The arm of government that has the constitutional task or responsibility of executing government policies and actions is referred to as the “Executive” arm. In common parlance, it refers to that governmental functionary, agency or institution which is responsible for the day to day running or general administration of government. This body is represented in presidential democracy like Nigeria and United State of America in the office of the President, Governor, and Chairman at the Federal, State and Local or County levels respectively, and the Ministries, Department and Agencies established and operate under them within the realms of separation of power.

However, the exercise of administrative powers which is mainly associated with the general activities of the executive arm in the administration of a state, most often than not negate the theory and principle of separation of power as propounded by John Locke – the great liberal philosopher of the late seventeenth century, who argued that it was advisable in the interests of liberty for powers of government to be separated from each other. The legislatures makes the laws, the executive administers them, and the judiciary acts independently in settling disputes or punishing violators of law. These has become necessary for the purpose of preserving the liberty and freedom of the citizens and to prevent tyranny which is one of the cardinal principles of the rule of law.

Whereas, a close study of contemporary political systems globally show that it is difficult to completely separate the three organs of government. Rather than being separated and always being in “opposite positions” to each other, the governmental powers must be coordinated and allowed to overlap if government is to be carried out effectively. Thus, Walter Bagehot observed over a century ago that “the efficient secret of the English constitution may be described as the close union, the nearly complete fusion of powers”. In short, separation of powers does not meant that the powers of government would never touch at any time. What Montesquieu had in mind was that each organ would impose restraints which would prevent the abuse of power. What obtain in most cases therefore, is “checks and balances” that cut across both vertical ( Federal, State and Local Governments) and horizontal levels of the governments (i.e Executive, Legislature and Judiciary), accordingly.

Hence, the executive which has a lot of responsibilities that cover the whole spectrum of nationhood, and owing to the complex nature of the society, in addition sometime exercise judicial powers by constituting a “panel” or tribunal of “experts” who must now sit over certain administrative cases (that are quasi- judicial) with extensive powers and can make far reaching recommendation thereby performing judicial functions (similar to the court) that are often consider to be technical and special. Such practice is common trend in our system of administration recognizable over the years.

The tribunals and administrative panels established may be classified into three main categories, to wit:

1. Statutory tribunals like the Rent Tribunals in the States, Industrial Arbitration Panel established under the Trade Dispute Act Cap T8 (LFN) 2004, Investment and Security Tribunal established under the Investments and Security Act, 2007.

2. Administrative entities like Governors, Ministers, Commissioners, Head of government Departments and Local Authorities who in the discharge of their executive functions also constitute Commission or Panel of Inquiry and sometimes take decisions that are judicial or quasi-judicial in nature either in form of imposing punitive measures and fine for breach of regulations etc.; and

3. Domestic tribunals which are mostly concerned with disciplinary processes like the Accountants Disciplinary Tribunal created under section 11 of the Institute of Chartered Accountants Act Cap C20 LFN 2004, the Legal Practitioners Disciplinary Committee set up under section 10 of the Legal Practitioners Act Cap L11 LFN 2004, and the Medical and Dental Practitioners Disciplinary Tribunal created by section 15 of the Medical and Dental PractitioQners Act, Cap M8 LFN 2004.

However, I wish to point out here the subtle differences between judicial tribunals and mere Administrative or Commission or Panels of Inquiry.

The Administrative Panel of Inquiry are fact-finding bodies whose assingment may either precede a policy decision by government or be subsequent to a local dispute or disturbance. For instance, government may set up a public inquiry to ascertain the immediate and remote causes of a religious or socio-political disturbance in a particular locality.

