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ABSTRACT Democracy is undoubtedly the commonest system of government mostly practiced in virtually all the countries of the world because it ensures the observance of people‟s rights and freedom. It is however basically characterized by three independent arms of government namely; the Legislative, Executive and the Judicial arm of government. While the Legislature is responsible for making laws and the Executive is charged with the implementation of such law, the Judiciary is responsible for the interpretation of the law in accordance with the provisions of the Constitution. In line with the doctrine of separation of powers, which is a cardinal feature of a democratic system, the Nigerian Constitution guarantees the independence of the Judiciary. The Judiciary as an arm of government owes an essential duty to interpret the provisions of the law when they are in question, thus the court (judiciary) is referred to as the last hope of the common man. Be that as it may, the idea of constitutionalism is yet another concept that primarily operates in a democratic setting. Constitutionalism however connotes the belief in a democratic government where the affairs of the state are operated according to the provisions of the law. Basically, this work will adopt a purposeful effort to scrutinize the liberal constitutionalism and capture its salient features not merely as an imposition of limitation on exercise of powers, but also as a mechanism for accountable and developmental exercise of powers. Although some Critics had severally argued that the principle of constitutionalism is rarely observed in this part of the world. From the foregoing, the object of this work is principally in two folds. Firstly, to appraise the judiciary as an arm of government, vis-à-vis the Nigerian legal system. It is a common knowledge that the function of the judiciary is to provide judicial justice to the people where the circumstances so demand. Secondly, this work will make a deliberate attempt to properly examine the concept of Constitutionalism in our contemporary society. To this end, it is apposite to bring to the fore some concepts which are intricately intertwined with the principle of Rule of Law and how the courts had reacted to them in the last ten years. TABLE OF CASES AUSTRALIA • Polyuchowich v The Commonwealth (1991) 172 CLR 501 at 606. NIGERIA • Adeleke v Oyo State House of Assembly (2006) 16 NWLR (Pt. 1006) 608. • Balarabe Musa v Kaduna StSate House of Assembly (1984) 5 NWLR (Pt 778) 46 • Dr Basil Ukegbe v The A.G of Imo State (1983) ALL NLR 179 • Inakoju v Adeleke (2007) 4 NWLR (Pt 1025) 578 • Lakanmi v A.G Western State (1971) 1 UILR 201 • Senator Abraham Adesanya v President of the Federal Republic Of Nigeria (1981) ALL NLR 504 • Tony Momoh v Senate of the National Assembly (1981)1 NCLR 105 UNITED KINGDOM • Liyanage v The Queen (1967) AC 259 UNITED STATES OF AMERICA • Myers v. U.S.A (1926) 272 at 293 TABLE OF STATUTES NIGERIA • The 1979 Constitution of the Federal Republic of Nigeria. • The 1999 Constitution of the Federal Republic of Nigeria. LIST OF ABBREVIATIONS • AC: Appeal Case • CFRN: Constitution of the Federal Republic of Nigeria • CLR: Commonwealth Law Report • EEFC: Economic and Financial Crime Commission • LCDA: Local Council Development Areas • NCLR: Nigerian Constitutional Law Report • NLR: Nigerian Law Report • NWLR: Nigerian weekly Law Report • OSHA: Oyo State House of Assembly • UILR: University of Ife Law Report • UK: United Kingdom • USA: United State of America TABLE OF CONTENT CHAPTER ONE GENERAL INTRODUCTION 1.0.0 INTRODUCTION 1.1.0 BACKGROUND OF THE STUDY 1.2.0 OBJECTIVES OF THE STUDY 1.3.0 FOCUS OF THE STUDY 1.4.0 SCOPE OF THE STUDY 1.5.0 RESEARCH METHODOLOGY 1.6.0 LITERATURE REVIEW 1.7.0 DEFINITION OF TERMS 1.8.0 CONCLUSIONCHAPTER TWO THE JUDICIARY 2.0.0 INTRODUCTION 2.1.0 THE JUDICIARY AS AN ARM OF GOVERNMENT 2.2.0 THE FUNCTIONS OF THE JUDICIARY UNDER THE 1999 CONSTITUTION 2.3.0 CONCLUSION CHAPTER THREE IMPEACHMENT OF ELECTED OFFICERS 3.0.0 INTRODUCTION 3.1.0 HISTORICAL DEVELOPMENT OF IMPEACHMENT 3.2.0 THE NATURE AND DEFINITION OF IMPEACHMENT 3.3.0 IMPEACHMENT PROCEEDINGS UNDER THE 1999 CONSTITUTION 3.4.0 THE FOURTH REPUBLIC AND THE IMPEACHMENT HURRICANE 3.5.0 THE ROLE OF THE JUDICIARY IN IMPEACHMENT PROCEEDINGS 3.6.0 THE EFFECT OF IMPEACHMENT IN THE NIGERIAN POLITY 3.7.0 CONCLUSION CHAPTER FOUR THE DOCTRINE OF SEPERATION OF POWERS 4.0.0 INTRODUCTION 4.1.0 HISTORICAL DEVELOPMENT OF SEPERATION OF POWERS 4.2.0 JURISPRUDENTIAL BASIS OF SEPERATION OF POWERS 4.3.0 SCHOLARLY EXPOSITIONS OF THEORISTS AND JURUISTS ON SEPERATION OF POWERS 4.4.0 THE NATURE OF THE DOCTRINE UNDER THE 1999 C0NSTITUTION 4.5.0 THE APPLICATION OF THE DOCTRINE IN THE NIGERIAN POLITY 4.6.0 CONCLUSION CHAPTER FIVE CONCLUSION AND RECOMMENDATION 5.0.0 CONCLUSION 5.1.0 RECOMMENDATION BIBLIOGRAPHY ARTICLES IN JOURNAL BOOKS CHAPTERS IN BOOKS NEWS PAPER REPORTS PAPERS