Limitations of Government Power Under the Nigerian Constitution

Limitations of Government Power Under the Nigerian Constitution

Nigeria, a nation of diverse cultures and peoples, has, since its independence, grappled with the delicate balance between effective governance and the potential for the abuse of power. The journey through various political epochs, including prolonged military rule, has underscored the critical need for a robust constitutional framework that unequivocally limits governmental authority. The 1999 Constitution of the Federal Republic of Nigeria, as amended, stands as the nation’s grundnorm, the supreme law from which all other laws derive their validity.

It is a document meticulously crafted to establish a democratic state where the exercise of power is not absolute but is circumscribed by law, checks and balances, and the fundamental rights of its citizens. This comprehensive exploration delves into the various mechanisms embedded within the Nigerian Constitution that serve as vital limitations on government power, aiming to provide a zero blind spot analysis of these provisions and their practical implications.

At the heart of the concept of limited government lies constitutionalism – the idea that government power is not arbitrary but is derived from and restricted by a constitution. In a democratic society, this principle is paramount, as it safeguards individual liberties, promotes accountability, and prevents the slide into authoritarianism. The Nigerian Constitution, a product of historical experiences and aspirations for a just and equitable society, embodies this principle by distributing power, establishing independent institutions, and entrenching fundamental rights, all designed to rein in potential governmental excesses.

I. Fundamental Human Rights as a Limitation: The Unalienable Shield

Perhaps the most potent limitation on government power in the Nigerian Constitution is the comprehensive chapter dedicated to Fundamental Human Rights. Chapter IV, spanning Sections 33 to 46, meticulously enumerates a range of civil and political rights, serving as an unalienable shield against state overreach. These rights are not mere aspirations but are legally enforceable, empowering citizens to challenge governmental actions that infringe upon their liberties.

A. Elaboration of Rights (Chapter IV):

The Constitution guarantees a spectrum of rights essential for a democratic society:

• Right to Life (Section 33): This fundamental right is paramount, ensuring that no person shall be deprived intentionally of their life, save in the execution of a court sentence for a criminal offence. It sets a high bar for state-sanctioned violence and emphasizes the sanctity of human life.
• Right to Dignity of Human Person (Section 34): This section prohibits torture, inhuman or degrading treatment, slavery, and forced labor. It underscores the intrinsic worth of every individual and imposes a duty on the government to respect human dignity in all its dealings.
• Right to Personal Liberty (Section 35): Guarantees freedom from arbitrary arrest and detention. It mandates that any person arrested or detained must be informed of the reasons for their arrest, allowed access to legal counsel, and brought before a court within a reasonable time. This provision is crucial in preventing politically motivated detentions and ensuring due process.
• Right to Fair Hearing (Section 36): A cornerstone of justice, this right ensures that every person is entitled to a fair hearing within a reasonable time by a court or tribunal established by law. It encompasses principles of natural justice, such as the right to be heard (audi alteram partem) and the rule against bias (nemo judex in causa sua), making it a powerful check on arbitrary executive or administrative decisions.
• Right to Private and Family Life (Section 37): Protects the privacy of citizens, their homes, correspondence, telephone conversations, and telegraphic communications. This right limits governmental intrusion into personal affairs without lawful justification.
• Right to Freedom of Thought, Conscience, and Religion (Section 38): Guarantees the freedom to hold opinions, practice any religion, and manifest beliefs. This prevents the state from imposing any particular ideology or religion on its citizens, ensuring a pluralistic society.
• Right to Freedom of Expression and the Press (Section 39): Crucial for a vibrant democracy, this right allows individuals to hold opinions and to receive and impart ideas and information without interference. It is fundamental for a free press and holds the government accountable through public scrutiny.
• Right to Peaceful Assembly and Association (Section 40): Empowers citizens to assemble freely and associate with others, including forming political parties, trade unions, or other associations. This right is vital for political participation and collective action, providing a platform for citizens to voice their concerns and influence policy.
• Right to Freedom of Movement (Section 41): Guarantees every citizen the right to move freely throughout Nigeria and to reside in any part thereof. It also protects against arbitrary expulsion from Nigeria and ensures the right to enter and leave the country.
• Right to Freedom from Discrimination (Section 42): Prohibits discrimination based on community, ethnic group, place of origin, sex, religion, or political opinion. This aims to foster national unity and equality among all citizens.
• Right to Acquire and Own Immovable Property Anywhere in Nigeria (Section 43): Ensures that citizens can own property across the federation, promoting economic integration and discouraging tribalistic barriers.

