Separation of Powers
1.0
introduction
2.0
objectives
3.0
main Content
4.0
conclusion
5.0
summary
6.0
tutor marked assignment
7.0
further readings/references

Introduction

We are much used to the division of governmental power amongst the traditional three arms of government – the legislature, the executive and the judiciary. Under the doctrine of separation of powers, each of the three-some is restricted to perform within the ambit of its functions without, in any way, interfering with the duty of another. The CFRN 1999 maintains this compartmentalization in SS. 4-6. But further constitutional provisions limit the applicability of the doctrine in its classical manifestation.

However, in administrative law, the doctrine is inapplicable. Administrative agencies perform the duties that the three organs of government perform, that is, law-making, implementation, and enforcement. Because an agency is created not to observe the doctrine and since its activities negate any commitment to the doctrine, it is, therefore, right to conclude that the doctrine is irrelevant to it.

What we have said about administrative agencies is more or less  equally  true  for  the  military regimes. Operating under the doctrine of legislative supremacy, the military establishment fuses legislative functions with executive functions so  much  so  that members of the legislature are almost invariably members of the executive.

 OBJECTIVES

At the end of this Unit, you will be able to:

• Assess the traditional doctrine of separation of powers
• Apply the traditional doctrine to the CFRN 1999
• Analyze the doctrine against the background of the activities of administrative agencies.

MAIN CONTENT

Meaning and Scope of Separation of Powers

The doctrine of separation of powers as historically understood is derived from the work of French jurist, Baron De Montesquieu. This doctrine is an elaboration of the study of John Locke’s writings. Montesquieu was concerned with the preservation of political liberty. He said ‘political liberty is to be found, only when there is no abuse of power’.

The doctrine of separation of powers amongst the three arms of government is one  of  the central issues implicated in the governance of modern democracies and  other  jurisdictions which aspire to stabilize their governments. This is one of the devices used by the Anglo- American system of government to protect the rule of law  and  prevent  the  exercise  of arbitrary power by the sovereign. Phillips and Jackson, citing Montesquieu who further opined that:

‘constant experience shows us that every man manifested with power is liable to abuse it and to carry his authority as far as it will go…To prevent this abuse, it is necessary from the nature of things that one power should be a check on another….

The doctrine stemmed from the observation of Locke of the conditions prevalent in seventeenth century England. The doctrine as we know it today is due to the work of the French Jurist, Montesquieu, who based his study on the works of Locke.

Separation of powers amongst the three arms of government is one of the central issues implicated in the governance of modern democracies and other jurisdictions which aspire to stabilize their governments. This is one  of  the  devices used  by the  Anglo-American system of government to protect the rule of law and prevent the exercise of arbitrary power by the sovereign. From the outset, it is important to note that separation of powers can mean about three different things as follows:

1. That the same persons should not be part and parcel of more than one of the three arms of government. In other words, if a person is a member of the Legislature, he should not simultaneously be a member of either the Executive or the Judiciary
2. That an arm of government should not interfere  in  the  affairs  of  any  other  two  arms of government. Put differently, it means, for example, that a member of the executive should do only those things that are within the schedule of duties of the executive, and desist from controlling or interfering with the legislature and the  judiciary in the performance of their assigned functions
3. That one arm of government should not exercise the functions of another arm, that is, the judiciary, for example, should neither perform legislative nor executive roles.

The importance of the doctrine has been judicially recognized in Liyange v. The Queen (1966) 1 W.L.R. 682 where the Judicial Committee of the Privy Council pointed out that there exists under the Ceylonese constitution a tripartite division of powers in the legislature, the executive and the judiciary and that it would be unconstitutional if the judicial function were allowed to be interfered with by the legislature by means of an Act of Parliament.

In Nigeria, delivering judgment on the operation of separation of powers in a presidential system of government, the Court of Appeal in the case of Kayode v. The Governor of Kwara State (2005] 18 NWLR (Pt.957) 324 at 352 declared that:

“In a presidential system of government, which Nigeria is currently operating, there are three arms of Government: the Executive, the Legislature  and  the Judiciary. The functions of each are clearly defined and set out in the Constitution which is the grundnorm. Any action taken or to be taken by each arm must be  within the provision of  the said Constitution or  else it  will  be declared ultra v ires the powers given to that arm of Government.”

Having itemized the possible meaning of the  doctrine,  we  shall  next  consider  the  proponents of the doctrine.

John Locke

The concept originally stemmed from the observations of English jurist, John Locke, that to prevent arbitrariness there should be a constitutionally created government divided into the legislative power for creation of rules to protect rights; executive power by which laws are enforced; federating power which concerns the making of war, peace and external relations.

