CHECKS AND BALANCES ON THE EXERCISE OF EXECUTIVE POWERS UNDER THE NIGERIA CONSTITUTION
CHAPTER ONE
INTRODUCTION
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Background to the Study
[1] Generally, checks and balances is very important because it prevents democracy frombecoming a dictatorship or oligarchy as its operation ensures that no one arm can gain absolute power or abuse the powers given to it, ensures that each organ of government is alert and conscious of its functions, ensure that each organ is flexible and accommodating, guarantees effectiveness and efficiency in the performance of government functions, enhances stability of government, helps to identify errors or abuses where and when they occurred minimizes corruption, oppression and abuse of power generally. It is, indeed, a functional and critical tool to maintain a functional democracy.
The constitution of the federal republic of Nigeria provides for a system of checks andbalances to restrict the powers of each arm of government at both the federal, state and local government tiers. Generally, for instance, the executive arm can veto bills passed by the legislature while the latter can override the veto by the former. Again, the executive can check the judiciary through its power to appoint or remove judges while the judiciary can declare laws made by the legislature and certain executive actions unconstitutional. In these ways, the three arms at the different tiers achieve workable checks and balances with no one branch holding all the governmental powers.
[2] Furthermore, the constitution also makes the president the chief executive and commander in chief of the armed forces in S.130. The constitution of 1999 vests all the executive powers of the federation in the person of the president which can be exercised directly by him or his vice president or members of his cabinet. S.5(1)(b) provides that the executive powers of the president extends to the maintenance of the provisions of the constitution, acts of the national assembly and on items on which the national assembly has power for the time being to make law.It also makes provisions for the appointment of ministers subject to confirmation by the senate. S.147(3) provides that in appointing ministers consideration should be given to the federal character of Nigeria. S.147(4) provides that a person cannot be a member of the cabinet and the legislature at the same time. S.147(5) provides that the qualification for appointment as minister is the same with the qualification for election into the house of assembly. S.148(1) provides that the president may assign to the vice President or any minister, any of the executive duties of government.
[3] However, it should be noted that the president performs other functions that are not necessarily executive. For example, bills by the national assembly cannot become laws until they have been assented to by the president. Presidential power under the 1999 Nigerian Constitution[4] is the totality of executive powers that have been vested in the President. According to Black’s Law Dictionary, executive power is defined simply as “the power to see that the laws are duly executed and enforced[5] .The executive powers, exercisable by the President, are admittedly enormous, hence it is more often than not, taken for granted especially by occupants of the office of the President.This isirrespective of the fact that such powers are granted with a number of safeguards by way of checks and balances[6] .Now, does the president’s exercise of executive powers embrace all functions that are neither legislative nor judicial, given the wording in section 5(1)(b) in particular?The 1999 Constitution confers presidential powers but it is important to admit that in reality, there are other factors that combine to strengthen and weaken the way such powers exercised by the president, such circumstances including the poor political sophistication of the country, social and economic forces[7] .
[8] The 1999 Constitution vests the powers of the Federal Republic in three8 distinct organs – the legislature, the executive and the judiciary. Consequently, the Constitution in its section 5 expressly vests the qualified executive powers of government in the President; thus:
Subject to the provisions of this Constitution, the executive powers of the federation-
(a) shall be vested in the President and may, subject as aforesaid and to the provisions of any law made by the National Assembly, be exercised by him either directly or through the Vice-President and Ministers of the Government of the Federation or officers in the service of the federation and
(b) shall extend to the execution and maintenance of this Constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has for the time being, power to make laws
The powers granted under section 5(1)(a) of the 1999 Constitution are to be exercised by the President subject to the Constitution and the provisions of any law made by the National Assembly. They are to be exercised by the President either directly or through the Vice President and ministers of the government of the Federation[9] .Checks in this context referring to the ability and responsibility of each arm to monitorthe activities of other arm(s) and balances referring to the ability and responsibility of each arm to use its power to limit the powers of other arm(s) whether at to general scope or in particular cases. It is perhaps for the relevance of the principle of checks and balances that Dibieargues that the principle is the major argument for the separation of powers and notes specifically that effective operation of checks and balances prevents arbitrary exercise of power by any arm, controls power and ensures orderliness and efficiency in the exercise of governmental powers[10] . Ogoloma similarly notes that the whole argument in favour of separation of powers is meaningless if the principle of checks and balances does not, in reality, operate as it helps in limiting the powers of each arm and restricting them to operate within theirconstitutionally assigned duties[11] . It is for the immense importance of checks and balances that Amoda argues that each arm should not merely be separate but should, as well, act as checks upon each other to maintain the balance of powers between them. In essence, the argument is that even under separated powers, there is the need for the exercise of powers by one arm to be checked by other arms[12] .
