An Overview Of Separation Of Power in Nigeria.
By Simeon Akala & Emmanuella Odufa Masagbor
Introduction
Separation of Power is a constitutional doctrine globally practiced by most democratic governments. By the operation of this doctrine, different arms of governments, i.e the Legislature, Executive, and Judiciary perform their administrative duties and responsibilities without undue infringement or interferences from any of its segment. However, in Nigeria despite the tripartite arms of government, what is quite evident is that this doctrine has become seemly impracticable and whittle down. This writers seek to analyze the doctrine within the purview of the provisions of the 1999 Constitution of the Federal Republic of Nigeria as amended. With emphasis on the limitation and challenges arising therefrom and the need to strengthen its acceptability and strict practicability in Nigeria.
Historical Background of the Doctrine of Separation of Power
The separation of power is a concept that was first originated in ancient Greece and became widespread in the Roman Republic as part of the initial constitutional of the Roman Republic. This doctrine can be traced to Aristotle (384–322 BC) in his book “The Politics” where he opined that:
There are three elements in each constitution in respect of which every lawgiver must look for what is advantageous to it; of these are well arranged, and the differences in constitutions are bound to correspond to the differences between each of these elements. The three are, the deliberative, which discusses everything of common importance; second, the official; and third the judicial elements.”
English writer James Harrington was one of the first modern philosopher who also gave an explanation on the doctrine in his essay “Commonwealth of Oceans (1656). Also John Locke went further give his own analysis of this doctrine succinctly in his work “Second Treatise of Government (1690).” He although it was unnecessary to give a clear cut separations of the various arms of government but however their powers are conceptually differentiated.
At the time of Edward I reign (1272–1307) the separation of powers was said to have emerged in England, with the appearance of Parliament, the Council of King and the Courts. Baron Montesquieu, the French English political Philosopher asserted that this concept is a tripartite system. Hence, he ascribed this model to British Constitutional system, “separation of power among the monarch, parliament, the courts of law.” What he however mostly emphasized is the independence of the judiciary. He asserted in his “De L’ Espirit De Lois(1748) that:
“When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty…Again, there is no liberty of powers of judging is not separated from the legislative and executive. If it were joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge to would then be the legislator. If it were joined to the executive power, the judge might behave with violence and oppression. There would be an end to everything, if the same man or the same body, whether of the nobles or the people, were to exercise those three powers, that of enacting laws, that of executing public affairs, and that of trying crimes and individual causes.”
Viscount Henry St John Bolingbroke (1678–1751), in “Remark on the History of England ” advanced the idea of the separation of powers. Bolingbroke was concerned with the necessary balance of powers within a constitution, arguing that the protection of liberty and security within the State depended upon achieving and maintaining an equilibrium between the crown, parliament and the people. Addressing the respective powers of the King and Parliament, Bolingbroke observed that:
“Since this division of power and these different privileges constitute and maintain our government. It follows that the confusion of them tends to destroy it. This proposition is therefore true, that in a constitution like ours, the safety of the whole depends on the balance of the parts.”( 1784, pp 80-83)
Separation of Power Under Nigeria Constitution
The principle of separation of powers is a fundamental feature of most democratic systems of government. In Nigeria, the principle of separation of power is enshrined in the Constitution of the Federal Republic of Nigeria, 1999.The Constitution provides for the separation of power amongst the three arms of government: the Executive, the Legislature, and the Judiciary.
The need for separation of power is to ensure that powers are not vested on a particular sovereign, or exercise such power indiscriminately.
Prof. Ben Nwabueze stated that:
“Concentration of government powers in the hands of one individual is the very definition of dictatorship, and absolute power is by its very nature arbitrary, capricious and despotic”
(The Presidential Constitution of Nigeria (London: Sweet and Maxwell, 1981) at 32.)
Furthermore, the Executive arm of government is responsible for the implementation of laws and policies. It is headed by the President, who is also the
Commander-in-Chief of the Armed Forces. The President is assisted by the Vice-President and other Ministers. The Constitution provides for the appointment of Ministers by the President, with the approval of the Senate.
