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Part III The Relationship Between the Judiciary and the Political Branches, 10 Judicial–Executive Relations in Nigeria’s Constitutional Development: Clear Patterns or Confusing Signals?

Ameze Guobadia

From: Separation of Powers in African Constitutionalism

Edited By: Charles M. Fombad

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 30 September 2023

(p. 239) 10  Judicial–Executive Relations in Nigeria’s Constitutional Development

Clear Patterns or Confusing Signals?

1.  Introduction

From independence in 1960 to date, Nigeria has at different times, operated under parliamentary and presidential systems of government separated by interludes of military rule. Each of these experiences has resulted in peculiar variants of the relationship between the different arms of government. These relationships have not always been founded on a clear theory of separation of powers and its attendant principle of checks and balances, although lip service has often been paid to both. While the relationship between the executive and legislature (the political and more visible branches) has been the subject of much debate and discussion, judicial–executive relations in this setting has generated far less discussion with the role of the judiciary being simply passed off as the interpretative function that comes with the power of judicial review. This readily connotes action by the judiciary on legislative activity. There is usually too little attention paid to the judicial reaction to executive activity and the implications for constitutional development.

In what is more than a mere historical narrative, this chapter examines judicial–executive relations in Nigeria’s constitutional development with a view to identifying discernible trends. The chapter is divided into six sections that situate the discussion within the context of Nigeria’s constitutional history and its engagement with separation of powers. The nature and scope of the powers of both branches of government and their relations inter se are examined in subsequent sections under such themes as the appointment, discipline, and removal of judges; judicial independence; financing the judiciary; the support system generally available for the judiciary; judicial response to executive action; and relevant case law. The chapter concludes with an evaluation of discernible trends.

2.  Nigeria’s Constitutional History: A Brief Overview

Nigeria’s British colonial antecedents paved the way for the adoption of a parliamentary system of government at independence in 1960. The country’s constitutional history has been well documented1 and bears no repeating here. This brief overview (p. 240) is designed to situate the operation of the doctrine of separation of powers in Nigeria in a historical context. The Independence Constitution of 1960 was given effect to by an Order in Council of the British monarch. It was the culmination of developments in the governance of the colonial territory, including but by no means limited to, earlier constitutions enacted from 19222 (after the amalgamation of the Northern and Southern parts of the country in 1914). These all preceded the struggle for and final preparations for independence. Adopting a republican constitution, Nigeria became a republic in 1963. Both the 1960 and 1963 constitutions, established a cabinet system of government under which ministers had seats in the legislature3 and were collectively responsible to it.4 Therefore, only the judicial branch could be said to be separate although there was a ‘lack of a clear, explicit separation of judicial power from the legislative and executive powers’.5 Apart from the fusion of the executive and legislature, there was a direct conferment of legislative power on parliament under the 1963 constitution.6 That constitution did not expressly vest judicial powers in the judiciary although it created specific courts and provided for the appointment of judges, their tenure, jurisdiction, practice, and procedure.

Civilian rule under the 1963 constitution was cut short by military incursion in 1966. This was to last in the first instance, for thirteen years (1966‒79) and subsequently, for another sixteen years from 1983 to 1999. Between 1979 and 1983, there was another spell of civilian rule that established a presidential system of government7 premised on a clear division of the powers of government between three separate and distinct branches viz, the executive, the legislature, and the judiciary under a supreme constitution which has continued to the present. Under the 1999 constitution (the constitution), there is a clear separation of the functions, personnel, and institutions of the three arms of government. The procedures for carrying out each of these functions are similarly separated. According to Nwabueze, ‘the exercise of presidential power within these limits is restrained and moderated by various checks and balances’.8 These include the power of the judicial branch to pronounce on the constitutionality and validity of the acts of both the legislative and executive branches. This notwithstanding, some overlapping of functions between the branches of government is inevitable for the smooth running of the system and does not detract from the principle of separation of powers. For:

while the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It (p. 241) enjoins upon its branches separateness but interdependence, autonomy but reciprocity … 9

3.  Executive Power: Nature and Scope

Section 5(1)(a) and (b) of the 1999 constitution vests the executive powers of the Federation in the president to be exercised by him or through the vice-president and ministers or officers in the public service. A cardinal feature of the executive under the constitution is the institutionalization of the Cabinet which is mandated to hold regular meetings and advise the chief executive.10 In Nigeria’s second Republic, the inability of the governor of Kaduna State to form a cabinet was declared unconstitutional by the Court of Appeal. It did not matter that the State House of Assembly had repeatedly refused to confirm the governor’s lists of nominees for the Cabinet. The governor and the majority in the legislature belonged to different political parties and for what to all intents appeared to be purely partisan reasons, the legislators refused to confirm the governor’s nominees for the Cabinet. Consequently, the governor could not form a Cabinet. This was one of the wrongdoings the governor was charged with in a series of allegations that led to his impeachment and removal from office by the legislature. These and related issues were considered in different court actions11 that arose as a consequence.

An understanding of the powers of the executive and judicial arms is an appropriate premise upon which their relationship can be examined. Section 5(1)(b) of the constitution states that the executive powers of the Federation,

shall extend to the execution and maintenance of this Constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has, for the time being, power to make laws.

There are similar provisions relating to the executive powers of the states.12 Under this supreme constitution, the executive operates under a specific grant of power which extends to the execution of the constitution itself and the laws passed by the legislature.13 This involves the running of the administration which also includes the (p. 242) initiation and implementation of policy.14 In implementing laws, the executive can initiate policies to give effect to the law. In like manner, the executive may also introduce policies which do not proceed directly from a particular law. Such policies can propel the making of new laws by the legislature. Section 5(1)(b) of the constitution envisages this where it extends the executive powers ‘to all matters with respect to which the National Assembly has for the time being, power to make law’. The apparent contradiction in this provision introduces the notion of discretion that lies at the heart of how the executive may proceed with its functions. This includes when or how it would exercise a particular power. Where these are not specified in enabling legislation as they often are not, or where the law itself does not prescribe a time frame within which to act, the field is left open for the exercise of discretion by the chief executive and his delegates.

It is settled law that a public authority has a responsibility to exercise this discretion with reason and justice and a lack of malice and arbitrariness. The old English authorities15 on this were cited with approval in the High Court of the Northern Region in the case of The Chairman of the Board of Inland Revenue v Joseph Rezcallah and Sons Ltd.16 Sometimes the activities of the executive may be quasi-judicial.17 In such cases, the enabling law would usually provide guidelines for the exercise of such powers. These guidelines are usually in line with basic principles of natural justice. To avoid being impugned as ultra vires, the exercise of power by the executive in these instances must be within the confines of the enabling law.

The constitution is premised on the limitation of power. As one commentator points out:

It was the establishment of judicial restraint upon the executive Agencies of government that marked the beginning of the era of constitutionalism and its extension to the legislature, its consummation.18

This fundamental element of constitutionalism finds expression in the principle of checks and balances that proceeds from the doctrine of separation of powers as the different branches of government operate as checks on one another. The constitution itself provides restraints on the executive’s exercise of its powers. These restraints do not only operate to check the executive within the framework of limitation of powers (p. 243) but more importantly, demonstrate the nature and extent of its relationship with the other branches.

Before proceeding with a discussion of judicial–executive relations within this milieu, something must be said about the nature and scope of judicial power.

3.1  Judicial power: nature and scope

Section 6(1) of the 1999 constitution vests the judicial power of the Federation in the judiciary, effectively separating it from the other branches by delineating its powers thus: ‘The judicial powers of the Federation shall be vested in the courts to which this section relates being courts established for the Federation.’ Section 6(2) makes an equivalent provision for the states. Section 6(6)(a) states that the judicial powers vested in the courts ‘shall extend, notwithstanding anything to the contrary in this Constitution, to all the inherent powers and sanctions of a court of law’. The constitution is supreme19 and the actions of the branches and organs of government have to be in conformity with its provisions. Given that fact, the importance of a separate organ (the judiciary) empowered to pronounce authoritatively on the constitutionality of the actions of the executive and legislature by striking them down or validating them as the case may be, cannot be overemphasized. This is the power of judicial review envisaged in the constitution. It is an aspect of the wider concept of judicial power espoused by the United States Supreme Court in Marbury v Madison20 in the following words: ‘It is emphatically the province of the judicial branch to say what the law is.’ This power of judicial review premised on a written, supreme constitution is captured in section 1(1) and (3) of the constitution, thus:

1 (1) This Constitution is Supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.

