NASS

LECTURE | ‘SEPARATION OF POWERS AND NATIONAL SECURITY IN NIGERIA: AN APPRAISAL’

BY THE PRESIDENT OF THE SENATE

SPEECH By Senate President, Bukola Saraki, AT THE NATIONAL DEFENCE COLLEGE, ABUJA, ON TUESDAY, JANUARY 30, 2018.

PROTOCOL

It is my honour to be delivering this lecture at the National Defence College (NDC), an important institution in the nation’s security architecture, and a crucible in which the best of our military and paramilitary officers are forged. I thank the Commandant of the National Defence College, Rear Admiral AA Osinowo, for the invitation extended to me to speak on ‘Separation of Powers and National Security in Nigeria: An Appraisal.’

I understand that this lecture is part of the Strategy, Statecraft and National Security Block of NDC Course 26; and that participants are drawn from the Armed Forces of Nigeria, the Nigeria Police Force, strategic Ministries, Departments and Agencies (MDAs) – as well as candidates from 16 Armed Forces across the African continent – and countries further afield, namely: India, Bangladesh and Germany. I thank you all for being here. I shall try to do my best to do justice to the subject.

The title of this lecture is a most engaging one, and it is gratifying to be accorded the privilege of delivering it, not least because, as President of the Senate and Chairman of the National Assembly by the grace of God – and, considering the arc of my legislative journey thus far – it would not be outlandish to suggest that I may have a fairly involved perspective on Separation of Powers in Nigeria at this historical moment. Therefore, I take it as a point of duty to share my insights on the broad theme, and then – with any luck – to anchor those insights in the intersection between the doctrine as applicable in Nigeria, and the hot button issue of National Security.

It is my hope that this lecture will serve as a timely reminder regarding the core principles of Separation of Powers. For it does appear, on occasion, as though we are in need of reminding, in order to better appreciate just how pivotal the doctrine is to our system of government, to democracy – and crucially in these testy times – to national security. I say this because we seem to be labouring under a serious misapprehension on that front. For one, it jars when the National Assembly strives to carry out its legislative functions as mandated by the Constitution, only to be met with discordant tunes or administrative intransigence. I am not certain that we are sufficiently mindful of the simple fact that the National Assembly is not some rubber-stamp of executive action. Quite the contrary, the Legislature is a co-equal of the Executive and the Judiciary.

As a take-off point, I will touch on the structure, composition and function of the National Assembly – and then go on to expound on the doctrine of Separation of Powers itself. I will also seek to locate the discourse within the ambit of national security, with a view to exploring the permutations thereof. My own narrative will also be brought to bear, to illuminate the subject matter with lived experience as well as current realities. There is theory and there is practice, and then there is the ideal that we ought to strive for. This lecture will encompass theory, practice and the ideal – because Separation of Powers is important to democracy, and democracy is important to the stability of Nigeria.

While the Constitution of the Federal Republic of Nigeria 1999 (Amended) provides for a vertical Separation of Powers as replicated at the State and Local Government levels, I will – for the purposes of this lecture – address my mind to the federal level in the main. Nigeria operates a Presidential system of government, and the 1999 Constitution, in bequeathing us this system, took its inspiration from the American system. This is quite distinct from the Parliamentary system which is run by the former colonial power, Britain – where there is more of a fusion, rather than separation of the powers exercised by the three arms of government. UK Prime Minister Theresa May is a member of the House of Commons, the lower house of the British Parliament. The entire UK Cabinet comprises members of Parliament; and the Lord Chancellor is in fact a member of all three arms of government. As for the Prime Minister, she is not personally voted in by the electorate; and heads the government because her party won the majority at the polls.

Not so in our Presidential system, in which the head of government, at the apex of the Executive arm, is directly voted in by the electorate. He is also the head of state, unlike in Britain where that role resides in the monarch. Nigeria operates a bicameral legislature – comprising an upper house, the Senate, with 109 members; and a lower house, the Federal House of Representatives, with 360 members. Together, they constitute the National Assembly, now in its 8th incarnation, its entire members voted in by the Nigerian people.

Therefore, distinguished ladies and gentlemen, our Presidential system has at its core the principle of ‘Trias Politica’ – otherwise known as Separation of Powers, the corollary of which is the Rule of Law. We hear the Rule of Law cited often enough – many like to pay lip service to it but only a precious few demonstrate the commitment to truly uphold it. But what exactly is the Rule of Law? What does it do, what does it include, and what does it occlude?

