SEPERATION OF POWERS

1.0      Introduction

2.0      Objectives

• Main Content
• Definition of the Concept called Separation of Powers
• Military Rule and Separation of Powers
• Civil Rule and Separation of Powers

4.0      Conclusion

5.0      Summary

6.0      Tutor-Marked Assignment

7.0      References/Further Readings

  INTRODUCTION

Separation of powers is one of the devices used by the Anglo-American systems of government to protect the rule of law and prevent exercise of arbitrary power by the sovereign. The concept streamed from the writings of John Locke on the situation in England in the 17^th century.  He argued that it was fool-hardly to give lawmakers the power to  execute law made by them because, in the process, they can exempt themselves from the observance of the law. To prevent arbitrariness he championed creation of a constitutionally limited government and three fold division of government into:

1. Legislative power for creation of rules
2. Executive power by which laws are enforced and
3. Federative powers which concern making of war/peace and external relations.

He did not advocate separation between legislative and federative powers. The modern form of the concept is however due to the writing of Montesquieu.

  OBJECTIVES

By the end of this unit, you should be able to explain: the concept of separation of power;

the application in principle and practice; and

the differences between the application in parliamentary system and presidential system of government.

MAIN CONTENT

Definition of the Concept Called Separation of Powers

Separation of powers or classification of government powers is the division of government powers into three branches of legislative, executive, and judicial; each to be exercised by a separate and independent arm of government as a preventive measure against abuse  of power, which will occur if the three powers are exercised by the same person or group of persons.

Thus, the concept of separation of powers may mean at least three different things.

1. That the same person should not form part of more than one of the three organs of
2. That one organ of government should not control or interfere with the work of another. For example the judiciary should be independent of the Executive and the Legislative.
3. That one organ of government should not exercise the function of E.g. the Legislature should not carry out judicial functions.

Thus, separation of powers is the constitutional doctrine of the division of powers of government into the three branches of legislative,  executive and judicial powers, each to be exercised by a different group of persons as a means of checks and balances in the government structure itself, and to protect the people against tyranny.

The three traditional arms of government or types of government power or division of government are the:

 

i.	Legislative:	the law making arm of government
ii.	Executive:	the implementation of laws
iii.	Judiciary:	the interpreters and judges of the law.

 

The doctrine of separation of powers as understood today came largely from the work of the French jurist, Baron De Montesquieu, in his book “The Spirit of Law” (Espirit Des Lois Chapter XI) who studied and expanded the work of John Locke. He was concerned with preservation of the political liberty of the citizen. According to Montesquieu:

Political liberty is to be found only when there is no abuse of power. Experience shows that everyman invested with power will abuse it by carrying it as far as it can go. To prevent this abuse, it is necessary from the nature of things that one power should be a check on another. When the Legislative, Executive and judicial powers are united in the same person or body…………. There can be no liberty………..again there is no liberty if the judiciary powers is not separated from the legislative and executive……. there would be an end of everything if the same person or body, whether of the nobles or of the people, were to exercise all there powers.

Therefore concentration of powers in the same person or body would no doubt lead to tyranny because power corrupts and absolute power corrupts absolutely.

In this vein, Prof Ben Nwabueze said “Concentration of government powers in the hand of one individual is the very definition of dictatorship, and absolute power is by its very nature  arbitrary capricious and despotic”. In the words of Chief Obafemi Awolowo, “Man loves power, in the family, vicarage, town and state, in the club, groups, association businesses, in the institution of learning, newspaper office……. In this entire sphere, you see him always exacting in the use and abuse of power”. 

In another breath he said “An independent judiciary is one of the bulkwarks of the liberty of the citizen….. a judiciary which is subservient to the executive and the legislature will be bound to administer the law with partial affection for those in authority and to the prejudice of the governed”. 

According to Abiola Ojo, “a complete separation of powers is neither practicable nor desirable for effective government. What the doctrine  can be taken to mean is the prevention of tyranny by the conferment of two much power on anyone person or body and the check of one power by another”. The courts have continually pronounced on the importance of this concept.

In Lakanmi and others V Attorney General of Western State, the court noted inter alia

We must here revert once again to the separation o powers, which the learned, Attorney General Himself did not dispute still represent the structure of our system of government. In the absence of anything to the contrary it has to be admitted that the structure of our constitution is based on separation of powers – the legislature, the Executive and the Judiciary. Our constitution clearly follows the model of the American constitution. In the distribution of powers, the courts are vested with the exclusive right to determine justifiably controversies between  citizen and the state … we must once again point out that those who took the government of this country in 1966 never for a moment intended to rule but by the constitution. They did in fact recognize the separation of powers and never intended an intrusion on the judiciary. Section 3(1) of Decree 1 of 1966 does not envisage the performance of legislative function as a weapon for exercise of judicial powers, nor was it intended that the federal military government should, in its power to enact decrees, exceed the requirements or demands of the necessity of the  case.

