THE CHALLENGES OF THE DOCTRINE OF SEPARATION OF POWERS UNDER THE 1999 NIGERIAN CONSTITUTION

Thesis Overview

HISTORICAL DEVELOPMENT OF SEPARATION OF POWERS1.1 INTRODUCTIONAmong the numerous political theories operating in a democracy, none deserves to be more developed than the principle of power division and separation. In every democratic State, the major institutions of the State are divided into three- the executive, the legislature and the judiciary. It is however important that those to be in charge of running these institutions are independent of the other. According to Montesquieu in his book, when the legislature and executive powers are united in the same person or body of officials, there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner. The guarantee of liberty in any given government thus is the practice of the principle of checks and balances. The principle is a constitutional control whereby separate branches of government have limiting powers over each other so that no branch will become supreme. The concept of the principle of checks and balances arose as an outgrowth of the classical theory of separation of powers, by which the legislative, executive, and judicial powers of government were held properly to be vested in three different units. The purpose of this, and of the later development of checks and balances, was to ensure that governmental power would not be used in an abusive manner. Separation of powers according to Gettel, implies that, the three functions of the government ‘should be performed by different bodies of persons; each department limited to its own sphere of action and within that sphere should be independent and supreme. The doctrine of separation of powers is based on the acceptance that there is a division of governmental powers into the three branches of legislative, executive and judicial powers, 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 people. Its justification was based on the natural law philosophy traceable back to Plato and Aristotle and later articulated by the 16th and 17th centuries French Philosopher Jean Bodin and British politician John Locke. However, it is the French Montesquieu who formulated the doctrine systematically and scientifically in his book. He was not the pioneer of the doctrine as Aristotle in his Treatise known as Politics had made the same distinctions but Montesquieu gave it clarity and developed a model which has with variations influenced the format of modern constitutions. It is indisputable among constitutional lawyers that the Montesquieu model of separation of powers is theoretically plausible but difficult to effect in practice without modification or adaptations. The Montesquieu model is without its defects; it is in addressing the defects that some constitutional lawyers argue that there are two dimensions of the doctrine- one being institutional and the other functional. It is in relation to the functional aspect that the doctrine should be taken to mean checks and balances based on a constitutional scheme. What is important in modern democracies is not separation in the strict sense of it but checks and balances. This is obviously because the concentration of power in one branch can cause grave hardship on the citizens thereby jeopardizing the idea of democratic value and constitutionalism. With the changing needs of the society, it is important that reasonable restrictions be placed upon the executive, legislature and the judiciary in a compartmentalized form albeit not a water tight one.1.2 CONCEPTUAL CLARIFICATION OF KEY TERMSIn this work, except as otherwise stated, the following terms mean:i. SEPARATION OF POWERThis can be defined as the division of governmental authority into three branches of government- legislative, executive and judicial- each with specified duties on which neither of the other branches can encroach. It is essential that the doctrine is enshrined in the constitution of every democratic State whether written or unwritten to avoid the abuse of power by a single person or group.ii. CHECKS AND BALANCESThe theory of governmental power and functions whereby each branch of government has the ability to counter the actions of any other branch, so that no single branch can control the entire government. The principle has been applied as a modification to the strict application of the doctrine of separation of powers to prevent an abuse of authority by one or more branches of government.iii. RULE OF LAWThe doctrine that every person is subject to the ordinary law within the jurisdiction. In its most basic form, it is the principle that no one is above the law. The doctrine is arguably as supreme as the constitution.iv. CONSTITUTIONThe fundamental and organic law of a nation or State that establishes the institutions and apparatus of government, defines the scope of governmental sovereign powers, and guarantees individual civil rights and liberties. Every democratic State must have a constitution. They may be written or unwritten and is supreme over every person in the State.v. CONSTITUTIONALISMIs an idea often associated with the political theories of John Locke and the founders of the American republic. It is the belief that a government’s authority is dictated by a specific law or group of laws.vi. DEMOCRACYThe term originates from the Greek (demokratia) ‘rule of law’ which was found from (demos) ‘people’ and ( kratos) ‘power’ in the 5th century BC to denote the political systems then existing in Greek city- states, notably Athens. It is popularly defined as a government of the people, by the people and for the people. It can also be described as a government by the people, either directly or through representatives.vii. EXECUTIVEThe branch of government responsible for effecting and enforcing laws; the person or persons who constitute this branchviii. LEGISLATUREThe branch of government responsible for making statutory lawix. JUDICIARYThe branch of government responsible for interpreting the laws and administering justice.x. STATEA State is an independent political society occupying a defined territory. The members of which are united together for the purpose of resisting external aggression and preservation of internal order.1.3 EVOLUTION OF THE DOCTRINE OF SEPARATION OF POWERSAn excursion into the historical significance of this doctrine has shown that the separation of powers is not a toddler doctrine; it was developed over many centuries. Although the phrase “separation of powers” was coined by Charles Baron de Montesquieu, the actual practice of the doctrine goes back in history much further. Aristotle first mentioned the idea of a “mixed government” or hybrid government in his work politics where he drew upon many of the constitutional forms in the city-states of Ancient Greece12. He observed that every government, no matter its form, performed three distinct functions; “the deliberative, the magisterial, and the judicative”. In modern terminology these activities correlate respectively to the legislative, executive and judicial functions of government.While Aristotle identified these basic powers common to all governments, he did not necessarily suggest that they should be exercised by entirely different branches. In the Roman Republic, the Roman Senate Consuls and the Assemblies carried out a mixed government similar to that conceived by Aristotle. There was a system of checks and balances on the Roman rule in the early republic which was several. The ruler had his powers checked on by the Senate which was made up of the landed class. The Senate in turn, had its power checked by the Tribunes. The citizens were in turn subject to the principles of justice as spelt out in the twelve tables which was a set of laws which governed all Roman citizens equally.The doctrine of separation of powers as understood today stemmed from the British Philosopher John Locke who observed the conditions of 17th century England. According to him, it was convenient to separate the legislative and executive powers of government so that the legislature can act quickly at intervals and the executive can constantly be at work so that lawmakers will not exempt themselves from obedience and make the laws to suit their individual interests.