He said:

“it may be too great a temptation to human frailty, apt to grasp at power, for the  same  person who have the power of making laws; to have also in their hand the power to execute them, whereby they may exempt themselves from obedience to the laws they made and suit  the law; both in its making and execution, to their own private advantage.”

Montesquieu

The concept in its modern form was first articulated by the French jurist, Montesquieu who, while  predicating  his  exposition   on   the   18th   century   British   constitution, contended that unless power is checked, it will be abused. To him, “political liberty is to be found only when there is no abuse of power. But constant experience shows every man invested with power is liable to abuse it, and carry his authority as far as it will go. To prevent this abuse, it is necessary from the nature of things that one power should be a check on another...When the legislature and executive powers are united in the same person or body there can be no liberty. Again, there is no liberty if the judicial power is not separatedfrom the legislature and executive. There would be an end of everything if the same person or body, whether of the nobles or the people, were to exercise all the three powers”

Therefore, governmental power should  be  divided  into  the  legislature,  executive  and judicial powers with mutual check on one another thus:

• That the same persons should not form part of more than one of the three organs of government;
• That one organ of government should not control or interfere with the exercise of its function by another organ; and
• That one arm of government should not exercise the functions of another

What Montesquieu means by this categorization is that if legislative and executive functions are fused in one person or body of persons, the civil society faces the peril of the legislature enacting privative or oppressive laws which the executive will selfishly execute or implement. Likewise, if the same body or body of persons exercise legislative and judicial powers, there is the danger that the powers would be exercised arbitrarily for the legislator acting as the judge will interpret the law the way that best suit him or them.  This  will  not augur well for the civil society. Therefore, there is the need for each arm to mind its own business as this arrangement best secures individuals against arbitrary exercise of power.

SELF ASSESSMENT EXERCISE 1

Explain the classical meaning of separation of powers

APPLICABILITY OF THE DOCTRINE

SEPARATION OF POWERS IN NIGERIA

Nigeria operated the British type of government popularly known as parliamentary government. In that system, the functions of government are assigned to the traditional organs of government so as to reflect the separation of powers. In reality however, there is no strict adherence to the doctrine. Nigeria operated this system of government until the military intervention in 1966.  The doctrine of separation of powers was also adopted in the manner peculiar to British system. For instance, the exercise of judicial function was not rigidly restricted to the judiciary. In the case of Attorney General Oyo State v. I.O. Adeyemi (Alaafin of Oyo) (1982) 3 N.C.L.R. 846 (as reported in Modern Trends in Administrative Law, J.N. Egwummuo, Academic Publishing Company, Enugu 2^nd edition) , a boundary commissioner was appointed to demarcate the boundary between Ogbomosho and Oyo communities. He made a decision which was later confirmed by an appeal tribunal. Subsequently, an action was filed in the High Court challenging the exercise. A declaration was sought that both the decision relating to the rights and obligations of persons should not be determined by any other body than the law courts. The High Court agreed with the contention and set aside both the commissioner’s decision and its subsequent confirmation by an appeal tribunal. In the court of appeal, however, it was held, reversing the decision of the lower court, that separation of powers is the bedrock of a federal constitution like ours.

See further the case of Lakanmi Ola and another v. Attorney General (Western State) (1971) 1

U.I.L.R. 20 (Sup. Ct), where the right of the citizen under sections 22 and 31 of the constitution was affected .

See also the case of Government of Kaduna State v. The House of Assembly, Kaduna State and the Attorney General, Kaduna State (1981) 2 N.C.L.R. 444 where the court held that, the doctrine of separation of powers is enshrined under the 1979 constitution. Thus, the legislature has the constitutional right to enact laws regarding the local government in the state; and further that, this power includes power to amend and to repeal the laws whenever the need arises but such an amendment must not assume an executive function.

Separation of Powers under the 1999 Constitution

Under the 1999 constitution of the Federal Republic of Nigeria, separation of power is a fundamental constitutional principle. Relevant sections of the constitution place each of the basic powers of government in a separate branch. Section 4 deals with the legislative powers; section 5 deals with executive powers and section 6 is concerned with the judicial powers.

The decision in the case of Lakanmi v. A.G Western Nigeria (supra) helps put the concept in clearer perspective. The court in that case had recognized the importance of the concept of separation of powers by noting as follows:

“We must here revert once again to the separation of powers, which the learned Attorney General himself did not dispute, still represents 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 American Constitution. In the distribution of powers, the courts are vested with the exclusive right to determine justifiable controversies between citizens and the state”

The 1999 Constitution, like the ones before it, has established the separation of powers in these two folds, that is, the Federation and the States as well as among the three arms of government at each level. The constitution does not specifically provide for the application of the doctrine as part of the system of government in the country. What it does is to set a clear division between the three arms of government at each level.

