The 3 Arms Of Govt. under the Nigerian Constitution: Which arm controls the government? by O.N Ewelike

INTRODUCTION

 

The Constitutional crises, mess and conundrum in Nigeria cannot be addressed by a short and concise article, so please girdle up as I take you through the lengthy discourse. I assure you is worth your while.

 

First of all the word ‘Bite’ and ‘Teeth’ is used metaphorically to represent the supposed sanctions of the Constitution in the event of any breach of its provisions.

 

This discourse is meant to address issues arising from the wanton abdication of the reign of the Constitution over the three arms of government by failure of the Government to harness the operative powers of the Constitution in the administration of the affairs of the Federation and State by extension.

 

POWER STRUCTURE

 

Section 1 (1) of 1999 Constitution (As amended) pronounces the Constitution as supreme and its provisions having binding force on the authorities and persons throughout the Federal Republic of Nigeria.

 

By virtue of Section 4 of the 1999 Constitution (As amended) the legislative powers of the Federal Republic of Nigeria shall be vested in the National Assembly for the Federation which shall consist of a Senate and a House of Representative. The said section of the Constitution further confers the National Assembly with power to make laws for the peace, order and good government of the Federation or part thereof with respect to any matter included in the Exclusive Legislative list. Similar powers are conferred on the House of Assembly of States mutatis mutandis save that they are excluded from making laws in respect of matters in the Exclusive Legislative lists.

 

According to Section 5 of the 1999 Constitution (As amended), the Executive powers of the Federation shall be vested in the President and may subject to the provisions of any law made by 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 public service of the Federation, and which shall extend to the execution and maintenance of the 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 aforementioned also applies to the Governors of the States of the Federation mutatis mutandis.

 

By virtue of Section 6 of the 1999 Constitution (As amended) the Judicial Powers of the Federation shall be vested in the Courts to which this section relates, being Courts established for the Federation, whereas the Judicial Powers of the State is vested in the Courts established by the said Constitution for the States. Now these three arms of government have the mandate of the said Constitution to exercise powers conferred upon them by the Constitution and any lawful execution these powers accordingly will have the force Constitution. Hence it will not just be unlawful but unconstitutional, and reckless insubordination to the Constitution should any Institution/Authority/Arm of Government disobey the binding authority of any of the Arms of Government.

 

It is also noteworthy that the Legislative Arm is empowered by the said Constitution to grant more powers to the Judiciary Arm, through its enactments of which the Executive Arm is constitutionally bound to obey.

 

STATE OF THE FEDERATION

 

There has been series of disregard, disobedience, impunity, abuse, reckless breach and flouting of Judgments, Orders, Rulings, of the Courts of Law being the Judiciary Arm of Government by the Executive Arm of Government which is by extension gross insubordination to the tenets of the said Constitution.

 

According to an online publication on Sunday August 27, 2017 in Premium Times, the Presidency reiterated his commitment to ensure compliance to the rule of law by all agencies of government under his administration. Even the Vice President in an interview with Journalists in April was liberal enough to admit that obedience to court orders in fundamental in letting rule of law to prevail when he restated the Administration’s commitment to the rule of law including obedience to Court Orders. In his own words “I very strongly believe that we must obey the law. It is our duty as government to respect the orders of the Court”.

 

Then what followed is the serial disobedience of Court Orders both at the Federal and State levels some of which is as follows:

 

Mr. Dasuki (Former NSA) who was charged with alleged diversion of $2.1 billion and illegal possession of fire arms, Although Mr. Dasuki has been granted bail on at least six different occasions by various Courts, the Nigerian Executive Arm of Government controlled by the Presidency has persistently refused to comply with the Court Orders.

 

The same goes for the case of Ibraheem El-Zakzaky, a leader of a Shiite group, IMN, who was detained without any trial for over 17months. On December 2, 2016 the Abuja Division of the Federal High Court ordered his release with the Judge berating the Nigerian Government for violation of his rights. Delivering the Court Order for the release of Mr. El-Zakzaky and his wife, the presiding judge, Gabriel Kolawole, also asked that a fine of N50million be paid to the detainees, while an accommodation be provided for them and their family. Despite warnings by the court, the Executive arm of government, did not comply with the decision long after 45 days ultimatum given by the court of law.

 

The same goes for Nnamdi Kanu, leader of the IPOB, who was granted bail by the courts of law, including that of the ECOWAS, the Executive Arm of Government with outright impunity blatantly refused to release him, instead he was later released upon bail conditions that was intended to make it impossible for him to be released on bail, this was after he was incarcerated for several months.

