ABSTRACT
Government power expresses itself in three forms: The Legislature, the Executive and the Judiciary. It is of prime importance to the theory of the organization of government, to determine to what extent power is wielded by these various arms of government. Hence the doctrine of “separation of powers”. In this simply put, the division of governmental political powers, into the three organ of government, Legislative, Executive and Judiciary. While the Legislature make the law, the Executive is changed with the implementation of law and the Judiciary is charged with the interpretation of laws and its adjudication. However, the doctrine of separation of powers called for the need of checks and balances which help in fighting against tyranny, dictatorship, anarchy and naked use of powers by different organs of government. Under the 1999 constitution, section 4, 5, 6 provided for the branches of government as follows.
Section 4: Legislative, with Legislative powers.
Section5: Executive, with executive powers.
Section 6: Judiciary, with the judicial powers.
CHAPTER ONE
INTRODUCTION
The concentration of powers in one arm of government may lead to dictatorship and arbitrary rule, therefore there is need to avoid the concentration of power in one arm, of government and each arm of government should be independent of another so that the act of one arm of government should not be control by another. It means a government that make laws enforce such laws and adjudicate over breaches of such laws to suit its own purpose either politically, economically or socially to the detriment of others. The concept of separation of powers therefore arose from the need to ensure and restrain power of government without carrying the divisions to an extreme incompatible to effective government, the three (3) arms of government viz, legislature, executive and the judiciary must have distinct function and must be independent of one another.
In this regards while the legislature make the laws, the executive is charges with the implementation of law, while the judiciary is for the interpretation of the laws and its adjudication. The main notion of this is to avoid tyranny, anarchy, dictatorship and so on, this result from one person or group of persons handling powers.1
Notwithstanding, in the majority of the modern systems of government, the powers of the government can be divided into three different arms, usually referred to as organs of government. However, the doctrine of separation of powers applies in the presidential system of government.
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A presidential system of government is a government where all executive powers are vested in a president who is the head of state and of government. The president may exercise the executive powers of government either directly by himself or through the vice-president, ministers or other offices in the public services of the country. the powers of the president is to maintain the constitution and to apply all the laws made by parliament for the time being in force and to implement party programmes and generally uphold the interest of the nation and the welfare of the people at all time.
However, although some political scientists, such as Locke, Rousseay, Jefferson, Bodin and the authors of federalist papers in the seventeenth and eighteenth centuries had the
conception of the doctrine of separation of powers in their various writings, but the theory of separation of powers was only clearly formulated for the first time by a French political thinker and Jurist Baron de Monetesquieu in his book entitled “ESPIRIST DES LOIS”.2
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Meaning, the spirit of the laws-published in 1748. In his book, Montesquien divided the governmental powers into three separate and coordinate branches-the legislative, executive and the judiciary. He then argued that, if right, liberty of every citizen is to be fully guaranteed each function must be exercised by a separate and independent organ of government; i.e. an organ must be charged only with the legislative function, another with the executive function and another with the judiciasry.
Notwithstanding, the doctrine of separation of powers called for the need of checks and balances which help in fighting against tyranny, dictatorship, anarchy and naked use of powers by different organs of government. Under the constitution of the federal republic of Nigeria 1999, section 4,5,6, provided for the effective division of the three powers or branches of government.3
1.2 STATEMENT OF THE PROBLEM
All over the years, various association, people states or countries have a separate law, or body of rules, which regulate such unit of people, the internal structure of the country, the powers and functions of government and the right and duties of the people.
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However, the idea of separation of powers is put up in other to separate the three organs of government and for it to work effectively without one interfering with the work of one another.
Notwithstanding, in some circumstance, the three organ of government has been interfering with the work of another. In the parliamentary system of government, all the executive powers of government are in a prime minister who is the majority party or ruling party, but is not the head of state. In this system, the head of state who exercises only ceremonial function may be a monarch, or president, who is the figure head, symbol of the state and the father or mother of a nation as the case may be. The prime minister is a prime inter pares, that is, a first among equal. In this sense, there is no complete separation of powers.
Moreover, though the doctrine of checks and balances make it easy for each organs to checks on the activities of one another.
