LA UNIDAD DE CUIDADOS INTENSIVOS

With the advent of military rule in Nigeria, beginning from January 15, 1966, the military suspended and modified the 1963 Constitution by virtue of the Constitution (Suspension and Modification) Decree No. 1 of 1966. By virtue of this decree, it dissolved the Parliament and fused legislative and executive powers in the Supreme Military Council (SMC) which was the Ruling Military Council.⁶¹ The fusion of both legislative and executive functions or powers is repeated in every military regime. The Ruling Military Council has also been known as Armed Forces Ruling Council (AFRC) and Provisional Ruling Council (PRC), and so forth in various regimes.

The military also passed the Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 28 of 1970, by virtue of which Decrees became the supreme laws of the land and the validity of any decree or edict cannot be inquired into by any court of law.⁶² But whenever an Edict was inconsistent with a Decree it became null and void to the extent of such inconsistency.⁶³ In instances where it is alleged that an Edict is clashing with a Decree, a court has jurisdiction to entertain the matter. An Edict is usually declared null and void to the extent of its inconsistency with the relevant Decree. The doctrine of the Federal Military Government‟s Decree „covering the field‟ may also be applicable in appropriate instances.

Though the judiciary is never abolished nor its power taken away completely, however, its judicial power was ousted in various matters by ouster clauses contained in the relevant

61 The Constitution (Suspension and Modification) Decree No. 1, 1984 Cap 64, 1990 and the Federal Military Government (Enforcement of Powers) Decree 13 cap. 137, 1990

62 Lakanmi &Anor V.A.G .Western State (1971) 1 U.I.R 201

63 The Council of the University of Ibadan v Adamolekun (1967) All NLR 225 SC.

36 Decrees or Edicts which stripped the courts of power or jurisdiction to look into such specified matters. The case of Lakanmi v A.G Western State⁶⁴ is an example of such legislative judgment or bill of attainder. In that case the SMC by the aforesaid Federal Military Government (Supremacy & Enforcement of Powers) Decree⁶⁵ set aside the judgment of the Supreme Court which was in favour of the plaintiff and also stripped the courts of power to inquire into the validity of any decree or edict, except where there was a clash between a decree and an edict. However in other cases of breach of fundamental rights, the court, especially, by way of the writ of habeas corpus were able to secure the liberty of detained persons in several instances.⁶⁶

However, with the advent of the military in 1984, the military subsequently made its powers wider and sweeping. With the promulgation of the State Security (Detention of Persons) Decree No. 2, 1984 as was amended, the military could by virtue of this Decree commit any person to detention at its pleasure and release the person whenever it deemed fit. However, earlier cases like Tai Solarin & Ors v IGP ⁶⁷ were more fortunate as the court set the applicants free because their detention order were not made under the hand of the then Chief of Staff Supreme Military Headquarters as required by the Statute. In this instance, we see the Federal Military government or Provisional Ruling Council (PRC) exercising all the three powers of the government that is to say: legislative power to make laws, executive power to implement laws and carry out government business, and Judicial power to determine that a person is innocent or guilty and confirm sentence as the appellate body of last resort in any matter. It has by statute appointed itself an appellate body or to commit any person to prison indefinitely at its pleasure. For instance under the State Security (Detention of Persons) Decree.⁶⁸

During the military rule, the judiciary is only independent to the extent that it does not interfere with the rights of the military to rule. Whenever the courts try to curtail the powers of the military, a Decree is usually passed to strip the court of the relevant jurisdiction.⁶⁹

64 ibid

65 Decree No. 28, 1970

66 Agbaje v COP (1969)1 NMLR 137 HC, (1969) 1NMLR 176 CA, Re Mohammed Olayori (1969) All NLR 733

67 Unreported suit No. M/55/84 Lagos High Court.

68 No. 2, 1984 (as amended) Wariebi kojo Agamene v Abacha Unreported FHC/L/CS/84/94

69 E Malami op cit, p. 93

37 2.5.6.2 Civilian Rule and Separation of Powers

Nigerian Constitutions since 1979 have provided for a presidential system of government.

Each constitution also provided for a clear division of the three powers or branches of government as follows: Section 4, the legislature with legislative power, section 5, the executive with executive power; and section 6, the judiciary with judicial powers. During a civil rule, the constitution is the supreme law of the land and rule of law is the basis of government action. Any law or action that contravenes the provisions of the constitution is void to the extent of such inconsistency.⁷⁰ Any branch or officer of government that goes beyond its or his powers will usually have such action set aside by court at the suit of a proper party who is aggrieved. In Ekpenkhio v Egbadon,⁷¹Ogundare JCA as he then was, said:

A cardinal principle of our federal constitution 1960, 1963 and 1979 is the separation of powers of the executive, the legislative and the judiciary, but the judiciary has the added responsibility as a guardian and protector of the constitution. Therefore whenever the executive or legislative arms of government exceed their constitutional powers, the judiciary on a proper application to it, will curb the exercise of such excessive power and declare it a nullity.⁷²

In Orhiomnom Local Government Council v Ogieva ⁷³ the Court of Appeal said that the principles of checks and balances in the local government system is meant to enhance the smooth administration of the local government councils and not to cripple it for that reasons, one organ of the council cannot properly use a method not permitted by law to monitor another organ of the council. This principle of proper checks and balances applies in every tier of government.

Today, the real safeguard against tyranny does not rest in a precise nor indeed a rigid separation of powers, per se, but in a representative constitutional democracy with democratic institutions and control put in place, to act as checks and balances on the exercise of governmental powers. Examining the role of the courts in the observance of the doctrine of separation of powers, the Court of Appeal in the case of Tende &Ors v A.G Federation

70 A.G Bendel State V.A.G Federation & 22 Ors (1982) 3 NCLR 1 SC.

71 [1993] 7NWLR( pt 308) 717

72 ibid p. 744 CA

73 [1993] 4 NWLR (pt 288) 468 CA

38

74cited with approval the dictum of Bello CJN in Engineering Enterprises of Nigeria Construction Co v A.G Kaduna State where his Lordship said:

In exercise of its judicial powers a court of law should adhere to constitutionality. It should not condone the commission by a state of a constitutional wrong nor should it be an accessory after the fact to the commission of unconstitutionality.⁷⁵

The Court of Appeal then went on to hold that under the 1979 constitution, government is divided into three separate and independent branches, the executive, legislature and the judiciary. Each branch of government must not encroach into the sphere of the other. It is the duty of the court to maintain that. The courts do not possess a veto power over the other two arms of government. Its power properly construed are supervisory. The superior courts are empowered to declare null and void any infraction of the provisions of the constitution. That is the second duty entrusted to the courts and it is to apply with full force and vigour such powers within the confines of the law.