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DEMOCRACY, GOOD GOVERNANCE, RULE OF LAW AND THE

EXECUTIVE ARM OF GOVERNMENT IN NIGERIA.

Adedoyin Akinsulore*

Abstract

After a century of the existence of Nigeria as a nation, the enthronement of thedemocratic norms of Rule of Law and Separation of Power is still a problem as thenecessary culture to ensure these among the political gladiators within the country islacking. This shows more in the struggle for domination between the three arms ofgovernment,in which the executive arm of government have been the victor.Theconsequence of this victory to the country has been recklessness and profligacy of thatarm of government.Against the above background this paper jurisprudentially employedthe concepts of Rule of Law and Separation of Powers to deconstruct the essential natureof the executive in Nigeria within the present milieu of political instability anduncertainty. In that process this paper revealed a political class that fall shy ofrecognizing the strategic need of upholding articulated separation of the roles of arms ofgovernment.This paper posited that recalibrating the practice of federalism is needed forthe sustenance of democracy in Nigeria.

Introduction

As Nigeria celebrated its centenary of existence in 2014, it would not amount to a

wasted effort to take a historical overview of the role that the law has played in

establishing, maintaining and ordering the political entity. Since the proclamation of Lord

Lugard in 19141 which brought Nigeria into being, there is no doubt that the law has

played part in the shaping of the country to the form it is today.2

* Adedoyin Akinsulore, Department of Public Law Obafemi Awolowo University Ile-Ife, e-mail:adakinsulore@oauife.edu.ng or adedoyinakinsulore@gmail.com GSM N0: +2348035772954 and+23480569544091Ese Malemi, The Nigerian Constitutional Law (Princeton Publishing Company 2012);See also TunjiAjibade, 'Nigerians Who May Thank Lord Lugard'(Punch Newspapers, 30 May 2014)<http://www.punchng.com/opinion/html/> accessed 20 October 20142 After the amalgamation of Nigeria in 1914 by the then Governor-General,Sir Fredrick Lugard, Nigeriahas had five constitutions made by the colonial government(1922-1960), and a further four made by andimposed on the people by either the military or the elite in the country (1963-1999).It could be argued thatNigeria had five post-colonial constitution if one considers the draft Constitution made by the SanniAbacha Military Regime but as this constitution was never promulgated into law thus it never became

The myriads of constitutions Nigeria has been adorned within a hundred years

attests to the evolving socio-political importance of law in the emerging country.3 More

importantly the independent Nigeria that emerged from the colonial power in 1960 has

been an interesting study in the interplay of civil and martial laws considering the number

of years the military were in control of the levers of power in comparison to democratic

rule4. One consistent collage of behavior by the protagonist in the hall of power in

Nigeria is their consistent and arrogant disregard of the Rule of Law be they civilian or

military. This has not only stunted the development of the Rule of Law and other useful

democratic principles but it has caused despair in the heart of the governed in Nigeria.5

This despair, made sour in the face of the constant impunity of the ruling class

particularly the executive arm of government, has come to ingrain the attitude of “chop

and go” of the national cake6 for any fortunate Nigerian who is able to lay his hands on

the levers of power in the country. This is the Nigerian story at present- marred by

binding as effective law. See B.O. Nwabueze,"A Constitutional History of Nigeria” (1982) cited in F.T.Abioye,'Constitution Making, Legitimacy and Rule of Law: A Comparative Analysis'(2011)44(1) TheComparative and International Law Journal of Southern Africa 59(9).In seriatim, the NigerianConstitutions are as follows: Sir Hugh Clifford's Constitution (1922); Sir Arthur Richard's Constitution(1946); Sir John Mcpherson's Constitution (1951); Sir Oliver Littleton's Constitution (1954);The 1960Independence Constitution (1960);The 1963 Republican Constitution (1963);The 1979 Constitution(1979);The 1989 Constitution (1989); The 1995 Draft Constitution (initiated by General Sanni Abacha);The 1999 Constitution (1999); See Ese Malemi (n1) 48.3Ese Malemi (n1)4 Between 1960 and 1999 the Nigerian military was in power for 28 years out of the 39 years.5 The concept of democracy is wide in its scope as there are cultures and political entities. What is acommon decimal in the definition of democracy is that it involves "governance" or "government" with thecritical involvement of "people". Democracy takes different shapes in different climes and as Claude Akecritiques, for many African leaders democracy is largely a strategy for power, not a vehicle for popularempowerment. Furthermore, while in the western world the practice of democracy is individualized,pitching the individual’s interest in a competitive struggle with the majority, people participate indemocracy in Africa not because they are individuals whose interests are different and need to be asserted,but because they are part of an interconnected whole. Thus to say democracy is essentially a "contestedconcept" would not be too far off the mark. See James Alan, 'Thin Beats Fat Yet Again: Conceptions ofDemocracy'(2006)25(5)Law and Philosophy 533,534. See also Claude Ake, 'The Unique Case of AfricanDemocracy'(1993)69(2) International Affairs (Royal Institute of International Affairs 1944-) 239,243.6 National cake is a concept that has become caught up in the Nigerian political diction to signify thecorrupt booties that politician gain from holding power; See Chineye Leo Ochulor, ‘ Failure of Leadershipin Nigeria’ (2011) American Journal of Social and ManagementSciences<http://www.scihub.org/ajsms/pdf> accessed 20 October 2014

recklessness on the part of the executive, puny weakness of the legislature and delusional

denial of reality and arm-folding by the judiciary. All these are happening under the

pervading suffocating effect of rampant corruption in high places within Nigeria.7

Implicit in the recklessness of the executive arm of government is the travails of

Democracy, Rule of Law, Good Governance and Separation of Powers. A critical

discourse of these concepts is bound to shed more light on the present topic.

The Rule of Law

Generally, law would entail the whole system of rules and regulation of a

country.8 These rules are made by government to order the way behavioral pattern of

persons within the society where the rules cover. In order words, everybody is governed

by these rules. Rule of law means government based on laws which are reasonably

justified in a democratic society and the exclusion of arbitrary laws or arbitrary exercise

of powers by government.9 It is a regime of rule announced in advance which predictably

and effectively applied to all they address, including the ruler who promulgate them.

