the executive that is sensitive to the wish of the majority will think twice to neglect or ignore such resolution. In exceptional situations that the executive feels strongly about the matter, and this is the case sometimes where opposition controls the majority in the legislature, the legislative arm always reserves the right to enforce its resolutions by pouring cold water on any subsequent request of the executive before the legislature. The United States Congress, assisted by the Supreme Court, now has inherent contempt power, which it can use to imprison anybody that flouts its resolution. [38] It is in this context that we should view the constitutional amendment to grant qualified immunity against criminal prosecution to presiding officers of the legislative houses in the country.

In contrast, legislatures in emerging democracies do not feel emboldened to take residuary actions against the executive to enforce their resolutions because their citizens, who are likely to benefit most when the resolutions are implemented, perceive the legislature as belligerent lots. While public opinion supports congressional resolutions in the United States, it is largely unsupportive or indifferent in Nigeria. Nigerians will almost always attack the legislature any time it is perceived to confront the President or Governor in the name of enforcing a resolution. Nigeria is in dire need of a way to shore up the respect of the legislature by the executive leading to voluntary compliance with legislative resolutions.

To enforce its resolution in extreme circumstances, the legislature may cause a stalemate as is usually the case in the United States where Congress shuts down government at the end of the year by withholding its approval. Recently though, the Nigerian Senate took an unprecedented action to enforce its own resolution regarding filling up vacancies in the Senate. It is to be recalled that all three senatorial elections in Rivers State were annulled or declared inconclusive. On 27^th September, 2016, the Senate passed a resolution calling on the Independent National Electoral Commission to immediately conclude all pending re-run elections in the country especially in Rivers State which has no single senator representing it at the Senate.[39] As usual, INEC did nothing. On the November 2^nd, 2016 Senate passed another resolution urging INEC to conduct elections into the Senatorial districts and appoint a Minister from Kogi State to replace the last one that died since March 2016. The elections must hold within five weeks or the Senate will shut down for as long as the elections were not held.[40]

Conclusion

Power of an arm of government that is neutralised is no power. Neutralisation negates the principle of separation of power and should be curbed. When neutralisation emanates from the executive, it is less disturbing democratically because both the executive and legislature are politicians and the political space has its own unique way of resolving contestation and struggle for power. The same thing cannot be said when the source of neutralisation is the judiciary. Judicial power is sacred and should not be used to stymie exercise of power by a co-equal partner in the business of governance and in maintaining law and order. Issuing interim orders during the pendency of a legislative process has no other name or appellation than what it is: neutralisation of legislative power. Courts in other democracies hardly issue such orders. They allow the legislature to freely exercise its power, rightly and wrongly, and then the judiciary thereafter steps in to exercise its own overarching power of determining the propriety of exercise of that legislative power. The earlier the judiciary voluntarily cautions itself from issuing interim orders against incomplete legislative process, the better for our fledgling democracy.

Dr. Ahmad is a former member of the House of Representatives and immediate past Speaker, Kwara State House of Assembly

[1] Bourne, Richard, Nigeria: A New History of a Turbulent Century. Bookcraft, Ibadan (2016). P. 57.

[2] Nwabueze, Ben, Separation of power under the Constitution: its Merits and Demerits, in Constitutional Democracy in Africa, Spectrum Books Ltd. Ibadan. 2003, Vol. 1, P. 241

[3] See “Powers of the Federal Republic of Nigeria”, Part II, Constitution of the Federal Republic of Nigeria, 1999 as amended.

[4] S. 4 Constitution of the Federal Republic of Nigeria, 1999 as amended.

[5] S. 5. ibid

[6] S. 6. Ibid.

[7] Nwabueze, Ben, “Consequences Flowing from the Separation of power” supra note 2 at P. 258.

[8] For elaborate account and analysis of devastating altercations between the NPN-dominated Kaduna State House of Assembly and PRP Governor Musa, See Nwabueze, ibid.

[9] Nwabueze, ‘Separation of power under the Constitution: its Merits and Demerits’ supra note 2 at P.241.

[10] Nwabueze, ‘Consequences Flowing from the Separation of power’ ibid. P.258.

[11] Nwabueze, Executive Usurpation of Legislative or Judicial Power, ibid P.308.

[12] S. 81 Constitution of the Federal Republic of Nigeria, 1999 as amended.

[13] "Senators Drop Impeachment, Consider Reprimand of Buhari over $496m Tucano Aircraft Payment" https://www.thisdaylive.com/index.php/2018/05/06/senators-drop-impeachment-consider-reprimand-of-buhari-over-496m-tucano-aircraft-payment/. May 6, 2018.

[14] 2 Legislative Law Reports of Nigeria, Vol. 2 (2002-2003) P. 937.

[15] Nwabueze, supra note 2 at P. 281.

[16] Ibid. P. 301.

[17] Nwabueze, Ben, op. cit. ‘Nature and Extent of Executive Power’ P 211.

[18] Ss. 4 and 58, Constitution of the Federal Republic of Nigeria, 1999 as amended

[19] S. 88 ibid.

[20] S. 60

[21] ‘National Assembly Shut after Police Futile Bid to Stop Tambuwal’ The News Newspaper, 20th November, 2014. The Speaker had changed his political party from that of the executive branch and was set on the day the Assembly was locked to defeat a resolution extending state of emergency in the North Eastern part of the country.

[22] ‘DSS Detains Zamfara Speaker, Deputy, Others Over Plot to Impeach Governor Yari’ Vanguard Newspapers, July 21, 2016.

[23] ‘Kogi Speaker, Deputy Impeached for Incompetence’, Daily Trust Newspaper 10 December, 2015

[24] Impeachment: Court reinstates Kogi Speaker, others. Vanguard Newspaper, May 19, 2016.

[25] Allison-Madueke V. The Senate and Others FHC/ABJ/2015

[26] Ibrahim Lamorde V. The Senate, and the Senate Committee on Ethics, Privileges and Public Petitions. FHC/ABJ/CS/934/2015.

[27] Mulikat Adeola V. House of Representatives and others. FHC/ABJ/2015.

[28] S. 6 Constitution of the Federal Republic of Nigeria, 1999 as amended.

[29] "2019 Election Sequence: Court Dismisses Suit Against National Assembly", Thisday Newspaper May 23, 2018 P. 11

[30] FHC/ABJ/C5/232/2018.

[31] 12 N.S.CC. 314 (1979).

[32] Ibid. at pp. 96-97.

[33] For a fuller discussion, see Ahmad, Ali, "Court of Law or Court of Bills: When Courts are Without Standing" LAWYER , Thisday Newspaper, 3 March, 2018 Pp. 11-12.

[34] Ibid.

[35] S. 88 of the Constitution of the Federal Republic of Nigeria (1999).

[36] ‘Why NASS Resolutions are not Binding on President — SANs’. The Vanguard Newspapers October 23, 2012.

[37] ‘Constitution Review: Doctrine of Necessity to the Rescue’ Vanguard Newspapers July 17, 2013..

[38] The reasoning is that if Congress did not possess this power, it would be "exposed to every indignity and interruption that rudeness, caprice or even conspiracy may mediate against it." Anderson v. Dunn 19 US 204 (1821). The authority of the Congress on investigative matters is so extensive that the attorney-client privilege is not applicable.

[39] The Senate, Resolution number S/Res/016/02/16 , Votes and Proceedings, No. 31, Senate of the Federal Republic of Nigeria, P. 730, Wednesday 2^nd November, 2016

[40] James Faleke V. INEC and others. S.C. 648/2016. Judgment delivered 20th September, 2016. (Not yet reported).