(3) If any other Law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other Law shall to the extent of the inconsistency be void.

On the strength of similar provisions in the 1979 constitution,21 the Supreme Court in Attorney General Bendel State v Attorney General of the Federation and 22 others,22 struck down the Allocation of Revenue (Federal Account etc.) Act No 1 of 1981 as unconstitutional and void for not having been passed in accordance with the procedure set out in the constitution for the passing of money bills. The fundamental lesson of the judgment lies in the fact that with regard to law-making, procedural irregularity is as unconstitutional as substantive irregularity. The former cannot be justified by any suggestion that in law-making, the end justifies the means.

In National Assembly v President Federal Republic of Nigeria,23 the Independent National Electoral Commission (INEC) brought an action against the National Assembly and joined the president and the Attorney-General of the Federation as co-defendants challenging the constitutionality of the 2002 Electoral Act as not having (p. 244) been passed in accordance with the procedure prescribed in the 1999 constitution. The Electoral Bill 2002 had been passed by both chambers of the National Assembly but the president failed to assent to it. The legislature then proceeded to override the president’s veto by a motion passed by a two-thirds majority of members present. In the Federal High Court, the Act was declared unconstitutional, null and void. On appeal to the Court of Appeal, the Court found that the Act had indeed not been properly passed as merely passing a motion to override the president’s veto was not the procedure laid down in the constitution. It declined, however,to grant the declaratory relief sought by INEC on the ground, according to Oguntade JCA (who delivered the lead judgment) that since the Electoral Act 2002 was at the time being used for the conduct of the 2003 elections, striking it down would lead to mayhem. In his view,

it was sufficient that INEC had obtained a vindication for its rights and in the process enabled this court to express its view as to the procedure to be followed when overriding a presidential veto in the law-making process.24

The opportunity to further expound the jurisprudence of judicial review in the case on appeal to the Supreme Court was frustrated by the withdrawal of the appeal.25 This point underscores the notion of judicial guardianship of the constitution which in the view of Nwabueze, is the fundamental task of the judiciary under a written constitution based on the doctrine of separation of powers.26 The dimensions of judicial–executive relations in Nigeria’s constitutional development should be examined against a background of the foregoing preliminary issues.

3.2  Separation of powers: meaning and scope

In line with the doctrine of separation of powers, the constitution vests the powers of governance in three different branches at both the federal and state levels.27 Much of the literature on separation of powers takes for granted a concomitant operation of checks and balances between the three branches which prevents incursions by one branch into the ‘territory’ of another. The separation envisaged accommodates, in varying degrees, both a separation of the functions/powers of governance and the institutions that exercise these powers. The extent to which this separation exists in any state is a direct reflection of its system of government.28 The presidential system with its separation of personnel and functions as well as the independence of each arm is (p. 245) predicated on the principle of separation of powers. How it works out, the factors necessary for its operation, and the extent to which it has succeeded in Nigeria raise other issues of constitutional law. These are some of the questions that any examination of the relationship between the branches of government will invariably attempt to answer.

Ironically, it was a landmark judgment of the Supreme Court delivered under a military government that made one of the boldest assertions of separation of powers in Nigeria, taking as its basis, the pre-existing legal order under the 1963 constitution before the military government came into power in 1966. The case was Lakanmi & Kikelomo v Attorney-General (Western State) & others29 in which the legislative authority of both the federal military government and a state military governor was challenged on several grounds including an allegation that the laws in question were a usurpation of judicial power.30 According to Ademola CJN:

Those who took over the Government of this country in 1966 never for a moment intended to rule but by the Constitution. They did, in fact, recognize, the separation of powers and never intended an intrusion on the judiciary. Section 3(1) of the Decree No 1 of 1966 does not envisage performance of legislative functions as a weapon for exercise of judicial powers, nor was it intended that the Federal Military government should in its power to enact Decrees, exceed the requirements or demands of the necessity of the case.31

On the power of judicial review, the Court observed that:

[I]f the Government, however well-meaning, fell into the error of passing legislation which specifically in effect, passed judgement or … eroded to [sic]the jurisdiction of the courts, the courts must intervene.32

The court declared the laws in question null and void. The Supreme Court was far short of the mark when it failed to appreciate the fact that a coup d état had actually overthrown the former legal order.33 In the context of a de facto military regime which left no doubt as to its character, it was unrealistic for the Court to suggest that the government was bound by the rule of law. The source of its power was not the constitution and no matter how benevolent, such principles as separation of powers that are deliberate limitations on power are antithetical to the nature of a military government.34 The federal military government reacted by passing its Supremacy and Enforcement of Powers Decree35 which effectively overruled the judgment and re-emphasized the supremacy of the military government over any judicial pronouncement. (p. 246) The Court’s assertion of separation of powers as a principle of Nigeria’s system of government under the erstwhile civilian dispensation is however instructive for the purpose of this discussion. In line with the point already made about the application of separation of powers by states in varying degrees however, it must be observed that the fusion of the legislature and the executive under the 1963 constitution limited the scope for the application of the doctrine.

4.  The Judicial and Executive Branches: Relations Inter Se

The functions and powers of these two arms of government (the judiciary and the executive) have been broadly defined in a historical context. The ramifications of their relationship need to be considered for a proper discussion of their relations inter se.36 A useful starting point is the formal process for the appointment, discipline, and removal of members of the judiciary.

4.1  Appointment, discipline, and removal of judges

Under the constitution, the executive plays a fundamental role in these matters. Sections 231(1) and (2), 238(1) and (2), 250(1) and (2), as well as 256(1) and (2) of the constitution vest the power of appointment of all justices and judges of the federal courts in the president acting on the recommendation of the National Judicial Council(NJC). In the case of the Chief Justice of Nigeria, other justices of the Supreme Court, the President and justices of the Court of Appeal, the Chief Judge of the Federal High Court as well as the Chief Judge of the Federal Capital Territory, their appointments are subject to confirmation by the Senate. There are similar provisions governing the appointment of judges at state level.37 The power to appoint is vested in the state governor acting on the recommendation of the NJC. In like manner, some of the appointments are subject to confirmation by the state House of Assembly. The power to remove these judicial officers from office is also vested in the executive. It is to be exercised acting on an address supported by two-thirds majority of the Senate or the House of Assembly of the state as the case may be, on grounds of inability (arising from infirmity) or for misconduct.38

A key element of judicial–executive relations plays out in the power and procedure for the removal of other judges (apart from the heads of various courts set out in s 292(p. 247) (1)(a) of the constitution) from office. The constitution vests this power of removal in the president or the governor as the case may be, acting on the recommendation of the NJC.39 What can cause the removal or suspension of a judge from office or indeed the application of any other disciplinary measures against a judge? Guidance may be found in the Code of Conduct for Public Officers.40 There is also a Judicial Code of Ethics formulated by the judiciary itself with which all judicial officers are expected to comply. A breach of these Codes can set in motion the disciplinary or removal process.

There are international benchmarks for protecting judicial independence against which these processes can be measured. The Commonwealth (Latimer House) Principles41 for example, include the following key elements as guidelines: (a) disciplinary proceedings that would lead to removal of judges should include appropriate safeguards to guarantee fairness; and (b) disciplinary procedures should be fairly and objectively administered. The efficacy of any disciplinary process would depend on a proper balance of the requirement of accountability to the people and the system without endangering the judges’ security of tenure. The hallmarks of accountability in this context include: (a) the existence of some authority that the populace can take complaints against judges to; and (b) the assurance that the complaints will be investigated (and a credible procedure put in place for rejecting and dismissing frivolous petitions). Finally, it should guarantee that consequential action will be taken following the outcome of an investigation. These suggestions lend themselves to consideration in Nigeria, in light of some of the actions taken against some judicial officers in recent years. They will be better appreciated against a background of the powers, composition, and some actual activities of the NJC.

