Introduction to Administrative Law

Nature and definition of Administrative Law

Per Kayode Eso JSC in the case of Stitch v. Attorney General of the Federation, Administrative Law is the law that relates to the discharge of functions of a public nature in government and administration. Administrative law is also considered the body of law that governs the activities of administrative agencies of government. Per Ivor Jennings, Administrative law is the law determining the organization, powers and duties of administrative authorities.

There are several definitions of administrative law from different jurisdictions. Indeed, from its Common law origin in England, administrative law has been defined differently by different authors and academic writers. The Kernel of the whole subject of Administrative Law, per DCM Yardley, is the control of power within its lawful compass. According to Stott and Felix, it is the law that regulated the exercise of power conferred under the law upon governmental bodies. According to Bradley and Ewing, it is a branch of public law concerned with the composition, procedures, powers, duties, rights and liabilities of various organs of government. According to Peter Leyland and Terry Woods, it is regarded as the area of Law concerned with the control of governmental Powers which originate in primary legislation or in the prerogative. Thus, from the above definitions, Administrative law is considered as a branch of public law which deals with the decision making of administrative units of government.

Several factors that have affected the development of Administrative Law in Nigeria since Independence necessitates a peculiarly Nigerian definitional approach. Hence, Iluyomade and Eka define Administrative law as that body of rules which aims at reducing the areas of conflict between the administrative agencies of the State and the individual. Also see Kayode Eso JSC's definition stated above.

Hence, a close observation of Modern Administrative Law and practice in Nigeria will make one define administrative law as the body of laws, rules, regulations and judicial decisions that deal with the execution and implementation of laws, the establishment of administrative bodies, the local governments, their personnel, amongst other things.

Theories of Administrative Law

Until recently, theoretical work on the nature and scope of Administrative law was dominated by A.V Dicey's Rule of Law which made the concept of Administrative Law no more than a small part of Constitutional Law. Administrative law in England at the time was therefore not regarded as an autonomous discipline. However, in modern times, theoretical concepts have been postulated to offer deeper and better understanding and appreciation of administrative law. In the book "Law and Administration" by Harlow and Rawlings, the traffic light models were postulated as theoretical perspectives of Administrative Law.

1. Red Light Theory

According to Harlow and Rawlings, it is not surprising to find many authors believing that the primary function of administrative law should be to control excesses of State power, and more precisely, subject it to the rule of the law courts. Lightheartedly, they called this conception of administrative Law, "red light theory" because of its emphasis on Control. The Red light theory focuses on administrative law limiting and controlling the exercise of governmental powers, and enlarging the guarantee of individual's liberty against Executive action.

The Red light theory of limited government will logically limit the sphere of authority and influence of government, by giving more and more control to the legislature and the Courts over executive powers. In the case of Nasir Bello v AG. Oyo State, Aniagolu JSC captured the essence of the red light theory in aiming at curbing and minimizing the encroachment of the State on the rights of individuals such as the right to life infringed upon in the same case. See also the cases of Minister of Internal Affairs v Shugaba Darman and Director of SSS v Olisa Agbakoba.

2. Green light theory

According to Harlow and Rawlings, while the red light theory looks at strong judicial control of executive power, the green light theory sees administrative law as a vehicle for political progress and welcomed the administrative state. For them, the role of law is to facilitate the provision of statutorily established programmes of public services. The Liberal and Socialist theorists coming from the Green light stable (Jennings, Griffiths, Robson and Laski) broadly support the introduction of policies aimed at developing Public Service provision. A further influence on providing a new model in which green light theory of administrative law could flourish is the work of the French jurist, Leon Duguit.

Administrative law here limits State action in two ways: (a) through the notion that the State can only act in the Public interest and the public good; and (b) through the principle that the Attention must observe the Law. The Green light theory thus, advocates regulation of activities by government to serve ends of public welfare subject to democratic or political forms of accountability. The Green light preference for large scale government has thus been the trend in Nigeria since Independence.

The Green light philosophy can be said to be the approach behind the nationalization of industries through public corporations and parastatals in Nigeria such as NNPC and Nigerian National Shipping Line (NNSL). This was, of course, followed by the growth of the Civil and Public Service.