Classical Diceyianism holds that the three creative elements that make up rule of

law are: Absence of arbitrary power on the part of the state10; Equality before the law;

and Supremacy of the ordinary law. The Rule of Law states that power must be

controlled by law and that the law should set limits to what the law can and cannot

do.11Von Hayek agrees with Dicey that under the Rule of Law nobody must be above the

7 See generally Fatula Olugbemi,’ A Re-Appraisal of the Legal Mechanism for Tackling Corruption inNigeria’ (2012)1((1) Indian Journal of Social Studies and Humanities 1228Ese Malemi (n1)82,859 Id10Jaqueline Martin, ‘The English Legal System’ (Hodder Education, An Hachette UK Company 2010) 1211 Id

law and whoever carries out the function of state is accountable under the law.12Success

of the Rule of Law depends not only on the provision of adequate safeguards against

abuse of power by the executive but also on the existence of effective government

capable of maintaining law and order, of ensuring adequate social and economic

conditions of life for the society.13 An independent judiciary and free legal profession are

indispensable as they are prerequisite for a free society under the Rule of Law.14

While these are noble theoretical ideal and expectations under the Rule of Law

the objective reality itself shows that embedded in the making of these laws, by the law

making organ of the state, is a skewed equality ratio where some persons are more equal

than the others in the form of exemptions from the effect of laws made.15In fact emerging

democracies in places like Africa and South America have failed to reap the full benefits

of economic policies due to failure to engage the tenets of Rule of Law where agencies

empowered by the law to pursue a particular trajectory of economic policies would be

subject to constant intervention from political actors who, paradoxically, enjoy the

immunity from the effect of law.16

Within the Nigerian socio-legal space, the Rule of Law has enjoyed moments of

triumphs and of travails. The elongated military rule in Nigeria’s history relegated the

12F.A. Von Hayek 1971 cited in Martin(n 7) 1213Toriola Oyewo, Constitutional Law and Procedure in Nigeria (John Archers Ltd 2009) 5514 Id15 See the constant abuse of the presidential and governorship immunity under the Constitution of theFederal Republic of Nigeria1999 as amended, Section 308. Furthermore, there is also the issue ofParliamentary immunity not to be found culpable for acts done within the parliamentary building. Section3 of Legislative Houses Power and Privileges Act (LHPPA) Cap L12 Laws of the Federal Republic ofNigeria, 2004; See also Immunity of Judges of Superior Courts of Record in Nigeria as can be found insection 88 High Court Law of Lagos State and through common law rules encoded in section 45 of theEvidence Act Cap. E14 LFN 2004; See G. Omo Arishe, 'Reconsidering Executive Immunity under theNigerian Constitution'(2007-2010) Nigerian Current Law Review< http://www.nials-nigeria.org/journals/NCLR.10.pdf> Accessed 20 October 2014.16 Josephine T. Andrews and Gabriella R Montinola, ‘Veto Players and the Rule of Law in EmergingDemocracies’ (2004) 37(55) Comparative Political Studies< http://csp.sagepub.com/content/37/1/55>accessed 16 July 2014.

Rule of Law under the “rule of gun”.17 The military’s first act upon ascension to power is

to suspend the grundnorm of the state (i.e. the Constitution) and subsequently rule by

decree.18 However, the courage of the judiciary to uphold the Rule of Law can be noted

in several celebrated judicial decisions in Nigeria which have strengthened the idea of

Rule of Law even if notionally.19In Military Government of Lagos State v Ojukwu the

Court, in stoic firmness, held against the military government that the Nigerian

Constitution is founded on Rule of Law and everything must be done according to law.20

For law to rule, it has to be made. This is the primary function of the legislative

arm of government which is to make laws through a clearly defined legislative process

aimed at producing laws that would be applied equally to all persons within the territory

of the state where the law is promulgated. It should be noted that there is no free standing

clause explicitly enumerated in the Constitution of the Federal Republic of Nigeria 1999,

(as amended)21, on Rule of Law but what is espoused are the principles of democracy.22

Even at that, the proclamation of these democratic principles are made non justiciable in

line with S. 6 (6)(C) of the Nigerian Constitution. Dicey in his amplification of the Rule

of Law describes it as a “characteristic” of the constitution or “a special attribute of the

English institutions” rather than one of its legal principle.23 Even in spite of this assertion

by Dicey, constitutional development theories agree that Rule of Law is an important

17 Nigeria was under military rule for twenty eight years out of the thirty nine years of independence beforethe new democratic dispensation of 1999.18 Suspension and Modification Decree NO 119Aoko v Fagbemi (1961)1 ALL NLR 400; Shugaba AbdulRahiman Darman v The Minister of InternalAffairs and others (1982)3 N.C.L.R. 915; Military Governor of Lagos State v Chief OdumegwuOjukwu(1986) 1 NWLR(Pt 18) 621.20Supra, Kayode Eso JSC delivering the lead judgment.21Hereafter referred to as the Nigerian Constitution.22 Section 14 the Nigerian Constitution 1999.23 A. V Dicey, An Introduction to the Study of the Law of the Constitution 107,110,115( First published in1885,Liberty Classic 1982)

principle24. The implication of the above within the provisions of the Nigerian

Constitution is that while the principle of Rule of Law is implicitly acknowledged within

the fabric of democracy, it is not an enforceable principle of the Constitution.25

Rule of Law is a veritable tool of the legislative arm of government being the arm

charged with making of these rules. The onus on this organ therefore is to make laws that

uphold the tenets of democracy26 through enacting clearly unambiguous laws which, then

being the extant laws of the land, must be obeyed by all. Where majority of the

individuals that constitute the legislature lack the philosophical understanding of the

concept of Rule of Law or are essentially corrupt, there is the danger that the Rule of Law

may itself become endangered or made prone to misuse or abuse by any other power

which lays its hands on it.27

Separation of Powers

The classical interpretation of the theory of Separation of Powers is that it is the

division of powers and functions of government among the three independent and

24 Jeremy Waldron, “Separation of Powers in Thought and Practice?”(2013) 54 Boston College Law Review432;Toriola Oyewo, ‘Constitutional Law and Procedure in Nigeria’ (John Archers Publishers Ltd 2009)55.25 The principle of democracy is enshrined in Chapter Two of the Nigerian Constitution which is non-justiciable. See Waldron (n 21) 436 where he posits that the “U.S. Constitution contains no textual principleof democracy and even while the importance of certain democratic considerations can be inferred fromArticle 1, Section 2, Clause 1 and from the fifteenth, nineteenth, twenty-four and twenty-sixth amendments,the principle of democracy itself cannot be regarded as legally enshrined. Thus the U.S. Constitutioncontains no textual principle of rule of law.”26 Such as Separation of Powers, Checks and Balances .27 The notorious corrupt nature of the Nigerian legislature at the state or federal level is amplydemonstrated in several scandalous impeachments of principal members of the House of Assembly at thefederal and state level on ground of corruption. See the Patricia Olubunmi Etteh and Dimeji Bankoleimpeachment Saga. The executive arm of government in Nigeria is well aware of this and uses this softunder belly of corruption on the part of the legislature to thwart the enshrinement of the Rule of Law in thedemocratic culture of the country. The impeachment of Enugu State Deputy Governor on August 2014 ongrounds of having poultry in the government house contrasts with the purported attempt by the federalgovernment sponsored impeachment processes against the Nasarawa state governor which failed. SeeMuhammad Ahmad, 'Breaking-Nasarawa Impeachment Fails as Panel Dismisses all Charges againstGovernor Al-Makura'(PremiumTimes,5 August2014)<http://www.premiumtimesng.com/news.html>Accessed 22 October 2014.