4.2  The National Judicial Council

The National Judicial Council (NJC) comprises twenty-three members, seventeen of whom are appointed directly or ultimately42 by the Chief Justice of Nigeria (CJN) who chairs the body. Membership consists of retired justices of the Supreme Court or Court of Appeal; Chief Judges of the states who serve in rotation; one Grand Khadi of the Sharia Court of Appeal and one President of the Customary Court of Appeal who serve in rotation; members of the Nigerian Bar Association (who only sit on the Council to consider the names of persons to be appointed to superior courts of record); and two other persons of unquestionable integrity. There are in addition, occupants of named offices who are permanent members of the Council. These are the next most senior justice of the Supreme Court after the CJN, who is the Deputy Chairman; the President (p. 248) of the Court of Appeal; the Chief Judge of the Federal High Court, and the President of the National Industrial Court.43

4.2.1  The NJC and the suspension of the President of the Court of Appeal

The suspension of Justice Salami, President of the Court of Appeal (PCA) from office in 2011 illustrates the extreme consequences that can follow the exercise of unbridled power by the NJC as well as the lapses in the constitutional provisions relating to that body. The issues in contention arose from election petition appeals pending before or decided by the Court of Appeal in respect of the 2007 governorship elections in Sokoto, Ekiti, and Osun states respectively. The Sokoto state governorship tussle was however the immediate cause of the controversy. The following facts are relevant for a better understanding of the issues. First, the Sokoto state governorship election, the subject of the petition that was in issue was held in 2007 and by 2010, the matter had not been resolved. Second, the Court of Appeal was the final court in gubernatorial election petitions at the time44 and different partisan political interests (not necessarily confined to Sokoto state) were likely to be interested in and possibly affected by the Court’s decisions. Third, the immediate facts that led to the suspension of the PCA arose in 2010 when the 2011 general elections were clearly within sight.45

The relevant facts are distilled here from the writ of summons and other processes, including affidavits, letters, and other attachments as well as responses and other documents from some of the defendants in a suit filed by Justice Salami against the NJC, the Deputy Chairman of the NJC, Katsina-Alu CJN, and eight other defendants,46 challenging different actions by some or all the defendants relating to the matters in issue. Some of the defendants had served as members/chairpersons of the special investigative panels of the NJC that looked into complaints/petitions levelled against the President and some other justices of the Court of Appeal.

The plaintiff alleged that the CJN sought to influence the outcome of the Sokoto state governorship election appeal by asking the PCA to direct the justices of the Court of Appeal to (a) dismiss the appeal and or (b) put on hold delivering judgment in the matter for which a date had already been set. At some point in the course of these events and only after the PCA refused to accede to the suggestion or directive of the CJN regarding the judgment, it was alleged that the pending judgment in the election petition had been leaked. It is fair to surmise that this allegation was intended to justify the action of the CJN.

Amongst other averments, the PCA was emphatic that when the CJN called him to his office to make these suggestions/give his directives on the 8 February 2010, no allegation that the pending judgment had been leaked was made to him by the CJN and that there was no petition alleging leakage of the judgment either. As the court (p. 249) processes showed, petitions only appeared later. Interestingly, these petitions were dated 15 February 2010, one week after the events that transpired between the CJN and the PCA on 8 February 2010. They did not allege that the judgment47 had been leaked. In his reply to the letter written to him by the CJN attaching petitions allegedly received in respect of the Sokoto state governorship election appeal, the PCA gave the following insight into the matter:

I am unable to see the urgency in the matter to warrant your lordship’s intervening in a court proceeding which interference respectfully is contemptuous of the Court sitting in Sokoto. Yours appears to be a deliberate attempt to frustrate the hearing. It is the practice of the National Judicial Council on whose behalf your lordship is purportedly acting, not to interfere in matters that are subjudice … I rejected your Lordship’s entreaties. Thereafter, petitions emerged in Your Lordship’s Chambers on the 15th of February, 2010.48

Soon after, the PCA found himself suddenly nominated for appointment to the Supreme Court. He declined the nomination describing it as an ‘unholy move to push me out of the Court of Appeal’. He preferred to remain President of the Court of Appeal until retirement.49 These events culminated in Justice Salami’s suspension from office by the NJC. Some time elapsed and Justice Salami was not recalled until he attained the mandatory retirement age in spite of his being cleared of all wrongdoing by a differently headed NJC. It has been alleged that the reason for the failure to recall him was the fact the NJC did not receive the President’s assent as chief executive to recall the PCA. It would seem that there was a misconstruction of the effect of section 238(4) of the constitution which states:

If the office of President of the Court of Appeal is vacant, or if the person holding the office is for any reason unable to perform the functions of that office, then until a person has been appointed to and has assumed the functions of that office, or until the person holding the office has resumed those functions, the President shall appoint the most senior justice of the Court of Appeal to perform those functions.

The provision does not suggest that the President must assent to the recall of a suspended PCA who has been cleared of any wrongdoing. There is no constitutional basis for a different interpretation. It is also trite that the President was similarly not to be consulted before the PCA could be suspended from office by the NJC acting under its constitutional power to ‘exercise disciplinary control over’ judicial officers.50 Indeed, (p. 250) as section 158(1) of the constitution provides: ‘in exercising its power to exercise disciplinary control over persons, the National Judicial Council shall not be subject to the direction or control of any other authority or person’. Accordingly, the President only needed to be informed of the action so that he could appoint an acting PCA in the exercise of his constitutional power to appoint another justice of the court to perform the functions of that office in the interim.

Although the foregoing account raises several issues, it is those that have a bearing on executive–judicial relations and the broader notion of limitation of powers that are relevant to this discussion. They underscore the need for balance in the composition of the NJC. This can ensure that no one individual or organ of government wields excessive power over such a powerful institution. Membership by the Attorneys-General, key members of the executive in such related bodies of the NJC as the Federal and State Judicial Service Commissions (JSC) respectively,51 not only creates room for some diversity, it also enables them to act as bridges between both arms of government. This is not enough however because as presently constituted, the CJN can in fact ‘pack’ the NJC—an inference that can be drawn from Sagay’s criticism of ‘the complete domination of the Council by the Chief Justice of Nigeria’.52 The extent, if any, to which that may have played out in the Salami affair is yet to be determined.

The Salami affair gives an insight into the possibility of collusion between the executive and judiciary to achieve goals that are not in line with the spirit and letter of the constitution. Whether this occurred in that case is yet to be firmly established. The circumstances surrounding the suspension of the PCA and the failure to recall him in spite of having been cleared of wrongdoing continue to evoke controversy however. The outcome of the case filed by Justice Salami should throw more light on the underlying currents. It should reveal and explain the role played by both branches of government in the affair. Will the Salami case yet become a metaphor for judicial–executive collusion? That remains to be seen.

Ironically, in his criticism of the procedure for removal of a judge under the 1963 constitution, Nwabueze emphasized the need for the input of ‘a tribunal composed of a chairman and at least two other members being past or present Superior Court judges’53 to ensure fairness. Fast forward to three decades after this suggestion was made and extend the suggestion to all matters of discipline of judges. The existence of a body (the NJC), similar in composition to what he suggested, albeit larger, was not able to help an embattled PCA. The statement by the same commentator to the effect that an allegation of wrongdoing against a judge may be no more than an expression of political prejudice in disguise (mentioned earlier),54 taken together with the suggestion that in anticipation of the 2011 general elections, there was keen political interest in the headship of the Court of Appeal makes such a conclusion plausible.

(p. 251) 4.2.2  The NJC and the appointment of a State Chief Judge

The role of the NJC in the appointment of State Chief Judges has raised a lot of controversy as demonstrated in Rivers State where the NJC was in a tussle with the state governor.55 The controversy arose from the choice of a successor to the retiring Chief Judge of the state in 2014. The constitution empowers the NJC to ‘recommend to the Governors from among the list of persons submitted to it by the State Judicial Service Commissions persons for appointment to the offices of the Chief Judges of the States’.56 Section 271(1) of the constitution provides that:

The appointment of a person to the office of Chief Judge of a State shall be made by the Governor of the State on the recommendation of the National Judicial Council subject to confirmation of the appointment by the House of Assembly of the State.