3. Amber Light theory

In the words of Harlow and Rawlings, it would be wrong to leave the subject without any mention of growing consensus over administrative law values. This has crystallized around a trilogy of values- Transparency, Participation and Accountability, that reflect the good governance programmes of international institutions. This idea of Accountability goes beyond the red light theorist's idea of legal accountability. According to Austin, "government would only become truly democratic and accountable and its citizens would only have a meaningful right of participation in the making of decisions which affect them, if there was full access to governmental information."

Although Nigeria has not easily toed this path of receding influence of the Green Light theory in adapting the Amber light theory, the promulgated Privatization and Commercialization Decree no 25 of 1988 and the Bureau of Public Enterprises Act, 2003, have been described as the watershed for the move towards the Amber light theory. These provisions as such aided the government in attributing management of business enterprises into the hands of the people. In such manner, the people had advanced participation in business of the State.

Public monopolies such as NITEL, NEPA, Nigeria Airways, NNSL, inter alia became this privatized. The Freedom of information Act of 2011 should also be taken into note. This Act was promulgated in order to infuse transparency, public participation and access to government records. Thus, accountability accompanies transparency as a function of administrative law from the Amber light perspective. There have thus been various accountability mechanisms imprinted in the 1999 constitution such as section 1(1) which states:

"This Constitution is supreme and its provisions shall have binding force on the authorities and persons throughout the Federal Republic of Nigeria."

Section 6(6)(b) also stands as one which states that:

The judicial powers vested in accordance with the foregoing provisions of this section - shall extend, to all matters between persons, or between government or authority and to any persons 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;

Conclusively, it should be noted that although the three theories stated above propose different realities of administrative law, modern administrative law in Nigeria can benefit from any of these theories as long as they serve the ends of allowing administrative law to perform its various functions within the State for development, good governance, accountability and justice.

Functions of Administrative Law

Flowing from the above discussions on the theories of Administrative Law, the articulation of the functions of this area of the Law in a modern administrative and regulatory State becomes imperative.

The first function of Administrative law is to enable the tasks of government to be performed. As seen from the perspective of Administrative Law, ministries, departments and agencies are created by law and vested with powers to carry out the implementation of laws and public policies or governmental objectives on behalf of the State and in the general interest of the public. Agencies such as NAFDAC, NDLEA, FRSC, inter alia, have been established in line with this in order to implement government policies.

The second function is to govern the relations among various public agencies and their functionaries on the one hand, and with the individuals, private bodies, or corporate legal persons, over whose affairs the agencies are entrusted with power. This is usually done by requirement of Agency conducts to be in conformity with enabling Statute.

The third function of administrative law is that of control, by acting as a brake or check in respect of unlawful exercise of governmental powers. There is the doctrine of ultra vires frequently used to counter such abuses as was done in the case of Eleso v Gov. of Ogun State. Ultra vires is a Latin phrase meaning "beyond the powers". If an act requires legal authority and it is done without such authority, it is characterized in law as intra vires. If it is done without such authority, it is ultra vires.

Furthermore, is the fact that Administrative Law serves to embody principles to facilitate good administrative practice. This is done by ensuring adherence to the rules of natural justice or fair hearing in all administrative adjudication processes or proceedings.

Administrative law also functions to formulate and secure redress and remediation for any person who has suffered injury originating from governmental action. There are prerogative remedies which are usually given by the courts, such as Mandamus, Prohibition and Certiorari, to remedy these injuries.

Also, Administrative Law seeks to imprint within government, the concept of Transparency and Accountability. As discussed from the Amber light perspective, this concept of Transparency and Accountability makes the government open to the people which thus for a better relationship between the government and the governed. Administrative law then seeks to achieve societal development resulting from this better relationship.

Constitutional Law and Administrative Law compared

1. Constitutional Law deals with the highest or supreme law of the land while Administrative Law serves as a subordinate to this Supreme law.
2. Constitutional Law basically deals with the structure of the various organs of the State while Administrative law deals with the functions of the State organs.
3. While Constitutional Law touches on all the branches of law and gives guidelines to the general principles relating to powers of organs of the State and their relations between citizens and towards the State, Administrative Law basically touches the powers and functions of Administrative authorities.
4. Constitutional Law gives insights into International Law while Administrative Law gives insights into National law.
5. Constitutional Law deals with the principles of the State relating to all branches of government while Administrative Law deals with mainly the executive organ or otherwise, administrative authorities.
6. Constitutional Law has complete control over Administrative authorities and Administrative Law while Administrative law has control only over Administrative authorities and not Constitutional law.