[13] Ugwuanyi, Nworji and Oruebuor concluded thatpower corrupts and absolute power corrupts absolutely. Hence, there is requirement ofthe doctrine of separation of powers in all governmental systems, particularly in modern democratic governance. This is because it prevents power from being overly concentrated in one arm of government and its consequent likely abuse. However, forestalling abuse of powers even in a government of separated powers depends essentially on the extent to which the principle of checks and balances obtain among the different arms of government.
- Research Problems
This research is carried out as a result of the identifiable problemsassociated with the vesting of some of the powers of the Federation inthe President, and the manner that some of those powers areexercised in general terms.While admitting that the Constitution itself provides for safeguardsagainst the tendency to drift into arbitrariness through violation of itsprovisions, there are however, a number of core areas which requiregreater scrutiny, owing to identifiable lapses. In examining the “Execution and maintenance of the Constitution”, under this provision as in section 5(1)(b), the President is empowered not only to execute and maintain the Constitution as well as all laws made by the National Assembly, it would appear that the extension of his powers to act on “all matters within which the National Assembly has, for the time being, power to make laws”, tends to confer on the President, the power to act, even before such issues are brought to the notice of the National Assembly, in which case it might be too late to reverse such an action if the National Assembly failed to concur. KehindeMowoe[14] is of the view that the only construction that can be put on this is that whenever a situation arises in relation to an issue where no legislation is in place, the President has a duty to act as he deems fit.
However, the security powers of the President are largely provided in sections 215, 216 and 218 of the Constitution[15] . Admittedly, the powers usually delegated to the Police under the Police Act, are enormous and such powers are exclusively delegable by the President. In all of this, there is only one federal Police Force. Theproblem here, as advanced by OyelowoOyewo[16] , is that maintenance of one federal Police Force and delegation of power by the President alone, regates the principle of true federalism and defeats the essence of quick response to security threat.14 The second aim of the security powers vested in the President is the power to direct the operational use of the Armed Forces. Apart from the deployment of troops on combat outside Nigeria which is regulated by the National Assembly, the President has the power to deploy troops to quell internal crisis but what is the justification in the excessive use of force such as was witnessed in Odi in Bayelsa State and ZakiBiam in Benue State during the regime of President Obasanjo?
Emergency power, as provided in section 305 of the Constitution, has been tested twice – in Plateau and Ekiti States, and discussions on the exercise of such power have shown that there is more to it than the mere exercise of the powers. In the instant cases, conditions precedent were said not to have been met while the removal of the governors and the sack of the states’ legislatures were said to be in excess of the grant[17] . Unfortunately, the operation of this principle in the local government system in Nigeria particularly as it concernsthe legislature and executive is seriously constrained by some factors. The possibility of enhancing the operation of the principle is, therefore, dependent on the extent to which the identified constraints are tackled or surmounted. Indeed, it is only the extent to which this can bedone that we shall have less abuse of power by the executive and more of overall good governance.
