As far as one knows, no court in the United States of America
has ever issued an injunction against the Congress, restraining it
from summoning any person or preventing it from concluding any
proceedings before it. In the United Kingdom, this phenomenon is
even unthinkable. Emeritus Professor Ben Nwabueze, SAN has also
cited numerous African and Commonwealth countries where this
practice of stopping parliament through court injunctions is also
unheard of.
What Justice Ahmed Mohammed did on March 14 was to allow his
court to be used to scrutinize constitutionality, not of a law but,
of a pending bill on election. If you are not alarmed by the
peculiar pronouncement of Justice Mohammed purporting to restrain
the Senate from proceeding on passing of the bill, then you have
overlooked a dangerous precedent and a big threat to our democracy.
We would all soon be alarmed when in the near future, I bet, a
judge would try to stop the parliament from e.g. passing the
budget, or from screening ministerial nominees, or from considering
committee reports. Apart from being the first judge to allow
interpretation of provisions of a bill in a court of law, Justice
Mohammed scored another first by restraining Mr. President from
assenting to the bill. Judiciary has been restraining parliament
but it has never restrained the executive in the exercise of its
constitutional powers. Undoubtedly, this would have opened doors
for anybody to seek to restrain a President from convening a
Federal Executive Council meeting. Perhaps again after unexpected
leaders would have emerged during the Ninth Assembly in 2019, a
judge would issue an injunction stopping a Mr. President or
Governor from exercising their powers under S. 64 or S.105 of the
Constitution to inaugurate a new parliament!
But consider a few more examples of where judiciary has
unconstitutionally and undemocratically interfered with the
exercise of legislative powers. Last February, Justice Anwuli
Chikere held that the House of Representatives could not continue
with an investigative hearing on the Law School hijab controversy
with Miss Firdaus. Also, the court in Adeola Vs. HOR (2015)
prevented legislators from casting votes to change their Majority
Leader during the dying days of the Jonathan Administration. Again,
Mr. Justice Gabriel Kolawole (now of Court of Appeal) stopped the
Senate from inviting the former EFCC Chairman to disclose the
whereabouts of recovered looted assets and whether some of the
assets have not been illegally converted to personal use. The
billions of Naira at stake are forever hanging: Ibrahim Lamorde V.
The Senate (2015). So many more instances abound. Indeed, an
undemocratic precedent is gradually being established in Nigeria
whereby when a public official is invited on investigative hearing
that is of national interest, he rushes to court and a judge will
readily stop the parliament in what is couched as interim order,
but in effect a permanent one.
Many Nigerian lawyers, and judges, do not believe there is a
matter on the face of the earth which the court system cannot or
should not entertain. And it is only in Nigeria. But I dare say
this Nigerian belief is erroneous. They cite copiously from the
Constitution as if we are the only one in the world that operates a
written Constitution, or that the provisions of our Constitution
originate from such locations as Daura, Ile Ife, or Benin, or are
inspired by philosophies that are exclusively Nigerian. As with the
other two arms of government, judicial power is limited by the
principle of separation of power. I am sure many lawyers may not
like it, but reality is that judicial activism stops where
legislative powers begin. Judicial power in any system of
government, democracy or autocracy, is not infinite and Nigerian
courts should embrace their limit and not arrogate to themselves
the power to tell the legislature how to exercise its own power.
Let me have the answer when you ask a typical judge, “what is the
adjudicatory limit of Nigerian courts?”
The fact is Nigeria operates a presidential system of
government, and it is the Constitution that has allocated
governmental powers between the three arms. The Constitution can
only codify so much of hundreds of years of democratic practice of
the West, especially the USA. As a code our Constitution, however
long winded, can only capture salient features of this system of
government, leaving the day-to-day detailed practice to treatises,
publications and exchange of ideas and visits which legislators do
undertake. Separation of Powers is an established tenet of this
system. The Court of Appeal has since held Separation of Powers to
mean, among others, that one branch of government should not exert
control on another in Hon. Abdullahi Ahmed V. SOHA.