The governor of Rivers state did not appoint the candidate recommended by the NJC who was the most senior judge in the State High Court, from the two names sent to the NJC by the State JSC. Instead, he sent the name of Justice Agumagu, President of the State’s Customary Court of Appeal to the House of Assembly for confirmation. On being confirmed by the state legislature, Justice Agumagu was sworn into office. The newly appointed Chief Judge was subsequently queried by the NJC and asked to explain in writing why he should not be removed from office as a judicial officer for what it described as ‘failure to abide by your Oath of Office to uphold the Constitution and Laws of the Federal Republic of Nigeria’. In addition, he was suspended from judicial office. This action of the NJC was predicated on the fact that it did not recommend Justice Agumagu to the governor for appointment as provided in section 271(1) of the constitution. In the ensuing crisis, the Rivers state judiciary and its courts did not function for several months.57

The governor had earlier gone to court in Governor of Rivers State and another v National Judicial Council and another,58 seeking a resolution of certain questions concerning the role of a state governor and the NJC in the appointment of the Chief Judge of a state. Amongst them was whether the NJC was constitutionally bound to recommend only the most senior judge in the state judiciary to the governor for appointment as Chief Judge. Justice Lambo Akanbi sitting in the Federal High Court in Port Harcourt, answered this in the negative. The Court also pronounced on whether there are any other factors to be considered by the NJC in making a recommendation to a state governor. Under the constitution, the qualification for appointment as Chief Judge of a state is a minimum post-qualification experience of ten years as a legal practitioner.59 There is no restriction as to where the appointee can be chosen from. This was confirmed by the Federal High Court in that case. It was lawful for the governor to appoint a Chief Judge without considering extraneous factors such as (p. 252) whether his appointee came from the State Customary Court of Appeal rather than the High Court. The governor was not bound to accept the nominee of the NJC. The constitution provides that the governor appoints ‘on the recommendation of the NJC’. To recommend ‘mainly suggests … trying to be helpful’,60 it does not imply that the appointing authority, in this case, the governor, is bound to accept the recommendation. Having recommended, the NJC has no further role in the matter. The governor cannot appoint without the recommendation of the NJC either. This is where procedurally, the governor was wrong. He could have continued to reject the recommendations until the NJC came up with a name acceptable to him. That could also have led to a stalemate that would have required better management of judicial–executive relations to resolve. A practical solution is to consider placing a limit on the number of times a state governor may reject the nominees of the NJC for Chief Judge. The NJC should also be made to send more than one name at any time for a governor to choose from.

Some lessons can be drawn from the procedure for appointment of other judges (other than the Chief Justice of South Africa) to South Africa’s Constitutional Court. There the Judicial Service Commission (JSC) recommends to the president a number of names equivalent to the vacancies to be filled, plus three additional names. The president then appoints after consulting the Chief Justice and leaders of parties represented in the National Assembly. The president may choose any of the names recommended and must advise the JSC, with reasons if any of the nominees are unacceptable. The JSC then has to send more names and the president is compelled to make the appointments from this second list.61 This procedure, while allowing for the required checks and balances, ensures that a stalemate is not reached.

The failure of an earlier attempt62 to make the appointment of Supreme Court Justices the responsibility of the president acting only on the advice of the NJC without confirmation by Senate underscores the salutary element in the Rivers state controversy which upholds the concept of checks and balances in the appointment process.63 The question also arises as to whether the facts support the argument for more political involvement in the process of appointment and removal of judicial officers. Justice Agumagu has gone to court to challenge the different actions of the NJC as they pertain to him. While it is true that the aggrieved parties in the two instances discussed have a right to judicial determination of their grievances, the ultimate utility of that right may be doubtful. First, it is significant that a few years down the line, the Salami case is yet to be concluded. Second, one must question how comfortable a serving judge will be in deciding against the NJC if justice so demands? The words of Lambo Akanbi J in the Governor of Rivers State case64 sum up the issues well. He opined that he was holding that the reasons given by the NJC for recommending one judge over another as Chief Judge were wrong, ‘with great trepidation (p. 253) bearing in mind that the Defendant, (i.e. the NJC) are [sic] my employer’.65 Need more be said?

In the light of both the Salami affair and the stalemate that occurred in the Rivers state judiciary, perhaps the time has come to consider the establishment of a higher body for the judiciary to which the NJC will be accountable, particularly in the discipline of judges. This institution should comprise in the main, retired judges of superior courts known to be of unquestionable integrity. Along with the recommended changes to the composition of the NJC and a whittling down of the overwhelming power of the Chief Justice in its composition, such a move may indeed make the much needed difference.

4.2.3  Funding and other support for the judiciary

Section 81(3) of the constitution provides that:

Any amount standing to the credit of the judiciary in the Consolidated Revenue Fund of the Federation shall be paid directly to the National Judicial Council for disbursement to the heads of the courts established for the Federation and the States under Section 6 of the Constitution.66

The NJC is constitutionally empowered to ‘collect, control and disburse all monies, capital and recurrent; for the judiciary’.67 Were the judiciary simply to prepare and defend its budget estimates before the legislature, the budgetary process for the judiciary should, going by the provisions of the constitution, be conducive to its independence. At federal level, what actually happens in practice is that a mid-term budgeting exercise is embarked upon by the executive at which all ministries, departments and agencies (MDAs) of the executive branch as well as the judiciary submit their budget proposals for the coming year to the Budget Office of the federation (an office under the executive). A ceiling is then placed by the executive on the amount that may ultimately be proposed by each MDA and the judiciary. It is instructive that the budget of the legislature is not subjected to this process. In practice, it is the estimates that are produced from this exercise that are in fact defended by the judiciary before the legislature. There is nothing in the constitution that authorizes the executive to take these steps in relation to the judiciary’s budget estimates! This practice of placing a ceiling on the estimates of the judiciary or even reviewing its estimates is a serious interference by the executive with judicial independence.

At the level of the states, the situation is worse. Apart from the salaries of judges which are paid directly to the judiciary from the Consolidated Revenue Fund, in practice, other monies (capital and recurrent) as well as salaries of other staff budgeted for the judiciary are held by the executive and released to the judiciary at the pleasure (p. 254) of the state governor. Contrary to the tenor of the constitution, the state judiciary is placed in the awkward position of having to apply to the executive for the release of budgeted funds. Section 121(3) of the constitution is clear. It provides that ‘any amount standing to the credit of the judiciary in the Consolidated Revenue Fund of the State shall be paid directly to the heads of the courts concerned’. Sections 81 and 84 of the constitution (to which further reference will be made later) are also clear. It is stating the obvious to say that the current practice seriously undermines the independence of the judiciary.68

The successful challenge of the whole process of budgeting and appropriations for the judiciary in the case of Olisa Agbakoba v The Attorney General of the Federation and two others,69 laid bare the different ramifications of the problem. It demonstrated the implications of some vital but often overlooked issues that are fundamental to the independence of the judiciary with regard to its funding and its relations with the executive at both federal and state levels. The plaintiff sought the following, amongst other, reliefs: (a) a declaration that by sections 81(2) and 84(1), (2), (3), (4), and (7) of the constitution, the remuneration, salaries, allowances, and recurrent expenditure of the judiciary, being constitutionally charged on the Consolidated Revenue Fund of the Federation, do not form part of the estimates to be included by the president in the appropriation bill as proposed; (b) a declaration that the NJC ought not to send its annual budget to the Budget Office of the executive branch and that by virtue of sections 81(1), (2), (3)(c) and 84(2), (3), (4), and (7) of the constitution, its estimates should go directly to the National Assembly for appropriation; (c) a declaration that funds standing to the credit of the judiciary in the Consolidated Revenue Fund ought not to be released to the judiciary in warrants or through any agency of the executive but should be paid directly in whole to the NJC for disbursement.

Reiterating the supremacy of the constitution and its principle of separation of powers, the Court held that the current practice of the judiciary submitting its budget estimates to the executive arm for inclusion in the appropriation bill to be submitted to the National Assembly, undermined the independence of the judiciary and was unconstitutional. The Court further queried ‘if the National Assembly does not submit its Budget Estimates to the executive arm, why should the judiciary be made to do so?’ All the reliefs sought by the plaintiff were consequently granted.

Some of these issues were also successfully canvassed before Justice Adeniyi Ademola in Judicial Staff Union of Nigeria v National Judicial Council and seventy three others70 where the emphasis was on the states. The court declared unconstitutional, the failure to pay amounts standing to the credit of the states’ judiciaries in the Federation (p. 255) Account and the Consolidated Revenue Fund directly to the Heads of Courts in the states. It also declared unconstitutional, the piecemeal payments and allocation of funds to the states’ judiciary through the states’ Ministries of Finance. The Court went further to make (a) orders compelling the defendants to comply with sections 81(3) and 121(3) of the constitution; and (b) further Ancilliary Orders to serve the judgment on the Accountants-General of the Federation and the states as well as the presiding officers of the legislature (federal and state) to compel their compliance therewith.