B. Enforceability of Fundamental Rights (Section 46):

The enforceability of these rights is crucial. Section 46 grants the High Courts (both Federal and State) special jurisdiction to hear applications for the enforcement of fundamental rights. This direct access to the judiciary is a powerful tool for citizens to seek redress against governmental infringements. Courts, in their role as guardians of the Constitution, can declare executive actions or laws that violate these rights as null and void. Landmark cases in Nigerian legal history attest to the judiciary’s role in upholding these rights, even in the face of executive resistance.

C. Derogation Clauses and Their Limitations (Section 45):

While fundamental, these rights are not absolute. Section 45 allows for derogation from certain rights under specific circumstances, such as in the interest of defense, public safety, public order, public morality, or public health, or for the purpose of protecting the rights and freedoms of other persons. However, such derogations must be “reasonably justifiable in a democratic society.” This “reasonably justifiable” test empowers the judiciary to scrutinize any law or action that seeks to limit rights, ensuring that such limitations are proportionate, necessary, and do not arbitrarily curtail freedoms. This provision prevents the government from using security or public interest as a blanket excuse for rights violations.

II. Separation of Powers: The Tripartite Guardrails

The Nigerian Constitution, heavily influenced by the American presidential system, firmly entrenches the doctrine of separation of powers. This doctrine, often attributed to Montesquieu’s Trias Politica, advocates for the division of governmental functions into three distinct branches: the Legislature, the Executive, and the Judiciary. Sections 4, 5, and 6 of the Constitution clearly delineate the powers vested in each arm, creating a system of checks and balances designed to prevent the concentration and abuse of power by any single entity.

A. Legislative Power (National Assembly – Section 4):

• Law-Making Process and Constitutional Limits: The National Assembly (comprising the Senate and House of Representatives) is vested with the exclusive power to make laws for the peace, order, and good governance of the Federation. However, this power is not unfettered. Laws must conform to the provisions of the Constitution, particularly regarding fundamental rights and the division of powers between the federal and state governments. Any law inconsistent with the Constitution is null and void to the extent of its inconsistency (Section 1(3)).
• Checks on the Executive: The Legislature wields significant power in checking the Executive.
  • Oversight Functions (Sections 88, 89): The National Assembly has the power to investigate any matter or person within its legislative competence, including government ministries, departments, and agencies. This oversight function ensures accountability and transparency in the Executive’s operations.
  • Appropriation (Sections 81-83): The Executive cannot spend public funds without legislative approval. The annual budget, proposed by the President, must be debated and passed by the National Assembly before it becomes law. This control over the purse strings is a powerful check on executive profligacy and unauthorized expenditure.
  • Impeachment (Section 143): The President or Vice-President can be removed from office through an impeachment process by the National Assembly for gross misconduct. This is the ultimate check on executive abuse of power, though it is a high threshold to meet.
  • Confirmation of Appointments: Many key appointments made by the President, such as ministers, ambassadors, and heads of certain federal agencies, require confirmation by the Senate. This provides an opportunity for legislative scrutiny and ensures that competent and credible individuals hold public office.

