Separation of Powers and the Constitutional basis of the Court of Appeal Judgment in Hon. Justice Nganjiwa v. Federal Republic of Nigeria :a critique

Abstract

  This research paper examined the concept of Separation of Powers as enshrined in Sections 4, 5, and 6 of the 1999 Constitution of the Federal Republic of Nigeria tracing the nature, scope, and history of the doctrine and its development in different climes across the globe, as well as the rationale for its emergence and adoption by democratic States the world over. Using the doctrinal research methodology which entails the gathering, evaluation, and analysis of information within the context of the issue under examination, the paper revealed that while the central idea of the concept is the need to separate the three major branches of government to avoid an abuse of power or excessive concentration which could engender anarchy or totalitarianism, it is equally critical that each branch should act as a check on the others to ensure liberty. It was however discovered that with particular reference to the Nigerian legal system, there appears to exist a paradox regarding the existence and operation of the National Judicial Council (NJC) which tends to insulate Judicial Officers from executive supervision. It was further revealed that this unfortunate scenario which critics perceive as a ploy by the NJC to surreptitiously grant immunity to Judicial Officers through the back door recently found judicial validation via the Court of Appeal decision in the case of Hon. Justice Nganjiwa v. The Federal Republic of Nigeria wherein the Court held that a Judicial Officer cannot be arrested and prosecuted by the law enforcement agenciesexcept and until he has first been investigated and indicted by the NJC and subsequently relieved of his position as such. The findings then showed that this posture of the NJC and the Court of Appeal obviously tends towards the French ‘non-interference’ model of the Separation of Powers and so defeats the essenceof checks and balances. It was recommended inter alia that: the legislature should via urgent legislative action resolve this apparent constitutional logjam arising from Sections 4, 5, 6, 143, and 308 by clearly defining the scope of mandate of the NJC; and that the NJC should restore public confidence in theinstitution and by extension, the Judiciary by ensuring efficiency in the discharge of its duty of disciplining erring Judicial Officers with a view to aligning its existence with the rationale behind the constitutional doctrine of Separation of Powers