Presidency, Senate and doctrine of separation of power
— 7th April 2017
In Nigeria, there is always the tendency to assume that whatever action or position of the Presidency represents that of the Federal Government. More often than not, even officials of the Executive erroneously paint the picture to the effect that the Presidency (with the Federal Executive Council) represents the Federal Government. This is why a minister would say that the Federal Government has done something, when, in the actual sense, it is the action of the Executive, not even in consultation or agreement with the legislature and the judiciary, the other two arms of government.
For the avoidance of doubt, whatever the Presidency does is simply an action of the Executive, just as what the Legislature and Judiciary do is the actions of the legislature and judiciary, as institutions of government. However, what the Executive, Legislature and Judiciary do together or complimentarily, for good governance, would be termed an action of the Federal Government. This is so because the Federal Government, in the main, comprises three arms of government: The Executive, made up of the president, vice president and the cabinet; the Legislature, made up of the Senate and House of Representatives (National Assembly) and the Judiciary (the courts). And these three arms of government are supposed to be independent of one another, in the principle of separation of power.
The principle of separation of power presupposes that the three branches or arms of government have separate and independent powers, to concentrate on distinct responsibilities, especially in a presidential system of democracy, which Nigeria operates. And in doing so, there are checks and balances among them, to ensure that no one arm overshadows others or usurps the duties/responsibility of others.
In Nigeria, the 1999 Constitution (as amended) provides for separation of power among the Executive, Legislature and Judiciary, as seen in sections 4 and 5 and 6. Indeed, while Section 4 and Section 5 dwell on the Legislature and the Executive, Section 6 talks about the Judiciary. And these arms of government have their functions. To be sure, whereas the Executive branch ensures that the laws of the nation are not only followed but also that the “responsibilities of government are fulfilled,” the legislature makes laws. The judiciary, on its part, interprets as well as applies the laws/constitution of the country. When these arms or branches of government do their jobs, government runs smoothly. And when there is usurpation of duties among them, outside the provision of the doctrine of checks and balances, the government suffers.
Today, there is a gratuitous face-off between the Presidency and the National Assembly. Owing to the conduct of officials of the Executive, most especially, encouraged by those who do not love democracy, the two branches of government have been operating like enemies in a democracy, at a time when synergy is needed, for the attainment of a common goal. Yes, in recent times, the Senate, an arm of the legislature, in the exercise of its powers, as provided in Sections 88/89, has been inviting officials of the Executive, who had either shunned it or given excuses not to attend. There has been the case of the Secretary to the Government of the Federation (SGF), Babachir Lawal, invited to answer questions over alleged corruption, relating to the Internally Displaced Persons (IDPs) camps’ contracts in the North East. There is the case of the Comptroller General of the Nigerian Customs Service, Colonel Hammed Ali, and other others.
It is rather unfortunate that the Executive arm of government is encouraging its appointees to disrespect the legislature by intervening when the Senate summons them, for example. I was alarmed how the Attorney General of the Federal and Minister of Justice, Abubakar Malami, had the impetus to write to the Senate, giving reasons government appointees, who head corporations that derive their powers from acts of parliament, would not answer to legislative summons. It is also sad that a professor of Law, Itse Sagay, who should know, would rather play politics and stand logic on its head, by saying that the Senate has no power to invite him, instead of saying the right thing for posterity. The AGF and Sagay may think they are out to rubbish the Senate, but the truth is that in so doing, they are laying the foundation for the death of democracy. If the country ends up with an autocracy, owing to the emasculation of the legislature and judiciary, Nigerians, as a people and Nigeria, as a country, will be the ultimate losers.
Whatever the arguments of the Sagays, the Senate has the power to summon anybody, in the cause of investigation. Section 89 (1c) of the constitution, says the National Assembly has the power to: “summon any person in Nigeria to give evidence at any place or produce any document or other thing in his possession or under his control, and examine him as a witness and require him to produce any document or other thing in his possession or under his control, subject to all just exceptions.”
It is stating the obvious to say that if the Senate is cowed, we do not democracy. Therefore, the Senate should responsibly assert the authority vested in it by the constitution, in relation to the Lawal and Colonel Ali cases, by invoking the provisions of Section 89 (1) (d), which states that it could: “Issue a warrant to compel the attendance of any person who, after having been summoned to attend, fails, refuses or neglects to do so and does not excuse such failure, refusal or neglect to the satisfaction of the House or the committee in question, and order him to pay all costs, which may have been occasioned in compelling his attendance or by reason of his failure, refusal or neglect to obey the summons, and also to impose such fine as may be prescribed for any such failure, refused or neglect; and any fine so imposed shall be recoverable in the same manner as a fine imposed by a court of law.”
It is becoming obvious that there are people who do not want democracy tenets to gain ground in the country. This is why such people are encouraging impunity or tyranny of the Executive. They want an Executive with an absolute power, not questioned by anybody. This is why some people are raising hell that the Senate rejected the nomination of Acting Chairman of the Economic and Financial Crimes Commission (EFCC), Ibrahim Magu, for instance, alleging conspiracy against the fight against corruption. This is most ridiculous and downright fallacy. The Senate has the power to confirm or reject anybody nominated by the president/Executive. The Senate is not supposed to be a rubber stamp of the Executive. Since it is in partnership with the Executive, it owes Nigeria the duty of rejecting whatever nomination it deems wrong. Magu is not the first person ever rejected by the Senate of Nigeria. He will not be the last person to be rejected during screening.
We witnessed the Senate’s rejection of Bode Augusto, who was nominated as minister from Lagos State by then President Umar Yar’Adua in 2007. At that time, nobody read meaning into it. The Executive accepted the Senate’s position and did send another name as replacement. Not long ago, the Senate rejected nominations for Niger Delta Development Commission (NDDC) Board for Abia and Ondo states. The same President Muhammadu Buhari Executive accepted this decision. And the Executive has sent replacements. If the constitution wanted the Executive to have its way, at all times, in nomination of government appointees, it would not have made provisions for screening and confirmation by the Senate. The National Assembly is part of the Federal Government. Therefore, its actions should not be seen as anti-government, as the legislature is an equal stakeholder in government and the Nigerian project.
The Senate must not be gagged or blackmailed. It should be alive to its responsibilities, without fear, let or hindrance. Nigeria should rather have a Senate that will play its role in democracy very well than one, which will, in the name of being supportive of the Executive, become an “organisation that gives automatic approval or authorisation to the decision of others, without proper consideration.”