The Development of Administrative Law

How did we come about the System of Administrative Law we have in Nigeria today? The starting point for this is the Colonial administration starting with the Lugardian constitution of 1914. But before this, we had traditional institutions which ruled us. Sometimes, the administration by these traditional authorities were overhauled by the Colonial masters and at other times, the colonial masters made use of Indirect Rule, whereby where traditional rulers and institutions did not exist, they were created e.g. the Ibo societies. It should be understood that our traditional mode of governance did not die with the start of colonialism, it lives on even alongside our modern Constitutional administration. Our modern administration divides government into three organs: Legislative, Executive and the Judiciary. During the Colonial era, there was the establishment of a Colonial civil service working for the benefit of the Colonial masters.

Another thing to understand is the fact that because of all these, we have the status of our modern administration which we see today. For instance, our administration always rules in the interest of the Upper Class (colonial masters in ancient times) e.g. the Tenancy law which runs through all parts of Lagos except Ikoyi and Victoria Island (where the Colonial masters inhabited). This is the kind of Administrative Law we inherited in 1960. It is a registered fact that the Independence constitution was all about development.

During 1914-1960, administration was mainly in favour of the colonial masters both in the colony of Nigeria and beyond. From 1960-1966, Nigeria saw a reformation of the Country in order to achieve proper development, from 1969 till date, from then, we have seen an acute delimitation of the Country into States (36) and 774 local governments. Under the military era, it is said that Administrative law blossomed whereby many institutions for development became established. However, one factor crept in, whereby power became centralized in line with the unconstitutional nature of military governance. It can also be said that the Military tested the Judiciary which led to many cases. For instance, the Chapter involving Fundamental Human Rights in the 1963 Constitution, became suspended.

This thus led the Court to start making decisions based on strict restrictions as tabled in the case of Mantopin v. AG Federation. We started having our own jurisprudence. Simply put, the Courts evolved. The Court began coming into place to go against decrees which were not in line with the Constitution. The courts can thus be acknowledged as one of the greatest contributory factors to the development of Administrative law in Nigeria. They have brought out specific aspects of Administrative law e.g. Administrative Adjudication.

Note: Theories of Administrative Law in Nigeria according to eras:

• Red light Theory - Early 1960s
• Green Light theory - Military era
• Amber Light theory - 1999 till date.

Sources of Administrative Law

1. Constitution: This is the Fons et origo of Administrative Law. The first source of authority exercised is the Constitution. See INEC v Musa where the court held invalid the provisions of the Electoral Act, 2002 dealing with requirements for a group to be registered as a political party based on the fact that section 222 of the 1999 constitution had provided for such already. The Administration cannot do anything in contrast with the provisions of the Constitution.
2. Legislation: This comes from the Constitution. It is divided into primary and subsidiary legislation. An example of Subsidiary legislation is "Regulations". Others include Statutory instruments, guidelines, orders and policies. The Constitution is the text, while legislation is the application.
3. Case law: By virtue of section 6(6), judges are meant to interpret the constitution. It is a standard phenomenon that we are representations of what we do. So here, we get the question, do judges make laws? Yes, judges sometimes make laws. Here, we look at cases where decisions have changed the paradigm of rules for us. For instance, we can see the case of Senator Adesanya v. President of Nigeria dealing with Locus Standi (standing to sue) where the court modified the rule that before a suit can be heard at court, the applicant must have had his personal rights injured.
4. Received English Law: Here, we have Statutes of General Application, Common law and principles or doctrines of Equity. These laws were received by us from the British during colonialism and after which we have imported them into our administrative system. We also have principles of natural justice as a part of received English Law.
5. International Law: For instance, the principle of accountability, which came from the World Bank, African Charter on Fundamental Human Rights, etc. Our administration has prospered based on laws given on an international realm. These laws benchmark behaviour.
6. Writings by Scholars: Writings by A. V. Dicey (Rule of Law), Baron De Montesquieu on Separation of Powers, Professor Nwambueze on Constitutional Law, Professor Oluyede on Administrative Law, Professor Oyewo on Modern Administrative law and Practice in Nigeria, have guided our modern administrative systems.