The NGO Statement to the Consultative Group Meeting on Cambodia on Good Governance (2000) had something to say about this, declaring that: “Adherence to the Rule of Law is a fundamental precondition for the realisation of development in all sectors. The absence of the Rule of Law continues to constrain market development, public confidence in the legal sector, and the security and general well-being of the people. A competent and independent judiciary, is development. The lack of judicial independence and high level of corruption impedes people’s confidence in formal conflict resolution and encourages reliance on informal and sometimes violent means of dispute resolution. Moreover, [it] discourages foreign investment.”

Permit me to state that the foregoing is one persuasive argument for why we must do everything in our power enthrone the Rule of Law, whatever the dispensation. Justice Oputa acknowledged as much when, in his Supreme Court judgement in Government of Lagos State vs. Ojukwu, he stated as follows: “I can safely say that here in Nigeria even under a military government, the law is no respecter of persons, principalities, governments or powers; and that the court stands between the citizens and the government, alert to see that [the government] is bound by the law and respects the law.” Justice Oputa further averred that the Executive, the Legislature and the Judiciary are equal partners in running a successful government.

Sections 4, 5 and 6 of the 1999 Constitution laid the foundation for the tripartite system of governance we currently operate, and further mapped out the delineation in the associated functions. Section 4 relates to the Legislature; and Sub-section One (1) provides that: “The legislative powers of the Federal Republic of Nigeria shall be vested in the National Assembly for the federation, which shall consist of a Senate and House of Representatives.” Section 4 (2) further stipulates that: “The National Assembly shall have power to make laws for the peace, order and good government of the federation or any part thereof with respect with any matter included in the exclusive legislative list set out in Part I of the Second Schedule of the Constitution.”

I recall the line in John Donne’s famous poem that says, ‘No man is an island entire of itself’. In the same vein, power does not reside in its entirety in any one person or arm of government. This is informed by the fundamental notion that every man is equal under the law and no one is above the law; therefore, each organ of government can only act within the ambit allowed by the Constitution. As the 19th century English politician, Lord Acton, declared, “Power tends to corrupt and absolute power corrupts absolutely.” No self-respecting secondary school student of Government will ever forget that immortal line. But, I am saying, this is precisely the reason why we have Separation of Powers: to ensure accountability, prevent autocracy and dictatorship; and to uphold freedoms. For where there is autocracy or dictatorship, there can be no freedom. In view of the corrupting nature of power, therefore, it becomes necessary for power to be checked by power in order to enthrone freedom and liberty. The objective is not to set the basis for rivalry between the three arms of government but to ensure accountability; therefore, the power of the state is exercised for the benefit of the people – and this became the basis for the democratic principles of Separation of Powers.

The fourth U.S. President, James Madison, gave us one of the greatest articulations of the doctrine, in Federalist 51, saying: “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed, and in the next place oblige it to control itself.” He observed further that the quest to achieve this involves a process of: “Contriving an interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their places.”

Encapsulated within this framing of the doctrine of Separation of Powers, is the system of Checks and Balances, a regulatory mechanism, the overall goal of which – according to foremost constitutional lawyer Prof. Ben Nwabueze, “is to maximise the ultimate goal and objective of governance including welfare and development of the people.”

Consequently, we as the Legislature make the laws, but those laws require presidential assent to propel them into the statute books. We exercise oversight functions over agencies of government; clear federal ministers and other top officials nominated by the President; oversee the national Budget and we have the power to impeach – just as the President may also exercise his veto – and so on. Notably, the Executive arm of government, at the apex of which is the President, is responsible for ensuring peace and security. Separation of Powers and the concomitant Checks and Balances enable the Legislature to ensure that national security is properly maintained for peace and development – and for the public good. I make bold to say that this function of the Legislature becomes even more of an imperative at the present time in which restiveness and agitation seem to be omnipresent. Through its interpretation of laws and administration of the system of justice, the Judiciary also exercises Checks and Balances on the other two arms of government – just as the Judiciary itself is subject to similar from its co-equals.

When James Madison expounded that, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands may justly be pronounced the very definition of tyranny” – he and other founding fathers of the American nation were drawing on the work of Baron Montesquieu (1689–1755) as propounded in The Spirit of Laws (De L’espirit des Lois) in 1748. The French philosopher, in turn, took his inspiration from the earlier writings of John Locke on the English Parliament. As Locke wrote in his ‘Second Treatise of Civil Government’ (1690) – “It may be too great a temptation to human frailty, apt to grasp at power, for the same person who has the power of making laws, to have also in their hand the power to execute them, whereby they may exempt themselves from obedience to the laws they made and suit the law, both in its making and execution, to their own private advantage.”