In Bamidele and others V Commissioner for Local Government and Community Development Lagos State Uwaifo JCA, as he then was, remarked on the important role of the courts in seeing that the constitution observed in a society.

“In a democratic society governed by a democratically elected government under the law and the constitution, this illegality, no matter its salutary intervention should not be permitted. Once a situation like that is allowed to go unchallenged by whoever is affected, more serious infractions will soon be committed. In due course, the constitution is rendered irrelevant. That means a slide into authoritarianism. All these and the non observance was connived at or acquired in, and the court in  a competent action did nothing about it. That does not augur well for democracy and the rule of law. It rather weakens their framework and their practice”.

Unfortunately, it is because of the incapacitation of the courts in this respect under military rule that those traditional concepts cannot exist.

Military Rule and Separation of Powers

The organization of government under the military rule is contrary to the concepts of separation of power, traditionally or modern. It must be noted that the primary purpose of the concept is to guard against dictatorial rule by avoiding concentration of all the powers of government in one hand. With the advent of the 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 N. 1, 1966. By virtue of the decree, it dissolved  the parliament and fused legislature and the executive powers in the Supreme Military Council (SMC) which was the ruling military council. This 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 military regimes. The military also passed the federal military Government (Supremacy and enforcement of powers) decree No. 28 of 1970, by virtue of  which decree became the supreme laws of the land and the validity of any decree or edit cannot be inquired into by any court of law. But whenever an edict was inconsistent with a decree it became null and void to the extent of such inconsistency. Though the judiciary is never abolished nor its power taken away, its judicial powers was ousted in various matters by ouster clauses contained in the relevant decrees /edits which stripped those courts of power or jurisdiction to look into such specified matters.

A military regime wields a lot of powers especially legislative and executive powers. They also exercised judicial powers as they deemed  fit from time to time. It could, by a decree, determine a person’s guilt and mete out penalty.

Civil Rule and Separation of Powers

The Nigeria Constitution of 1999, provided for a presidential system of government. The constitution also provided for a clear division of the three powers or branches of government as follows:

Section 4:The Legislature with Legislative powers

Section 5:The Executive with executive powers

Section 6:The Judiciary with judicial powers

During Civil rule, the Constitution is the Supreme Law of the land and the rule of law is the basis of government actions. Any law or action that contravenes the provisions of the constitution is void to the extent of such inconsistency.

In Attorney General of Bendel State V Attorney General of the federation and others. The court declared unconstitutional the precedence by which the appropriation bill was passed by the National Assembly.

Also in the Attorney General of the Federation V Attorney General of Abia state, the Supreme court declared unconstitutional and contrary to the provisions of section 162 of the 1999 constitution the Act of the Federal Government in charging certain funds, like that of the judiciary, settlement of external federal debt joint venture contracts and the Nigeria National Petroleum Corporation (NNPC) priority projects, special allocation to the Federal Capital Territory in the federation Account out of which all the various levels of government are to take a share.

CONCLUSION

We draw our conclusion from the observation made by the Constitution Drafting Committee of the 1979 constitution which said:

Strict compartmentalized separation is not possible under modern systems of government as modern governments should be a co-operative co-co-coordinated effort and not a tug of war between the principal organs of government. Separation of executive and legislative function is necessary and desirable if limited government and individual liberty are to be secured, but certainly not a rigid separation

And this tallies with the views of Abiola Ojo, that “a complete  separation of powers is neither practicable nor desirable for effective government. What the doctrine can be taken to mean is the prevention of tyranny by the conferment of too much power on anyone person or body and the check of one power by another”.

 SUMMARY

In this unit you should be able to explain the concept separation of powers and its application under:

Democratic dispensation Military dispensation

In a Parliamentary System of Government.

            TUTOR-MARKED ASSIGNMENT

1. What do you understand by the term separation of powers?
2. What is the implication of the judgment in the case of Lakanmi and others V Attorney General of Western
3. Separation of powers under the Military Rule is an utopian dream.
4. In a democratic dispensation, the executive arm of government can make laws. Do you agree?

REFERENCES/FURTHER READINGS

Sokejun, S. A: (2002). Issues in Constitutional law and practice in Nigeria, Faculty of Law, Olabisi Canabanjo University, Ago Iwoye.

Nwabueze, B (1982). The Presidential Constitution of Nigeria.

Mowoe, K. (2005). Constitutional law in Nigeria