Analyzing the powers in i.e. Chapter V, VI and VII of the 1999 Constitution, we can deduce the following.

That the mode of entry into various arms or power of government has been detailed in the constitution. This is in order to check arbitrariness and impose a semblance of normalcy and order. This brings forth the doctrine of Checks and balances

It has been established that division of powers among the three arms of government simply means that, under the Constitution, it is the duty of the legislature to make laws while the executive implements.

The doctrine of Checks and balances arose as an outgrowth of the classical theory of separation of powers. The purpose was to ensure that governmental powers would not be used in an abusive manner. The doctrine has also been referred to as one of right of mutual control and influence. These checks are meant to keep any one branch from making disastrous policy or law that will harm the nation.

Checks and balances are the constitutional controls where separate branches of government have limiting power over each other so that no branch will become supreme.

The doctrine of Checks and balances states that governmental powers should be controlled by overlapping authority within the government and by giving citizens the right to criticize state actions and remove officials from office.

The removal of any individual exercising such power is not vested directly in that power but rather, in that other power. Hence, removal of a judge is sequel to the recommendations of the National Judicial Council and permitted on the approval of the Presidency.

Furthermore, there is a varying pattern in the means of appointment of government officials; this is to ensure separation of powers and duties. For instance, under the 1999 constitution, Section 231 (1) states that: appointment of a person to the office of Chief Justice of Nigeria shall be made by the President on the recommendation of the National Judicial Council subject to the confirmation of appointment by the Senate.

As part of the checks provided for in the Constitution, is the provision relating to the legislative power to monitor and oversee the Consolidated Revenue Fund. Section 80 (1) specifically provides that:

‘No money shall be withdrawn from any public fund of the Federation, other than the Consolidated Revenue Fund of the Federation, unless the issue of those moneys has been authorized by an Act of the National Assembly”

“No money shall be withdrawn from the Consolidated Revenue Fund of the Federation  or any other public fund of the Federation, except in the manner prescribed by the National Assembly.

Please read further sections 88 (1); 128 (1) of the 1999 Constitution of the Federal Republic of Nigeria for further powers of checks and oversight of the Legislative arm of government.

However, a check is put on the power by virtue of Section 88 (2) and Section 128 (2). The sections provide that the powers conferred on the National Assembly or State Houses of Assembly under the provisions are exercisable only for the purpose of enabling it to make laws with respect to any matter within its legislative competence.

The constitution further prescribes which arm of government may exercise what power as well as what functions they must perform, what this translate to is that no arm must directly or indirectly under any guise, wander into the boundary of the other. See further, the case of Senator Abraham Adesanya v. President of Nigeria (1981) All N.L.R.

What is (are) the implications of the doctrine of separation of powers?

The Court of Appeal, per Salami JCA, in Hon. Abdullahi Maccido Ahmed v. Sokoto House of Assemly & Anor ( 2002) 44 WRN 52 has held that there are three implications of the doctrine  viz:

1. That the same person shall not be part of more than one of the arms of government;
2. That one branch should not dominate or control another arm. This is particularly important in the relationship between (the) and the courts;
3. That one branch should not attempt to exercise the function of others

The next thing for us to consider is the applicability of  the  doctrine  to  present-day  operations of the organs or arms of government.

Legislature and Executive

Do the same persons or bodies form  part  of  both  the  legislature  and  the executive?

By virtue of the provisions of the CFRN 1999, we can safely state  emphatically  that  separation of powers is  real  in  as  much  as  the  separateness  or  uniqueness  of  the powers or functions of the legislative and the executive arms is concerned. Thus, Sections 4,  5  and  6 of the CFRN provides respectively for the National  Assembly,  the  executive and  the judiciary. The effect of this is  that no  member of  the legislature or National Assembly can  be a member of the executive and vice versa. A practical or even extreme demonstration of this position is S. 147(4) of the Constitution of the Federal Republic of Nigeria 1999  which provides that:

Where a member of the National Assembly or of a House of Assembly is appointed as Minister of the Government of the Federation, he shall be deemed to have resigned his membership of the National Assembly or of the House of Assembly on his taking the oath of office as Minister.

Does the Legislature control or interfere with the functions of the executive and vice versa?