separate arms of government which should act as checks and balances on one another

with a view to preventing the abuse of powers.28 The whole purpose of the concept of

Separation of Powers is to avoid a tyrannical government – a government that could

make laws, enforce such laws to suit its own purpose politically, economically or socially

to the detriment of others.29Separation of Powers doctrine stems from John Lock’s

observation of 17th century England30 and Montesqueue’s treatise which expands on

Locke’s observation.31 It is on the basis of this understanding that Nigerian courts have

based resounding decisions to the effect that an arm of government, even when it is held

by the military should uphold and obey the concept of Separation of Power.32

Is there a Separation of Powers clause in the Nigerian Constitution? Even while it

may not be explicitly mentioned in a numbered section of the Nigerian Constitution, there

is no doubt that the idea of Separation of Power lies behind the Nigerian

Constitution.33Jeremy Waldron, in an incisive look at the concept of Separation of

Powers, opines that Separation of Powers would be inadequate if it only stops at the

conceptual division of powers amongst the three tiers of government but that these

powers which each organ is to wield should be “articulated” in its nature and function

28Malemi (n 1)29 Peter Oluyede, ‘Constitutional Law in Nigeria’ (Evans Brothers Nigeria Publishers Ltd 2001) 7530 John Locke, ‘Two Treatises of Government 366-367’(Peter Laslett ed. Cambridge University Press 1988)31 Montesquieu, The Spirit of the Law, 157( Anne M Cohler ed. and trans. Cambrdige University Press1989) cited in Waldron(n 21) 444 .32 See Lakanmi v Attorney-General (Western State of Nigeria) [1971] 1 UILR 207 where the SupremeCourt ruled that Decree No 45 of 1968 was ultra vires since it was “nothing short of legislative judgment,an exercise of judicial power.” Subsequently the military, in their characteristic undemocratic mannerrendered the decision of the Supreme Court nugatory by overruling it vide another legislation-Decree No28 (Supremacy and Enforcement of Powers) of 1970. See also the Governor of Kaduna State v House ofAssembly, Kaduna State and Anor (1981) 2 NCCR 444.33Sections 4, 5, 6 of the Nigerian Constitution. See also John F. Manning,‘Separation of Power as OrdinaryInterpretation’ 124 HARV. L.REV 1939, 1944-45 cited in Waldron 434, where Manning observed that thereis no free standing principle of Separation of Power in the American Constitution.

such that each organ is separated whichever area they find themselves functioning34. He

explains further that the personnel to use these powers must have an intrinsic

understanding of the distinctions of each power and should not try to apply or arrogate

those other powers that are not their distinct own. According to him:

what is important from the separation-of-powers point ofview is that there be a legislative stage to theenforcement of administration policy and that theintegrity of that stage be protected againstencroachment both as a matter of process and as amatter of mentality from the character of other stages ofgovernance.35

He enjoins further that:

that the principle of separation of powers commands usto respect the character and distinctions of each of thethree main functions of government … commandingrespect for the integrity of each of these three operationsof government is important precisely because they haveto fit together into the general articulated scheme ofgovernance. 36

By articulation, it is meant that the exercise of the function of each organ is

broken down into logical recognizable stages and many of the stages in that articulation

correspond to Rule-of-Law requirements like principle of clarity, promulgation, integrity

of expectation, due process etc.37

But then the principle of Rule of Law and Separation of Powers overlap and

engage similar concerns:

to insist on being ruled by law is, among otherthings, is to insist on being ruled by the process that

34 Waldron (n21) 45835 Id, 46636 Id37 Id,458

answers to the institutional articulation required bySeparation of Powers.38

He posits that Separation of Powers is different from Checks and Balances and

Division of Powers- the latter being a concept promoting the avoidance of contraptions of

political power in the hands of any one person, group or agency while the former is

concerned that the exercise of power by one power holder needs to be balanced and

checked by the exercise of power by other power-holders.39

The Concept of Good Governance

In recent times one of the benchmark for the assessment of the development of

democracy world over is the concept of good governance. A keyword in this concept is

the word “governance”. Governance may be taken as denoting how people are ruled and

how the affairs of a state are administered and regulated. It refers to a nation’s system of

politics and how this functions in relation to public administration and law. Thus, the

concept of governance goes beyond that of "government" to include a political

dimension.40 “Goodness” of governance is open to the interpretation of the experience of

the governed relative to the performance of the leader within a political entity.41

Therefore the concept of good governance could be seen as a socio-political construct for

the evaluation of leadership skills in the personalities entrusted with powers to govern in

a political entity and deliver the dividends of democracy.42 Moreover in the assessment of

this concept the view of the governed ,through their experiences within the political

milieu where the leader evocates his leadership skills, is very important alongside

38 Id ,45939 Id , 43840 Landell-Mills and Serageldin , Proceedings of the World Bank Annual Conference on DevelopmentEconomics 1991( World Bank,1992 304).41 Olayiwola A.R.O., ‘Leadership, Corruption and Governance in Nigeria’ (2013) 5(2) Journal ofEducation and Leadership Development 52,57.42 Id

international benchmark for the assessment of good governance. In other words Good

Governance is a system of government based on good leadership, respect for the rule of

law and due process, the accountability of the political leadership to the electorate as well

as transparency in the operations of government.43 As Kofi Annan puts it “without good

governance, without the rule/role of law, predictable administration, legitimate power,

and responsive regulation-no amount of funding, no amount of charity will set us on the

path of prosperity”.44

The World Bank defines Good Governance as consisting of the manner in which power is

exercised in the management of a country’s economic and social resources for sustainable

development.45 It is the totality of the exercise of authority in the management of

country’s affairs comprising the complex mechanisms, processes and institutions though

which citizens articulate their interest, exercise their legal rights and mediate their

differences.46 For the UNDP Good Governance is the legitimate exercise of political,

economic and administrative authority to manage national affairs.47 An expert’s analysis

of Good Governance maintains that Governance is good provided it is able to achieve the

desired end of the state defined in terms of justice, equity, protection of life and property,

enhanced participation, preservation of the rule of law and improved living standard of

