|
Friday, September 17, 2004
Kingsley Macebuh concludes his analysis of the Nigerian state and its practice of the federal system as a means of achieving co-existence and development among the various nations states which gave birth to the Nigerian nation. He takes the structures of Nigeria’s federal system and explains that what obtains is far from epitomising the letters and spirit of true federalism. This piece continues from last Friday.
Contrary to the manner and conditions of service on the bench, as obtain, above, on the American scene, it is regressively a different situation that obtains in Nigeria. It is the other way round. Nigerian judges are on their own! They may do anything and everything to support them on the bench. They are trained in English law with its jurisprudence of parliamentary governance and exhibit all its mannerism, including the bar from which they are selected and appointed. But they are confronted with issues and matters of federal canvas, of presidential-bicameral jurisprudence of separation of powers! Most of the laws they are called upon to review and interpret, in adjudication of disputes, are militarized, consequent upon long-standing military tutelage of the ‘federation’ without a congressional culture. As members of bench of a federation, Nigerian judges are supposed to review and interpret the Constitution and laws of the Legislature as operating in a federation. But they are stuffed and stuck with militarized laws, which are militarily but ‘constitutionally’ transposed as laws made by the National Assembly. Some of the laws even have special clauses ousting the judiciary and the bench from looking into and questioning them, because they are sacrosanct. See the Constitution of Nigeria 1999 Sec. 6 (6) (c), (d), Sec. 308, etc.
In this discourse, we give full appreciation and cognizance to the poor but redeemable conditions of service Nigerian bench deals with. We show concern also to its exposure to the general society’s extortionate stench of general corruption that pervades prebendal psyche of the ethnicity-indexed polity. But we note that as a matter of fact, members of the Nigerian bench are products of the same prebendal society. They graduated to the bench from and through it. We also give cognizance to dearth of training of the Nigerian bench, in particularities and peculiarities of presidential-bicameral jurisprudence.
All recounted structural and humanist deficiencies, above, notwithstanding, the ex parte order-issuing fractional bench of the Nigerian judiciary, which, essentially, is non-activist, in historically conventional sense of it, as we have illustrated, above, is nonetheless failing to appreciate certain fundamentals of presidential-bicameral jurisprudence, under the doctrine of separation of powers. It fails to appreciate and thus give due deference to philosophical conceptions, dialectical praxis, theory and operation of separation of powers, in its issuing of what is duly considered to be imprudently conceived ex parte orders, or the interfering, with popolo coloration, in ongoing lawmaking programmes of the Legislature. This rather troubling appearance of embracing of judicial rascality is in derogation from intrinsic and implicit injunctions of the doctrine of separation of powers. The injunctions stipulate that no separate but coordinate branch of government in federal canvas is competent to impose estoppel on ongoing exercise of power of another coordinate branch, exercise that is competent within its domain, insofar as irreparable damage is not discoverable ex post facto in the exercise.
There shall be no judicial estoppel of Congress or National Assembly until final product, such as an act or resolution of the congressional exercise, is brought, on competent application, before the Court. Just as a presidential action, competently presidential, shall not likewise be estopped by a coordinate branch. Or, in the same vein, that badly written and wrongly conceived and thus properly defeated Nigeria’s Electoral Act 2001, which attempted to trespass into judicial domain in purporting to dictate to the branch by imposing time schedule and more for delivering or return of judicial decision or judgment.
There arises from this rascally impression of judicial exercise of power a major concern to positive federalism. It inordinately is nouveau, presumably in disengaging reaction to past militarization of the Nigerian bench with its complementing jurisprudence. In this respect, there really is, in our considered view, a fundamental chasm between the nouveau judicial expression and longstanding Coordinate orderliness and harmony of federal practice. The chasm arises in the wake of praetorian revisionism of reigning but disputable neofederalist praxis. The new praxis is, by implication, dialectically ahistorical. It derogates from longstanding Madisonian federalist principle, in the pervasive disregard or failure of Nigerian Court, in reigning but confusing neo-federalist approaches to exercise of judicial power. The Courts fail to give sufficient deference to political question doctrine, which is inherent in the doctrine and practice of separation of powers.
It is repugnant, under doctrine of Separation of Powers, for a Court of competent jurisdiction to issue injunction baying for suspension of ongoing work of philosophically and theoretically First Branch of Federal Governance, Congress or National Assembly. This is to the effect that a Nigerian Court of competent jurisdiction, upon ex parte application, imprudently appropriates power, presumably under colour of its interpretive jurisdiction, to question and examine ongoing work or work-in-progress of the Legislature.
There are profound consequences of this rather unfounded appropriation of power, under colour of exercise of vested judicial power, in imprudent disregard of Coordinate harmony and inherent virtue and value of concept of the political of the political question doctrine. The monobranchist presumption of power is, among others, productive of the pervasive non-rationally based inter-branch fighting for turf and consequent gridlock and breakdown of expected coordinacy, upon which the doctrine of separation of powers stands. This ‘judicial’ chasm is repugnant. It reeks of extortionate perversion of judicial power. It initiates, by default, the innocent masses, generally but appreciably untutored in critical dictates of governance, to their unknowing clapping, regaling and ululating over the new but suspect populism of the bench. While Nigeria society may find comfort and repose in its expressed and perhaps welcomed euphoria over the new but suspect judicial ‘activism,’ it nonetheless may be productive of consequent gridlock and peril of fabric of the fragile Coordinate System.
Upon history, philosophy, theory and practice of federalism, and more so of its presidential-bicameral scheme of separation of powers, former President of the Senate and Chairman, National Assembly of Federal Republic of Nigeria, Anyim Pius Anyim, was and remains correct to that exploded point in controversy in the Year 2003. It was publicly alleged that a federal judge had threatened to issue judicial order for arrest of leadership of the National Assembly, for its purported disobedience of the judge’s interim injunction against ongoing process of legislative override of a presidential veto. The Senate President, in response, threatened, on behalf of the Senate, or the National Assembly, of which he holds its Office of Chairman, to equally issue for appropriate process, to command arrest of the judge, for interfering and thus disturbing ongoing legislative process of the Federal Legislature. It is a process of which the Legislature has competence. In the controversy, the judge, at material time, disclaimed his alleged statement of likely ordering arrest of the leadership of the National Assembly, for the federal legislature’s alleged disobedience of his judicial order.
It is to be noted that the preceding scenario of separation of power crisis emerges where there is misconception of terrain of powers and coordinate harmony for workable operation of government composed of separate but equal branches of federal governance. Whatever the case may be, it is fundamentally clear, under settled dialectics of federalism with its supporting theoretic and philosophic foundation that the National Assembly of Nigeria had and remain wrapped in power, in exercise of its police power and magisterial authority over the federation. It has legislative power to issue process, deputize any person for the purpose and command lawful arrest of any person, whosoever and of whatever station, anywhere in the federation, save as otherwise may be provided by the Constitution. Any person who, knowingly and willfully, interferes for estoppel in ongoing lawmaking process of the Legislature, is subject and susceptible to that exercise of Sheriff power of the Legislature.
This material had to be abridged for space considerations.
Concluded
By Dr. Kingsley U. Macebuh, is of Didactics Council on Advanced Federation and Collateral Studies and a postdoctoral Fellow of Theoretical Politics
|
