AN APPRAISAL OF THE COURTS AND CONSTITUTIONALISM IN NIGERIA: A DECADE OF DEMOCRATICE GOVERNANCE

CHAPTER ONE

GENERAL INTRODUCTION

1. INTRODUCTION

Government is universally accepted to be a necessity since man cannot realize himself except within an ordered society. Yet the necessity of government creates its own problems for man; the problem of how to limit the arbitrariness inherent in government and to ensure that powers is to be used for the good society. It is the limit of this arbitrariness of political power that is expressed in the concept of Constitutionalism. However Constitutionalism recognizes the necessity of the government but insist upon a limitation being placed upon its powers. It connotes in essence the limitation in government; it is the antithesis of arbitrary rule1.

Constitutionalism simply means a belief in a constitutional government.2 The Constitution of the Federal Republic of Nigeria is popularly known as the organic and fundamental law in the realm of legislation in Nigeria. While the Nigeria constitution defines the framework, the exercise of the governmental powers and the limits of each arm of government, the courts are eminently placed in a position to interpret how these governmental powers can be exercised by the various arms of government in accordance with provisions of the Constitution. It is a common

1. Nwabueze B.O, Constitutionalism in the emergent states (1st Edition Associated University Press Inc. 1973)
2. Ibid

knowledge that the judicial powers of the federation are vested in the courts established for the federation as enshrined in the constitution which provides that „the judicial powers of the federation shall be vested in the courts to which this section relates, being courts established for the Federation?.3

Therefore it is the role of the judiciary (the courts) as an arm government and the provisions of the Constitution that has formed the basis of this project work. Under the 1999 Constitution, while law making is generally the exclusive preserve of the legislature, interpretation of same is reserved exclusively to the judiciary as represented by the court. Thus the various Courts of records in Nigeria perform a very formidable role in this regard. The focus of the Project work is to scrutinize the extent of the applicability of some selected Constitutional doctrines and principles since the coming back of democracy in 1999.

Basically, two points which are apt to obscure the concept of constitutionalism require to be cleared at the outset and this concern its relationship first, with the Constitution and second with democracy4. Abraham Lincoln described democracy as the government of the people, by the people and for the people. It is necessary to mention that the term Constitutional government is apt to give the impression of a government according to the provisions of the Constitution; that there is a formal written Constitution according to those provisions does not necessarily imply

1. Section 6 1999 Constitution of the Federal Republic of Nigeria

1. Nwabueze B.O, constitutionalism in the emergent states (1st Edition, Associated University Press Inc. 1973)

14

that the government is a constitutional one5. Again the determining factor, is does the Constitution impose limitations upon the powers of the government?

However, in a bid to properly evaluate the concept of constitutionalism in our contemporary society, one must bear in mind that certain elements are germane to the discourse. To this end, it is apposite to bring to the fore some concepts which are intricately intertwined with the principle of Rule of Law. In a nutshell, this project work focuses on certain constitutional concepts and how the judiciary had reacted to them in the last ten years. These concepts may include:

Removal of the Executives (Impeachment) and

Separation of Powers

It is relevant to mention here that since the coming back of democracy in 1999, the Supreme Court and other Courts of records including the tribunal had given several decisions; the constitutionality of which is in doubt. In view of this, this project work shall examine and analyze the applicability as well as the reasonability of the above mentioned knotty constitutional issues which had appeared before the courts in the last ten years.

5 Ibid Constitutionalism in Emergent state 2

1. BACKGROUND OF THE STUDY

The Constitution of a nation is a blend of strict laws or legal concepts or principles and political conclusions6. The strict legal principles and concepts include issues like the Separation of powers and the removal of executive officers. Apparently, these two principles are product of constitutional government, the proper practice of which is in doubt in our nascent democracy. However, it cannot be over-emphasized that the concept of constitutionalism is a subtle item in the appraisal of our present Government. It is relevant to mention that a political situation will be well-suited if the administration of governance is predicated on the strict provisions of the law.

