CHECKS AND BALANCES UNDER THE NIGERIAN CONSTITUTION

INTRODUCTION

The Nigerian Constitution, under the provisions of Sections 4, 5 and 6, separates the powers of the state and distributes them to three separate arms of Government, a fact that reinforces my assertion that Nigeria is a constitutional democracy.

The Supreme Court of Nigeria has, in many judgments, held that the Nigerian Constitution incorporates the principle and concept of Separation of Powers, stressing the principle behind the concept of Separation of Powers, which is that none of the three arms of Government should encroach into the powers of the others. Each arm – Executive, Legislative and Judicial – is separate, equal and of the coordinate department, and no arm can constitutionally take over the functions clearly assigned to another. Thus, the powers and functions constitutionally entrusted to each arm cannot be encroached upon by another arm.

The doctrine is to promote efficiency in governance and prevent friction, by precluding the exercise of arbitrary power by all the arms. The reasoning of the court is that the doctrine of separation of powers is the bulwark or anchor on which the survival of Nigeria as a nation must depend.

While each arm of Government must respect the other arms to facilitate smooth-running governmental machinery, such respect must never degenerate to the level of one arm being allowed to impinge on the exclusive domain of another as spelt out in the Constitution.

Checks and balances

The Constitution acknowledges the need for the three arms of Government to associate and cooperate with one another to ensure the smooth workings and management of the affairs of the state. It, therefore, creates a connecting link among the three arms through the concept of checks and balances that empowers each arm to limit the powers of the other arms and create a balance of power among the three arms.

For instance, to enhance its representational status, the Constitution further bestows limited executive, financial, and quasi-judicial powers to the National Assembly. Under Section 88 of the Constitution, the National Assembly is vested with powers to conduct investigations into any or all matters on the Exclusive and Concurrent Legislative Lists of the Constitution; and the conduct of affairs of any person, authority, Ministry or Government  Department charged or intended to be charged with the duty of or responsibility for (i) executing or administering laws enacted by the National Assembly, and (ii) disbursing or administering moneys appropriated by the National Assembly.

However the powers so conferred on the National Assembly are exercisable only for the purpose of enabling it to (a) make laws with respect to matters within its legislative competence and correct any defects in existing laws; and (b) expose corruption, inefficiency or waste in the execution or administration of laws within its legislative competence and in the administration of funds appropriated by it.

In order not to create a conflict between the National Assembly and the Executive, Section 88 limits and restrict the power of the National Assembly to making of findings with which it can effect correction through further legislation. The section preserves the power of prosecution to the Executive. Where the National Assembly is working in harmony with the Executive for the peace, order and good government of the Federation, the National Assembly can pass such findings to the Executive for further investigation and prosecution. Unfortunately, the National Assembly and the Executive seem to be working at cross purposes, and this is in spite of the fact that the All Progressives Congress (APC) that forms the Executive also constitutes the majority in the National Assembly.

For an investigation under Section 88, the Constitution further empowers the Senate or the House of Representatives or a committee appointed by either of them to exercise judicial functions by procuring evidence.

Such evidence is not limited to oral evidence procured from persons examined as witnesses on oath but includes written, documentary, direct or circumstantial evidence. To ensure compliance by persons summoned to give such evidence, Section 89 of the Constitution further empowers the Senate, House of Representatives or committees appointed by either of them to issue warrants of summons to compel the attendance of recalcitrant or uncooperative persons summoned to give evidence.

Again the Constitution withholds the power to commit to prison for failure, refusal or negligence on the part of a person who has to be dragged before it by a warrant of arrest. Rather, the Constitution vests the House or committee so affected with the power to order the person in question to pay the cost of enforcing the warrant, and to impose fine on that person.

The caveat on the power granted to the Senate, House of Representatives or any of its committees is that such investigation must be purposeful. The Supreme Court has held that a legislative body in the exercise of its constitutional investigating powers has no power to expose merely for the sake of exposure. Although the public is entitled, no doubt, to be informed concerning the workings of its government, that cannot, however, be inflated into a general power of the legislative investigating committee to expose where the predominant result can only be an invasion of the private rights of individuals.

It is, therefore, the responsibility of a Legislative body, in the first instance, to ensure that its Legislative investigating powers are used only in furtherance of a Legislative purpose within its Legislative competence.

Although the courts are meant to be separate and independent of the Legislature and the Executive, the courts are constituted by the Executive and the Legislature.

The appointment of the Chief Justice of the Federation, as well as the appointment of Justices of the Supreme Court, is made by the President on the recommendation of the National Judicial Council, a judicial body with executive functions, subject to the confirmation of the Senate. The procedure is the same for the appointment of the President of the Court of Appeal. The Senate’s confirmation is however not required for the appointment of other Justices of the Court of Appeal.

The appointment of the Chief Judges of the Federal High Court and High Court of the Federal Capital Territory and Judges of those Courts is the same as that of the Court of Appeal. The procedure is the same for all other courts established by the Federal Government, except Election Tribunals which are constituted by the President of the Court of Appeal.  The executive also has powers over the removal of judicial members.

The courts, on the other hand, have the power to ensure that the Executive or any of its agencies does not use its powers arbitrarily. The Executive must act in accordance with the law. Therefore, all executive actions are subject to judicial re-examination or review. Like any other person, agency or entity in the state, the Executive is under the law and must act within the confines of the law. By Section 5 (1) of the Constitution, any action or inaction of the Executive must be rooted in the Constitution or a law made by the National Assembly.  It is the function the courts to review the actions of the Executive to ensure that they conform to the law.

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