Yet, the statement of Justice Mohammed is symptomatic of a
wider trend of judiciary-induced roadblock against the parliament.
I am one of those who share the notion that the tendency is
extremely high for a negative judicial pronouncement on any
parliamentary process and procedure. Whenever it has to exercise
discretion in determining propriety of exercise of legislative
power, it is unlikely the judiciary will not pothole exercise of
that power, even if that decision is incongruous with established
global legislative practice. One further example will suffice.
For centuries, courts in all democratic countries across the
world have been barred from reaching out against legislators
regarding whatever they say or do during legislative or committee
proceedings. This is called freedom of debate or legislative
immunity. Trust Nigerian courts, they nullified the privilege in
Hon. Mike Balonwu V. Obi (2007). Of course, this decision has been
jettisoned when President Buhari recently signed the newly-passed
bill re-authorizing legislative immunity.
But if Balonwu’s case was at variance with global parliamentary
practice, by all standards of due process it was a constitutionally
appropriate judgment: it decided on the propriety of a concluded
Act of Parliament. More strange are orders like the ones cited
above that tend to prevent ongoing legislative proceedings by any
guise. By the provisions of S 4(5), (8), (9) as well as S. 6 of the
Constitution, no one has ever argued that the court cannot
determine propriety of anything and everything that the parliament
has completed doing. However, there is nothing unique in those
provisions that make the Nigerian judiciary alone stretch its
mandate to settling immature disputes.
To neutralize the power of the legislature, some judges find
support in S. 4 (8) of the Constitution which states, “Save as
otherwise provided by this Constitution, the exercise of
legislative powers by the National Assembly or by a House of
Assembly shall be subject to the jurisdiction of courts of law”. If
the courts are trying to discard the saving clause and give literal
interpretation to S 4(8) in disregard of other provisions, then
they should clearly say so and articulate the new concept of
Separation of Power.
If these judges were to be correct, it would mean every single
legislative power from beginning to the end is exercisable at the
behest of the Judiciary. Thus, when Mr. President or a Governor has
to address the parliament and the Standing Rules of parliament have
to be suspended to allow strangers into the hallowed chambers, a
busy-body plaintiff would be allowed to secure an injunctive order
preventing that from happening. In fact, in line with their
reasoning, nothing stops a court from issuing an order restraining
the National Assembly from sitting, and shutting down its gates.
Nothing at all. What a pretentious claim to presidential system of
government.
Regrettably, it has been impossible for the Nigerian
legislature to fully comply with some restraining orders of the
court. For instance, there have been many injunctive orders barring
National or State Assemblies from suspending any member they deem
errant. None has been obeyed to date because they are impracticable
to be obeyed. Parliament is a hotbed of politics, and many judges
may be unaware that the grundnorm there is the majority rule, every
other thing is subservient. The earlier the courts accept this, the
better for a legislative-judiciary relationship and the better for
our democracy. When courts give purported orders on matters that
are moot, they are not orders, they are advisories and courts are
not known to give advisories, they give orders backed with
sanctions. Courts in developed democracies are wiser so they
restrain themselves from granting restraining orders to uncompleted
actions of the parliament.
To the credit of Nigerian legislature, it has bent backwards to
avoid any altercation with the judiciary over the years, despite
constant unfriendliness. All legislative houses in the country have
this similar provision: “Reference shall not be made to any matter
on which a judicial decision is pending, in such a way as might in
the Speaker’s opinion prejudice the interest of parties thereto.”