But there is fusion among the three arms of government because the executive do interfere with the work of the judiciary, legislative with the work of the executive and judiciary with the work of legislative.
So if there is a clear separation of powers among the organs of government, rights, liberty and freedom of a citizen will be maintained and guaranteed. In this, section 4,5,6 of the constitution of the Federal Republic of Nigeria 1999 make it clear for the three arms of government to operate without interfering with one another.4 This include: legislature-law making.
Executive – Implementation of law and
Judiciary- Interpretation of law and it all jurisdiction.
1.3 THE RESEARCH QUESTION
The following research question was formulated to guide the study. Why is it that, there is know clear separation of powers in Nigeria, though there is a provision for this in the 1999 constitution of the Federal Republic of Nigeria.
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Why is the fusion among the three arms of government?
Why is it that, though there is separation of powers, rights, liberty and freedom of citizen are not all that guaranteed and maintained to bearest minimum.
Why is it that, the organs of government who are to be co-equal. No arms of government are to be allowed to be so powerful as to subjugate the other arms of government and the organs are not all that equal.
Lastly, do you know that, despite the doctrine of separation of powers and its wild provision in the constitution, there is still dictatorship, tyranny and arbitrary of powers among the organs of government that is the legislature interfering with the work of the executive, executive interfering with the work of the judiciary and so on.
1.4 JUSTIFICATION FOR THE STUDY
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The study is expected to be adequately immensely benefited to many people in Nigeria. The justification of the study of this research work is to bring a total separation of powers in Nigeria as applies in the constitution of the Federal Republic of Nigeria 19995.
However, the word dictatorship, tyranny, arbitrary of powers and naked use of power by different organs of government should be abolished in the Nigeria society, if rights, liberty, freedom of a citizen is to be maintained and guaranteed to the bearest minimum.
Notwithstanding, maintaining the liberty of the citizen is the primary and real reason for separation of powers in government. This is the most favourable views in most common law countries an in other countries of the world, as the greatest reason for the doctrine of separation of powers. This was formulated as a check against tyranny. The organs of government are to be co-equal. No arm of government is to be allowed to be so powerful as to subjugate the other arms of government and the people. Moreover, the organs of government should learn to implement the doctrine of separation of powers, because it is a general safeguard against oppression and their social and political evils, such as legislative exercise of judicial function or more simply, legislative judgment and so.6
Finally, future researchers will make use of this study as a reference material in related to research work.
1.5 LITERATURE REVIEW
In review of this literature we shall consider the following:
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
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- 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”.7
In the word of a French political thinker and Jurist, Baron de Montesequeium in his book “The spirit of law” chapter (ix) who studies and expanded the work of John Locke. He was concerned with preservation of the
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political liberty of a citizen. According to Montesquieu: “political liberty to be found only when there is no abuse of power. Experience show that every man invested with power will abuse it by carring as far as it will go. To prevent this abuse, it is neccesssary from the nature of things that one power should be a check on another. When the legislature, executive and judiciary powers are united in the same
persons or body…, there can be no liberty…. Again there is no liberty if the judicial power is not separated from the legislative and executive …. There should be end of everything if the same person to body, whether of the no bless or of the people were to exercise all the three powers.8
In this vein, Prof. Ben Neabueze San said, “concentration of government powers in the hands of one individual is the very definition dictatorship, and absolute power is by its very nature arbitrary, capricious and despotic”.9
In the words of the nationalist statesman and legal lumiorary Chief Obafemi Awolowo SAN, GCFR: “man love power. In the family, village, town and sate, in the club, group, association,
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business, in the institution of learning, newspaper office…in all these spheres, you see him always exalting in the use and abuse of power.
Explaining the doctrine of separation of powers as enshrined in the constitution and practiced in Nigeria, Chief Obafemi Awolowo SAN, GCFR said: 10
“Under our constitution the three organs of government are separate and distant both in respect of the functions which they performs, and of the functionaries who are entrusted with the performance of those functions. In other words, under our constitution, no government functionary belongs to more than one organ, and none performs the function of more than one organ”.11
As Carl J. Friedrich warned:
“Many who today belittle the separation of powers seen unaware of the fact that their clamour for efficiency and expediency easily leads to dictatorship”.12
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For as john Adam said long ago in 1775 “A legislature, an executive, and a judiciary complete and the whole of what is meant by government.