Some of the earliest formulations of Separation of Powers stemmed from the disillusionment in Europe hinged on the notion that the Crown had failed to ensure liberty. Let me now turn squarely to the Nigerian situation, drawing on the 8th Senate’s and my own experience as applicable. Nwabueze offered some significant commentaries on Separation of Powers in the Nigerian context. He has on at least one occasion come out of retirement to defend the doctrine as a key feature of democratic government. Nwabueze is also on record for calling for the sanctity of the ‘hallowed chamber’ that is the Senate to be respected – because he recognised the potential for abuse of power if this were not the case. As he once noted: “Concentration of government powers in the hands of one individual is the very definition of dictatorship and absolute power is by its very nature arbitrary, capricious and despotic.” This reference essentially draws from the premise that Separation of Powers relies heavily on the sanctity and integrity of the institutions acting always independently, without one unduly infringing on the other’s judgement or internal cohesion.

We in the Legislature, as representatives of the people, strive to carry out our oversight functions in line with the doctrine of Separation of Powers – because it is our duty as stipulated by the Constitution. We also do so to guard against Lockean ‘human frailty’ – by which I mean the tendency towards abuse of power, where such power is absolute. To one’s chagrin, however, our actions are often misconstrued, because few understand that the Legislative arm of government is not a rubber-stamp, driven from pillar to post by the whims and caprices of another organ of government. Let all listening to me today note the unassailable position, which is this: the Executive, the Judiciary and the Legislature are co-equals; none is subordinate to the other. Indeed, as former Senate President Ken Nnamani once opined, “The Legislature and the Executive are co-managers of the economy.”

Each arm of government is intended and designed to be free of coercive influence from another. But, regrettably, that is not always the case, in practice, in the Nigerian experiment. Section 60 of the 1999 Constitution provides that: “Subject to the provisions of this Constitution, the Senate and the House of Representatives shall have the power to regulate its own procedure, including the procedure for summoning and recess of the House.”

The press is replete with stories of ‘face-offs’ between the Legislature and Executive, real or imagined. These include unguarded pronouncements by a former Secretary to the Government of the Federation (SGF) – and other government officials – concerning the Senate; or the refusal of the heads of some government agencies to answer when summoned by us. The refusal of the Senate to confirm certain nominees of Mr. President has drawn undeserved ire in many quarters; these are people who misconstrue the role of the legislative arm, because we are perfectly within our bounds under the Nigerian constitution. In any case, if the Senate confirms two nominees and rejects one –should we be seen as attacking the Executive? Or, should we not ask whether there are weighty questions to answer on the part of the nominee? Why is the Legislature vilified when the occasional nominee fails to scale through?

We really should ask ourselves the tough questions, rather than parroting the fallacy about the Legislature not playing along with the Executive. Ask yourself what kind of democracy we would have if all powers resided solely in one arm of government. That is why I sometimes marvel at the hypocrisy of some vociferous voices who claim that they are fighting for democracy and yet they keep quiet when one arm of government repeatedly imposes its will on the judgement of a co-equal arm of government.

Democracy and the Rule of Law depend on four elements – deliberation, engagement, participation and collaboration. The constitution says that if you want to wage war or call out troops you must go to the National Assembly and you don’t – is that in tandem with Separation of Powers? Even in the United States that we modelled our system on, the White House must engage with Congress in the formulation of critical policies on security and defence. If the constitution prescribes who may be appointed into certain positions and you flout that – should the Legislature not take a stand in the public interest? Or the fact that one judge is believed to be corrupt – does that justify one arm of government breaking down the doors of members of an independent Judiciary? American judges have blocked many Executive Orders made by President Donald Trump, including those on the Muslim Travel Ban, Immigration and Sanctuary Cities. Despite Mr. Trump’s frenetic twitter activity voicing his displeasure, the judges’ rulings stand – because the Judiciary is free from the coercive influence of the Executive.

The travails of the Nigerian Legislature have unfolded under the cloud of many challenges confronting the nation. These only serve to destabilise government, and cannot be good for national security. In a country that is an amalgam of some 250 ethnic nationalities under one flag, unhealthy rivalries are a symptom of systemic distress, for the avoidance of which Separation of Powers was propounded.

