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 References(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 References(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 References(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 References(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. References(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.
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.
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.
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  AC 173. The cases of Padfield v Minister of Agriculture, Fisheries and Food  AC 997; Secretary of State for Education and Science v Tameside Metropolitan Borough Council  AC 104; Wheeler v Leicester City Council  1AC 1054 are also instructive.
16  NRNLR 32. See also The Federal Board of Inland Revenue v Azigbo Bros Ltd  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.
20 1 Cranch 137, 2 LEd 60 1803.
21 1979 constitution, s 1(1) and (3).
23  41 WRN 94 (CA).
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.
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  1 UILR 201, 221.
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.
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.
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.
83 The English authorities discuss these issues extensively. See, for example, R v Electricity Commissioners ex p London Electricity Joint Committee Co  1 KB 171; Wheeler v Leicester City Council  1 AC 1054; Secretary of State for Education and Science v Tameside Metropolitan Borough Council  AC 104.
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  1 NCLR 218;  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 .
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.