PRESENTED AT CONFERENCES, WORKSHOPS AND SEMINARS CHAPTER ONE GENERAL INTRODUCTION 1.0.0 INTRODUCTION Government is universally accepted to be a necessity since man cannot realize himself except within an ordered society. Yet the necessity of government creates its own problems for man; the problem of how to limit the arbitrariness inherent in government and to ensure that powers is to be used for the good society. It is the limit of this arbitrariness of political power that is expressed in the concept of Constitutionalism. However Constitutionalism recognizes the necessity of the government but insist upon a limitation being placed upon its powers. It connotes in essence the limitation in government; it is the antithesis of arbitrary rule[1]. Constitutionalism simply means a belief in a constitutional government.2 The Constitution of the Federal Republic of Nigeria is popularly known as the organic and fundamental law in the realm of legislation in Nigeria. While the Nigeria constitution defines the framework, the exercise of the governmental powers and the limits of each arm of government, the courts are eminently placed in a position to interpret how these governmental powers can be exercised by the various arms of government in accordance with provisions of the Constitution. It is a common knowledge that the judicial powers of the federation are vested in the courts established for the federation as enshrined in the constitution which provides that „the judicial powers of the federation shall be vested in the courts to which this section relates, being courts established for the Federation‟.[2] Therefore it is the role of the judiciary (the courts) as an arm government and the provisions of the Constitution that has formed the basis of this project work. Under the 1999 Constitution, while law making is generally the exclusive preserve of the legislature, interpretation of same is reserved exclusively to the judiciary as represented by the court. Thus the various Courts of records in Nigeria perform a very formidable role in this regard. The focus of the Project work is to scrutinize the extent of the applicability of some selected Constitutional doctrines and principles since the coming back of democracy in 1999. Basically, two points which are apt to obscure the concept of constitutionalism require to be cleared at the outset and this concern its relationship first, with the Constitution and second with democracy[3]. Abraham Lincoln described democracy as the government of the people, by the people and for the people. It is necessary to mention that the term Constitutional government is apt to give the impression of a government according to the provisions of the Constitution; that there is a formal written Constitution according to those provisions does not necessarily imply that the government is a constitutional one[4]. Again the determining factor, is does the Constitution impose limitations upon the powers of the government? However, in a bid to properly evaluate the concept of constitutionalism in our contemporary society, one must bear in mind that certain elements are germane to the discourse. To this end, it is apposite to bring to the fore some concepts which are intricately intertwined with the principle of Rule of Law. In a nutshell, this project work focuses on certain constitutional concepts and how the judiciary had reacted to them in the last ten years. These concepts may include: • Removal of the Executives (Impeachment) and • Separation of Powers It is relevant to mention here that since the coming back of democracy in 1999, the Supreme Court and other Courts of records including the tribunal had given several decisions; the constitutionality of which is in doubt. In view of this, this project work shall examine and analyze the applicability as well as the reasonability of the above mentioned knotty constitutional issues which had appeared before the courts in the last ten years. 1.1.0 BACKGROUND OF THE STUDY The Constitution of a nation is a blend of strict laws or legal concepts or principles and political conclusions[5]. The strict legal principles and concepts include issues like the Separation of powers and the removal of executive officers. Apparently, these two principles are product of constitutional government, the proper practice of which is in doubt in our nascent democracy. However, it cannot be over-emphasized that the concept of constitutionalism is a subtle item in the appraisal of our present Government. It is relevant to mention that a political situation will be well-suited if the administration of governance is predicated on the strict provisions of the law. It is interesting to aver that Nigeria is more than fifty years as an independent nation and we have practiced democracy intermittently for more than twenty years starting from 1960
Keywords: AN APPRAISAL OF THE COURTS AND CONSTITUTIONALISM IN NIGERIA
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