B. Executive Power (President/Governors – Section 5):

• Limits on Powers: The President (at the federal level) and Governors (at the state level) are vested with the executive powers. However, their powers are not absolute and must be exercised “subject to the provisions of this Constitution and to the provisions of any law made by the National Assembly.” This means the executive must operate within the confines of the Constitution and laws passed by the legislature.
• Checks by the Legislature: Beyond the checks mentioned above, the legislature can also override a presidential veto on a bill by a two-thirds majority in both chambers.
• Checks by the Judiciary: Executive actions are subject to judicial review. Courts can declare executive orders, policies, or actions unconstitutional or illegal if they exceed the President’s constitutional or statutory authority.

C. Judicial Power (The Courts – Section 6):

• Judicial Review: The judiciary is the ultimate arbiter of the Constitution. Section 6 vests judicial powers in the courts, extending to all matters between persons, or between government or authority and any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person. This is the foundation for judicial review – the power of the courts to interpret the Constitution and laws, and to declare any law or action of the legislative or executive arm unconstitutional or unlawful. T¹his power is the bulwark against legislative overreach and executive impunity.
• Independence of the Judiciary: The Constitution seeks to guarantee the independence of the judiciary to enable it to perform its role without fear or favor.
  • Appointment Process: Judges are appointed through a process involving the National Judicial Council, designed to insulate judicial appointments from direct political manipulation.
  • Financial Autonomy (Sections 84, 121): The salaries and allowances of judicial officers are charged to the Consolidated Revenue Fund and are not subject to annual appropriation by the legislature, thereby safeguarding their financial independence.
  • Security of Tenure (Sections 292): Judicial officers can only be removed from office under stringent conditions, typically involving an address supported by a two-thirds majority of the Senate (for federal judges) or House of Assembly (for state judges), following a recommendation from the National Judicial Council for misconduct or inability to discharge the functions of their office.
• Limitations on Judicial Power: While powerful, the judiciary also operates under certain limitations.
  • Locus Standi: Generally, a person must have a direct interest in a matter to bring a case before the court. This traditionally limits frivolous lawsuits, though modern trends in public interest litigation have somewhat broadened this scope.
  • Justiciability: Courts generally only deal with legal disputes that are “justiciable,” meaning they are capable of being resolved by legal principles. They generally avoid purely political questions.
  • Enforcement of Orders: A significant challenge lies in the enforcement of court orders, particularly against the executive arm, which sometimes exhibits a tendency to disregard unfavorable rulings.

III. Federalism as a Limitation: Decentralizing Power

Nigeria operates a federal system of government, a significant constitutional limitation on the power of the central government. Federalism, as enshrined in the Constitution, divides governmental powers between the Federal Government and the 36 State Governments, with an emphasis on decentralized governance.

A. Division of Powers:

The Constitution, through the Second Schedule, provides a detailed division of legislative powers:

• Exclusive Legislative List (Part I): Matters on this list are exclusively within the legislative competence of the National Assembly. These include defense, external affairs, currency, customs, and immigration.
• Concurrent Legislative List (Part II): Both the National Assembly and State Houses of Assembly can legislate on matters on this list, such as education, health, and science and technology. However, federal laws generally prevail in cases of inconsistency.
• Residual Powers: Any matter not on the Exclusive or Concurrent Lists falls within the legislative competence of the State Houses of Assembly.

B. Impact of Federalism on Central Government Power:

• Prevents Over-Centralization: The division of powers prevents the federal government from becoming overly powerful and dictatorial. It ensures that states have autonomy in certain areas, allowing them to tailor policies to their unique local needs.
• Promotes Local Autonomy and Diversity: Federalism accommodates Nigeria’s diverse ethnic, cultural, and religious groups by allowing each state to manage its internal affairs within the constitutional framework.
• Checks and Balances Horizontally: Beyond the vertical separation of powers, federalism also introduces a horizontal check, where states can, in some instances, resist federal overreach through legal challenges.