- Objectives of the Study
The main objective of this study is to determine checks and balances on the exercise of executive powers under the Nigeria constitution. Under the 1999 Constitution, in charge of executive powers, more often than not, tend to abuse such powers vested in them, without actually being brought to book by the invocation of the numerous checks available.It is against this background that this research aims:
- To examine the power and prospect of arbitrariness regarding checks and balances
- To identify the constraints to effective checks on the exercise of executivepowers by the legislature
- To determine enhancing effective checks of the executive powers by thelegislative arm
- To ensure that the principle of separation of powers and its concomitant checks and balances are observed, particularly in relation to section 315
- To ensure that the power granted the President under section 5(1)(b) to execute and maintain the Constitution is exercised in strict conformity with the constitution and the laws made by the National Assembly, and for the President not to unilaterally expand the scope of that power, thereby avoiding a drift into arbitrariness
- To ensure that the President does not exercise his security and emergency powers arbitrarily so as not to infringe on private rights in the course of the exercise of these powers.
- Justification of the study
The Nigerian Constitution provides for the Executive Presidency, whereby all executive powers are vested in the President. Even though the Constitution provides for delegation of certain of those powers, an overbearing president may elect to carry on as if governance revolves round a single man. The wanton expansion of the scope of the executive powers by the President, hiding under the provisions of section 5(1)(b), no doubt, has the potential to lead to failure of government. Instances where the President has unilaterally deployed troops and imposed emergency rules without the conditions precedent having been first satisfied do not augur well of good governance. The power of the President to make rules is also viewed as a negation of the principle of separation of powers.
The 1999 Constitution, modelled alongside that of the United States of America, cannot, in all honesty be said to fit the Nigerian situation, as the Nigerian politicians have not shown sufficient maturity to effectively operate a single executive presidential system. Here, John Locke’s maxim that “power corrupts, absolute power corrupts absolutely”, is brought to test.Therefore, theimportance of this research is its contribution to knowledge and development of constitutional principles, which could lead to good governance so that those who find themselves in position of leadership, particularly the office of President, should realize that there is, after all, no absolutism in the vesting of the executive powers in the President, and that adequate mechanisms are available to bring such a President to order.
- Scope and Limitations of the Study
The scope of this research is confined to the checks and balances on the exercise of executive powers under the Nigeria constitution. Also, the study will be limited to identifying the constraints to effective checks on the exercise of executive powers by the legislature.
- Research Methodology
This research requires the use, mainly, of the doctrinal method to achieve the set objective. Therefore this research applies this method whereby information, facts and law are collected and analysed, having due regard to the constitutional provisions governing the topic of this research.
- Literature Review
The concept of power, though nebulous, has been reduced to various levels for proper understanding and writers have been able to distinguish what it stands for, especially political power, in relation to its exercise.Ben Nwabueze’s position on the powers that are specifically granted and those that are inherent is that the mere vesting of executive power in the president is sufficient for him to perform a variety of functions, provided always that such act conform with the particular intent of the grant of power[18] .
[19] Nwabueze, for instance, writing on the nature of executive power, categorises power under three broad theories – (1) residual power, (2) inherent power and (3) specific grant[20] . Bearing in mind that the main views on political power revolve around (1) normative, (2) post-modern and (3) pragmatic perspectives, and that legitimate power is similar to coercive power in that unacceptable behaviour is punished by sanction, Nwabueze says:
The widest view of executive power is that it embraces every power which, by its nature, is neither legislative nor judicial. It is not limited to execution of the laws and, provided it is not forbidden by law, action by government need not wait upon legislation expressly empowering government to do it[21] .
Nwabueze, in trying to find a mid-course between specific grant of power and the inherent power theory, believes that the doctrine of inherent power does not operate from outside the law, but an integral part thereof. He says:
It is implicit in the constitution of every civilized community. This is so because no constitution can anticipate all the different forms of phenomena which may beset a nation. No doubt vast extensions to thepowers of the executive would result from the doctrine of implied powers. The doctrine is a rule of construction according to which every grant of power is construed as including by implication, all such powers as are reasonably incidental thereto and not expressly excluded[22] .
On the need for the President to exercise the power conferred on him by section 5(1) of the 1999 Constitution with caution, and to recognize the limits of such power,Ayua[23] , commenting specially on the declaration of a state of emergency on Plateau State[24] , writes: Emergency powers comprise two distinct powers, viz, (i) power to declare a state of emergency; and (ii) power to make laws and to execute them with respect to matters within exclusive state competence in normal times, and to overstep, with some exceptions, the limitations on power arising from the constitutional guarantee of fundamental rights in chapter iv. Section 305 of the 1999 Constitutionrelied on by President Obasanjo for his action in Plateau State grants only the first power, but not the second; it only empowers the president to declare a state of emergency in situations there specified.