43 Odock, C., Democracy and Good Governance (NOUN, 2006).44 Annan, Kofi Cited in UNDP, 1997.45 World Bank , “Sub-Sahara Africa: From Crisis to Sustainable Growth- A Long Term Perspective” 1989.46 World Bank Report (2000), “Can Africa Claim 21st Century?” <http://www.Worldbank.org/wbr/governance> accessed 20 March 2015. See also Tolu Lawal, Kayode Imokhuede andIlepe Johnson, ‘Governance Crisis and the Crisis of Leadership in Nigeria’ (2012)2(7) InternationalJournal of Academic Research in Business and Social Sciences 185,18647United Nations Development Programme, ‘Governance for Sustainable Development’(UNDP,1997).Seealso Adesoji A. Adenuga, “Good Governance and Accountability in Nigeria’s Developmental Dilemma”(2013) 4(2) Mediteranian Journal of Social Sciences 777,778

the population.48 The Nigerian Constitution provides for the principle of Good

Governance in Section 16(1) a,b,c,d and 16(2).The recognition of this important principle

is however not justiciable as all matters under Chapter II of the Nigerian Constitution

are.49 Section 22 of the Nigerian Constitution provides for the press, radio and television

and other agencies of mass media to be free to uphold the fundamental objectives

contained in chapter II of the Nigerian Constitution. With the passage of the Nigerian

Freedom of Information Act (2011) the implication is that through the exercise of this

constitutional right by the mass media guaranteed in the Section 22, government can then

become accountable to the people for failure to provide good governance.50

From all these definitions we can infer that Good Governance, as a concept, is applicable

to all sections of society such as the government, legislature, judiciary, media, private

sector, corporate sector, trade unions and lastly non-government organisations

(NGOs).Failure of governance implies that those in political control have not properly

managed the economy and other social institutions.51 According to World Bank bad

governance has many features, among which are: failure to make a clear separation

between what is public and what is private, hence a tendency to divert public resources

for private gain; failure to establish a predictable framework for law and government

behaviour in a manner that is conducive to development, or arbitrariness in the

application of rules and laws; excessive rules, regulations, licensing requirements, etc,

which impede the functioning of markets and encourage rent-seeking; priorities that are

48 I.S.Ogundiya, ‘Democracy and Good Governance: Nigeria’s Dilemma’(2010)4(6) African Journal ofPolitical Science and International Relations 201-20849 See Section 6(6)(c) of the Nigerian Constitution.50 See Ifeoma Dunu, ‘Good Governance in Nigeria: What Role for the Media’(2013) 9(32) EuropeanScientific Journal 178,179; See also Rod Alence, ‘Political Institutions and Developmental Governance inSub-Sahara Africa’ (2004) 42(2) Journal of Modern African Studies 163,16451 Dunu (n 50)

inconsistent with development, thus, resulting in a misallocation of resources and

excessively narrow base for, or non-transparencies, decision-making.52

Good governance has the following components:

1. Responsibility and responsiveness in leadership and in public service;

2. Accountability in the mobilization as well as in the utilization of resources;

3. Discipline, effectiveness and efficiency in handling public (as well as personal)

affairs;

4. Selfishlessness and impartial service to the people; and

5. Popular participation and empowerment of the people in the conduct and

management of their own affairs.53

However, looking at the rate of unemployment, diversion of resources by public officials,

escalating rate of corruption54, tribal cum ethnic clashes, abuse of office by public

officials, looting of public finances, kidnapping, increased rate of cybercrimes and other

types of crimes there is every reason to believe that Good Governance is still a mirage as

far as the Nigerian polity is concerned.55 The problem of Nigerian development is both a

symptom and consequence of the absence of Good Governance.56In the world we are

today Good Governance has assumed an entrenched position as an indicator for

52 World Bank, ‘Governance and Development’( World Bank,1992)53 Jega, A.,’ Democracy, Good Governance and Development in Nigeria’ (Spectrum Books Limited, 2007)cited in Olayiwola (n 41) 6154 Nigeria continues to be reported among the most corrupt countries of the world.55 Dunu (n50) 184.56 Ogundiya (n 48)

measuring the development progress of any nation as well as a central factor for

development.57

The Law and the Making of a Powerful Executive Arm of Government

Amongst the three organs of government, the executive is the most aggressive

because, as the nature of its function demands, it has to execute laws made by the

legislature and in doing this, also manages the arrays of administrative bodies and

agencies created by the law to execute these laws. The Nigerian Constitution cloaks the

executive, at the federal and state levels with enormous powers. Besides section 5 which

establishes this power58, the president, with the governors at the state level to a some

extent, is cloaked with the powers to control the public revenue of the of nation,59 public

service of the federation60 and appoint ministers and special advisers who would assist

in the running of these public services.61The president also has the power of control over

the Police and Armed Forces.62

With this constitutionally endowed powers there is no doubt that it could be very

tempting for the executive to threaten the independence of the judiciary63 or undermine

57 See Dunu (n50,182);See generally Ved P. Nanda, The “Good Governance” Concept Revisited’ (2006)603 Annals of the American Academy of Political and Social Science 269 <http://www.jstor.org/stable/25097772> accessed 21 March 2015.58While sections 130 and 176 of the Nigerian Constitution establish the office of the President of theFederation and Governors respectively.59 Section 162-168 of the Nigerian Constitution.60Sections 169-175 of the Nigerian Constitution.61Sections 147-152 of the Nigerian Constitution.62 See sections 214-206 of the Nigerian Constitution in relation to the Police Force and sections 217-220 inrelation to Nigerian Armed Forces. The Governor of the state, save for the powers to control the Police andthe Armed Forces, is cloaked with almost similar powers to the president of the federation within his state.See also sections 192-196 of the Nigerian Constitution for powers to appoint commissioners and specialadvisers. Sections 197-205 for the appointment of executive bodies and sections 206-212 for the controlover public service.63 Justice Ayo Salami, former President of the Court of Appeal, was suspended with the tacit support of theexecutive arm of government in 2011 by the National Judicial Council on grounds of misconduct but whenhe was subsequently cleared of this misconduct, the Nigerian President became reluctant to recall him untilhe reached the mandatory retirement age. See Francis Iwuchukwu,' Suspension of Justice Salami by NJC is

the integrity of distinct legislative processes.64With this set of enormous powers on the

executive, especially the president and governor, there is a need to ensure that the

personalities entrusted with these powers are persons with the moral turpitude and

political astuteness to maintain the principle of Separation of Powers and allow the Rule

of Law principle to prevail. But with the pattern of behaviour of Nigerian politicians65

and the politically conscious Nigerian military66 there is ample evidence that the Nigerian

political leaders have been profligate with the use of this power, preferring to line their

pockets with the profits accruing from being in this office than carrying out their duties to

the benefit of the majority of the Nigerian people.67

By the nature of Nigeria’s federalism the power over the controlling heights of the

economy of the nation falls on the federal executive especially the power to allocate fund

to each state from the federation account. The federal executive body, headed by the