Classification of Administrative Law

The 1929 report of the British committee on ministers' powers proffered an attempt to define, classify and distinguish the various powers of the administration in a conceptual sense, which is reproduced below:

1. Legislative powers

This involves the process of formulating a general rule of conduct, without reference to particular cases, and usually operating in future.

2. Executive powers

These are powers relating to the establishment and execution of policy or law. This is a nature which involves executive, ministerial and administrative functions performed in administration.

3. Judicial powers

A true judicial decision presupposes an existing dispute between two parties and then involves four requisites:

• The presentation by the parties of their cases (not necessarily orally).
• The ascertainment of any disputed facts by evidence adduced by the parties, often with assistance of argument on that evidence.
• the submission of argument on any disputes question of law.
• a decision, which disposes of the whole matter by a finding upon disputed facts and an application of the law of the land to the facts so found, including where required a ruling upon any disputed question of law.
4. Quasi-Judicial Powers

A decision under this form equally presupposes an existing dispute between two or more parties and involves:

• The presentation by the parties of their cases (not necessarily orally).
• The ascertainment of any disputed facts by evidence adduced by the parties, often with assistance of argument on that evidence

The other two aspects stated under Judicial powers are taken over by administrative action, the character of which is determined by minister's free choice.

5. Administrative Decision

An administrative decision is one based on discretion. It was the issue A. V. Dicey wrongly discouraged in this principle of the Rule of Law. However, in Nigeria, discretion is subject to law as seen in Stitch v AG Federation.

Legal significance of Classification of Administrative powers

The classification of administrative powers is basically a concept meant to enable a wholesome comprehension of the nature and character of executive power for the appreciation of its scope and limit, and the apprehension of its misuse and abuse. This classification affords opportunity for closer scrutiny of the administrative powers with accompanying legal consequences which include the following:

1. Constitutional Judicial review

The Constitution is the fons et origo of all powers within the State. Thus, the exercise of all administrative powers by whatever classification must be derivable and conformable to the constitution otherwise it would be declared inconsistent, null and void by virtue of section 1(3) of the 1999 constitution which states:

"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."

Also, by virtue of section 6(6)(b), all exercise of executive powers is subject to constitutional judicial review.

See the case of INEC v Musa where the Supreme Court declared the provisions of the Electoral Act of 2002 unconstitutional in that it had separately provided for criteria for political parties to be registered as eligible to vote, which the Constitution had itself already provided for under section 222. Also see Medical Dental Practitioners’ Disciplinary Tribunal v. Okonkwo where the court held unconstitutional, a disciplinary action which put the medical doctors' Hippocratic oath above the fundamental rights guaranteed under Chapter 4 of the Constitution.

2. Ultra vires

The principle of Ultra vires (beyond power) comes in both substantive and procedural form. When the exercise of power goes beyond the content and scope of power delegated to the administration, then substantive ultra vires would apply. However, where the enabling law provides for a particular procedure in which an action is to be undertaken and the administration fails to follow such procedure, then procedural ultra vires would apply. Thus, in the exercise of delegated powers, actions must conform substantively or procedurally with the enabling law otherwise it would be declared ultra vires and thus null and void.

In Okoro v. Delta Steel company, the court held that the power of dismissal was not exercised by the appropriate authority, consequently the dismissal of the appellant was declared ultra vires and thus, null and void. In Shugaba v. Minister of Internal Affairs, the deportation of the Applicant by the minister was declared ultra vires as it was in contravention of his fundamental right. Also see the case of Inakoju v. Adeleke where the purported removal of the Oyo state governor by the House of Assembly was held to be procedurally ultra vires.

3. Delegation and Sub-delegation

It is of great legal significance to the classification of powers assigned to whether or not such power derives from delegation and whether such delegated power can be further sub-delegated. The Rule of Sub-delegation is expressed in the Latin maxim, "Delegatus non potest delegare" meaning simply that a person conferred with delegated power, cannot as a rule, delegate such power without express authorization. While executive and administrative powers may be more presumed of being sub-delegable, legislative, judicial and Quasi-Judicial Powers are not presumed to be sub-delegable.