Here as well, we could say no. But it will all depend on what we really mean by ‘control’ or ‘interference.’ Nevertheless,  it  should  be  noted  that  the  ingredients  of control or interference are covered by the principle of checks  and  balances  –  a process  through which the CFRN empowers  the  arms  of  government  to  carry  out oversight functions on or to oversee or verify the functions of one another. Thus, Sections 88 and 143  CFRN  respectively authorize the National Assembly to investigate the financial engagements or dealings of the executive and to  impeach  the  President. Also,  appointment of  ministers by the president must be confirmed by the Senate though he  can  dismiss  at  will.  The President may initiate bills but he cannot participate in National Assembly proceedings towards the passage of the bill. Where the bill is passed, it becomes law when the president signs the document. If he is not pleased with the bill as passed, he may withhold his assent or veto the document for a certain period. When the statutory period elapses, the bill as passed automatically becomes effective or operational as an Act of  the  National  Assembly which must be implemented by the executive and interpreted by the judiciary. Similarly, treaties are negotiated by the executive but, before they are domesticated, they must, pursuant to S. 12, be approved by the National Assembly.

Do the Legislature and the executive exercise each other’s functions?

The primary function of the legislature is to enact laws while the executive is to implement those laws. But it is the case that because it would be impractical for the Legislature alone to enact laws, delegation of powers by the legislature to the executive (which includes administrative agencies) becomes inevitable. Armed with  such  delegated  power,  the executive and administrative agencies make rules and regulations. It should be noted that in contrast with the legislature which legislates principles (or generally), that is, on general principles, administrative  agencies  legislate  particularly  in  great  details.  Therefore,  S.  32 of the CFRN authorizes the President to make subordinate legislation regarding Nigerian citizenship as follows:

The President may make regulations … prescribing all matters which are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to the provisions of …, and for granting special immigrant status with full residential rights to non-Nigerian spouses of citizens of Nigeria who do not wish to acquire Nigerian citizenship.

Note that on the issue of interference into the other’s domain, it is the  executive  that commands the comparative advantage.

Executive and Judiciary

Do the same persons form part of the executive and judiciary?

Under the CFRN, a member of the executive cannot be a member of the judiciary. The only instances where a member of the executive may be a member of the judiciary or  quasi  - judicial body include where tribunals are established to pronounce on the  rights and liabilities of citizens.

Does each of them control or interfere with the duties of the other?

Also, we could say no. But we could argue that to the extent that it is the executive that  appoints and dismisses judicial officers (though subject, in many cases, to the approval of legislators), we may suggest that the executive have some measure of control ove r the judiciary. How about salary of judicial workers? Discipline, promotion, On the other hand, judicial decisions especially those unfavourable to the executive are usually perceived  to  be the judiciary’s controlling or interfering in the functions of the executive.

Do the executive and the judiciary exercise each other’s functions?

It is a notorious fact that, by virtue of delegation of  powers and delegated legislation, judicial or quasi-judicial function is one of the functions performed by administrative agencies – an appendage of the executive. A practical example of such agencies would be a mobile court on environmental sanitation or traffic violations.

On the other hand, we may not run  any  risk  of  contradiction  if  we  declare  that  the judiciary does not perform executive functions. But this is not  totally  correct.  Notice  that there are judges who perform administrative duties such as assignment  of  cases,  administration of estates, winding up of companies, etc

Legislature and Judiciary

• Do the same persons exercise legislative or judicial functions? No
• Does each of them control or interfere with the duties of the other?

The  judicial  arm  may  be  said  to  control  or  interfere  with  the  functions  of  the  legislature to the extent that it interprets the laws enacted by the latter. You know that in doing so, the judiciary has been credited not just with interpreting the law but  also  altering  or making the law. On the other hand, the legislature control or interference in judicial functions could be seen in the constitutional provision which authorizes it to confirm or approve the appointment or removal of judicial officers.

• Do the legislature and the judiciary exercise each other’s functions?

Generally, the legislature does not perform judicial functions. The same thing applies for the judiciary. But we must note that even the constitution empowers certain  judicial officers to make rules of court for regulating the practice and procedure of the court over which they preside. See, for example, Sections 236, 248, and 254 CFRN 1999.

SELF ASSESSMENT EXERCISE 2

• Evaluate the applicability of the doctrine of separation of powers under the CFRN.

