The Doctrine of Separation of Powers as Its Applies in the Constitution of the Federal Republic of Nigeria 1999
CHAPTER ONE
OBJECTIVE OF STUDY
The British Philosopher John Locke (1632-1704) who observed the conditions of 17th century England. He thought that is was convenient to separate the legislature and executive powers of government so that:
- Legislature can at quickly and at intervals; and
- The executive can constantly be at work. So that lawmakers will not exempt themselves from obedience and make the law to suit their individual interests. In the world of John
Locke in his second treatise on civil government. “it may be grasp at power, for the same persons who have the power of making laws, to have also in their hands the power to execute them, whereby the may exempt themselves from obedience to the laws that made and suit the law, both in its making and execution, to their own private advantage”.
CHAPTER TWO
ORGANS OF GOVERNMENT AND THE THEORY OF SEPARATION
The organs of government refer to the number of division into which governmental powers can be make. In the majority of the modern systems of government the powers of the government can be divided into three arms, usually referred to as organs of government, the Legislative the Executive and the Judiciary.
The Legislative Power:
The legislative power of the government in any given state as the power to made laws; and this power to legislate is usually performed by the legislature or the parliament constituted for this purpose.
The Executive Power:
This is the power of the government to execute the laws. When laws are made by the parliament they have to executed or enforced. The body that is responsible for this function is the executive. It is the cabinet – the minister that performed this function in the cabinet government; whereas in the presidential government, it is the president assisted by the other ministers as his advisers.
The Judicial Power:
This is the power of the government to interpret and apply the laws when they are violated or broken. This is the function of the judges and the courts. The citizens have to be disciplined and punished for disobeying the laws of the state, and have to be taught how to live happily and fruitfully according to the laws of the a given society.
However, in the words of Yusuf O. Ali SAN & Co. Ilorin, any system of government that is hinged on the rule of law and Democracy and especially the presidential system of government as practiced in Nigeria must consist of the three great arms of government; namely, the Executives, the Legislature and the Judiciary. As rightly pointed out by Aihe in his book, that such a division of labour is a condition precedent to the supremacy of the rule of law in any society. He however said that “separation of powers has been in existence principal, partner Yusuf O. Alli & Co. Ilorin. It is our opinion that a reviews of the separation of powers under the 1999 constitution cannot be effectively carried out the constitution of “Nemo Judex in causa sua” and “Audi alteram patem…”. Separation of powers vested in the legislature, when the House of Assembly is exercising its constitutional power…
The principle of separation of powers as it is known today was propounded by Montesquieu who derived his inspiration from Locke’s writings and the study of the eighteenth century English constitution.
CHAPTER THREE
THE WORKING OF SEPARATION OF POWERS
Nigerian constitution since 1999 have provided for a presidential system of government. Each constitution also provided for a clear division of the three powers or branches of government as follows:
Section 4: “The legislature, with the legislative powers
Section 5: The executive, with executive powers, and
Section 6: The judiciary, with judiciary powers”36
However, during the working of separation of powers the constitution is the supreme law of the law and rule of land 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.. any branch or officer of government that goes beyond its set aside by court at the suit of a proper party who is aggrieved.
In Ekpenkhio V. Egbdon JCA as he then was, in the court of Appeal said that: “A cardinal principle of our Federal Constitutions of 1960, 1963, and 1979 is the separation of powers of the executive, the legislature and the judiciary, but the judiciary
has the added responsibility as a guardian and protector of the constitution.37 Therefore whenever the executive or legislature arm of government excel their constitutional powers, the judiciary on a proper application to it, will curb the exercise of such excessive power and declare it a nullity”38 .
In Orhiomwon Local Government Council V. Ogieva, the court of Appeal said that the principles of checks and balances in the Local Government system is meant to enhance the smooth administration of the Local Government Councils and not a cripple it. For that reason, one organ of the council cannot properly use a method not permitted by law to monitor another organ of the council. This principle of proper checks and balances applies in every tier of government.39 House of Assembly Bendel State v. A. G Bendel State.
CHAPTER FOUR
SUMMARY
The doctrine of separation of powers, if rightly interpreted means that a different body person is to administer each of the three functions of government. And that no one of them should have controlling power or influence over either of the others. At such, separation is necessary in order to preserve liberty of individual’s rights of individual and to avoid dictatorship, and tyranny.
Notwithstanding, the accumulation of the governmental powers, the legislative the Executive and the Judiciary is the hand of one, a few, or many may justly be pronounced as the definition of tyranny.
Moreover, this doctrine of separation of powers called for the need for checks and order which ensure rapid progress and economic and political development.
RECOMMENDATION
In order to consider the reality of the doctrine of separation of powers, that is to what extent the legislatives, the executive and the judiciary powers of modern government are combined and separated, it is necessary to have some ideas of what absolute or complete separation of powers means that the Legislature should be elected directly by the people foe a fixed term, an Executive to be elected directly by the people or indirectly by an electoral college for a fixed term, and independent of the legislature in discharging its function, and judges to be sincerely directly elected and to be equally independent of both the Legislature and executive in respect of their term of office and their salary.
However, if we look into the constitution of several years in Nigeria we shall see that there is an ideal example in which the three organs of Government have been kept absolutely separated, but the degrees of separation varies for one organs to another.
In reality, there is no absolute separation of powers, that even when the three powers have been duely separated they still be abused by those exercising them with act checks and balances.
So, the three organs of government should be separated and entrusted to different arms of government in other to carry out their functions effectively without interfering with the work of one another.
CONCLUSION
The doctrine of separation of powers is one of the means by which the principles of the rule of law in brought down from its Olympian rights and agreed within any political community, aims at sharing out state powers to the three arms of government but not strictly applied as a result of checks and balances which weakened the government and stop its from bring a law unto itself, compelling it various organs to submit to legal controls.
Without separation of powers, the government would easily become a leviathan- monster or even a man-made God so huge in sizes and immorally in behaviour that man in capable of holding it down under control when it got poised to devour him. However, to share out governmental powers to three department of government encased in water tight compartments would establish autocracy in the each department, operating without the area of its exclusive jurisdiction, can easily become a law unto itself and become a Ceriathans for we are first too familiar with the clinche that power corrupt and absolute power corrupt absolutely.
It is important to note that separation of powers has as its goal the enthronement and maintenance of the liberty of man.
Montesquieu set for himself the task of constructing philosophically a state in which political liberty exist only in moderate governments operating without any abuse of power. But constant experience shows that every man invested with power is apt to abuse it, and to carry his authority as for as it will go. To prevent time abused, it is necessary from the very nature of things that power should be a check of power. Thus, in presidential system of government, the doctrine of checks and balances helps to check the abuse of power which is duly under the doctrine of separation of powers.
REFERENCES
- Bichler Worth, Administrative Law (London: Garner Publisher’s Ltd)
- O. Malemi, Administrative Law (Ikeja, Lagos: Princeton Publishing Co., 2006).
- O. Malemi, The Nigerian Constitutional Law (Ikeja, Lagos: Princeton Publishing Co., 2006).
- C. Okany, Nigerian Administrative Law (Intec. Printers Ltd)
- O Nwabueze, Presidential Constitution in Nigeria (Emiyu and Lagos: Hurst and Company London in Association with NWAMUFE Publishers, 1982).
- O. Olugede, and Ache, cases and materials on constitutional law in Nigeria (UP UPL Publishers Ltd).
- Philipson and Jackson, Constitution Administrative Law (London: Sweet and Maxwell Publishers, 1978).
- U. Anyacle, Comprehensive Government for Senior Secondary School (Lagos: Johnson Publishers Ltd, 1991).