[25] On the other hand,separation of power and Legislative Autonomy are two basic concepts and features of democratic systems of government. The doctrine of separation of powers originated during the ancient era when concepts were in search to describe governmental functions and theories of mixed and balanced government. The idea was to find a mechanism which would enable different arms of government to relate smoothly for common purposes. The theories of mixed and balanced government formed part of the debate. Thus, the doctrine of separation of powers was an anecdote to the search for governance procedure in the political system. The doctrine in its original form, states that: “the government should be divided into three branches or departments; the Legislature, the executive, and the judiciary. To each of these three branches, there is a corresponding identifiable function of government, legislative, executive and judicial. Each branch of government must be confined to the exercise of its own function and not allowed to encroach upon the function of other branches.
[26] The idea behind the doctrine is to establish a system whereby different bodies of government will act as a check on the other. James Madison had recognized this need as far back as 1788 when he wrote in the Federalist Papers 51 that: “… Ambition must be made to counteract ambition. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But, what is government itself, but the greatest of all reflection on human nature? If men were angels, no government would be necessary, if angels were not to govern men, external nor internal controls of government would be necessary. In framing a government which is to be administered by men over men… experience has taught Mankind the necessity of auxiliary precautions’’. According to Ogoloma,[27] James Madison’s espousal on the doctrine of separation of powers was accompanied and supported by the writings of Aristotle, John Locke, Blackstone and Montesquieu which are landmarks in the history of political theory. In fact, the writings of Montesquieu had huge influence on the American Constitution which separates Legislative, executive and Judicial powers. According to Montesquieu, “as a defense against tyranny and protection of political liberty, the power of the state should not be aggregated in one body but should instead be divided amongst three branches which should act independently of each other in carrying out their respective roles”. In this case, “each body or arm will act as a check on other and in theory, one branch could not be called to account by any other”.
[28] In Canada for instance, the Supreme Court recognizes the doctrine of separation of powers as an essential feature of the country’s constitution. The Constitution provides that, “there is …a separation of powers among the three branches of government-the Legislative, the executive and the judiciary. In broad terms, the role of the Judiciary is of course to interpret and apply the law; the role of the Legislature is to decide upon and enunciate policy while the role of the executive is to administer and implement policy”.The concepts are more associated with presidential democracies that hold on to the principles of checks and balance which underscore the establishment and maintenance of political liberty.The doctrine of the separation of powers as usually understood is derived from Montesquieu, whose elaboration of it was based on a study of Lock’s writings and as imperfect understanding of the eighteenth century English Constitution. Montesquieu was concerned with the preservation of political liberty.
However, “political liberty” is to be found he says, only when there is no abuse of power”. But constant experience shows its that every mans invested with power is liable to abuse it, and to carry his authority as far as it will go … To prevent this abuse, it is necessary from the nature of things that one power should be a check on another… when the legislature and executive powers are united in the same person or body… there can be no liberty … Again, there is no liberty if the judicial power is not separated from the legislative and the executive… There would be as end of everything if the same person or body whether if the nobles or of the people, were to exercise three powers”.The question whether the separation of powers (i.e. the distribution of the various powers of government among different organs) in so far as is practicable, is desirable, and (if so) to what extent, is a problem of political theory and must be distinguished from the question which alone concerns the constitutional lawyer namely, whether and to what extent such a separation actually exist in any given constitution.[29] Thus, according to the doctrine, a person or body must not exercise more than one of the powers of government, one arm of government must not control or interfere with the others and one arm of government must not exercise the function of the other. This is because as has been observed [30] Fawehinmi:
In all tyrannical government, the supreme magistrates, or the right both of making and of enforcing the laws is vested in one and the same man or one and the same body of men; and wherever these two powers are united together, there can be no public liberty.
