Senate Orders And Its Infringement Of The Doctrine Of Separation Of Powers

By Nelson Ekujumi
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It’s a known fact that Nigeria as a country is operating a federal system of government as well as a constitutional democracy which recognizes the doctrine of separation of powers between the three arms of government, namely the executive, legislature and the judiciary.

It was the French Philosopher Jean Montesquieu who postulated that power corrupts and absolute power corrupts absolutely and it was because of the realization of the need to ensure the exercise of governmental powers without endangering societal values and liberty that necessitated the entrenchment of the doctrine of separation of powers in a constitutional democracy between the three arms of government in a manner which presupposes that while the legislature makes the laws, the executive implements and the judiciary interpretes it. The doctrine presupposes that no one arm must be superior to the other but rather that they should be complementary to one another in the discharge of their constitutional functions.

It is with the understanding of this doctrine and the need to save our democracy from the dangerous infringement of this principle that compels one to draw the attention of the Nigerian people to a disturbing trend emanating from the legislature, which needs to be re-examined and worked upon.

Since the advent of democratic rule in 1999, one has watched with shock and bewilderment at how the legislature which ordinarily according to the constitution, is saddled with the responsibility of making laws for the good governance of the country has also been saddled with an area that is supposed to be outside its jurisdiction and can best be described as the usurpation of the functions of the courts and the security agencies by its powers to order for the arrest of public officials, if such a person fails to heed its summons of invitation or make an order on a matter of law.

One must make it clear, lest he be misconstrued or the facts twisted to suit whatever purpose, that while one agrees and recognizes that the legislature has oversight functions on all matters of national importance, it is important to state that the time has come for the legislature to be called to order and an amendment made to the law which empowers it to make orders of arrest against a public official who refuses to heed its summons of invitation because it is prone to abuse and can be used to settle personal scores, after all no other arm of government can make laws which is its exclusive preserve, so why must it be allowed to stray into the areas of competence of the other two arms of government?.

The concern about the orders of the senate stems from its recent order to the Nigerian Electricity Regulatory Commission (NERC) to revert the electricity tariff increase and the order for the arrest of ex EFCC chairman, Ibrahim Lamorde for shunning its investigative committee summons.

As a matter of fact, the NERC is a creation of the Act of parliament having been established by law under the Electric Power Sector Reform Act 2005 which grants the commission, the power to establish the tariff which all classes of customers should pay for electricity services. Going through the NERC Act, am unable to discover where the senate is vested with such powers to order the reversal of electricity tariffs which the Act, vest solely in the NERC.

According to the constitution of the federal republic of Nigeria, a man is presumed innocent until proven guilty and if we are to subscribe to the doctrine of separation of powers as propounded by its founders, then the only organ or organs of state that can call for the arrest of an alledged violator of the law, is the law courts if in the event of arraignment, a suspect fails to turn up and is unable to give cogent and satisfactory reasons for his absence or the security agencies, if they have reasons to invite a person for questioning and he ignores the invitation.

If the Senate has grounds for reasoning that the electricity regulatory body should shelve its latest tariff hike, it becomes expedient on it in the discharge of its oversight functions to dialogue with NERC and then prevail on the body to revert its tariff increase which should be done by the NERC leadership, rather than the senate attempting to illegally take over its constitutional functions by issuing orders.

Also, if in the course of the senate investigation into the activities of EFCC under the leadership of its erstwhile chairman, Ibrahim Lamorde, it has evidence of corrupt practices against him, it behooves on the senate to act responsibly by forwarding it findings as evidence to the security agencies for the investigation and prosecution of Lamorde for abuse of office rather than the powers granted it to usurp the functions of the other arms by calling for his arrest because he shunned their invitation.

Again, it must be noted that the purpose of this intervention is not to disparage or condemn any patriotic and genuine efforts being charted towards resolving a problem, what we are only admonishing is that, such efforts must be done within the confines of the doctrine of separation of powers as enshrined in the constitution in order to save our democracy from the danger of the abuse of orders which daily stares us in the face.

We need to revisit the powers entrusted in the legislature to make such orders and the time to act is now!

Yours Sincerely,
Nelson Ekujumi.

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