The various Commissions or Panels of Inquiry set up in the past include: The Akambo Commission of Inquiry into the Purported Deportation of Shugaba Abdulrahman Darma in 1982, The Ibidapa-Obe Commission of Inquiry into Ife-Modakeke Riot; The Fernadez Commission of Inquiry into Maitastine Riots in Kano, Borno, Gombe and Yola; The Alfa Belgore Commission of Inquiry into the University of Ife Students Riots; Aguda & Bello Review Panel of Cases of Persons Convicted by the Special Military Tribunals; The Kayode Eso Panel of Inquiry into Judicial Reform & Reorganisation; The Oputa Panel set up to Investigate Human Rights Abuses During Military Regimes; and more recently, the Justice Ayo Salami Panel to Investigate the Operational Activities of EFCC during the Leadership of CP Ibrahim Magu, and Inauguration of Panels of Inquiry into the nation-wide demonstrations on #ENDSARS and Police Brutality set up by various States Governors present good scenario here.

Unlike a tribunal, such administrative inquiry does not usually extend to the determination of guilt or the imposition of sanctions like the sitting of some Panel on the ENSARS saga tend to wrongly portray. While interested parties may be represented, there is usually no complaint against any particular party. The primary goal of the inquiry is the submission of a report, containing the tribunal’s findings of fact and recommendations for the avoidance of reoccurance.

However, the executive exercise of these Quasi judicial powers which many Critics observed, is an unnessary usurpation of the functions of the courts (judiciary) by the Executive. Thus causing what term as “Tactical Errors ” in the investigation and prosecution of suspects of crimes as expressed by Hon Justice Amina Augie, JCA (as then was, now JSC) in the case of Major Hamza Almustapha v.The State (Appeal No.CA/L/469A/12) when she declared:

“In the aftermath of monumental tragedy, the Respondent made a number of TACTICAL ERRORS in the investigation of the case and the prosecution of accused persons, who allegedly conspired to murder Alhaja Kudirat Abiola. The investigation, which is the prerogative of the Nigeria Police Force, was farmed out to OTHER BODIES THAT HAD NO BUSINESS taking statements from the accused or interfering in any way with the investigation of the case preparatory to TRIAL.” (Emphasis mine)

The above in essence underscored the dangers inherent in especially constituting a Panel of Inquiry to investigate and or determine culpability of a suspect with risk of having end result of such a “tactical errors” in the trial at the end of it, instead of trying the suspect(s) abnitio before a competent regular court.

This also follows therefore, that the just concluded Justice Salami Panel investigating the allegations made against the suspended EFCC boss, Ibrahim Magu may turn out to be a jamboree that can only bring a mere ‘political results’, and NOT securing a conviction against Magu, since they lack constitutional power to investigate and try Magu for any crime other than the regular court.

However, one reason often adduced for the establishment of such tribunals is the alleged “inadequacy or ineffectiveness of the ordinary courts of law” to settle “technical and purely departmental issues” for which they (tribunals) are usually established. It is felt that experts on specific technical issues or problems are best suited to handle matters rather than the regular courts. According to Hood Phillips and Jackson, “the reasons why Parliament increasingly confers powers of adjudication on special tribunals rather than on the ordinary courts may be stated positively as showing the greater suitability of such tribunals, or negatively as showing the inadequacy of the ordinary courts for the particular kind of work that has to be done”.

In addition to the technical nature of the assignment often given, there is also the realization that the regular courts are already over-saddled with cases and should therefore, not be further burdened with additional responsibilities.It is also felt that an administrative tribunal would dispense with issues speedily. Since their assignments focus on specific issues, less time is wasted on exteraneous issues and procedural matters. Individuals are free to testify without necessarily engaging the services of a counsel. Decisions are therefore, easier to reach and at cheaper ends than what one finds at the regular courts.

Again, tribunals are also less rigid and therefore are more amenable to flexible but fair decisions. The laws of precedence which usually tie the regular courts down are hardly evident here. This is apart from the privileged of “discretionary powers” over doctrines of judicial rigidity and formality. Therefore, their decisions are likely to be more pragmatic and relevant.

However, notwithstanding the advantages goes with the establishment of such administrative Tribunal as highlighted above, there are some challenges.

The number one of such challenges is the lack of adherence to rule of law in the composition and sitting of administrative tribunals have always prompted Courts to intervene in the safeguard to the rights and freedom of citizens. This is clearly seen when the twine pillars of natural justice (Nemo judex in causa sua and Audi Alteram partem) – Latin Maxim which means: No one can be a judge in his own cause; and judge must hear both the parties in a case, are being crucified at the alter of administarive exercise of judicial powers.