 

In July, the Supreme Court gave an Order reaffirming the nullification of the 2006 controversial transfer of the Aluminum Smelter Company of Nigeria, ALSCON, to a Russian firm, the United Company RUSAL although the violation of the ruling of Nigeria’s apex court on the matter did not however, start with the Present Administration. The 2016 ruling was the third by the Supreme Court since the questionable sale of the Aluminum plant to the Russians by the Bureau of Public Enterprises BPE in 2004.

 

In flagrant disregard to the Supreme Court ruling, the Minister of Mines & Steal Development, Mr. Kayode Femi in April, 2017 undertook an inspection visit to ALSCON. During the visit, Mr. Fayemi was received and shown round the plant by Dimitroy Zaviyalov, the Managing Director of UC RUSAL, and the same firm the Supreme Court repeatedly sacked. The said minister not only promised to work with the Russian firm to reactivate ALSCON, but also assured Mr. Zaviyalov, that the Government would “encourage the Supreme Court to expedite action on the ruling, to free the complex from any encumbrances”. (Haba! and yet we are wondering why foreign investors are reluctant to invest in Nigeria)

 

GOVERNMENT CONSTITUTIONAL IRRESPONSIBILITY

 

The serial flagrant disregard of Court Rulings, Judgments and Order and brazen insubordination to the tenets of the Constitution is also replicated in Certain States of the Federation, a socio-political anthema that has now become disturbing.

 

The one that sent chills to my vein is that even Nigerian Bar Association NBA got itself caught in the mesh with the Federal High Court Declaratory Judgment on 30^th March, 2017 in the case of OLASUPO OJO V. THE REGISTERED TRUSTEES OF THE NBA, Suit No.: FCT/ABJ/CS/546/16 nullifying the NBA Amended Constitution of 2015. This by implication put the validity of all the activities carried out under the nullified Constitution to question. The acclaimed ‘BRAVE NEW BAR’ was not brave after all, it was a testing moment but selfish interest defeated nobility. Now, the NBA has lost the moral high ground to fight for the rule of law. I have not even mentioned the crisis in Unity Bar Branch, Abuja.

 

Now after I have examined the situation in this, for the sake of modesty ‘Country’ I couldn’t help but ask the question ARE WE THAT HELPLESS? The United States of America is over 200 years old and only two incidents are recorded of the President’s attempt to refuse complying with Court orders. Michael McCornnell, Director of The Constitutional Law Centre at Standford Law School, told ATTN that Presidents have tried to get around Court Orders in the past, but it hasn’t happened in a long time. He pointed to President Abraham Lincoln refusing to comply with the U.S Supreme Court during civil war when it decided the President did not have the authority to order that a man accused of treason, Maryland State Legislator and Militia Lieutenant John Merryman, be held without trial. He further said Andrew Jackson did a similar thing when he reportedly said “John Marshall has made his decision; now let him enforce it”. Jackson was referring to Supreme Court Justice John Marshall, who had ruled that a State law allowing for the seizure of indigenous land violated federal treaties and indeed Jackson simply ignored the ruling.

 

During the Eve of President Donald Trump’s Executive Order on Immigration and the Consequent nullification of the said Executive Order by the Court for being Unconstitutional, I came across an article written by an American Journalist Thor Benson titled ‘WHAT WOULD HAPPEN IF THE PRESIDENT DEFIES A COURT ORDER?’ published on 3^rd February, 2017 in www.attn.com, the following are apt excerpts from the article:

 

“Any President defying the court could cause a constitutional crisis. If the President were to tell (Federal Employees) to disobey a court order, then presumably the court would hold those officers in contempt” Adam Winkler a professor of Constitutional Law at UCLA, told ATTN:

 

“They could, possibly, even hold President Trump in contempt”, he further said it would definitely “cause chaos” and that “the prospect is to horrible” to even contemplate Trump acting in such a way could be the basis for impeachment proceedings…one major reason the President resisting Courts would be so damaging is the effect it would have on the separation of powers. No branch of the government, at least on paper, is to challenge the power and jurisdiction of another”. [Emphasis mine]

 

The question now becomes, is there any Constitutional sanction against any Arm of Government in Nigeria that deliberately flouts, disobeys, or disregards the provisions of the Constitution. I had to rummage through the said Constitution guess what I found – Section 143(1) (2) (a) (b) (9) of the 1999 Constitution (As amended) which states:

 

• “The President or Vice President may be removed from office in accordance with the provisions of this section.

 

• Whenever a notice of any allegation in writing signed by not less than one-third of the members of the National Assembly
• Is presented to the President of the Senate;

 

• Stating that the holder of the office of President or Vice President is guilty of gross misconduct in the performance of the function of his office, detailed particulars of which shall be specified.