If in a Speaker’s opinion, a debate would not jeopardise interest
of the parties, that opinion is final. Or, this provision can be
totally suspended in a jiffy, so the House can fully debate a
pending judicial matter. And there is nothing anybody from outside
can do about it. However, based on the respect for the judicial
arm, neither of these routes has been taken. I know many Nigerians
did not appreciate the depth of his statement in reaction to
Justice Chikere’s order on the Law School saga, when the Speaker,
Rt. Hon. Yakubu Dogara said: “We have respected the judiciary a lot
and we expect same from them. We would part ways with the judiciary
if it continues to gag the National Assembly.” Thus, with a
disappointed Senate, writing a letter and a saddened House sending
a powerful delegation to the venerable Chief Justice of Nigeria, it
seems the National Assembly has had enough and its back is now
against the wall.
Ban Interim Orders Against Parliament
My own conviction to ensure that Nigeria adheres to the universal
values and principles of democracy, especially the principle of
Separation of Powers, is that judiciary should immediately find a
way to ban itself from issuing interim or injunctive orders against
the parliament. It has done it before, when it reportedly banned
issuance of such orders against the EFCC. Our electoral regime also
bans such injunctions from issuing in order to stop a federal
election. In the United States, the Supreme Court granted the US
Congress “inherent contempt power”, which Congress now uses to
imprison anyone that flouts or challenges its summons or
resolutions in its own jailhouse. Anderson V. Dunn 19 US 204
(1821). Since then, the US courts have prevented themselves by
themselves from extending their own inherent powers of granting
interim injunctions against congressional proceedings. What is
more, banning interim orders against the legislature will properly
enthrone the principle of Separation of Powers as properly
envisaged by the Nigerian Constitution and consistent with the 2007
African Charter on Democracy.
An extreme solution which should be avoided would be to create
another Constitutional Court to be manned by specialised judges who
are thoroughly schooled in nuances of liberal democratic practice
and conversant with threshold global standards. Currently, such
courses are not taught in law faculties or the Law School, although
the National Institute for Legislative and Democratic Studies is
fast becoming a household name in the area. Available data indicate
that democratic processes and gains are receding worldwide; Nigeria
should not be a contributor to this disturbing trend.
As far as one knows, no court in the United States of America
has ever issued an injunction against the Congress, restraining it
from summoning any person or preventing it from concluding any
proceedings before it. In the United Kingdom, this phenomenon is
even unthinkable. Emeritus Professor Ben Nwabueze, SAN has also
cited numerous African and Commonwealth countries where this
practice of stopping parliament through court injunctions is also
unheard of.
What Justice Ahmed Mohammed did on March 14 was to allow his
court to be used to scrutinize constitutionality, not of a law but,
of a pending bill on election. If you are not alarmed by the
peculiar pronouncement of Justice Mohammed purporting to restrain
the Senate from proceeding on passing of the bill, then you have
overlooked a dangerous precedent and a big threat to our democracy.
We would all soon be alarmed when in the near future, I bet, a
judge would try to stop the parliament from e.g. passing the
budget, or from screening ministerial nominees, or from considering
committee reports. Apart from being the first judge to allow
interpretation of provisions of a bill in a court of law, Justice
Mohammed scored another first by restraining Mr. President from
assenting to the bill. Judiciary has been restraining parliament
but it has never restrained the executive in the exercise of its
constitutional powers. Undoubtedly, this would have opened doors
for anybody to seek to restrain a President from convening a
Federal Executive Council meeting. Perhaps again after unexpected
leaders would have emerged during the Ninth Assembly in 2019, a
judge would issue an injunction stopping a Mr. President or
Governor from exercising their powers under S. 64 or S.105 of the
Constitution to inaugurate a new parliament!
But consider a few more examples of where judiciary has
unconstitutionally and undemocratically interfered with the
exercise of legislative powers. Last February, Justice Anwuli
Chikere held that the House of Representatives could not continue
with an investigative hearing on the Law School hijab controversy
with Miss Firdaus. Also, the court in Adeola Vs. HOR (2015)
prevented legislators from casting votes to change their Majority
Leader during the dying days of the Jonathan Administration. Again,
Mr. Justice Gabriel Kolawole (now of Court of Appeal) stopped the
Senate from inviting the former EFCC Chairman to disclose the
whereabouts of recovered looted assets and whether some of the
assets have not been illegally converted to personal use. The
billions of Naira at stake are forever hanging: Ibrahim Lamorde V.