There are practical difficulties in the way of giving effect to the declaration that the funds standing to the credit of the judiciary should be wholly paid directly to the NJC for disbursement. The revenue that funds the Consolidated Revenue Fund is not received at once. Funding depends on different variables including sometimes unpredictable accruals from crude oil sales and other sources of government revenue. That notwithstanding, fidelity to the principle of proper funding of the judiciary cannot be overemphasized. As has been so well articulated in the Commonwealth (Latimer House) Principles:

Such funds, once voted for the judiciary by the legislature, should be protected from alienation or misuse. The allocation or withholding of funding should not be used as a means of exercising improper control over the judiciary.71

The other aspect of funding which goes to the heart of this discussion relates to judges’ salaries. In most countries and much of the literature, emphasis is placed on having a constitutional guarantee that the salaries are charged to the Consolidated Revenue Fund.72 As the salaries of serving judges cannot therefore be withheld or reduced, judicial independence is said to be guaranteed. The adequacy of judges’ remuneration which is vital for their independence is not similarly emphasized. The NJC is empowered to: ‘advise the President and Governors on any matter pertaining to the judiciary as may be referred to the Council by the President or Governors’.73 It is similarly empowered to ‘deal with all other matters relating to broad issues of policy and administration’.74 Under these provisions, the judiciary may be able to make an input into the determination of its salaries and related issues. Would this be enough to guarantee its independence? It is significant that the judiciary’s input in this may have to be at the initiative of the executive (the president or governor as the case may be).75 It is also important to note that the Revenue Mobilization Allocation and Fiscal Commission, an executive body established under the constitution, determines the levels and ranges of these salaries.76 While these facts may have an effect on the independence of the judiciary under a system of separation of powers, creating a special body to determine judicial salaries may not necessarily make a difference either, as the salaries still have to be fixed within the context of the whole economy. It is the independence of the body that undertakes the function that is vital. In this regard, the (p. 256) security of tenure of members of the Revenue Mobilization and Fiscal Commission guaranteed by the constitution is designed to make them independent.77

With regard to the provision of adequate physical infrastructure and other facilities like books, vehicles, etc which is directly linked to funding, it is salutary that at the federal level, the judiciary itself undertakes the provision of the facilities once the funds have been released. The point already made about the impropriety of interference by the executive in the funding of the judiciary is fully applicable here. This is where the NJC and JSC are particularly important and do make a difference. It was not always so.78 Although the JSC existed at both federal and state levels under the 1979 constitution, their powers did not include the establishment and management of a bureaucracy for the judiciary except for the Chief Registrars and their Deputies in the Supreme Court, the Court of Appeal and the Federal High Court. Under the 1999 constitution, the powers of the JSC at both federal and state levels extend to ‘all other members of staff of the judicial service of the federation (State) not otherwise specified in this Constitution and of the Federal Judicial Service Commission’.79

Other key issues in judicial–executive relations are reflected in the support system available for the judiciary. Amongst them are those pertaining to trial matters such as the timely production of accused persons in court as well as the protection, and remuneration of witnesses. Others include the provision of staff including secretaries and registrars, the execution of judgments and court orders, as well as the provision of protection for judges at all times. These issues largely point to significant reliance on bureaucracy (the police, the prisons service, etc) and show that the effectiveness of the judiciary often rests on the executive branch. These fundamental support services can be hampered by the various challenges faced by some of the institutions and departments in the executive branch. For example, complaints about the inadequacy of facilities and logistics (such as vehicles, manpower, and housing) for the performance of its functions are recurring themes in the annual reports of the Nigeria police force.80

5.  Judicial Response to Executive Action

A random sampling of some landmark cases decided under different dispensations will shed some light on the subject and give a foundation for a consideration of key issues in judicial–executive relations. In the old case of Awolowo v Federal Minister of Internal Affairs,81 the plaintiff challenged an alleged infringement of his fundamental right to counsel of his choice guaranteed by the Independence Constitution of 1960. The first plaintiff was leader of the opposition in parliament. The first defendant was the Minister of Internal Affairs who was in charge of immigration. The plaintiff was (p. 257) charged along with several others with the offence of treasonable felony and conspiracy. They retained the services of one EFN Gratiaen QC, a British subject who was enrolled to practise law in Nigeria. Although his papers were in order, on arrival at Lagos airport for the purpose of defending his clients, Mr Gratiaen was refused entry into Nigeria by the immigration officer who was acting on the instructions of the first defendant. Consequently, the first plaintiff had to defend himself at the trial while the other plaintiffs settled for counsel that was not their choice. The plaintiffs then brought this action claiming that the refusal of entry to Mr Gratiaen was a breach of their fundamental right to counsel of their choice and ultra vires. They further claimed that it was instigated by malice.

The defendant contended that the Immigration Act vested authority in the first defendant at his discretion to determine who (being a non-Nigerian), could be allowed entry into Nigeria and that this was not inconsistent with the guaranteed right to counsel. The particular provision of the Immigration Act in contention was section 13 which stated thus: ‘Notwithstanding anything in this ordinance contained, the Governor-General may, in his absolute discretion, prohibit the entry into Nigeria of any person, not being a native of Nigeria.’ Upholding the arguments of the defendants and validating their action, the Court held that the denial of entry to Mr Gratiaen was lawful. According to the Court, the constitutional right to counsel of one’s choice

is subject to certain limitations. It is clear that any legal representative chosen must not be under a disability of any kind. He must be someone who, if outside Nigeria, can enter the country as of right; and he must be someone enrolled to practice in Nigeria.82

The Court opined that malice was not the only plausible conclusion that could be drawn from the defendant’s action and that in any case, the motive for acting as he did was irrelevant as the power he exercised was absolute. Should the Court have delved more into the possibility of malafides or improper motives on the part of the executive, particularly as this was the era in which foreign counsel from the Commonwealth were known to have been given a right to appear in Nigerian courts? Should it have considered whether indeed the executive’s interpretation of its statutory power was rational or reasonable in the circumstances? It could not have been the intention of the law-maker to place obstacles in the way of the citizen’s enjoyment of constitutionally guaranteed rights. Could the Court not in this light have scrutinized the Immigration Officer’s exercise of his discretion however sweeping the words of the Immigration Act? Within the context of the political nuances of the case, perhaps the Court could have done more, particularly as the power exercised by the executive in the circumstances could be described as quasi-judicial.83 A distinction can be drawn between the executive’s exercise of quasi-judicial powers on one hand and discretionary powers on the other. Where, as in the Awolowo case the power though discretionary, was also (p. 258) quasi-judicial, the Court could have found against the defendant if the discretion was not exercised reasonably.

In Federal Minister of Internal Affairs and Others v Shugaba Darman,84 the deportation of a Nigerian citizen (then majority leader of the Borno State House of Assembly) to Chad by the federal executive for what appeared to be purely political reasons,85 was severely criticized and nullified by the courts as being in violation of the fundamental rights guaranteed by the 1979 constitution.

In the case of Archbishop Okojie and others v Attorney General of Lagos State,86 the attempt by the government of Lagos state to abolish private schools as a matter of deliberate executive policy was struck down by the courts as being in breach of the fundamental right to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference under the 1979 constitution. The right to own, establish, and operate any medium for the dissemination of information, ideas, and opinions in section 36(2) of that constitution was held by the Court to be capable of accommodating such vehicles as schools or other educational institutions as it does the mass media, for the dissemination of information, opinions, and ideas.

The case of Attorney General of Lagos State v Attorney General of the Federation87 arose following a circular letter written by the president to the Minister of Finance directing, amongst other things, that no allocation of funds from the Federation Account should be released to the local government councils of some states including Lagos state. The president’s directive was sequel to the creation by the affected states of new local government areas in addition to those named in the constitution. The president’s circular acknowledged the right of state Houses of Assembly to create local government areas under the constitution. It also pointed out that for the process to be complete however, the National Assembly still had to make consequential provisions with respect to the names and headquarters of such local government areas by means of an Act which it had not done. Lagos state challenged as unconstitutional, the suspension or withholding by the president of the statutory allocations due and payable to local government councils from the Federation Account under section 162(5) of the constitution.

The Supreme Court held that Lagos state had the power to create new local government areas over the existing twenty as it had done under sections 7(1) and 8(3) of the constitution. It also held that the new local government areas so created would not become functional until the National Assembly passed an Act to amend88 (p. 259) section 3(6) and Part 1 of the First Schedule to the constitution. On the withholding by the president of funds meant for the states named in his circular, the Supreme Court observed per Uwais CJN thus:

In addition, the ‘executive powers of the Federation,’ [are] vested in the President by section 5 subsection (1) (a) of the Constitution and such powers extend to the execution and maintenance of the Constitution. This is certainly so, but the question is does such power extend to the President committing an illegality? Certainly the Constitution does not and could not have intended that.89

Although the Supreme Court impugned the action of the executive, it stopped short of holding that the real power to create additional local government areas was vested in the states, the role of the National Assembly in the exercise being purely consequential. The Court could have compelled the National Assembly to undertake this function having established that Lagos state had completed its own part of the exercise.