 

(9) Where the report of the panel is that the allegation against the holder

      of the office has been proved, then within fourteen days of the receipt

      of the report at the House of the National Assembly shall consider the

      report, and if by a resolution of each House of the National Assembly

      supported by not less than two-thirds majority of all its members, the

      the report, the reported is adopted, then the holder of the office shall

stand removed from office as from the date of the adoption of the report    

 

The provisor to the above section defined “gross misconduct” as follows:

 

“Gross misconduct” means a grave violation or breach of the provisions of this constitution or a misconduct of such nature as amounts in the opinion of the National Assembly to gross misconduct”.

 

Similar provisions were made in respect of State Governors and Deputy Governors by virtue of Section 188 (1) (2) (a)  (b) & (9) of the said constitution.

 

From the conduct of the Executive Arm of Government controlled by the President and Governor as the Chief Executive of the Federation and State respectively both at the Federal and State level it is beyond reasonable doubt, and predominates the balance of probabilities, that a breach of very tenets of the Constitution which amounts to ‘gross misconduct’ as defined by the said Constitution has occurred on several occasions with outright impunity.

 

The situation presently is analogous to saying that the Judiciary Arm of Government decides when the Constitution bites while the National Assembly and House of Assembly keeps the teeth.

 

A situation where most of our politicians, best described as political turn coats have abdicated from their primary responsibility for selfish reasons, have turned our Constitution to some comic novel. The Nigerian politicians and so called leaders now think they can urinate on our body and tell us it is raining; they are having their field day with insulting our intelligence.

 

The salient questions:

 

1. What happens when the President or Governor (The Chief Executive of the Executive Arm of Government) Acts in breach of the Constitution?

 

2. What happens when an officer/appointee of the Executive body or Agency acts in disobedience, and breach of the Constitution?

 

3. Does refusal to obey or comply with Court Orders and Judgments amount to ‘Gross Misconduct’ as defined by the Constitution?

 

The answers as so obvious and clear in the light of the above expositions. The gruesome and mind-bending question now becomes:

 

Why then can the National Assembly or House Assembly not invoke the wrath of the Constitution, if we really believe in the tongue in cheek acclamation of the Rule of Law?

 

But your guess is as good as mine. At the risk of voluminous writing I shall give an instance of Legislative activism (They need a cue); in USA there has been series of controversies over President Donald Trump’s conduct. Rep. Steve Cohen addressed the situation by a press release on August 17, 2017 and I shall quote him verbatim literatim:

 

“Today I am announcing that I will be filing an article for impeachment against Donald Trump upon my return to congress. The Presidents abject failure of leadership and showing the inability to have moral rectitude and be the leader of his nation at times of crises with his remarks on Charlottesville… I have no choice but to introduce these articles of impeachment. For one, I’m Jewish and for two I represent the African American District…It’s the anti-thesis of American interest, values, it’s abhorrent to me.

It shows the President is not only possibly guilty of obstruction of Justice with Mr. Comey and violation of Emoluments Clause with actions at the Trump Tower and the Trump Hotel and taking money from foreigners but unable to lead us against foreign and domestic enemies… When he can’t even recognize our domestic foes which are the white supremacists, Nazis, and Klansmen, and equates them with Americans who went out to oppose, demonstrate against Anti-American values. He doesn’t understand America. He doesn’t understand his job as President…”

 

I need not say more as regards our Nigerian Legislatures or Chief Executive of the Federation and State but when the foreign speculators refer to us as ‘lawless country’ and express their lack of confidence in enforcement of the rule of law, we should swallow the bitter pill in good faith because we earned it.

 

Nigeria is a country were the wrath of the law hacks and gurges the poor and then licks and strokes the rich/wealthy/elite.

 

The question to be asked in conclusion is now –

Does the Constitution need more teeth or do the Government and its branches, including the tiers need to be cure of its dysfunctional failed system for the Constitution to be able to bite (by biting, I mean the implementation of the sanctions of the Constitution) ?

 

In my opinion I think the latter is most paramount and needs urgent attention. Unfortunately the NASS did not consider it in its Constitutional Amendment Bills; neither did the NBA Address it in the just concluded Conference. Were you surprised? Because I wasn’t.

 

I shall conclude with the following sages of all time –

 

“The reason why rivers and seas receive the homage of a hundred mountain streams is that they keep below them”.

                                                             – Lao-tse (Chinese sage).

 

“An Army of sheep led by a lion would defeat an army of lion led by sheep”

– An old Arabic Proverbs.

 

“In a Republican Nation, whose citizens are to be led by reason and persuasion and not by force, the art of reasoning becomes of the first importance”

                               – Thomas Jefferson (Former American President).

O.N Ewelike writes from Abuja