unfair -Uwais' (NewswatchTimes,11 November 2013)<http://www.mynewswatchtimesng.com> accessed25 October 2014.64Gbenga Daniels, former Governor of Ogun state, used the police to block the entrance of the House ofAssembly of Ogun State thereby preventing the house from sitting and voting on his plan to raise money atthe money market. See Babs Ajayi’ Gbenga Daniels and the Backwardness of Ogun State’<http://nigeriaworld.com/feature/publication/babsajayi/022511.html>See also Martin S. Flaherty, ‘The MostDangerous Branch’, (1996)105 Yale L.J. 1725, 1728 cited Jeremy Waldron,463 where he says theAmerican president commands a vast military establishment and the massive security apparatus that goeswith it and he maintain either directly or primary control over the “administrative state”, the colossal arraysof agencies that legislate and adjudicate under any but the broadest definition of “executing” the laws.65 The Profligacy and corruption of the Shagari regime is so notorious that the Buhari-Idiagbon coup in1983 was met with jubilation by the populace. See also the corruption story of Alameisigha formergovernor of Bayelsa State of Nigeria and James Ibori former governor of Delta State of Nigeria, nowserving prison term in England over money laundry66 For instance the Sanni Abacha years as head of government of Nigeria was marred by brutality,assassinations and corruption.67 The return of Millions of Dollars to the Nigerian government corruptly lodged in Swiss bank accounts byGeneral Sanni Abacha though the government of Switzerland attests to the high level of corruption of theNigerian Head state during the Abacha Military regime.

president,can starve any state of necessary fund if such state fails to toe the line of the

federal government’s policy directives68.

Furthermore, it is the executive arm of government that goes to defend the

Appropriation Bill before the Legislature. When the budget is passed it becomes subject

to the administrative bottleneck of the Ministry of Finance and the Office of the Account-

General of the federation before such fund is released to any other arm of

government.69All these administrative bodies are under the control of the executive arm

of government headed by the president or the governor with a high likelihood of misuse

of these powers by the executive.70

The over-towering nature of the constitutional power imbued in the executive,

particularly the presidency, coupled with the financial insubordination of the other arms

of government has affected other institutional, statutory bodies that are created to sustain

68Federalism can be defined as the constitutionally guaranteed decentralization in which dispersal of powerto constituent units is obligatory.It is characterized by an irrevocable division of power between the centralgovernment and the component units (e.g., states, regions, provinces, and cantons). This division is aproduct of a constitutional compact between the two units of government neither of which, acting alone,can amend (or revoke) the compact .In other words federalism is a form of government in whichsovereignty or political power is divided between the central and local governments, so that each of themwithin its own sphere is independent of the other. Under unitarism there is only one effective anddeterminate level of government-the central government. Territorial (local administrative) subunits ofgovernment are determined by, and subordinate to, the central authority, the relationship being one of arevocable delegation of power to the territorial units by the central authority. See Eghosa E. Osagha, 'AReassessment of Federalism as a Degree of Decentralization'(1990)20(1) Publius 83,85;S. A. Paleker,'Federalism : A Conceptual Analysis'(2006)67(2)The Indian Journal of Political Science 303. Relate this tothe unconstitutional withholding of federal allocation to Lagos state by the Nigerian federal governmentunder President Obasanjo democratic regime but was later released by the late President Umaru Yaradua inpursuance of a Court order. See the account of Olusegun Adeniyi, ‘Power Politics and Death: A Front-Row Account of Nigeria under the Late President Yar’adua’ (Kachifo Ltd 2011) 569 Recently in the case Agbakoba v Federal Government & 2 ors (Suit Number FHC/ABJ/63/2013) theCourt held that the practice of sending the judiciary budget estimates to the budget office of the executivearm of government is unconstitutional as it violates Sections 81(2) ,84 (1)(2),(3) (4)&(7) of the NigerianConstitution.70 See generally Fatula Olugbemi,’Constitutional Issues in Nigerian Federalism’ (2013) 6 University ofMaiduguri Law Journal 84

democracy and assure the economic welfare of the nation.These institutions71are not

spared the wrath of the presidential powers when such institution is perceived not to be in

line with the “personage” or “personality politics’ of the president.72 Therefore

diminished professionalism, eye-catching, government-friendly, flirtatious policies

soothing to the politics of the day is what now prevails within these bodies.73

In the Nigeria of today the executive’s power is in the ascendency. Therefore in

the event of confrontation with other arms of government, it most of the time, comes top.

This present scenario would serve as a crucible for the analysis of factors encouraging

executive recklessness in Nigeria.

Factors Encouraging Abuse of Executive Powers

The history of Nigeria’s democratic experience is rich with instances of

lawlessness by the executive arm of government.74 While this lawlessness could be

attributed to a lack of democratic culture in the political class that make up the executive-

71 Such as the Central Bank of Nigeria, Economic and Financial Crimes Commission, IndependentNational Electoral Commission, National Population Commission72 This is in reference to the removal of Lamido Sanusi as the Central Bank of Nigeria Governor byPresident Jonathan contrary to section 11(2) (f) of the Central Bank of Nigeria Act 2007.Though thepresidency has tried to explain that this was not contrary to the provisions of the law as Sanusi was“suspended” and not “removed” but there is no provision in the Act for suspension of the CBN governor.See the report of Olalekan Adetayo, " Jonathan Suspends Sanusi as CBN Gov"(The Punch Newspapers,20February 2014)< http://www.punchng.com/news.html> Accessed 7 October 201473 The Central Bank of Nigeria, though established as an independent financial institution, is known not tobe able to implement any fiscal/financial policy without getting the go ahead from the presidency; there hasbeen quite a furore over the expansion of polling booth all over the nation with the insinuation that theIndependent National Electoral Commission is being tinkered with by the ruling party in government inorder to position themselves in an advantageous position for the 2015 general election in Nigeria; theEFCC has become tame having successfully had its firebrand chairman, Nuhu Ribadu, replaced in 2010with a much more phlegmatic Mrs. Waziri and later by a very quiet Mr. Lamode. See Adeniyi (n 47) 21.74 Removal of recalcitrant judicial officers who refuse to toe the line of the executive – Justice Ayo Salamiformer President of the Court of Appeal< http://www.vanguardngr.com>; Federal government withholdingfunds belonging to Lagos state local government; and the desperate efforts to extend Obasanjo’s tenure aspresident of Nigeria beyond 2007.See Lai Olurode ed., ‘A Review Of Reflections n a Decade ofDemocratization in Nigeria’ (Professor Sam Egwu reviewer 2010)<http://www.fes-nigeria.org/common/pdf/review> accessed on 6 October 2014

perhaps as an aftermath of the long years of military rule, there are other proximate

causatives that ignite and sustain this undemocratic behavioral pattern. These other

causative factors are so ubiquitous and subtle that it might not be immediately linked to

factors encouraging executive lawlessness in the Nigerian democratic space.These factors

are identified and discussed below:

Corruption75

Corruption, in the average social environment, is detestable so much so that any

taint of corruption on a personality in such society would mean exclusion from

appointment to public office.76Corruption exists at many levels. It could be at a personal

level thereby making a corrupt person devoid of acceptable social mores and restraints.