The Senate (2015). So many more instances abound. Indeed, an
undemocratic precedent is gradually being established in Nigeria
whereby when a public official is invited on investigative hearing
that is of national interest, he rushes to court and a judge will
readily stop the parliament in what is couched as interim order,
but in effect a permanent one.
Many Nigerian lawyers, and judges, do not believe there is a
matter on the face of the earth which the court system cannot or
should not entertain. And it is only in Nigeria. But I dare say
this Nigerian belief is erroneous. They cite copiously from the
Constitution as if we are the only one in the world that operates a
written Constitution, or that the provisions of our Constitution
originate from such locations as Daura, Ile Ife, or Benin, or are
inspired by philosophies that are exclusively Nigerian. As with the
other two arms of government, judicial power is limited by the
principle of separation of power. I am sure many lawyers may not
like it, but reality is that judicial activism stops where
legislative powers begin. Judicial power in any system of
government, democracy or autocracy, is not infinite and Nigerian
courts should embrace their limit and not arrogate to themselves
the power to tell the legislature how to exercise its own power.
Let me have the answer when you ask a typical judge, “what is the
adjudicatory limit of Nigerian courts?”
The fact is Nigeria operates a presidential system of
government, and it is the Constitution that has allocated
governmental powers between the three arms. The Constitution can
only codify so much of hundreds of years of democratic practice of
the West, especially the USA. As a code our Constitution, however
long winded, can only capture salient features of this system of
government, leaving the day-to-day detailed practice to treatises,
publications and exchange of ideas and visits which legislators do
undertake. Separation of Powers is an established tenet of this
system. The Court of Appeal has since held Separation of Powers to
mean, among others, that one branch of government should not exert
control on another in Hon. Abdullahi Ahmed V. SOHA.
Yet, the statement of Justice Mohammed is symptomatic of a
wider trend of judiciary-induced roadblock against the parliament.
I am one of those who share the notion that the tendency is
extremely high for a negative judicial pronouncement on any
parliamentary process and procedure. Whenever it has to exercise
discretion in determining propriety of exercise of legislative
power, it is unlikely the judiciary will not pothole exercise of
that power, even if that decision is incongruous with established
global legislative practice. One further example will suffice.
For centuries, courts in all democratic countries across the
world have been barred from reaching out against legislators
regarding whatever they say or do during legislative or committee
proceedings. This is called freedom of debate or legislative
immunity. Trust Nigerian courts, they nullified the privilege in
Hon. Mike Balonwu V. Obi (2007). Of course, this decision has been
jettisoned when President Buhari recently signed the newly-passed
bill re-authorizing legislative immunity.
But if Balonwu’s case was at variance with global parliamentary
practice, by all standards of due process it was a constitutionally
appropriate judgment: it decided on the propriety of a concluded
Act of Parliament. More strange are orders like the ones cited
above that tend to prevent ongoing legislative proceedings by any
guise. By the provisions of S 4(5), (8), (9) as well as S. 6 of the
Constitution, no one has ever argued that the court cannot
determine propriety of anything and everything that the parliament
has completed doing. However, there is nothing unique in those
provisions that make the Nigerian judiciary alone stretch its
mandate to settling immature disputes.
To neutralize the power of the legislature, some judges find
support in S. 4 (8) of the Constitution which states, “Save as
otherwise provided by this Constitution, the exercise of
legislative powers by the National Assembly or by a House of
Assembly shall be subject to the jurisdiction of courts of law”. If
the courts are trying to discard the saving clause and give literal
interpretation to S 4(8) in disregard of other provisions, then
they should clearly say so and articulate the new concept of
Separation of Power.