In defiance of the Supreme Court judgment and in breach of the rule of law, the president continued to withhold the funds due to even the twenty local government areas already existing under the constitution before the controversial creation of the additional thirty-seven that led to the case.90 This was not an isolated incident. The executive also used the administration to make the enforcement of some other court judgments difficult or impossible. Following the nullification of the purported removal of the governors of Oyo and Anambra states between 2003 and 2007 for example, the newspapers were awash with stories that the governors’ security details were not restored to them by the federal executive and its agencies like the police.

5.1  Judicial response to the executive power of adaptive legislation

Section 315(2) of the constitution provides that:

The appropriate authority may at any time by order make such modifications in the text of any existing law as the appropriate authority considers necessary or expedient to bring that law into conformity with the provisions of the Constitution.

The appropriate authority is defined to include the president and the state governor depending on whether the law is a federal or state law.91 The executive is only empowered to make merely textual changes to such law which do not affect the substance of the law or make law as the power of law-making remains that of the legislature under the system of separation of powers. In exercise of the power of adaptive legislation, the president made the Allocation of Revenue Modification Order 2002. The Order altered, retrospectively, the extant revenue-sharing formula among the governments in the Federation, set out in the Allocation of Revenue (p. 260) (Federation Account, etc) Act.92 By this modification order, the share of the federal government was increased from 48.5 to 56 percent to take effect from 29 May 1999.

The thirty-six states of the Federation challenged the Order in the Supreme Court in the case of Attorney General of Abia State and others v Attorney General of the Federation.93 In a unanimous judgment that did not recognize the limited scope of the power of adaptive legislation, the Supreme Court held that the Order was valid. The fact that the modifications went to the substance of the existing law and eroded the law- making power of the legislature set out in section 4 of the constitution94 did not seem to count for anything.95

5.1.2  Judicial review of political questions?

A major check on the executive is the power of removal by the legislature consequent upon the sustenance of an impeachment for gross misconduct in the performance of the functions of his office. Sections 143 and 188 of the constitution provide for the removal of the president, vice-president, and the governor and deputy-governor respectively, from office by the legislature for gross misconduct. Highlights of the procedure include the empanelling of seven persons by the CJN to investigate the allegation at the request of the Senate President.96 Sections 143(10) and 188(10) of the constitution respectively, bar the courts from questioning any matter relating to the impeachment of the chief executive and his deputy. The governor of Adamawa state was removed from office in July 2014 following his impeachment. The legislature in Nassarawa state also commenced the process of impeaching the state governor the same year. In an interesting development, the first of its kind in Nigeria, the investigative panel set up by the State Chief Judge to look into the allegations of misconduct levelled against the governor of Nassarawa state dismissed the allegations.

There have been suggestions that there ought to be room for the courts to pronounce on the conformity of the procedure employed in impeachment proceedings with the constitution. Where the procedural hurdle has been cleared however, sustaining the allegation of wrongdoing and the circumstances that justify removal of a governor or president remain political issues to be decided upon by the legislators. The constitution leaves it to their ‘opinion’. The approach of the judiciary to the determination of (p. 261) political questions under the constitution is demonstrated in the cases that have arisen from the impeachment/removal of state governors from office. The fundamental question is whether the judiciary can or will interfere.

An allusion may be made to the attempt by the governor of Nigeria’s Western Region under the parliamentary system in the immediate post-independence years to remove the premier from office on the ground that he no longer commanded the support of the majority in the legislature in the celebrated case of Akintola v Aderemi.97Although it was decided under a different constitution (the Constitution of the Western Region 1960)98 and a different system of government, the case provides some insights into the determination of political questions. It turned on whether the governor could exercise the power of removal without a vote having been taken on the floor of the House showing that the premier no longer commanded the support of the majority in the legislature. The Supreme Court held that he could not. In his dissenting opinion, Brett FJ said that he could, as the constitution did ‘not prescribe as it might have done, the matters to which the Governor is to have regard in deciding whether the condition is fulfilled’. The matter was clearly left to the governor’s ‘deliberate judgement’. The reaction of the government of the day to the Privy Council decision which upheld the dissenting opinion of Brett FJ was to pass a retrospective law, the Western Nigeria Constitution (Amendment) Law, 1963 the effect of which was to nullify the Privy Council decision.99 The executive and legislature (fused under the parliamentary system) demonstrated that they could go to any length to undermine the judiciary.

The constitutional provisions for the removal of the chief executive give rather wide powers to the legislature. It is a fair argument100 to say that by removing it from the purview of the courts, the constitution makes it a matter for the political branches to deal with. There is, of course, the corresponding question as to whether the judiciary should, in such circumstances, foreclose all inquiry into the actions of a coordinate arm. In matters of political questions as has been discussed by Nwauche,101 the Supreme Court in particular has, in recent times, devised ploys to enable it to pronounce on issues that could otherwise be termed political questions. Amongst these are the Court’s insistence on its power to determine whether there has been compliance by the political branches with a procedure laid down by the constitution for (p. 262) the exercise of a particular power102 considered political, thus paving the way for judicial review.

5.1.3  Sensitive constitutional matters: a policy of avoidance?

Self-imposed restraint demonstrated by the reluctance of the judiciary to pronounce on sensitive constitutional matters involving the executive has sometimes resulted in either striking out or dismissing cases, or failing to make consequential orders. This has had the effect of stifling the growth of the law. The withdrawal of the appeal filed in the Supreme Court against the refusal of the Court of Appeal to strike down the Electoral Act 2002 in National Assembly v President discussed earlier, was one such example. As has already been observed, that action was actually initiated by INEC and the executive branch acquiesced in it. Had the appeal gone on and succeeded, the Electoral Act 2002 would have been struck down and along with it, the elections that had been conducted under it including those into executive offices.

In like manner, the action filed by Plateau state challenging the constitutionality of the suspension of the governor and House of Assembly of Plateau state and the declaration of a state of emergency in the state in 2006, was struck out by the Supreme Court. This was on the ground that an action in the name of Plateau state could only be brought, at that time, on the authorization of the person appointed administrator for Plateau state during the emergency. The court missed the opportunity to pronounce on the real issues at stake, namely the legality of the state of emergency, the suspension of the democratically elected organs of government, and the appointment of the administrator himself.

There is a sense in which these issues point to some element of a democratic deficit on the part of the judiciary regarding accountability. Judges in Nigeria are not elected and unlike persons elected to legislative and executive offices, do not have to undergo periodic validation by the populace. Therefore they can afford to fail or refuse to act in a cause or matter in which the public is interested. As a result, there is the ever present danger that the executive branch can take advantage of this reluctance on the part of the judiciary to pronounce on sensitive constitutional issues to commit infractions of the constitution at will.

6.  Clear Patterns or Confusing Signals?

The foregoing discussion of judicial–executive relations in Nigeria’s constitutional development has shown that the character of the relationship has not only been determined by the kind of government in force but has also been influenced by the personality of the principal actors in government. The principle of separation of powers as well as the formal separation of both the institutions and personnel that operate the three branches of government under the presidential system premised on a (p. 263) supreme constitution show that the ensuing power of judicial review can create tension between the judiciary and the executive. The judiciary can assume the responsibility of managing such tension however because of its non-political character and its role as guardian of the constitution.

The chapter has established the fact that in its response to the actions of the executive, Nigeria’s judiciary has played both a scrutinizing and a validating role. There has also been some tendency to avoid sensitive constitutional issues altogether or to stop short of making the decisive pronouncements that can make the difference as in the Lagos state local government areas case. While the distinction between the discretionary and non-discretionary powers of the executive has been reflected in the response of the judiciary to different situations, it has been suggested that the judiciary should be more willing to review the exercise of even the so-called discretionary powers in order to ensure their conformity with the spirit and underlying purpose of the constitution. A clear philosophy underpinning the pronouncements of the judiciary is however yet to be clearly identified.

Executive resistance to judicial pronouncements in Nigeria’s constitutional history has not been limited to any particular dispensation. Under the parliamentary system in the first Republic, it was easy for a law to be passed to render a judgment ineffective as was done in the aftermath of Akintola v Aderemi. The military regime did the same to counter the judgment in the Lakanmi case. Under the 1999 constitution, the executive has, on occasion shown a tendency to be more brazen by simply flouting court judgments.