Corruption, particularly economic corruption, 77is very detrimental to a nation’s

economic development and causes great hardship on its citizens. Political corruption

involves persons in political power engaging in acts such as election rigging, using

political position to amass wealth, thuggery etc.78The effect of political corruption is

75A conceptual definition of the term corruption is difficult as it is comprises variables which lend itself todifferent interpretations as there are different contexts. Even in spite of this, corruption has been defined bythe abuse of public office for private gains. Public office is abused for private gain when an official accepts,solicits, or extorts a bribe. It is also abused when private agents actively offer bribes to circumvent publicpolicies and processes for competitive advantages or profit. Public office can also be abused for personalbenefit even if no bribery occurs, through patronage and nepotism, the theft of state assets, or the diversionof state resources. Thus it is an anti-social behavior conferring improper benefits contrary to legal andmoral norms, and which undermines the capacity of authorities to improve the living conditions of thepeople. See Victor Egwemi, ‘Corruption and Corrupt Practices in Nigeria: An Agenda for Taming theMonster'(2012)14(3)Journal of Sustainable Development in Africa 72,7476 Wan Qingliang, former Party chief of Guangzhou in China was expelled from the Party and dismissedfrom public office for corruption while he faces charges from prosecutors<http://www.chinadaily.com.cn/china.htm> ; A Chinese court has found disgraced former top politician BoXilai guilty of bribery, embezzlement and abuse of power < http://www.bbc.com/news.html> Accessed on16 October 201477 This may take the form of sabotaging proper flow of economic activity in a society through the practiceof anti-economic activities such as fraud, importation of sub-standard goods. In Nigeria this type ofaberrant economic malfeasance is prosecuted by the Economic and Financial Crimes Commission(EFCC)78 Independent Corrupt Practices and other Related Offences Commission (I.C.P.C.) is a body set up inNigeria to look into corrupt practices and other related offences and through its outlook covers every

quite pervasive as it is capable of and has actually affected the proper practice of

democracy in a developing like Nigeria. Citizens now aspire to public office not to make

the life of electorates better but to engage in converting public fund to personal use. The

inevitable consequential paradox in a country like Nigeria is that many have lost the

sense of public good. The politically debauched is hailed as a hero as he has been able to

storm the public fund vault and make away with the booties therein.He is rewarded with

thumbs up for this heinous act by his political allies and to the chagrin of the hapless

members of the country.79

Weak Anti- Corruption Institutions

The effect of political corruption and its seeming acceptability by the populace

has empowered the political class and emboldened them to undermine agencies that are

established to check their activities. The employers of the political class, i.e. the voting

populace, have become so enfeebled by poverty, tamed by religious nuances and

promises and discouraged by a lack of institutions ready to take up the fight on their

behalf. The present political class in Nigeria remains, laterally above the law.Thus one of

the factors that has encouraged executive recklessness in the Nigerian democratic space is

the absence of independent institutions that can monitor and punish corruption of any

persons anywhere within Nigeria. No doubt that there exist the Independent Corrupt

Practices and other Related Offences Commission (ICPC) and the Economic and

person in Nigeria. It is a body focused on checking corruption among public officials. See Sections 12, 13,14, 21, 22, 26 of the ICPC Act Cap C31, Laws of the Federation of Nigeria 2004.79 The lavish celebration for the release of Bode George who was jailed for corruption was roundlycondemned by Nigerians .See Emmanuel Aziken, 'Anger, Shock Greet Lavish Reception for BodeGeorge'(Vanguard,28 February 2011)< http://www.vanguardngr.com> Accessed 27 0ctober 2014.

Financial Crimes Commission (EFCC)80 to tackle the issue of corruption in the nation but

pursuant to the overwhelming power of the executive to appoint into commissions with

the power to hire and fire81, these bodies are more of tamed dogs for the executives only

to be unleashed on disliked opponents. By the overly-centralized federal system of

government that Nigerian runs82, where the funding of other arms of government is

controlled by the executive through the budget office, then it would make sense to any

commission and institutions controlled by government to tow the government line and be

in government’s favour than to attempt to pursue the pristine goal of such commission as

etched in its enabling statute. This is the helpless situation Economic Financial Crimes

Commission and the Independent Corrupt Practices and other Related Offences

Commission find themselves83even while there is constitutional provision for such bodies

to be independent.84 The logic of “He that pays the piper dictates the tune’ brings one to

the objective realization that as the Nigeria federal government controls the finances of

the nation no agency or institution within the country is truly independent.85

80 ICPC Act Cap C31 LFN 2004 and EFCC Act Cap E1 LFN 2004;Other statutes enacted to combatcorruption in Nigeria are Advance Fee Fraud Act CAP A6, LFN 2004; Money Laundering Act, 2011;Dishonored Cheques Act CAP D11 LFN 2004; Recovery of Public Property (Special Provisions) Act CAPR 4 LFN 2004; Code of Conduct Bureau and Tribunal Act CAP C 15, LFN, 200481 See section 3 of the EFCC Act; Sections 157 and 201 of the Nigerian Constitution82 Although Nigerian is called a federation funding of state still comes largely from the federal governmentthrough the concept of federal allocation83 Michael Kaase Aondoakaa, former Attorney-General of the Federation, commenced the trimming of thefeathers of the EFCC in 2008 by purging the institution of Nahu Ribadu, the former vibrant Chairman ofthe EFCC with a streak of independent mindedness, as the Nigerian government abhor this unpredictabilityof Ribadu under the Umar Yaradua regime. See Adeniyi (n 47) 1784 See Sections 158 and 202 of the Nigerian Constitution where such bodies as the Code of ConductBureau, National Judicial Council, Federal Civil Service Commission and the Independent ElectoralCommission, etc. are constitutionally declared independent.85 The recent removal of the Central Bank of Nigeria’s Governor, Sanusi Lamido Sanusi, by the federalgovernment against statutory provision designed to promote the independence of this body is starkreminder of enormous unchecked powers of the federal government. See the report of Adetayo (n50).