There is also an international dimension, particularly in the West African sub-region. A breakdown in the balancing act resulted in the ceding of the Bakassi Peninsula to Cameroon on August 14, 2008 – without other arms of government being carried along as prescribed. Today, Southern Cameroon is boiling and the inhabitants are looking to Nigeria for some solution. 43,000 refugees have already entered Nigeria from Cameroon. This developing situation can only serve to further exacerbate the already grievous humanitarian crises in the sub-region, and the forming of potential new breeding grounds for terrorist groups.

A successful regime of Separation of Powers would require much more than enacting more laws and amending existing ones. It would require the active compliance with the doctrine from all arms of government. As the Legislature, we would require the Executive to give due regard to legal decisions, invitations and resolutions of the National Assembly. Let me quickly add that we will hold ourselves to the same rules vis-a-vis our co-equals.

Going forward, we have set up a Committee headed by the Vice President to look into ways of improving the relationship between the Legislature and the Executive; and indeed, it is increasingly apparent that relations have improved greatly, although there is still much to be done. The joint presentation of the Budget to both Houses, now done for two years in a row, is evidence of cordiality between the two arms of government. This is the way forward. After all, when there is a cold war between two arms of government, who loses out? The country loses out – in terms of stability, governance, development, peace and security. We must also always keep in mind the fact that the ultimate Check and Balance is exercised by one party – the people – at the ballot box.

Happily, Separation of Powers makes room for efficient conflict resolution. and we would have gone some way in that direction in general in this country, if we strive to tackle or achieve some lingering challenges, including the following:

Better management of the various ethnic nationalities by fostering peaceful co-existence and encouraging mutual trust among them;

Objective discussion and appraisal of Nigerian history without resorting to primordial instincts;

Minimising the politics of ethnic enclaves that breed nepotism;

Reduction of poverty; and equitable distribution of wealth, employment generation and infrastructural development with an even spread across the country.

There is a need to create greater awareness about the inherent principles separating the three arms of government, such that, when the National Assembly next beams the searchlight on the use of funds appropriated for fighting the insurgency – or funds intended to provide succour to internally displaced citizens- some will not look at us askance – and those who would arrogate absolute power to themselves, will not go up in arms against the Senate. It is a balancing act, as implied by Checks and Balances, and we will continue to do our best to fulfil our role according to the Constitution.

Despite the clarity and gravity of the Constitution on the independence of the Legislature, the Deputy Senate President and I have been subject to prosecution over the internal affairs of the Senate. The way we are elected and our processes – we are independent. It was therefore foolhardy of government to mount such prosecution. The courts have ruled multiple times that the National Assembly’s internal affairs are inviolable – and yet, what we saw was a ready willingness to cross the line and mount a case, in a flagrant overreach of executive power. Let me say that I view this as a distraction and a legal affront to the principles of Separation of Powers.

From the outset, on my assumption to the position of Nigeria’s President of the Senate, I have had to endure court cases even at these pressing times in our national life, when all our energies should be geared towards development. Through all this, I have respected the constitutional mandate of the Judiciary and appeared in court on several occasions, trusting that I would be vindicated, because I believe in the Rule of Law. These are some of the sacrifices we make, and what we go through, so that these institutions can be strong. It is not about individuals but about institutions of government, so as to strengthen democracy.

The way forward, having recognised the necessary value that Separation of Power brings to the strengthening of our democracy, it is important then that we chart a course that ensures that the inviolability of our institutions becomes a mandate for the protection of our democracy. I repeat, it is not about the individual; it is about the institution if we are to ensure the survival of our democracy. Therefore, the constitution itself has made provision for the process of the removal or appointment of the leadership of these institutions, in order to ensure that the integrity of the institution remains inviolable. The key purpose here is not the protection of the individuals who occupy these offices temporarily but rather, the protection of our democratic norms.

So, for everyone here today, there is really a choice to be made. We have to decide whether or not we really want democracy. We cannot have it both ways. I always say that, today, we have an honest and transparent President – but it is no reason not to defend the principles of Separation of Powers – for who is to say what the next occupier of that office will be like? We fight today with an eye on posterity, in order that the future may be more assured. Therefore, I charge you all to go and learn as much as you can about the doctrine of Separation of Powers and its implications for leadership, governance, democracy and national security. If we decide that we do not want a National Assembly that will hold the Executive to account, that is another matter entirely. We can always go back to the Parliamentary system we operated immediately after independence. But as long as we run the current system of government, it is not even a matter of debate. We must uphold the core principles of Separation of Powers because our development, peace and security depend on it.

I thank you for listening.

 

 

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