Nigeria: Why incoming lawmakers should be wary of turning NASS into a rubber-stamp

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By Chris Uba

During  my  Ordinary Level General Certification of Education (GCE)  lessons in Government (or British Constitution) many years ago,  one of the topics that often generated much interest in the class was the concept of Separation of Powers. Before starting the topic , the teacher first made  us to know about the  three Organs/Branches  of Government  and their functions. These organs/branches  are: Legislature , Executive and Judiciary. The Legislature is saddled with the responsibility for law making while  the Executive is given the responsibility for law implementation. The Judiciary  has the responsibility for the  interpretation of  the law. Each of these organs is expected to adhere ,strictly, to the functions assigned to them by the constitution/law.

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Every governmental system embodies these three functions. But in a liberal democratic setting ( which as a must, is ruled by a constitution), these three functions are separated. Hence, the  three organs are or must be  independent of one another. No one organ combines the three functions (except in an undemocratic setting such  as in the military regime , absolute or unconstitutional monarch). This is how the concept of the theory of  Separation of Powers was invented. This theory holds that liberty is best preserved if the three functions of government—legislation, law enforcement, and adjudication—are in different hands. A combination of the three functions by one organ or hand will in most cases result  to tyranny, which was the practice before the  modern democracy.

The man who popularised  this idea is no other personality than an eminent  French jurist , Baron  de Montesquieu. The modern idea of Separation of Powers is to be found in one of the most important eighteenth-century works on political science  which Montesquieu  penned. In his  “The Spirit of the Laws” (De l’esprit des lois)  (1748), the Frenchman pontificated  that “There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates … [or] if the power of judging be not separated from the legislative and executive powers.”. The intention behind a system of separated powers is to prevent the concentration of power by providing for Checks and Balances. Checks and Balances operates as a constitutionally limited government and is bound to the principles and actions that are authorized by the constitution.

Without Checks and Balances, one branch of government can grow too powerful and problematic. In the United States ,  for instance , three branches of the federal government effectively have a set of Checks and Balances: the legislative branch  as Congress (the House of Representatives and the Senate), the Supreme Court as the judicial branch, and the Office of the President as the Executive Branch. Other world governments and international bodies like the United Nations also have Checks and Balances in place. In other words,  the principle of Checks and Balances are principle of government under which separate branches are empowered to prevent actions by other branches and are induced to share power. Checks and Balances are applied primarily in constitutional governments.

Separation of Powers can be contrasted with the Fusion of Powers in parliamentary and semi-presidential systems where there can be overlap in membership and functions between different branches, especially the executive and legislative. In most non-authoritarian jurisdictions, however, the judiciary almost never overlaps with the other branches, whether powers in the jurisdiction are separated or fused.

For instance , in the United Kingdom, whose setting is parliamentary, powers are fused. Before 2010, the House of Lord was the highest court of appeal   in the  UK, even though it is the upper chamber of the parliament. Also, all the ministers are members of parliament (MPs)  including the Prime Minister who are elected  into the House of Commons (lower chamber)  or members of the House of Lords(upper chamber). All  the ministers work with the Prime Minister with some as part of the Cabinet. The Prime Minister and his Cabinet are responsible for the day-to-day  running of the government. They are answerable to the parliament which can sack the government if it cannot provide explanations  for problems facing the country. From the explanation, the fact that power is fused in this system  still does  not prevent  Checks and Balances from being exercised. From experience, many governments in the parliamentary system have been sacked during  questions and answers (Checks and Balances) in the parliament.

This is completely different from the operations in the Presidential System ,which operates a water tight compartment of Separation of Powers as propounded  by John Locke and advanced  by Montesquieu. This is the system that obtains in the U.S. The three organs of government are independent of one another  and this enables  them to serve as  checks on one another. The framers of the U.S. Constitution, who were influenced by Montesquieu and William Blackstone among others, saw Checks and Balances as essential for the security of liberty under the Constitution: “It is by balancing each of these powers against the other two, that the efforts in human nature toward tyranny can alone be checked and restrained, and any degree of freedom preserved in the constitution” (John Adams). Though not expressly covered in the text of the Constitution, judicial review—the power of the courts to examine the actions of the legislative and the executive and administrative arms of government to ensure that they are constitutional—became an important part of government in the U.S. Other Checks and Balances include the presidential veto of legislation (which Congress may override by a two-thirds vote) and executive and judicial impeachment by Congress.

 Please  note that  Checks and Balances,( as has been stated in the foregoing paragraphs) , which modify the Separation of Powers, may operate under parliamentary systems through exercise of a parliament’s prerogative to adopt a no-confidence vote in a government; the government, or cabinet, in turn, ordinarily may dissolve the parliament. The British Parliament is supreme, and laws passed by it are not subject to review by the courts for constitutionality. In France, under the Fifth Republic (1958), a Constitutional Council of nine members (appointed for nine years by the president, Senate, and National Assembly) reviews the constitutionality of legislation. The Federal Republic of Germany combines features of parliamentary systems and of federal systems like that of the United States. It vests the right to declare a law unconstitutional in the Federal Constitutional Court (1951).

In the foregoing paragraphs , I have made some  effort  to explain  how  the constitution we copied from the U.S. works with regard to Separation of Powers and Checks and Balances. Our approach is completely different from how the system works in other climes which operate similar constitution. For instance, immediately after the 2023 general elections, members-elect have been trouping to the President-elect to anoint them for the positions of  Senate Presidency and Speakership of the Senate and House of Representatives respectively. The same thing is happening  at the states. This  vitiates the intension of the principle of  Separation of Powers and Checks and Balances. The selection of the principal officers of the National Assembly and the state assemblies are,  exclusively , the prerogative of the members of these assemblies and to, some extent, the parties to which they belong.

It is not the duty of the executive. I make bold to  say here that the habit of rushing  to the executive branch  to lobby to become one of the principal  officers of the National Assembly does not accord with the spirit of Separation of Powers. This  attitude   gives the impression that it is the executive which determines who leads the National Assembly. It amounts to the subjugation of  the legislature (National Assembly) to the executive and consequently lowers the reputation of the law-making organ of the government.

It is high time we started building political institutions in this country so that we can begin  enjoy to the fullest the benefits of liberal democracy we which have adopted. We should stop  strengthening  political  personalities because this governance approach fosters corruption and under-development as currently being witnessed in the country.  Nigeria’s  1999 Constitution is patterned  after that of U.S.  but the practice  here  is different. The president and the governors ( who head the executive branch at the two levels of government)  want to  control the parliament as well. This  is completely at variance with  the principles  of Separation of Powers and Checks and Balances. This has been the practice from the inception of this democratic dispensation . Little wonder that democracy is not advancing in the country.  A former president was known to have sponsored the impeachment of Senate Presidents, state governors, among others. They want to control the legislature and judiciary. This is anti-democracy and should be resisted.

Our lawmakers should guard the independence of the legislative institution jealously. As I have indicated above,  the main function of Separation of Power is to ensure that:

  • a person forming a part of one organ should not be the part of other organs.
  • one organ should not interfere with the functioning of the other organs.
  • one organ should not exercise the function belonging to other organs.

 Our incoming lawmakers should adhere to strictly to  the principle of Separation of Powers and Checks and Balance in order to keep their independence. They should know that by kotowing   to the executive, for selfish reasons ,  they have unwittingly  subjugated  and mortgaged their powers and that of the electorate, whose interests they swore to protect,  to  the whim and caprice of the executive. They should have it at the back of their minds that they are accountable to the people and not  to the  executive and judicial branches.

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