Control of Finance by the Executive

The capacity to manipulate the strategic resource of finance in the nation has put

the executive in the power firmaments over the other arms of government. While

elementary study in governance and democratic practices inform that the three arms of

government are separate and independent of one another, the practice where other arms

of government submit their annual budgetary estimate to an agency controlled by the

executive for approval by the national or state assembly, suggests that the principle of

independence ingrained in the doctrine of Separation of Powers is getting blurred. For

one thing, it is financially logical that since it is the executive that defended the

Appropriation Bill at the House of Assembly, then it has the power, and it does exercise

the power through the Accountant-General’s office, to monitor and control the release of

the funds to the requisite organs of government.86

This strategic power to withhold or release fund held by the executive is the key

to the control, taming, and enfeebling the other arms of government87. This practice has

been challenged in the case of Agbakoba v. Federal Government88 and the court has held

that the practice of submitting budget estimate to the Budget Office by other arms of

government is unconstitutional. If this decision is upheld by the upper Courts of the

86 Office of the Accountant-General of the Federation was established under the Civil Services Re-Organisation Decree No 43 1988.The Accountant-General is responsible for the overall receipt andpayment of the Republic of Nigeria and amongst other functions Maintain and operate the accounts of theConsolidated Revenue Fund, Department Fund, Contingencies Fund and other public funds and providescash backing for the operation of the federal Government.<http://oagf.gov.ng/about-us/> accessed 23March 201587 Office of the Account-General, through the budget office controls how fund is released to other arms ofgovernment in Nigeria. See Wale Igbintade, ' JUSUN strike: Agbakoba, Daudu, others Bicker overJudgment Enforcement'(NationalMirror Newspapers,19 January 2015)<http://nationalmirroronline.net/new.html> accessed on 13 February 201588Olisa Agbakoba v Federal Government, the National Judicial Commission and the National Assembly(Suit No FHC/ABJ/63/2013); See also Mike Ikhariale, 'The Judiciary, Budgetary Autonomy and Credibility'(The Punch Newspapers,1st June 2014)< http://www.punchng.com/columnists.html> accessed 16 October2014

country whenever the inevitable appeal ensues, it would mark, and we strongly believe

this, the emergence of truly independent organs of government in Nigeria. Hitherto other

arms of government, be it the judiciary or the legislature, cannot be said to be truly

independent as it ought to be and this has made the practice of democracy seem to sway

to the advantage of the executive arm of government only.89

Structure of the Nigerian Federalism

The way the Nigerian federation is structured in terms of powers and resources

which favoured the centre, particularly the federal executive, is no doubt a recipe for

autocratic, despotic behavior of the federal executive against not only other organs of

government but against other federating states. Classically federalism assumes that every

state within the federation is an independent body, capable of running its affairs and that

such federating state, without reducing their capacity for independently funding

themselves, have decided to give the federal government specified powers to exercise on

their behalf. Such duties could be that of defense, currency management, customs and

exercise immigration, etc.90

However the objective reality in Nigeria is not that of a federating state but more

of a centralized state where the federal government is in control of major mineral

resources, or other strategic resource, to the extent that most state within the federation

cannot survive without the regular allocation from the federation account (commonly

referred to as the federal allocation).91 Thus each state is under the doling arm of the

89 See generally Fatula Olugbemi, Constitutional Issues in Nigerian Federalism; (2013) 6 University ofMaiduguri Law Journal 84-9790 See Eghosa (n 68).91The Supreme Court of Nigeria has held that the withholding of federal allocation by the Obasanjo ledfederal government to the twenty local governments in Lagos state under Ahmed Tinubu on grounds that

federal government; and of course such power is used to control, influence what happens

in other federating states. In the occasion where the political party controlling the federal

is different from that of any state, which will naturally mean differences in political

ideology of the ruling party, there have been cases of constant muscling and eyeballing

between the federal executive and such ‘recalcitrant” state executive attempting to stand

against the federal might.92

The current nature of the federal system been run in Nigeria can be traced to the

advent of military rule in the country. The military by structure is undemocratic and

therefore, during the period of military rule in the country, all orders, laws and directives

are approved by the Supreme Military Council.93 In the advent of relinquishing power in

1999, the ruling Nigeria military government drafted the 1999 Constitution which carried

the undertone of centralized unitary-source-of-command bestowed in the federal

government, while still referring to the Constitution as a federal constitution. The effect

of over centralization of power as a source of underdevelopment was recognized in the

recently concluded National Conference but the delegates were too fractured and held

strong divergent positions for a meaningful debate to be held on it.94

the state created new local governments without its permission was unconstitutional. See the case ofAttorney-General of Lagos State v Attorney-General of the Federation (2004) SC/70/2004.92All Progressive Congress(APC) is an opposition party ruling in Osun state and has alleged that theFederal Government ruled by the People’s Democratic Party (PDP) has constantly delayed in releasing itsallocation with the aim of truncating its developmental agenda. See Ugochukwu Onyeocha, 'AregbesolaLaments Dwindling Allocations, Blames FG For Revenue Shortfall'(Dailytimes Newspapers,31st March2014)< http://www.dailytimes.com.ng/article.html> accessed 14 November 2014.93 General Yakubu Gowon referred to the highest ruling body during his regime the Supreme MilitaryCouncil (SMC), General Badamosi Babangida called it Armed Forces Ruling Council (AFRC) while forGeneral Sani Abacha referred to it as the Provisional Ruling Council (PRC).94 The National Conference was convened by the Nigerian government in 2014 to serve as a forum fordiscussing and resolving Nigeria’s constitutional challenges. See the report of Onyedi Ojiabor, 'ResourceControl Splits National Conference Delegates' (The Nation Newspapers, 23 April 2014) <http://thenationonlineng.net/news.html> accessed on 17 October 2014 .

Undemocratic Character of Political Leaders

The executive arm of the government is the most vibrant of the three arms of

government as it undertakes the task of upholding and enforcing the law and pursues

policies that would improve the life of the governed. To this extent, it is important that

the personality of the characters that would hold this vibrant power must be such that

would intrinsically understand the political, jurisprudential essence of the Rule of Law

and Separation of Powers and be willing, over and above their personal interest, to

uphold these essential principles necessary for the enthronement and sustenance of

democracy. Peering into the political firmaments in Nigeria would reveal that a lot of

politicians who are holding executive powers lack basic democratic values of respect for

the Constitution and other laws of the land.95The constant refrain in the visible act of

political leaders are disregard of judicial orders96, coordinated campaign of using political

thugs that engage in violent acts during election time97; ruthless use of state machine to

forestall the other organs of government from exercising their due powers when it does

not suit the whimsical and capricious policies of the political class.98

95 See the case of President Umaru Yardua refusing to hand over power government to vice presidentGoodluck Jonathan when he was incapable of performing his presidential role on grounds of healthcontrary to section 145 of the Nigerian Constitution which caused a constitutional crisis. See also ChrisAkiri, ‘Abutu’s Judgment on NBA vs. AGF: Matters Arising’ (The Guardian Newspaper 9 February 2010); The saga of Danbaba Suntai, the Governor of Taraba state in Nigeria who was involved in a plane crash inOctober 2012 and has since been unfit to govern but is unwilling to relinquish power to his deputygovernor contrary to section 189 of the Nigerian Constitution.96 Former President Obasanjo stubbornly withheld the allocations due to local governments in Lagos Stateuntil he left office in spite of a Supreme Court judgment to release the funds. See the case of Attorney-General of Lagos State v Attorney-General of the Federation (Supra)97 Note the spiraling violent conducts by political thugs during the campaign of Osun state gubernatorialelection 2014 by both the All Progressives Congress candidate (APC) Governor Aregbesola who actuallyreferred to the thugs as “state boys” used to counter his opponent in the People’s Democratic Party (PDP),Senator Iyiola Omisore.98 In 2010 Governor Gbenga Daniel, with the complicity of the Nigerian Police, was alleged to haveordered the state House of Assembly closed down when it was clear that the House was going to voteagainst his application to secure one hundred billion naira in the bond market. See Sheriff Balogun, 'In