It is being balancing each of these powers against the other two, that the efforts in human nature towards tyranny can alone be checked and restraint, and freedom preserved in the constitution”.
As Peter Calvert said:
“ The doctrine of separation of powers lands the advisability of distributing ultimate authority among different entities, none of which is subject to control by the others within its sphere.”
Lord Dip Lock in the case of Duport Steels V. Sirs commented on the operation of the doctrine of separation of powers in the British government that:
“it cannot be strongly emphasized that the British constitution, though largely unwritten, is firmly based on the separation of powers. Represents the traditional view of the court on statutory…under this rule the judge considers what the statute actually says, rather than what it might…consulted and cited on this subject. In their opinion…woodhouse has drawn attention to the lack of a statutory definition of the phrase …us in DUPORT STEELS LTD V. Sirs (1980), Lord Diplock stated that … the defendant’s counter argument is not that the legal authorities cited fail to support…attractive as that postmodern perspective may be in the reading statute…decisions in 1980”.
The whole idea of separation of powers is that:
- Neither the legislature, executive, nor judiciary should encroach on, or exercise the powers of another branch., and, so branch is subject to control by the others within its sphere of power: but
- This does not exclude influence, review, or requirement of approval of certain things by on branch of government over the acts of another as a check nor prevent the exercise of certain powers of another branch which are exception to the doctrine of separation of powers. 13
1.6 METHODOLOGY
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In this research work, the primary and secondary sources are use to achieve the purpose and the objective of this study. The basic or major method use in this research work is in the questionnaire and interview question.
However, one of the methods also use is from preliminary studies mainly the scope of this reseach work.
1.7 SCOPE AND LIMITATION OF STUDY
This research work would have been conducted in many libraries in Nigeria as to know more about the doctrine of separation of powers and it wild application. But due to the limitation with regards to time and fund, the scope of this research work is limited to the law library, University of Uyo, Uyo Nigeria. And also in internet research.
Notwithstanding, others libraries and states would have been reached, but due to financial aspect and short time for this research work to be completed and submitted. And this work is also limited to the research topic.
1.8 DEFINITION OF THE CONCEPTS
The phrase “separation of powers actually means the amount of the political powers that exist in any given state, it should not be monopolized or consolidated in one person or a group of persons. This means the existing powers must be separated into different organs, and that whatever power accruing to any organ it should not be interfered with another organ.
By this doctrine of “separation of power” the functions of government in any particular state or country can be divided into three; legislature, executive and judiciary. The legislative power is the power to make laws, the executive power is the power to enforce the law; and he judicial power is the power to interpret and apply the laws to individuals whom the executive charged with the violation of the laws.
Notwithstanding, the idea of this doctrine means that, the three functions of government must not only be separated but must also be exercised by different person or body of persons; i.e. these powers must not be combined in the same persons or body of persons, but that they should be entrusted to three independent.14
However, in the worlds of Ese Malemi, “separation of powers or classification of government powers is the division of government powers into the three branches of Legislative, Executive and judiciary powers, such to be exercised by a separate and independent arm of government as a preventive measures against abuse of power, which will occur if the three powers are exercised by the same person or group of people.
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Separation of powers is the division of the powers and functions of government among the three independent and separate arms of government that is, the legislature, executive and the judiciary, to art as a checks and balances on one another and prevents the excesses and abuse of powers. Thus, separation of powers is the constitutional doctrine of the division of the powers of government into the three branches of powers, each to be exercised by a different group of person’s ad a means of checks and balances in the government structure itself to product the people against tyranny. Under this constitutional doctrine, on branch of government should not encroach on the domain of another branch of government. The three traditional arms of government or types of government powers or division of government are the:
- LEGISLATURE: The law making arm of government
ii EXECUTIVE: The implementation of the laws
iii JUDICIARY: The interpreters and judges of the laws.15
This material content is developed to serve as a GUIDE for students to conduct academic research
THE DOCTRINE OF SEPARATION OF POWER AS IT APPLIES IN THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999
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