The chapter has discussed some of the practical effects of the constitutional provisions relating to the NJC and their inherent weaknesses while making suggestions for improvement. The discussion has shown what the ramifications of judicial–executive relations could be in this context. A number of questions then arise. Do the facts and issues the discussion raises reflect the dominant political culture in the state? The facts in the Salami affair are indicative of flaws in extant constitutional arrangements. That incident being novel, it cannot be regarded as a pattern. It does however send out alarming signals. In the examples discussed, the two branches of government are depicted as antagonists in some while leaving room for the opposite view in others. Should alignment between the two branches always give room for suspicion? There could be something salutary about the judiciary and the executive being on the same side.

The thorny issue of funding the judiciary and the current practices associated with it provide further insights into the disturbing trends and issues that still need to be addressed in promoting the independence of the judiciary from executive interference. In all, the ramifications of the relationship between these two branches illustrate the dynamic nature of governance and lend credence to the view that ultimately, today’s solutions may be premonitory of tomorrow’s problems.


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1  See, for example, Benjamin Obi Nwabueze, A Constitutional History of Nigeria (Longman Inc in association with C Hurst and Co 1982); Taslim Olawale Elias, Nigeria: The Development of its Laws & Constitution (Stevens & Sons 1967).

2  The Clifford Constitution of 1922; the Richards Constitution of 1946; the Macpherson Constitution of 1951; the Federal Constitution of 1954. Also relevant here are the series of Constitutional Conferences (1957, 1958) that preceded independence in 1960.

3  As in 1960, in addition to the federal one, the existing three regions, Northern, Eastern, and Western, each had a constitution enacted by the regional legislatures with the approval of a two-thirds majority of both Houses of the federal parliament under the 1963 constitution. The constitution of the fourth region, the Midwest (created in 1963), was passed by the federal parliament.

4  Constitution of the Federation 1963, s 90.

5  Nwabueze (n 1) 91.

6  Section 69.

7  Under the constitution of the Federal Republic of Nigeria, 1979.

8  See Benjamin Obi Nwabueze, The Presidential Constitution of Nigeria (C Hurst & Company in association with Nwamife Publishers Ltd 1982) 30‒1.

9  Per Justice Jackson in Youngstown Sheet and Tube Co v Sawyer (the Steel Seizure Case) 343 US 579, 72 S Ct 863, 96 LEd 1153 (1952) 234 US 597, taken from William Lockhart, Yale Kamisar and Jesse Choper, Constitutional Law—Cases—Comments (5th edn, West Publishing Co 1980) 198.

10  Constitution, s 148(2).

11  See Musa v Speaker, Kaduna State House of Assembly & Anor (1982) 3 NCLR 450; Musa v Kaduna State House of Assembly (1982) 3 NCLR 463; Governor Kaduna State v Kaduns State House of Assembly (1981) 2 NCLR 444; Musa v Hamza & others (1982) 3 NCLR 439.

12  Sub-section 5(2)(b).

13  There are questions as to whether executive power admits of ‘inherent’ and ‘residual’ powers. These raise further arguments about what can be considered an executive power properly so called and what may be termed the means that may be employed in carrying it into effect. A consideration of these issues is outside the scope of this chapter. See however in relation to the United States where these issues have been seriously canvassed, Myers v United States, 272 US 52, 47 SCt 21, 71 LEd 160 (1926); Humphrey’s Executor v United States, 295 US 602, 55 S Ct 869, 79 LEd 1611 (1935). See also the detailed discussion of these cases and the issues in Lockhart, Kamisar, and Choper (n 9) ch 4, s 4. See also Benjamin Obi Nwabueze, Presidentialism in Commonwealth Africa (C Hurst & Company in association with Nwamife Publishers 1977) 1‒15.

14  Section 148 of the 1999 constitution empowers the president along with the vice-president and ministers who together form the Cabinet, to determine the general direction of domestic and foreign policy. There was no specific grant of power in respect of policy to the executive in the 1963 constitution. The fusion of the executive and legislative branches under that constitution left no room for such a specific grant of power.

15  See, for example, Sharp v Wakefield [1891] AC 173. The cases of Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997; Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 104; Wheeler v Leicester City Council [1985] 1AC 1054 are also instructive.

16  [1961] NRNLR 32. See also The Federal Board of Inland Revenue v Azigbo Bros Ltd [1963] NNLR 121.

17  Such as where they affect the fundamental or property rights of the individual.

18  Benjamin Obi Nwabueze, Ideas and Facts in Constitution Making (The Moroundiya Lectures) (Spectrum Books Ltd 1993) 192.

19  Constitution, s 1(1).

20  1 Cranch 137, 2 LEd 60 1803.

21  1979 constitution, s 1(1) and (3).

22  (1981) 3 NCLR 1.

23  [2003] 41 WRN 94 (CA).

24  ibid 110.

25  Benjamin Obi Nwabueze, who was one of the counsel in the case, gives a critical analysis of the case and a perspective on the some of the underlying currents that influenced the ultimate withdrawal of the appeal from the Supreme Court in his book, The Judiciary As The Third Estate of The Realm (the Second Justice Kayode Eso Lecture) (Gold Press Limited 2007) 249‒64.

26  See Benjamin Obi Nwabueze, Constitutional Democracy in Africa (vol 3, Spectrum Books Ltd 2004) 33‒83.

27  Sections 4, 5, and 6 of the constitution vest these powers in the National Assembly and state Houses of Assembly (legislative); the president and governors (executive); the courts (judicial) respectively.

28  Some overlapping of functions is inevitable as the literature shows. For example, the prerogative of mercy vested in the president and state governors is considered by some to be an incursion into the judiciary’s sphere of authority. It can however be argued that this power which he exercises as head of state, lies in the president as an embodiment of the state.

29  [1971] 1 UILR 201.

30  Although this case arose under a military regime, it is discussed here to illustrate the view of the Supreme Court of the system of government under the civilian dispensation immediately preceding it.

31  Lakanmi & Kikelomo v Attorney-General (Western State) & others [1971] 1 UILR 201, 221.

32  ibid 222.

33  For a more detailed discussion of this issue, see Kayode Eso, ‘Is There a Nigerian Grundnorm?’ (The first Justice Idigbe Memorial Lecture, University of Benin, Benin, 31 January 1985); Ameze Guobadia, ‘Is the Grundnorm Elusive in Nigerian Jurisprudence?’ (1987) Obafemi Awolowo University Law Journal 60.

34  As the change was unacceptable to the judiciary, the judges could have resigned.

35  No 28 of 1970.

36  For a fuller discussion, see Ameze Guobadia, ‘The Relationship between the Executive, Legislature and the Judiciary in a Democracy: Nigeria’s Third Republic in View’ (1994) 1 Lawyer’s Bi-Annual 27.

37  Constitution, ss 271, 276, and 281.

38  Constitution, s 292; see also the 3rd schedule to the constitution, pt 1, para I, 21(b) and (d) for the power of the NJC to recommend to the president or governor, the removal of judicial officers. Under the 1963 constitution, the Chief Justice of Nigeria and other justices of the Supreme Court were appointed by the president on the advice of the prime minister (s 112(1)). The regional premiers’ advice was required in relation to the appointment of four of the justices. Under that constitution, the power to remove justices of the Supreme Court following an address by both Houses of Parliament was vested in the president (s 113(2)). Apart from physical or mental infirmity, reasons for such removal included ‘misbehaviour’. Commenting on this provision, Nwabueze makes the point that ‘an allegation of misbehaviour may be no more than an expression of political prejudice in disguise’. See Nwabueze (n 1) 114.

39  Constitution, 3rd sch, pt 1, para 21(b) and (d).

40  See the 5th schedule to the constitution where public officers are defined to include judicial.

41  Commonwealth Parliamentary Association, The Commonwealth (Latimer House) Principles on the Three Branches of Government (2009) <http://www.cmja.org/downloads/latimer house/commprinthreearm> accessed 1 July 2015. They were endorsed by the Commonwealth Heads of Government to serve as a guide to member nations on democratic governance, the accountability of the arms of government, their relations inter se and, in the present context, the independence of the judiciary.

42  ‘Ultimately’ in the sense that some other institution or interest group such as the Nigerian Bar Association (NBA) may recommend some members but the final choice rests with the CJN.

43  See the constitution, 3rd sch, pt 1, para I.

44  The law has been changed to make the Supreme Court the final court in governorship election petitions. See the constitution, s 233(2)(b) as amended.