4. Fair hearing and Natural Justice

Administrative power within the realm of judicial review would of course, be subjected to the rules of fair hearing and natural justice by the courts. Indeed, section 36(1) of the constitution subjects all exercises of judicial and Quasi-Judicial Powers to constitutional fair hearing thus:

"In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality."

Article 7 of the African Charter on Human and People's rights contain similar fair hearing provisions which have been held as enforceable in Nigeria.

Section 36(1) of the Constitution has been interpreted to encompass the principles of Natural Justice as expressed in the twin maxims of audi alterem partem and Nemo judex in causa sua. The former basically means hearing the other side and that evidence should not be given behind the back of the person accused of allegations and he should be given full opportunity to make his or her defence. The latter basicameans that no one should be a judge in his own cause or the absence of likelihood of bias.

The concept of Natural Justice has been stated in the cases of Younan v Williams, Kotoye v CBN, amongst others.

5. Requirement of Notice

In the exercise of any judicial power by the administration, it is essential that the person against whom any allegation or charge is to be brought should be given prior notice of the allegation or charge or case against him so that he can prepare to meet the allegation, charge or case. The Supreme Court painted a vivid picture of the significance of the requirement of notice in stating what fair hearing implies in administrative adjudication before a disciplinary tribunal.

Also see the case of Obot v CBN, where the Supreme Court declared void, the respondent's dismissal of the appellant's employment based on the fact that the appellant had not been given due notice before appearing before a tribunal.

6. Grant of remedies

The legal significance of the classification of administrative powers is most vivid in the grant of remedies. It is the general principle of law that where there is a right, there is a remedy (Ubi jus ibi remedium). However, the grant of remedies, especially the prerogative writs, are dependent upon the nature of the administrative power exercised. Mandamus is an order to compel the performance of a public duty. Prohibition and Certiorari are orders directed at the exercise of judicial or Quasi-Judicial Powers, either to prohibit or quash respectively.

7. Discretion

In the case of Iwuji v Federal Commissioner for Establishment, per Karibi Whyte JSC, the use of discretionary powers is the power to make a choice between alternative courses of action. Thus, there is no express limitation to the use of discretionary power in administration. There is however an implied limitation stating that discretionary power be used with respect to appropriate administration of justice. Consequently, when a person of authority vested with powers to exercise a discretion refuses to exercise such power, reasons given for such refusal must be one of the factors relevant to the exercise of the discretion as stated in the case of Stich v AG. Federation.

Rule of Law

The definition of the term "Rule of Law" is subjective in nature and so has different conceptions in the minds of different writers. It is however clear when the phrase is used in a particular sense that relates with Supremacy of the Law itself in the Land. A modern exposition of the concept can be traced to A. V. Dicey's "An introduction to the study of the Law of the constitution". In his book, Dicey reduced the concept to a Tripartite formula which are as follows.

1. The absence of arbitrary power: This connotes the fact that no man can be punished or made to suffer except for a unique breach of law established in the ordinary legal manner before the ordinary courts of the land. And so it means the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power on the part of government.
2. Equality before the Law: This means the equal subjection of all classes of persons to the ordinary law of the land administered by the ordinary courts. This also involves the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of the ordinary tribunals.
3. Individual rights: This refers to security given to individual fundamental rights resulting from the general principles of the Constitution.

There have however been various criticisms by scholars of Dicey's thesis on the Rule of Law in modern times. Indeed, it has been said that Dicey erred in saying that the doctrine of the Rule of Law excludes the existence even of wide discretionary authority on the part of government. According to these scholars, modern day governmental administration requires the existence of discretionary powers for effective administration. Also, the idea of absolute equality cannot be possible in any society.

The concept of the Rule of Law has been applied in various cases such as Military Governor of Lagos State v Ojukwu, Akingbola v FRN, inter alia.

Supremacy of the Constitution

Supremacy may be defined as “the position of having the superior or greatest power or authority”. The constitution can also be defined as “the fundamental and organic law of a nation or state that establishes the institutions and apparatus of government, defines the scope of governmental sovereign powers, and guarantees individual civil rights and civil liberties”. From the foregoing, it can be seen that constitutional supremacy is the position of the constitution having the most superior or greatest power or authority.