C. Challenges to Federalism in Nigeria:

Despite its intent, the practice of federalism in Nigeria has faced significant challenges that sometimes undermine its limiting effect on central power:

• Over-Centralization: Critics argue that the current federal structure is heavily skewed towards the center, with the Federal Government controlling a disproportionate amount of revenue and legislative authority. This “unitary federalism” often leads to states being overly dependent on federal allocations.
• Jurisdictional Disputes: Ambiguities in the legislative lists or overlapping powers often lead to disputes between federal and state governments, sometimes requiring judicial intervention.
• Fiscal Federalism: The revenue allocation formula, which determines how national wealth is shared among the tiers of government, has been a persistent source of contention, with calls for greater fiscal autonomy for states.
• Local Government Autonomy: The Constitution recognizes Local Government Areas as the third tier of government, but their autonomy is often undermined by state governments, who control their funding and appointments, limiting their ability to serve as a check on state power.

IV. Constitutional Supremacy and the Rule of Law: The Foundational Pillars

The very bedrock of limited government in Nigeria is the principle of constitutional supremacy and the unwavering commitment to the rule of law.

A. Supremacy of the Constitution (Section 1(1) and (3)):

Section 1(1) unequivocally declares the Constitution as supreme and its provisions binding on all authorities and persons throughout the Federal Republic of Nigeria. Furthermore, Section 1(3) states that “If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void.” These provisions are the legal backbone for limiting governmental power, as they mean:

• Validity of Laws: All laws made by the National Assembly or State Houses of Assembly must conform to the Constitution.
• Governmental Actions: Every action taken by any government official or institution must be in accordance with the Constitution.
• Judicial Power: It empowers the judiciary to strike down any law or action that violates the Constitution, thereby ensuring adherence to the supreme law.

B. Rule of Law:

The rule of law is a fundamental concept intertwined with constitutional supremacy. It implies:

• Equality Before the Law: No one, including government officials, is above the law. Everyone is subject to the same laws and legal processes.
• Predictability and Certainty of Law: Laws should be clear, publicly accessible, and applied consistently, allowing individuals to know what is expected of them and to plan their affairs accordingly.
• Accountability of Government: The government itself is bound by the law and accountable to it. Its actions must be transparent and justifiable under legal principles.

C. Role of the Courts:

The Nigerian judiciary plays a vital role in upholding constitutional supremacy and the rule of law.

• Interpretation of the Constitution: Courts interpret the provisions of the Constitution, giving meaning to its words and principles, thereby shaping the scope of governmental power.
• Enforcement of Constitutional Provisions: Through judicial review, the courts enforce constitutional limitations by declaring unconstitutional laws or executive actions.
• Nullification of Ultra Vires Acts: The principle of ultra vires (beyond powers) is a key tool. If a government body acts beyond the powers conferred upon it by the Constitution or statute, its actions can be declared null and void.

V. Specific Institutional and Procedural Limitations: Checks and Balances in Action

Beyond the broad principles, the Nigerian Constitution establishes specific institutions and procedures designed to act as checks and balances on governmental power.

A. Independent National Electoral Commission (INEC):

• Ensuring Free and Fair Elections (Section 153, Third Schedule): INEC is constitutionally empowered to organize, conduct, and supervise elections. Its independence is crucial to ensuring democratic transitions and preventing the executive from manipulating the electoral process. Its decisions, though sometimes controversial, are subject to judicial review.

B. Auditor-General for the Federation/State:

• Auditing Public Accounts (Sections 85, 125): The Auditor-General is responsible for auditing the accounts of all government ministries, departments, and agencies, and reporting their findings to the National Assembly or State House of Assembly. This function promotes financial accountability and transparency, limiting the executive’s ability to mismanage or embezzle public funds.

C. Public Complaints Commission (Ombudsman):

• Investigating Administrative Injustices: While established by an Act of the National Assembly (Public Complaints Commission Act), its role as an ombudsman provides a channel for citizens to complain about administrative injustices committed by government officials or agencies. It acts as an independent body to investigate and recommend redress, thus holding the bureaucracy accountable.

D. Code of Conduct Bureau and Tribunal:

• Enforcing Ethical Conduct (Sections 153, Third Schedule, Part I, 9): The Code of Conduct Bureau receives asset declarations from public officers, and the Code of Conduct Tribunal adjudicates on breaches of the Code of Conduct. These institutions are designed to prevent corruption and abuse of office by public servants, including members of the executive and legislature.