It is interesting to aver that Nigeria is more than fifty years as an independent nation and we have practiced democracy intermittently for more than twenty years starting from 1960. Despite that fact, we still have not got it right. It is this unfortunate misery that forms the background of this project.

1. AIMS AND OBJECTIVES

Basically, this work aims to unravel the concept of constitutionalism by a critical look at the principles of Impeachment as well as Separation of Powers. These two concepts are technically related and there have been several controversies whether they are duly practiced according to the provisions of the Constitution. It is remarkable to stress that the stringent principles of

6 Yakubu J.A, Constitutional Law in Nigeria (2nd Edition, London Press 2002).

compartmentalization of powers have not been religiously adhered to by most presidential government in the world; this fact is reinforced by the trends in the Federal Republic of Nigeria and the United State of America.

More so, tyranny and totalitarian tendencies are two elements which are most threatening today and they are fast encroaching on the territories of our communities. This assertion will be viewed from the political, social and legal prism in line with the concept of constitutionalism. On the whole, this conceptual analysis is primarily intended to provide for audiences who do not have access to Academic journals. It is also aimed at making the concepts less cumbersome to understand by drawing illustrations from avalanche of judicial cases.

1. FOCUS OF THE STUDY

Under the study of Constitutional law, it is not expected to exist without giving due regard to the extent of compliance with the provisions of such Constitution. Attention will therefore be focused on the extent to which the provision of the Constitution operates. Constitutionalism is the extent of adherence to the provision of the constitution in the operation of any legal system. It pre-supposes the existence of a constitution whether such is written or otherwise.

However, what is of crucial importance is that in the governance of the state, the operators of the system give due regard to the intendment of the framers of the constitution. Essentially, this work shall focus on the doctrines of Impeachment and Separation of Powers in a bid to evaluate

the concept of constitution. Also, the attitude of the courts through relevant judicial cases will be examined to appraise the subject matter. It is pertinent to mention that constitutionalism is promoted by Separation of Powers, because through such doctrine, the judicial arm of government vested with interpretation of the constitution is allowed to be governed freely only according to known canons of legal interpretation7.

1.4.0 SCOPE AND LIMITATION OF STUDY

This work will encapsulate the historical background, jurisprudential basis as well as the extent of practicability of some selected Constitutional concepts. As it was noted earlier, this will include the doctrines of Impeachment and Separation of Powers. In the same vein, the functions of the judiciary in necessary circumstances will be religiously examined in this work as enshrined in the 1999 Constitution of the Federal Republic of Nigeria.

It will not only be limited to the opinions and postulations of the lawyer, political scientists and sociologist but a wide spectrum of ideas will be embedded in the work. It will also adopt a broader view of these subject matters by dwelling on the series of decided cases and scholarly postulation of acclaimed authors to debunk the concept of constitutionalism.

7 Alabi M.O, Constitutional law in Nigeria: Separation of power (Lecture note Unilorin 2006)

1.5.0 RESEARCH METHODOLOGY

The methods of research to be employed are basically analytical and critical, by the use of primary and secondary source of law. The primary sources will include textbooks, Archival materials as well as internet materials.

Secondary sources may include journals and observations, while judicial positions will be drawn from law reports. Statutes will be the guide to the legal posture on the theories to be espoused. The sources are essentially in-exhaustive but the foretasted were the means through which the bulk of information was garnered. The Research findings will be further scrutinized by ascertaining or negating their suitability to the current terrain. More importantly, empirical findings were made through an update of events in the globe.

1. LITERATURE REVIEW

The scope of this work has made it almost impossible not to refer to texts of some celebrated authors like Prof. Ben Nwabueze8 in his book titled “Constitution in the Emergent States” where he wrote on the concept constitutionalism vis-à-vis the principle of separation of powers as well as checks and balances. He did well by not attempting to divorce the two concepts, though the tone of his writing was skeptical in the beginning. The book displayed the ingenuity