[1] Ugwuanyi, B. I., Nworji, L. O and Oruebuor, A.A. Effecting checks and balances of powers in the Local Government system in Nigeria: a critical discourse on the Experience and the implications for good governance, Journal of Policy and Development Studies, 9(5), 2015
[2] Olanrewaju, O. Executive powers in the Nigerian constitution. Available at: http://www.djetlawyer.com/executive-powers-nigerian-constitution/….Last accessed on 10 June, 2017
[3] Olanrewaju, O. Executive powers in the Nigerian constitution. Available at: http://www.djetlawyer.com/executive-powers-nigerian-constitution/….Last accessed on 10 June, 2017
[4] The Constitution of the Federal Republic of Nigeria (Promulgation) Decree No 24, 1999,as amended, referred to in this research simply as the Constitution.
[5] Black’s Law Dictionary, Eighth Edition, 2004
[6] Section 5(1)(a), The Constitution of the Federal Republic of Nigeria (Promulgation) Decree No. 24, 1999, as amended
[7] Op. cit
[8] Ese, M. Administrative Law. Lagos: Princeton Publishing Company. 2008
[9] The National Assembly comprises of both the Senate (Upper Chamber) and the House of Representatives (Lower Chamber)
[10] Dibie, C. Essential Government. Lagos: Ponad Publishers Ltd. 2008
[11] Ogoloma, F. The Theory of Separation of Powers in Nigeria: An Assessment, African Research Review 6(3):12, 2012
[12] Appodarai, A.The Substance of Politics. New Delhi: Oxford University Press. 2011
[13] Ugwuanyi, B. I., Nworji, L. O and Oruebuor, A.A. Effecting checks and balances of powers in the Local Government system in Nigeria: a critical discourse on the Experience and the implications for good governance, Journal of Policy and Development Studies, 9(5), 2015
[14] Mowoe, K.M: Constitutional Law in Nigeria, Malthouse Press Limited, Lagos, p. 137, 2008
[15] These sections confer the powers to appoint the Inspector-General of Police, delegation of powers thereof, and the operational use of the Armed Forces
[16] Oyewo, O: Reducing the Risk of Divided and Failed Government, NIALS, p. 171, 2001
[17] Atura, B: Emergency Rule in Ekiti as the 1999 Constitution holds: [email protected] October. See also Nwabueze, B.O.: Obasanjo Rapes the Constitution: USAfricanonline.com The Newspaper, Honston. 2006
[18] Nwabueze, B.O. Presidentialism in Commonwealth, Africa C. Hurst & Company, London, in Association with Nwamife Publishers, Enugu p. 4. 2011
[19] Ibid p.1
[20] Ibid, p.4
[21] Ibid, p.1
[22] Ibid, pp.7, 8.
[23] Ayua M. The Rule of Law in Nigeria: Law, Justice and the Nigerian society Essays in Honour of Hon. Justice Mohammed Bello (Ed) I.A. Ayua Nigerian Institute of Advanced Legal Studies, Lagos, Nigeria, 2010
[24] Yusuf v. Egbe (1957)2 N.W.L.R. (Pt. 56) 341.
[25] Hood, Phillips &Jackson . Constitutional and Administrative Law, Eight Edition Paul Jackson & Patricia Leopold International Student Edition Sweet & Maxwell, London, United Kingdom, 2001
[26] BolajiOwasanoye, Nigerian Institute of Advanced Legal Studies, Lagos, Nigeria. 2006
[27] Ogoloma, F. The Theory of Separation of Powers in Nigeria: An Assessment, African Research Review 6(3):12, 2012
[28] Hood, Phillips &Jackson . Constitutional and Administrative Law, Eight Edition Paul Jackson & Patricia Leopold International Student Edition Sweet & Maxwell, London, United Kingdom, 2001
[29] Oyewo, Toriola. Administrative Law in Nigeria, Jator Publishing Company, Nigeria, 2005
[30] FawehinmiGani. Nigerian of Law of Habeas Corpus, Nigeria Law Publications Ltd., Lagos, Nigeria, 2003
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