E. Due Process and Fair Hearing Requirements:

• Limits on Arbitrary Power: Beyond the specific fundamental right to a fair hearing, the principle of due process permeates Nigerian administrative law. It requires that government decisions affecting individuals’ rights or interests must follow established legal procedures, provide an opportunity for the affected person to be heard, and be made without bias. This acts as a significant procedural limitation on arbitrary exercise of power by any government official.

VI. Challenges to the Enforcement of Limitations: The Gap Between Theory and Practice

While the Nigerian Constitution provides a robust framework for limiting governmental power, the practical enforcement of these limitations often faces significant challenges.

A. Executive Overreach and Disregard for Court Orders:

One of the most persistent challenges is the tendency of the executive arm, at both federal and state levels, to sometimes disregard or delay compliance with court orders. This defiance undermines the rule of law and the principle of constitutional supremacy, weakening the judiciary’s role as a check.

B. Corruption and Its Impact on Institutional Integrity:

Corruption remains a pervasive issue in Nigeria. It can compromise the integrity of independent institutions, including the judiciary, electoral bodies, and anti-corruption agencies, thereby undermining their ability to effectively limit governmental power. Financial inducements can influence decisions, distort processes, and ultimately weaken accountability.

C. Political Interference in Independent Institutions:

Despite constitutional provisions for their independence, institutions like INEC, the police, and anti-corruption agencies sometimes face political interference from the executive. This can manifest in various forms, including control over appointments, funding, or even direct instructions, which then compromises their impartiality and effectiveness in holding the government accountable.

D. Weakening of the Rule of Law:

Incidents of extra-judicial killings, police brutality, and selective application of the law erode public trust in the justice system and signify a weakening of the rule of law. When citizens perceive that the law is not applied fairly or that some individuals are above it, the constitutional limitations become less effective.

E. Constitutional Amendments and Their Implications:

While a necessary process for adapting the Constitution to changing societal needs, the amendment process itself can be a source of concern if not handled transparently and genuinely. There is always a risk that amendments could be used to consolidate power rather than further limit it, particularly if driven by the executive or a dominant political party.

F. Public Awareness and Citizen Engagement:

A significant “blind spot” can be a lack of widespread public awareness about constitutional provisions and the mechanisms for holding government accountable. When citizens are unaware of their rights and the limitations on government power, they are less likely to demand accountability or challenge abuses. A passive citizenry can inadvertently enable governmental overreach. Civil society organizations and the media play a crucial role in raising this awareness and mobilizing citizens to demand adherence to constitutional principles.

VII. Conclusion: The Ongoing Struggle for Constitutionalism

The Nigerian Constitution, with its elaborate provisions for fundamental human rights, separation of powers, federalism, constitutional supremacy, and independent institutions, undeniably provides a comprehensive framework for limiting governmental power. It is a testament to the nation’s aspiration for a democratic society founded on the rule of law and respect for human dignity.

However, the journey towards perfect constitutionalism is an ongoing struggle. The gap between the noble provisions of the Constitution and their practical implementation remains a significant challenge. Executive overreach, corruption, political interference, and a sometimes-weakened rule of law often test the resilience of these constitutional limitations.

Ultimately, the effectiveness of these limitations hinges not just on the written word, but on the unwavering commitment of political actors to constitutionalism, the vigilance and independence of the judiciary, the robust oversight of the legislature, the integrity of independent institutions, and, most importantly, the active engagement of an informed and demanding citizenry. Only through a collective and sustained effort can Nigeria truly realize the promise of its Constitution: a government limited by law, accountable to its people, and dedicated to the protection of their fundamental freedoms. The struggle to bridge the gap between constitutional theory and practice is a continuous process that demands eternal vigilance from all stakeholders for the consolidation of Nigeria’s democratic gains.