Nigeria: From Separation to Unification of Powers?

The Advocate By Onikepo Braithwaite

The Advocate By Onikepo Braithwaite

Separation of Powers

Yorubas have a saying that if a number of us go into a room and we all emerge laughing, we certainly have not told ourselves the truth. Baron de Montesquieu recognised this as far back as 1748 in his book, The Spirit of Law, when he coined the theory of Separation of Powers, in which, for optimal performance, the three co-equal arms of government, the Legislature, Executive and Judiciary were to operate independently without undue influence on each other, acting as checks and balances on themselves, instead of backing each other in everything, whether right or wrong, and constantly emerging with laughter amongst themselves, as we are seeing today. This is not to say the three arms of government must always be in conflict, No. But, the one that is in a position to stop the other who has done wrong, must do everything in its power permitted by law to stop the wrong in the interest of the people and the country, because the main intersection of the three arms of government is that they are all there to represent the interest of Nigerians and Nigeria. Nigerians hope the fairly new Tinubu administration will recognise this fact, so that we can start to build strong institutions and a better nation. 

Baron de Montesquieu’s theory is enunciated in Sections 4-6 of the 1999 Constitution of the Federal Republic of Nigeria (as amended in 2023)(the Constitution), where the various mandates of our Legislature, Executive and Judiciary are clearly stated therein. It is time to remind the three arms of the Nigerian Government and tell them the truth, because they seem to have lost their understanding of their roles. It appears that in Nigeria, in this Fourth Republic, over the years, we have decided to turn Baron de Montesquieu’s theory and Sections 4-6 of the Constitution on their head, and instead, we want to join the three arms of government and roll them into one, of course, with the Executive being the ‘numero uno’, as opposed to being co-equal with the other two arms! 

On Tinubu’s Mandate We Stand!

During the Buhari administration, people referred to the Senator Ahmad Lawan-led Senate as a ‘rubber stamp’ Senate. Today, we are hearing Senators singing that they are standing on President Tinubu’s mandate! The Senators pledged allegiance to President Tinubu in song, when  he came to their Chamber to present the 2024 budget to them! This is not the constitutional role of the Legislature. Even if President Tinubu’s mandate is perfect, the mandate of the Legislature is contained principally in Section 4 of the Constitution (to make laws for the order, peace and good governance of the country), and its other sections which give them oversight functions. This system of allegiance to the Executive, is replicated by most State Houses of Assembly to their Governors. The truth is that, if any arm at all, it is the Executive that should be standing on President Tinubu’s, or on the State level, their Governor’s mandate, while the Judiciary’s mandate is to remain independent, and interpret and dispense justice without fear or favour.

Arms of Government Not Playing their Constitutional Roles

Recall when Chief Justice Walter Onnoghen was chased out of office unceremoniously, the dictates of the law obviously not followed, I don’t remember the Legislature complaining that the Constitution and laws they had enacted in that regard had been breached by President Buhari’s administration, nor did even the Judiciary, CJN Onnoghen’s constituency or the National Judicial Council (NJC), particularly put their foot down at the time, to show their disapproval and displeasure that the procedure for the removal of a Chief Justice had been turned on its head, and he had even been docked before a Magistrate (Code of Conduct Tribunal) instead of answering to the NJC. Au contraire, the Executive got away with desecrating the Judiciary, without much opposition from the other two arms of government. 

Even within the arms of government, the key officers also fail to play their roles. Throughout his tenure, Attorney-General Malami who should have given President Buhari sound legal advice, whether or not it suited the President’s purpose, more or less seemed to act as President Buhari’s Personal Lawyer, forgetting his role as Nigeria and the people’s Lawyer, except when it came to the recovery of Nigeria’s stolen loot abroad. Mr Malami, SAN, even fought in court to support the disastrous Naira redesign policy, even in the face of injustice and the untold hardship Nigerians were experiencing, forgetting his role as the people’s  Lawyer. I guess all’s well that ends well – at least, his efforts in the P & ID case paid off for Nigeria! 

There are so many examples of the arms of government backing each other  instead of being a check, and many a time, this attitude of ‘sleeping facing the same direction’ can only worsen Nigeria’s situation, in situations where there’s agreement between the arms of government, when there should be checking and balancing instead.

During the Buhari administration, Section 38 of the Central Bank of Nigeria Act 2007 (CBN Act) was incessantly breached by the Executive with the connivance of CBN. Instead of denouncing the Executive, the National Assembly, added insult to injury, by supporting the unlawful acts of the Executive – breaching its own law and approving the securitisation of the Ways & Means advances contrary to Section 38(3)(b) of the CBN Act. Again, we have evolved a system where the arms of government are prepared to look the other way, when their self-interest is involved. The Ways & Means Advances may have been the only way for the National Assembly to be able to secure their severance packages at the end of the 9th National Assembly, since Nigeria isn’t particularly economically buoyant at the moment, and if it meant breaking their own law to get their money instead of calling out the Executive for this wrongdoing concerning Ways & Means, so be it. 

Another example of the arms of government failing to check and balance each other, is with the purported law concerning the extension of the retirement age of Judges from 65 to 70. While there’s absolutely nothing wrong in increasing the retirement age of Judges so that it is in concert with that of the Appellate Court Justices, Section 58(4) of the Constitution provides that when a Bill is presented to the President for assent, he has 30 days to either assent or withhold his assent. The only way a Bill can be passed when the President withholds his assent like President Buhari did, is for the Bill to be passed again by two-thirds majority each of the House of Representatives and the Senate with the National Assembly overriding the President and doing away with his assent, in accordance to Section 58(5) of the Constitution. 