Due to the fact that section 2 of the Nigerian Constitution 1999 (as amended) makes Nigeria a federal republic, it has a written constitution. The general convention is that a written constitution is supreme; the Nigerian constitution provides for its supremacy in some of its provisions. These provisions shall be subsequently highlighted.

The first section of the 1999 constitution that deals with the supremacy of the constitution is section 1(1). It provides thus: “This constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal republic of Nigeria”

This section means that the provisions of the constitution are binding on all persons, no matter how high or low. Even the number one citizen of the country, the President, is bound by the constitution. There are numerous case laws in which the actions of the president were declared unconstitutional and of no effect whatsoever. One popular case is AG Lagos vs AG Federation. In this case, it was declared that the actions of the president in withholding the federal allocation to Lagos state was in contrast to section162(5) of the constitution, therefore they were unconstitutional, null and void.

Another case is that of Inakoju vs Adeleke. In this case, some members of the Oyo state house of assembly purported to remove the Governor of the state. However, they did not follow the full provisions of section188 of the Constitution. Due to this, the Supreme court, through a leading Judgement by Tobi JSC, declared their actions unconstitutional, null and void. From the foregoing cases, it can be seen that acts which contravene the provisions of the constitution will be declared null and void because the constitution is supreme and shall have binding force on all persons and authorities throughout Nigeria. Also see INEC v Musa.

Another provision of the constitution that borders on Supremacy of the constitution is section 1(3). It provides thus:

” If any 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.”

This provision is self-explanatory, it means that any law that conflicts with the provision of the constitution shall be inapplicable to the extent of its inconsistency. This is also known as the blue pencil rule. The court of Appeal, in the case of Inspector General of Police vs ANPP and Ors., applied this provision of the constitution. It declared the provisions of the Public Order Act which provided that a permit is needed from the governor before people can assemble in public contrary to the provision of the fundamental human rights of freedom of expression and association which is contained in sections 39 & 40 of the 1999 constitution. Therefore, those provisions of the public order act were declared unconstitutional, null and void to the extent of their inconsistencies. The preceding paragraphs have exposed us to provisions of the constitution that provide for Supremacy of the constitution.

Separation of Powers

The doctrine opines that the three main departments of government, not only be separated into three distinct functional departments, but must also be each managed by different and distinct personnel. John Locke propounded the principle of separation of powers in the then British empire. He argued that the concentration of powers in a single authority could lead to autocracy. It should however be noted that separation of powers cannot be absolute in a political society.

During the period of the first republic in Nigeria, there was partial separation of powers; the executive and legislature were fused while the judiciary was independent. This is portrayed in cases where the actions of the executive/legislature were reviewed by the judiciary. For example, we have the court’s decision in Williams v Majekodunmi where the court held that the action of the executive in restricting the movement of the plaintiff was void.

When the military came into power in 1966, law making and executive powers were fused in the supreme military council while the judiciary was distinct from the other arms of government. It can also be said in this case that there was also partial separation of powers.

With the advent of the presidential system of government in 1979, a new era of separation of powers was ushered in. In this constitution, unlike the previous ones, the separation of powers among the three organs was clear-cut. This was contained in sections 4, 5 and 6 of the constitution which is identical to the present 1999 constitution. Section 147(4) of the 1999 constitution implies that a person cannot be a member of both the executive and legislature at the same time.

It is worthy of note that as previously said, separation of powers is not absolute in the Nigerian situation. There are built in mechanisms to curb the excesses of a particular arm of government. For example, the executive is involved in the appointment and removal of judges as contained in sections 292 & 231. Also pursuant to section 58(3) of the Constitution of the Federal Republic of Nigeria 1999, before a bill can be passed into law, it has to be assented to by the president.

The legislature on the other hand pursuant to section 147 CFRN 1999 performs executive functions by confirming appointees for ministerial positions. It is also the custodian of the revenue of the federation according to section 80 and section 81 CFRN 1999. The judiciary, through the power of judicial review, checks the activities of the other arms of government.

Federalism

Federalism is a system of government in which the same territory is controlled by more than one level of government whereby a central or federal government and unit states or regions exercise governmental powers within spheres or jurisdiction delineated for each level or tier of government within the same territory. Both the central and regional governments have the power to make laws and they have some level of autonomy from each other. Examples of Countries that have adopted Federalism include the USA, Australia and Nigeria. The term "Federalism" is derived from the Latin word 'foedus' meaning formal agreement or covenant.

