The majesty of separation of powers
The founding fathers of democracy and the gatekeepers of democratic ideals foresaw the possibility of cross-interference among and between the men and women who would be entrusted with the task of governance. For this reason, the Doctrine of Separation of Powers or ‘‘trias politica,’’ coined by Charles-Louis Montesquieu, was adopted very early in the history of democracy.
Montesquieu had condensed his thoughts thus: “If the legislative and executive authorities are one institution, there will be no freedom. There won’t be freedom anyway if the judicial body is not separated from the legislative and executive authorities.” Separation of powers provided the spirit that guided certain fundamental provisions in the American Constitution. It was a counterpoint to monarchical governments, which highlight was the absolute power of a king or a queen.
So, when Nigeria adopted democracy, it came with a long history of established traditions that ought to provide a pathway for political office holders. It is against this background that the Federal Government’s penchant for breaching established constitutional boundaries in its relationship with the other arms of government calls for deep concern. Of greater concern however to the polity at the moment is how prostrate and spineless the judiciary and legislature, have been in the face of the violent onslaught against these institutions by unscrupulous agents of the executive arm of government. We have not witnessed men of character from any of the other arms rise in gallant defence of time-honoured principles, which serve as a bulwark against extremism.
For, institutions and their obligations are to be defended by the men and women who operate them in trust and on behalf of the people. Acquiescence has become a national pastime among the persons who have been entrusted with protecting and guarding the sanctity of institutions. There seems to be fear of being hounded by the executive arm if officials as much as proffer a contrary view to that held by the executive. State officials need to be reminded about the doctrine of separation of powers, which is so fundamental to the survival of democracy. Men and women of courage must rise to the occasion and save our democracy from the hands of nascent democratic tyranny.
Separation of powers is a constitutional provision under which the three branches of government are kept separate. It was for this reason that John Adams observed that ‘‘power must never be trusted without a check.’’ Separation of powers guarantees checks and balances to avoid excesses of any of the arms of government. Chief Afe Babalola addressed this point in a lecture delivered in July this year when he said that separation of powers “refers to the division of responsibilities into distinct branches to limit any one branch from exercising the core functions of another.” He states further that through this doctrine, we “prevent the concentration of untrammelled and unchecked power by providing for checks and balances to avoid autocracy, over-reaching by one branch over another.”
Often the executive arm is more disposed to arbitrariness because organs of state are under its direct control. The legislature, the judiciary and the executive arms are constitutionally mandated to guard their jurisdictions jealously. No one is superior to the other. The legislature is mandated to check the excesses of the executive arm, while the judiciary interprets the law. If the Eighth Senate under the leadership of Dr. Bukola Saraki endured an antagonistic or frosty relationship with the executive arm, the Ninth Senate has emerged with the spirit of a lapdog, ready to lick the spittle of a Master Executive! This is unbecoming, dangerous and a peril to the survival of our vital institutions.
Curiously, the obvious master-servant relationship, which the President of the Senate Ahmad Ibrahim Lawan has evinced, is an insult and aberration in the doctrine of separation of powers. Perhaps Senator Lawan does not have a full grasp of his constitutional obligations to the Nigerian people as provided for in the 1999 Constitution. His statement that any proposal from President Buhari is good for the nation and will be favourably considered is so embarrassing, puerile and obsequious that indeed he has no business being at the top of the federal legislative house. In the civilised world, his colleagues would take umbrage and sanction him under matters of national importance. But the men and women in the National Assembly appear to be more interested in their individual survival.
They prefer cheques to checks that can balance! Greed and avarice are clearly evident in their daily interactions. Their predilection is a blight upon the majesty of our democracy. While stressing the importance of power separation, the power of the people as sovereign is crucial. Officials are elected not to dictate to the people what government wants to do; they are to listen to the voice of the people. Across the land, there is a disconnect between the people and the so-called elected officials. The last elections in Osun, Bayelsa and Kogi states were a travesty of electioneering. The central government openly unleashed the full power incumbency to determine election results. Nigerians are not fooled. The people therefore do not really count. Their votes are manipulated to suit the whims and caprices of the powers-that-be. Indeed, the elections, which have been held in the country post-2015, are an assault on the people.
In the last one year, Nigerians have witnessed a savage attack by the executive arm on the judiciary, the legislature and persons who freely express themselves on topical issues. The way and manner some Supreme Court justices including the Chief Justice of Nigeria were humiliated out of office, the Federal Government’s decision to ignore some court judgments, interference in the affairs of the National Assembly especially in the choice of leaders, remind the nation of a no-distant past when military officers held sway in the political affairs of the country. Nigeria is a democracy. The president is not a king. His advisers and behind-the-scene handlers are not elected officials. They should respect the provisions of the law as enshrined in the 1999 Federal Constitution of the Federal Republic of Nigeria.
Sadly, some judges have contributed to the ignominious treatment, which the judiciary has suffered at the hands of the executive. By some of their actions, which can be seen as giving judgments to the highest bidders especially after elections, the judiciary has been dragged into disrepute. Politicians who eventually hold executive positions seem to know judges who are willing to sell their conscience for the proverbial mess of pottage. Words get around about how judges can be compromised. Politicians then use ill-gotten funds to compromise some corruptible judges. By convention and the ethics of the legal profession, judges are men who are above board like Caesar’s wife.
But when such highly placed officers of the law condescend into the fray of acquiring wealth, they become subject to opprobrium in the eyes of the citizenry. ‘‘If gold rusts,’’ asks Geoffrey Chaucer, ‘‘what then would iron do’’? However, in tackling corruption in the judiciary, the executive should obey the provisions of the constitution by following due process. We also call on judges who have a clear conscience to speak up in defence of the Bench. Where are the Kayode Esos? Where are the Chukwudifu Oputas? Has the judiciary lost its voice? Has the judiciary been cowed? Courageous judges and lawyers should rise and save the judiciary from opprobrium.
Mr. President should respect the Constitution as it affects the separation of powers. Court orders should be obeyed. Judicial officers should guard the independence of the judiciary as a matter of principle. The National Assembly should remember and perform its function as a check on the executive branch. It should not consider itself an appendage to the presidency. If and when government is not satisfied with the ruling of a lower court, it could appeal and ask for a stay of execution. But to brazenly disregard court orders or to send security agents dressed like thugs into the hallowed chambers of the National Assembly or into a courtroom to arrest an accused citizen is tantamount to ‘‘executive rascality.’’ Finally, Mr. President should walk the talk of being a ‘‘converted democrat’’ who allows the law to rule. That is the only way the majesty of democracy too can manifest for national development.
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