Application of the Doctrine to Administrative Law

It  is  important  to  note  that  the  doctrine  cannot  be  said  to  be  applicable  to  administrative law. It is a unique feature of administrative law for a single administrative  agency to perform legislative, executive, judicial and quasi-judicial functions. Let us take National Agency for Food and Drug Administration and Control (NAFDAC), for  example. This is a federal government parastatal charged with the  responsibility  of,  inter  alia, certifying food and drugs fit for consumption. Under the enabling  statute,  the  Director  General is empowered to legislate or to make rules and regulations for the implementation of the statute and for effectively performing its duties. It is, of course, its responsibility to implement or execute the rules and regulations. In performing its judicial/quasi-judicial functions, it decides, for instance, whether or not to register  a  pure  water  manufacturing outfit; to issue licence for the operation of a pharmaceutical shop;  etc.  With t h is  scenario, you can see that NAFDAC alone is the legislator, the executive and the  judiciary all  rolled  into one. Against this background, you could deduce why it is inappropriate to suggest the existence of separation of powers in administrative law.

Separation of Powers in a Military Regime

Under the military dispensation, the doctrine operates only as between the legislature and the executive on one side and the judiciary on the other. Another way of looking at it is that the doctrine operates the way it does in a parliamentary system of government. You  will  recall  that in a parliamentary or cabinet system of government members of the legislature are equally members of the executive.

Nigeria had had many military regimes comprising legislatures that adopted different names such as  the  Supreme  Military  Council  (SMC),  the  Armed  Forces  Ruling  Council  (AFRC), and the Provisional Ruling Council (PRC), etc. Under Decree 1  of  1984,  for example, the head of the SMC was equally the head of the executive. Also, many members of the legislature were members of the executive.

Under the military, the principle of separation of power is a mirage. The first assignment usually undertaken by military dictators immediately they usurp power by unconventional means, to  put some parts of the constitution in to abeyance. It is also noteworthy that the military combine both the executive and legislative powers, through the promulgation of decrees ousting the jurisdiction of the court and preventing the court from exercising the powers and/or duties conferred on it by the grundnorm.

CONCLUSION

The concern of separation of powers is the distinctness of each of the three arms  of government. The doctrine of separation of powers rests on the tripod that the same persons should not form part of more than one of the three organs of government; that one organ of government should not control or interfere with the  exercise  of  its function  by  another  organ; and that one arm of government should not exercise the functions of another.

Generally, this doctrine is respected in constitutional law. Thus, the CFRN 1999 expressly allocates separate functions in SS. 4-6 to the legislature, the executive and the judiciary respectively. However, the same CFRN equally  contains  provisions  which  empower  one arm of government to legitimately contravene the features contained in the tripod. Therefore, the legislature, for example, would perform oversight functions over, and even investigate the executive while the judiciary would involve itself in matters that are purely administrative.

In the realm of administrative law, we have found that the tripod is of no significance in the sense that a typical administrative agency does the work of all the three arms of government  and more. In other words,  the  traditional  wall  of  separation of  powers collapses in the face of the reality that administrative agencies appear to be jack of all trade and master of all.

SUMMARY

From the foregoing, it is clear that the doctrine as originally conceived  appears  to  be  generally applicable in constitutional law, that is, amongst the three arms of government – the legislature, the executive and the judiciary. However, it is noteworthy that attempts to strictly implement the classical form of the doctrine are unfeasible and unworkable. In other words, strict separation is impossible and self-defeating due to the necessity  for  organs  of  government to cooperate in governmental administration. Under a Parliamentary system of government like the one practised in the United Kingdom, it is definitely not operational as between the parliament and the executive because members of the  former  are  equally members of the latter. Under this kind of governmental relationship, separation of powers loses its essence and meaning.

In a presidential system Nigeria’s, the three organs of government  are mutually cooperative  and interdependent. In order to ensure that no arm of government degenerates into a terrific island, there are constitutional provisions which empower the three arms to interfere with the duties of one another through checks and balances. The idea of checks and balances is an insurance against arbitrariness, and authorizes some of the things an arm of  government is doing to be made available for investigation, vetting, concurrence or confirmation by another arm.

Thus, although SS. 4, 5 and 6 of the CFRN 1999 respectively allocate the law-making, implementing and the adjudicatory  powers  of  the  federation  to  the  legislature,  the executive and the judiciary, there are  other  constitutional provisions which empower one arm to oversee or verify the operations of another.

TUTOR-MARKED ASSIGNMENT

2. Compare and    contrast    classical     doctrine    of    separation    of    powers    with    the contemporary position on the doctrine.
3. Separation of powers is observed in administrative law and in military regimes. How true is this statement?

REFERENCES/FURTHER READINGS

1. Compare and    contrast    classical     doctrine    of    separation    of    powers    with    the contemporary position on the doctrine.

2. Separation of powers is observed in administrative law and in military regimes. How true is this statement?