 In the case of the Retirement Age Bill, there’s no record to show that even if the Bill was re-presented to President Tinubu for his assent after President Buhari failed to signify his assent to it, the Bill was first re-passed as a fresh Bill by both Houses before its re-presentation to him. There is no provision in the Constitution, for the President assenting to a Bill after 30 days – even if we could plead that it isn’t the personality that counts, but the office of the President, so it doesn’t matter if it was assented to by President Buhari or Tinubu, the action of assent would have been completed within 30 days.  Therefore, the only options available would have been either to restart the process set out in Section 58(2)-(4) or override using Section 58(5) of the Constitution. See the case of Ogboru & Anor v Uduaghan & Ors (2011) LPELR-8236(SC) per Walter Samuel Nkanu Onnoghen, JSC (later CJN). 

Since this age extension is to the benefit of many Judges who were or are close to retirement age, and now seem to have been granted a new lease of life, no one seems to care that the law may not have been properly enacted. Though there was no Attorney-General of the Federation (AGF) in office at the time the President gave his assent, if we had had a strong Justice Ministry, the office of the Solicitor General could have given legal advice on the propriety or otherwise of President Tinubu assenting to the Bill, without an AGF. The three arms of government seem to have backed each other in this venture, leaving no one with any say in governance to insist on the right procedure being followed. 

In the Naira redesign case, the Supreme Court dispensed justice judiciously and judicially, and played its constitutional role as a check and balance on the Executive and its disastrous policy, bringing the draconian policy to a well-deserved end, also playing its role as the last hope of the common man. 

This is not to say that some have not criticised the Judiciary, and accused them of being found wanting. And, that is why there’s a school of thought that believes that the time for the reform of the Judiciary is now, with the Chief Justice obviously spearheading it, and that this is not an appropriate time for the extension of the retirement age of Judges. There are some even spreading rumours, that the retirement age of the Appellate Justices may be increased from 70 to 75. When a system requires reformation, its transformation for the better should be the priority, not retirement age extension. Age extension should come after the improved system is seen to be functioning properly, and the natural progression is an irresistible urge to extend the service of those who have made the system work better, for a little while longer. 

The Kenyan Example

Since Lawyers were quick to use Kenya as the example for election petitions being concluded in record time before the swearing in of elected officials, I decided to also use their Judiciary as a brief example of the reformation of a Judiciary, to make it fit for purpose. 

Professor Willy Mutunga, a Lawyer and civil society activist, was appointed as Chief Justice of Kenya in 2011, and he undertook radical reforms to transform the Kenyan Judiciary. Before the transformation, the Chief Justice and all the members of the Judicial Service Commission (KJSC) were appointed unilaterally by the President. The Kenyan Judicial Service Commission was responsible for the appointment and disciplining of Judges, like our NJC (National Judicial Council). This arrangement, if anything, was definitely not geared towards an independent Judiciary, but a Judiciary that was at the beck and call of the Kenyan President, since he was the one that appointed them unilaterally, and of course, one of the complaints of Kenyans then was that the Judiciary was politically biased, obviously in favour of the President who appointed them. Of course, in such circumstances, the Kenyan Judiciary was anything but a check and balance on the Executive and the Legislature, at least not the part of the Legislature that belonged to the same party as the President. 

While a number of Judges weren’t well qualified for their jobs, the Kenyans also complained that the system was rife with corruption, as for one, bribing court staff to get hearing dates was the order of the day. The Judiciary also had a huge backlog of cases. Some of these complaints, sound familiar. In 2012, after extensive consultation with stakeholders, Prof Mutunga’s team came up with the ‘Judiciary Transformation Framework’. Bad judicial officers were weeded out and sacked, 200 new Judges and Magistrates were appointed through a competitive process. There had been constitutional reform in Kenya, and for instance, under Article 166(1)(a) of the Constitution of Kenya, 2010, the appointment of the Chief Justice (and Deputy Chief Justice) was no longer a unilateral decision of the President, but one done on the recommendation of the KJSC, subject to the approval of the National Assembly. 

The measures that were taken to transform the Kenyan Judiciary, are an interesting story for another day; suffice to say that, a judicial system which Prof Mutunga had once referred to as ‘being designed to fail’, was transformed into one that now plays its constitutional role, acting as a check and balance, dispensing justice appropriately, so much so that, in 2017, the Kenyan Supreme Court nullified the Presidential election that gave Uhuru Kenyatta victory, citing irregularities as the reason for the nullification, and it ordered that a new election be conducted within 60 days. 


It didn’t matter to the Kenyan Supreme Court that, if Uhuru Kenyatta won the fresh election, he may take out his anger on them – having been made to participate in a fresh election, and run the risk of losing. And, while I didn’t find our Judiciary wanting in the outcome of our 2023 Presidential Election Petitions, the Kenyan Judiciary’s experience is an example of how to set about to build the strong institutions that Nigeria so desperately needs, and not the arms of government conniving amongst themselves to create strong men instead, with emphasis on self-interest or group interests. It all boils down to the three arms of government, deciding that it is time to give Nigerians a progressive, improved, developing Nigeria that works better, and to do this, they must make a conscious effort to play their roles come what may – the doctrine of separation of powers must be practiced to the hilt.  

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