A combination of these acts reflects a lack of democratic value in the political

class that is wielding executive power in Nigeria. This has not helped in entrenching

democracy in the country. Rather, what becomes clear to any dispassionate analyst is the

gradual militarization of the executive arm of government and its constant willingness to

undermine the established practices, laws, institutions and other organs of government in

its bid to stay dominant and unanswerable to anybody within the political cum-

constitutional space of Nigeria.99

Conclusion

How can the executive arm of government be checked in its orgy of recklessness

imprinted in the history of Nigeria’s democratic development, especially during the civil

rule which Nigeria is experiencing at present? The answer to this important question is

structural and social. For one, time is needed to re-assess the type of federal structure that

Nigeria runs which puts much fiscal power in the hand of the federal executive over other

arms of government, and other federating states.100 This is what has been called fiscal

federalism the purport of which is to give back to the state that capacity to fend for itself

without relying on the federal government for the regular allocation. The consequence of

this would be the amendment of the Nigerian Constitution to reflect this vexed (but very

Ogun, Assembly Turns'(Thisday Live Newspapers,11 September2010)<http://www.thisdaylive.com/articles.html> accessed 20 October 201499 Governor Ayodele Fayose of Ekiti State froze the account of the State Assembly in a bid to intimidatethe majority of the house members, who were members of the All Progressives Congress(APC) and whohad refused to defect to his Party, The Peoples Democratic Party(PDP).See kamarudeen Ogundele, 'EkitiSpeaker Accuses Fayose of freezing Assembly’s Accounts'(The Pucnch Newspapers,13 November 2014)<http://www.punchng.com/news/ekiti-speaker-accuses-fayose-of-freezing-assemblys-accounts/> accessed23 March 2015100 The nomenclature that Nigeria is a federation is merely notional and not in practice as each state is notindependent of its own, can neither use the resources in its territory for its own good as the NigerianConstitution vests all the powers to exploit mineral resources which is in commercial quantity in theFederal Government. See the Second Schedule Part 1 Item 39 of the Nigerian Constitution and section 1 ofthe Nigerian Minerals and Mines Act 2007.

necessary) issue of the federal government devolving much of its fiscal powers.101 If the

Nigerian Constitution can be successfully amended to properly reflect true federalism

with the newly empowered organs of government and federating states able to function as

they ought to, then much needed checks and balances that sustains a democracy would

become a reality.102

Another needed development is the call for financial independence of the

judiciary and legislature. Removing the executive’s capacity to control the funding of

other arms of government would allow for the proper actualization of the principle of

Separation of Powers. Each organ would then be able to stand on its own pursing its

articulated functions without fear of reprisal from the others, especially the executive

arm. Naturally, independent institutions attached to these arms of government are than

able to grow strong under such balanced regime of government.103

Furthermore there is need to strengthen some independent institutions

constitutionally established (or statutory created) to serve as bodies capable of

performing its duties without fluttering under the gaze of the executive’s petulance.104

It is also important to note that there is need to restructure the internal dynamics

of the political parties that aspire to hold post in the executive organ of government.

Thus, there is a need for parties to enact laws that would guarantee democratic practice

101See Ejeh Adoyi Williams and Orokpo, Ogbole F., 'Fiscal Federalism in Nigeria: An Analysis of Issuesand Challenges'(2014)2(1) International Journal of Peace and Conflict Studies< http://www.rcmss.com/2014/IJPCS-VOl2-No1.pdf> Accessed 21 October 2014102 Emmanuel Ojameruaye, 'An Open Letter to the Nigeria National Conference, Part Ii: On the Form ofGovernment and Political Restructuring'(2014)< http://nigeriaworld.com/articles/2014/jun/031.html>Accessed 23 March 2015103 Waldron (n 24)104 Such bodies include INEC section 153 (1) (f) of the Nigerian Constitution; Code of Conduct Bureau S.153(1)(a); Revenue Mobilization Allocation and Fiscal Commission S.153(1) (n); National PopulationCommission S. 153(1) (j) ; ICPC Act CAP C 31 LFN 2004; EFCC CAP E1 LFN 2004

within party. Era of “selection” rather that ‘election” of party candidates by political god-

fathers within a party structure should be abolished. Parties should also develop the

internal capacity that allows party members to get trained within the party to abide by

democratic culture.105 Where party members are imbued with the culture of democracy at

the party level, then it is most likely that when such person is given opportunity to hold

political post within the country, he would pursue democratic tenet in the achievement of

his political goals.106

The way politics is mixed with corruption in Nigeria today makes one to wonder

whether there is hope for democracy in the country. The way the executive arm of

government laud itself over the other arm of government leaves the polity gasping for

democratic life. However, the fact that Nigeria is currently experiencing civil rule which

is amendable to change through election, rather than military dictatorship gives hope. The

positive performance of political leaders such as Donald Duke107 and Raji Fasola of

Lagos state gives hope that all is not lost in this fledgling democracy. The removal of the

immunity clause in Section 308 of the Nigerian Constitution would serve as a check to

the corrupt tendencies of political leaders holding post in the executive arm of

government.108

105 Experience could be taken from the Democratic Party in the USA that allowed the young Barak Obamato grow through the ranks and then at the opportune time allowed him to compete with Hilary Clinton asthe Democratic Party nominee for the office of president in 2007.106 Chris Ojukwu and Tope Olaifa,'Challenges of Internal Democracy in Nigeria’s Political Parties: TheBane of Intra-Party Conflicts in The Peoples Democratic Party of Nigeria'(2011)11(3) Glogal Journal ofHuman Social Science< www.socialscienceresearch.org/index.php/gjhss/article/download/.../132>Accessed 23 March 2015107 Former Governor of Cross River State of Nigeria that was acclaimed to have started the development ofcritical infrastructure in the state and other economic potentials such as the tourism sector in the likes ofObudu Ranch and Resorts and the Tinapa Economic Free Trade Zone108 G. Omo Arishe,' Reconsidering Executive Immunity under the Nigerian Constitution'(2007-2010)Nigerian Current Law Review 274,307<http://www.nials-nigeria.org/pub/nclr10.pdf> accessed 23 March2015.

Lawyers too have a role to play in checkmating executive recklessness especially

public legal officer (Attorney-General of the federation or state) who should be bold

enough to advise the executive on the need to eschew the flagrant floating of the law or

disobedience of the court order. Where the executive fails to heed advice the Attorney-

General should fearlessly take his leave of such cabinet.109

109D.A. Ijalaye, Executive and Legislative Lawlessness: A Challenge to Rule of Law in Nigeria ( LagosState University Press 2008)