If these judges were to be correct, it would mean every single
legislative power from beginning to the end is exercisable at the
behest of the Judiciary. Thus, when Mr. President or a Governor has
to address the parliament and the Standing Rules of parliament have
to be suspended to allow strangers into the hallowed chambers, a
busy-body plaintiff would be allowed to secure an injunctive order
preventing that from happening. In fact, in line with their
reasoning, nothing stops a court from issuing an order restraining
the National Assembly from sitting, and shutting down its gates.
Nothing at all. What a pretentious claim to presidential system of
government.
Regrettably, it has been impossible for the Nigerian
legislature to fully comply with some restraining orders of the
court. For instance, there have been many injunctive orders barring
National or State Assemblies from suspending any member they deem
errant. None has been obeyed to date because they are impracticable
to be obeyed. Parliament is a hotbed of politics, and many judges
may be unaware that the grundnorm there is the majority rule, every
other thing is subservient. The earlier the courts accept this, the
better for a legislative-judiciary relationship and the better for
our democracy. When courts give purported orders on matters that
are moot, they are not orders, they are advisories and courts are
not known to give advisories, they give orders backed with
sanctions. Courts in developed democracies are wiser so they
restrain themselves from granting restraining orders to uncompleted
actions of the parliament.
To the credit of Nigerian legislature, it has bent backwards to
avoid any altercation with the judiciary over the years, despite
constant unfriendliness. All legislative houses in the country have
this similar provision: “Reference shall not be made to any matter
on which a judicial decision is pending, in such a way as might in
the Speaker’s opinion prejudice the interest of parties thereto.”
If in a Speaker’s opinion, a debate would not jeopardise interest
of the parties, that opinion is final. Or, this provision can be
totally suspended in a jiffy, so the House can fully debate a
pending judicial matter. And there is nothing anybody from outside
can do about it. However, based on the respect for the judicial
arm, neither of these routes has been taken. I know many Nigerians
did not appreciate the depth of his statement in reaction to
Justice Chikere’s order on the Law School saga, when the Speaker,
Rt. Hon. Yakubu Dogara said: “We have respected the judiciary a lot
and we expect same from them. We would part ways with the judiciary
if it continues to gag the National Assembly.” Thus, with a
disappointed Senate, writing a letter and a saddened House sending
a powerful delegation to the venerable Chief Justice of Nigeria, it
seems the National Assembly has had enough and its back is now
against the wall.
Ban Interim Orders Against Parliament
My own conviction to ensure that Nigeria adheres to the universal
values and principles of democracy, especially the principle of
Separation of Powers, is that judiciary should immediately find a
way to ban itself from issuing interim or injunctive orders against
the parliament. It has done it before, when it reportedly banned
issuance of such orders against the EFCC. Our electoral regime also
bans such injunctions from issuing in order to stop a federal
election. In the United States, the Supreme Court granted the US
Congress “inherent contempt power”, which Congress now uses to
imprison anyone that flouts or challenges its summons or
resolutions in its own jailhouse. Anderson V. Dunn 19 US 204
(1821). Since then, the US courts have prevented themselves by
themselves from extending their own inherent powers of granting
interim injunctions against congressional proceedings. What is
more, banning interim orders against the legislature will properly
enthrone the principle of Separation of Powers as properly
envisaged by the Nigerian Constitution and consistent with the 2007
African Charter on Democracy.
An extreme solution which should be avoided would be to create
another Constitutional Court to be manned by specialised judges who
are thoroughly schooled in nuances of liberal democratic practice
and conversant with threshold global standards. Currently, such
courses are not taught in law faculties or the Law School, although
the National Institute for Legislative and Democratic Studies is
fast becoming a household name in the area. Available data indicate
that democratic processes and gains are receding worldwide; Nigeria
should not be a contributor to this disturbing trend.