Nigeria operates a federal system of government which had been adopted through the 1946 and 1951 colonial constitutions. See section 2(2) of the 1999 constitution which states that "Nigeria shall be a Federation consisting of States and a Federal Capital Territory". Authorities in Nigeria are however divided among three levels of government which are the Federal Government of Nigeria, the thirty-six state governments and the 768 local government area and six area councils.

The sharing of powers between the Federal government and the federating states is formally undertaken through the 1999 constitution which contains provisions delineating the legislative and executive powers of tier of government in section 4 and 5, Chapters V and VI, and the Exclusive and Concurrent legislative lists.

Professor Nwambueze in reflections on the 1999 constitution lamented on the distortion of federalism under the 1999 constitution where he pointed out as has been observed, the power sharing agreement under the Nigerian Federal system allocates to the Federal Government powers and resources overwhelmingly greater than those allocated to the States, thereby depriving the latter of any meaningful autonomy in relation to the Federal government. This distorted configuration of the power sharing under the 1999 constitution is one of the main reasons for the call for constitutional reforms to create "True Federalism" in power sharing within the Nigerian Federation.

Republicanism

Republicanism is a concept that focuses on the governing of a sovereign state as a republic, whereby the Head of State or Head of Government is elected or appointed by means other than heredity or royal or religious ordainment. It is also described as an ideology of government under which the people hold popular sovereignty. In modern times, it refers to a representative democracy with an elected Head of State.

Nigeria became a Republic on 1st of October, 1963 when the 1960 independence constitution that established a Monarchical government, under which the sovereignty was vested in the Queen of England as the Sovereign and Head of State of Nigeria, was abolished and replaced by a Republican Constitution. The first republic was between 1963 and 1966 governed by the first Republican Constitution. The second republic was between 1979 and 1983, while the aborted third republic was the planned Republican government of Nigeria in 1993. The fourth republic is the republican government of Nigeria since 1999 which has been governed by the 1999 constitution. Nigeria adopted the Constitution of the fourth republic on May 29, 1999.

Fundamental Rights

Human Rights have been defined as the “inalienable rights of people”. They are the legal entitlements which every citizen should enjoy without fear of the government or other fellow citizens. They are said to be the rights which cannot be said to have been given to man by man, but are earned by man for being a human because they are necessary for his continuous happy existence with himself, his fellow man and for participation in a complex society (David Kaluge, Human Rights Abuse 2013).

It is a right which stands above the ordinary laws of the land and which is in fact antecedent to the political society itself. It is a primary condition to a civilized existence, per Eso J.S.C. in Ransome Kuti & Ors V. A.G. of Federation & Ors (1985).

As Nigerians, our Fundamental Human Rights are provided for under Chapter IV of the 1999 constitution. These rights include:

Right to life, section 33; right to dignity of human person, section 34; right to personal liberty, section 35; right to fair hearing, section 36; right to private and family life, section 37; right to freedom of thought, conscience and religion, section 38; right to freedom of expression and the press, section 39; right to peaceful assembly and association, section 40; right to freedom of movement, section 41; right to freedom from discrimination, section 42; right to acquire and own immovable property anywhere in Nigeria, section 43, amongst others.

These guaranteed rights are justifiable in a court of law in Nigeria. In order to actualize the protection and enforcement of these rights, section 46(3) of the constitution empowers the Chief Justice of Nigeria to make rules with respect to practice and procedure of a High Court for the purposes of enforcing the fundamental rights of a person contravened, being or likely to be contravened in any state in Nigeria. In exercise of these powers, the former Chief Justice of Nigeria, Idris Legbo Kutigi, made the Fundamental Right (Enforcement Procedure) Rules 2009, which became effective from December 1, 2009.

With the coming into force of the 2009 Rules, the Fundamental Right (Enforcement Procedure) Rules 1979 made by the then Chief Justice Fatayi Williams CJN which have been in force since January 1, 1980 were effectively abrogated subject however to saving provisions in respect of fundamental rights proceedings commenced thereunder and pending at the commencement of the new rules.