Thus, most, if not all tribunals and Panels of Inquiry are being less independent of government interference, as one find civil servants or public officials (even of the affected ministry or department) serving as members of the tribunal. Their views and submissions are likely to be affected by their local loyalty.

The ‘opennes’ associated with the law court that is often found absent in administrative tribunals both during the hearing and judgments hightens fear and genuine suspicious as to their fairness.

All these and many more have made the regular courts to intervene in bringing to an end the arbitrary use of powers of administrative tribunal.

Sensing the possible dangers and limitations in the Administrative exercises of these (quasi) judicial powers by the “Almighty” executive in the general administration of a state, some countries have devised measures to ensure that such administrative powers come under some form of control. One of such came from Britain through the Inquiry Act of 1958. The Inquiry Act sought to make the decisions of the tribunals “subject to the approval of the court of law”. In other words, the decisions of the tribunals could be checked by the courts through the orders of ‘prohibition’, ‘certiorari’ and ‘injunction’. This was done to prevent too much power being vested on the tribunals, and to check their possible misuse and abuse of such responsibilities.

In Nigeria, administrative tribunal, no matter how highly placed is inferior to the High Court and is always subject to the supervisory jurisdiction of the High Court. According to Awogu J.C.A. in National Electoral Commission (N.E.C.) V Nzeribe:
“A tribunal, no matter how highly clothe with power is still a tribunal And so an inferior Court and subject to the supervisory jurisdiction of a superior Court of record, such as the High Court of Lagos.”

The high court control in form of supervisory jurisdiction over tribunals and Panels of Inquiry takes the form of judicial review.

It is therefore, instructive to note that actions and proceedings before such Commission or administrative tribunal may be challenged by application to the appropriate high court for judicial review asking for the grant of a specific ‘order’ of common law or administrative remedies. See Orugbo v. Una (2002) 9-10 S.C. 60 at 69, and R. v. Minister of Health, Ex parte Yaffe (1930)2 K.B. 98. Thus, the court by an order of “certiorari” remove proceedings before the Commission, Panel or tribunal to the high Court for review, and if bad, to be quashed. Similarly, the court by “declaration”, “injunction” and “prohibition” prevent individuals or the Commission itself or its officials from carrying out intended or other acts which may violet the right of citizens or prevent the Commission from exceeding its jurisdiction or infringing the rules of natural justice. The court also could by the order of “mandamus” compel the Commission or Panel to carry out specific actions or functions/investigations which had been neglected or would not otherwise have been done.

For instance, Denloye vs. Dental Practioners Disciplinary Committittee, the defendant was found guilty by a Tribunal for infamous conduct in professional respect and ordered the removal of his name from the Medical Register. On appeal, the decision was set aside and the order of direction striking the name of the appellant off the Medical Register was quashed, the appellate Court holding that the decision was contrary to the audi alteram partem principle of natural justice.

Again in the famous case of Garba & Ors. Vs University of Maiduguri, Garba and some other students testified before a University of Maiduguri Investigation Panel as witnesses and their submissions formed the basis of their expulsion from the institution without any respect for the rules of natural justice. Reversing the decision of the University, the court held:

“The Courts have always drawn a vital and necessary difference and distinction between hearing a man as a witness in the administrative Inquiry and hearing him in defence of his good name, his intergrity or his conduct. A witness may be found guilty of perjury if he lies he may be believed or disbelieved as the case may be but the central issue of liability or guilt does not attach to witness”.

Suffice to say that administrative body is bound to follow the rules of natural justice if its actions will affect the rights and interests of a person to his detriment.

In all and from the foregoing, one finds that various devices to check the administrative exercise of quasi-judicial powers have been put in place with the judiciary always at the vanguard. Despite those checks, the critics of exercise of such powers seem unrelenting. However, such criticism notwithstanding, many societies still find them relevant.

Kala Esq can be reached via [email protected]