45  In anticipation of potential disputes from the 2011 elections, the quest for soft landing in the Court of Appeal was not far-fetched.

46  Suit no FHC/ABJ/CS/723/11 (still pending in court).

47  Interestingly, the NBA also set up a committee to investigate the face-off between the CJN and PCA. The committee found as a fact that the petitions did not allege any leakage of the judgment and did not exist on 8 February 2010. The committee concluded that ‘there does not appear to be any fact and law upon which the CJN predicated his directive that the PCA disband the Sokoto Gubernatorial Appeal Panel either on the two petitions or any purported allegation of judgement leak’. The report of the NBA committee was also filed as part of the appendices in the suit.

48  This is an excerpt from a letter dated 22 February 2010 from Justice Salami (PCA) to Justice Katsina-Alu (CJN) filed as annex 7 in suit no FHC/ABJ/CS/723/11 (n 46).

49  It is certainly more attractive to be the Head of the Court of Appeal. At that level, it is more materially rewarding to head that federal court than to be just another member of the Supreme Court.

50  Constitution, 3rd sch, pt 1, para 21(b).

51  These bodies are chaired by the Chief Justice of Nigeria and the Chief Judges of the States respectively. The Attorney-General is not a member of the NJC.

52  IE Sagay, ‘The Judiciary in a Modern Democracy’ in Ignatius Ayua et al (eds), Nigeria: Issues in the 1999 Constitution (Nigerian Institute of Advanced Legal Studies 2000) 76‒112, 109. The CJN is chairman and also appoints almost all the other members.

53  Nwabueze (n 1) 114.

54  ibid 114.

55  It also demonstrates the anomaly in having the NJC as a federal body, play so fundamental a role in the affairs of a state judiciary.

56  Constitution, sch 1, pt 1, para 21(c).

57  The new governor sworn in on 28 May 2015 has since sworn in the nominee of the NJC as acting Chief Judge. The nomination is yet to be confirmed by the legislature.

58  Suit no FHC/PH/CS/421/2013 (unreported).

59  Constitution, s 271(3).

60  See Albert Sydney Hornby, Oxford Advanced Learner’s Dictionary of Current English (Oxford University Press 2010).

61  Constitution of the Republic of South Africa, 1996, s 174(4).

62  See the Report of the Constitutional Conference 1995, vol 1, Draft Constitution s 231.

63  With the effective participation of all three branches of government.

64  Governor Rivers State (n 58) unreported.

65  It is taking the argument too far to say that the NJC is the employer of judges. While the NJC may wield rather enormous powers over members of the judiciary, the real employers of judges are the state and federal judiciary as the case may be and ultimately, the state or federal government.

66  Specifically s 6(4).This covers all superior courts of record at federal and state level.

67  Constitution, 3rd sch, para 21(e).

68  For a discussion of these and related issues from the perspective of a judge, see Nasir Ajanah (Chief Judge of Kogi State of Nigeria), ‘Maintaining a Strong Judiciary’ (8th Justice J. M Adesiyun Biennial Memorial Lecture, Lokoja, Kogi State, May 2014).

69  Suit no FH/LABJ/CS/63/2013 In the Matter of Interpretation of Sections 81(1) (2) and 84(1), (2), (3) of the Constitution of the Federal Republic of Nigeria 1999 decided by AR Mohammed J on 26 May 2014. The judgment is as yet unreported.

70  Suit no FHC/ABJ/CS/667/13. The other defendants were the Attorneys-General and governors of all the thirty-six states. The judgment was delivered on 13 January 2014.

71  See the Commonwealth Parliamentary Association (n 41). More will be said about these principles later.

72  See, for example, Constitution, s 84(2).

73  Constitution, 3rd sch, para 21(f).

74  Constitution, para 21(i).

75  Constitution, sch 3, pt 1, para 21(f).

76  Constitution, s 84(1).

77  They can only be removed from office by the president acting on an address supported by a two-thirds majority of the Senate on grounds of infirmity or misconduct.

78  Before the establishment of the NJC under the constitution, the judiciary had no such control over its funds.

79  Constitution, 3rd sch, pts 1 and 11.

80  See the Police Service Commission, ‘Annual Reports of the Nigeria Police Force’ (‘F’ Department of the Nigeria Police) 2008, 2010, 2012, and 2013.

81  [1962] LLR 177.

82  ibid 185.

83  The English authorities discuss these issues extensively. See, for example, R v Electricity Commissioners ex p London Electricity Joint Committee Co [1924] 1 KB 171; Wheeler v Leicester City Council [1985] 1 AC 1054; Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 104.

84  [1982] 3 NCLR 915.

85  The federal government claimed that Shugaba (who was not a member of the ruling political party) was a Chad national as his father migrated from Chad. It was found that Shugaba was born in Borno State of Nigeria, of a mother who was Kanuri (a Nigerian ethnic group) and had lived there all his life.

86  [1981] 1 NCLR 218; [1981] 2 NCLR 337 (FCA).

87  (2004) 18 NWLR (Part 904) 1.

88  The use of the term ‘amend’ to describe the consequential action of the National Assembly, ie, passing an Act to reflect the names and headquarters of the new Local Government areas pursuant to a change duly effected by the state, has been criticized as incorrect as this provision does not envisage an amendment to the constitution as such. That is taken care of by s 9. According to Nwabueze, ‘The power conferred by section 8(5) is limited to changing “the names and headquarters … of local government areas” consequent upon a change (ie an increase) in their number brought about by the creation of new local government areas by a law enacted by a State Government’. See Benjamin Obi Nwabueze, How President Obasanjo Subverted Nigeria’s Federal System (Gold Press in association with Givani Books (Export) Inc 2007) 40.

89  (2004) 18 NWLR (Part 904)1 [91].

90  President Yar’Adua who came into office in 2007 subsequently released the funds.

91  Section 315(4)(a)(i) and (ii).

92  CAP 16 Laws of the Federation.

93  (2003) 1 SC (Pt 11) 1.

94  Section 4 provides that ‘the legislative powers of the Federal Republic of Nigeria shall be vested in the National Assembly … ’

95  See Nwabueze (n 26) 219‒35 for a discussion of these issues. A slightly differently worded power of adaptive legislation under s 274(2) of the 1979 constitution was the subject of Attorney General of Ogun State v Attorney General of the Federation, Bendel and Borno States (1982) 1‒2 SC 13 in which the plaintiffs challenged the Constitution of the Federal Republic of Nigeria (Adaptation of Public Order Act) Order 1981 made by the president.

96  Constitution, s 145(5). See s 188(5) for similar provisions in respect of the states. The procedure for the removal of the members of the executive under the 1979 constitution did not include participation by the judiciary in any way. The Committee to investigate allegations of misconduct was appointed by the President of Senate or the Speaker of the State House of Assembly as the case may be. See the 1979 constitution, ss 132(7) and 170(5). In the second Republic (1979‒83), this power was successfully used against Governor Balarabe Musa of Kaduna state under the 1979 constitution.

97  (1962) WNLR 185. The case went on appeal to the Privy Council as Adegbenro v Akintola (1963) 3 All ER 544.

98  Specifically s 33(10) thereof which, as the Privy Council held, was an attempt to read the unwritten conventions of British parliamentary practice into a written constitution.

99  There are other constitutional issues raised by these facts, including the legality of the government of the Western Region after the Privy Council decision and, by implication, the amendment of the Western Region constitution. These are outside the scope of this chapter. For some discussion of the issues, see DO Aihe and Peter A Oluyede, Cases and Materials on Constitutional Law in Nigeria (Oxford University Press 1979) 18‒19.

100  The constitution’s definition of ‘gross misconduct’ that will found the basis of impeachment lends credence to this view. Section 143(11) defines it as ‘a grave violation or breach of the provisions of this Constitution or a misconduct of such nature as amounts in the opinion of the National Assembly to gross misconduct’.

101  Enyinna Nwauche, ‘Is the End Near for the Political Questions Doctrine in Nigeria?’ in Charles Fombad and Christina Murray (eds), Fostering Constitutionalism in Africa (Pretoria University Press 2010) 31‒60.

102  See, for example, Ugwu v Ararume (2007) 12 NWLR (Pt 1048) 367; the Supreme Court per Niki Tobi JSC, went further in Inakoju v Adeleke (2007) All FWLR Pt (353) 3, to set down parameters for determining what amounts to gross misconduct that can found the basis for removing a governor or his deputy from office.