The Legislature is responsible for making laws for the country. It is made up of two chambers; the Senate and the House of Representatives. Members of the National Assembly are elected by the people and they are responsible for representing the interests of their constituencies. The Constitution provides for the independence of the National Assembly, and it also provides for the power of the National Assembly to check the actions of the Executive. However, this does not fortify them to act by their whims and caprices as their act could be rendered ultra vires. In Hon. Godwin Jideonwu & Ors v. Governor of Bendel State & Ors. (1981)1 NCLR 4, the High Court held inter alia that the constitution clearly sets out the powers of the three arms of government, and if the legislature passes any law which is beyond its competence, and which it has no jurisdiction to pass, whether or not it was passes by all the members of the House, any member of the house or the public who is affected can challenge it in court, and nothing prevents the court from setting it aside and declaring it ultra vires the legislature.
The Judiciary on the other hand is saddled with the duty of interpreting the laws of the country. It is made up of different courts, including the Supreme Court, Court of Appeal, and High Courts. Judges are appointed by the President, on the recommendation of the National Judicial Council. The Constitution provides for the independence of the Judiciary, and it also provides for the power of the Judiciary to check the actions of the Executive and the Legislature.The independence of the judiciary is also constitutionally
provided for in section 84 (1), (2), (4), (7) and section 121(3) of the CFRN 1999(as amended). This point was echoed in Oba Lamidi Adeyemi (Alafin of Oyo) and Others v Attorney General, Oyo State & Ors 1(1984) 1SCNLR 525, at 602 where the Supreme Court proclaimed:
“It cannot be too often repeated . . . that the jurisdiction of the courts must be jealously guarded if only for the reason that the beginnings of dictatorships in many parts of the world had often
commenced with the usurpation of the authority of courts and many dictators were often known to become restive under the procedural and structural safeguards employed by the courts for
purposes of enhancing the rule of law and protecting the personal and proprietary rights of
individuals. It is in this vein that the courts must insist, wherever possible, on a rigid adherence
to the Constitution of the land and curb the tendency of those who would like to establish what
virtually are Kangaroo courts, under different guises and smoke-screens of judicial regularity…”
Albeit, it is not for the courts to go beyond their powers. In Senator Abraham Adesanya v. President of Nigeria (1981) 2 NCLR 358, it was decided inter alia by majority of the Justices of the Supreme Court that the courts have no power to challenge an Act of the legislature except in certain circumstances, for example, where civil rights are violated. According to Idigde JSC in that case, the circumstances in which the judicial power of the court under section 6(6)(b) can be exercised by the court to pronounce on the constitutional validity of any legislation must be limited to those occasions in which it has become necessary for it, in the determination of a justifiable controversy or case, based on bona fide assertion of rights by adverse litigants before it, to make such a pronouncement. The court does not posses general veto power over Acts or Legislation by the National Assembly. Its powers are supervisory and can only be properly exercised in the circumstances above.
The Court of Appeal in Hon.Abdullahi Maccido Ahmad v. Sokoto State House of Assembly & Anor(2002) 44 WRN 52,
where the Court Per Salami JCA held inter alia that;
“The doctrine of separation of powers has three implications.
a. that the same person should not be part of more than one of the arms or division of government;
b. that one branch should not dominate or control another arm. This is particularly important in the relationship between (the) executive and the courts;
c. that one branch should not attempt to exercise the function of the other…”
under section 4 (8) of the 1999 Constitution of the Federal Republic of Nigeria, the exercise of the legislative powers of both National Assembly and State Assembly “shall be subject to the jurisdiction of the court of law and of judicial tribunals established by law”. The second part of the provision is to the effect that the National Assembly or a House of Assembly “shall not enact any law that ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law”. (Honorable Godwin Jideonwu and Ors V. Governor of Bendel State and Ors. (1981) 1NCLR, 4). This completes the circle of an effect check on the powers of the legislature and also positions the judiciary as the custodian of the rule of law.
Also, the Chief Justice of Nigeria is empowered by virtue of section 46 (3) of the 1999 Constitution of the Federal Republic of Nigeria, to make rules with respect to the practice and procedure of a High Court for the purpose of enforcement of Fundamental Rights. This has made the judiciary a promulgator instead of an interpreter of the law.
Also, the President, or the Governor as the case may be, is empowered under sections 175 and 212 respectively to pardon convicted persons or to exercise his prerogative of mercy, by remitting, blotting out or extinguishing a convict’s sentence imposed by the judiciary. By section 292 of the 1999 constitution, the President, alongside the senate or the Governor alongside House of Assembly may remove a judicial officer for stated misconduct. Not only that, section 315 of the constitution, allows the President or a Governor to modify an existing law.
The legislative is empowered under sections 143 and 188 of the 1999 constitution to initiate, carryout and conclude the impeachment proceedings of the President or the Vice-President, the Governor or the Deputy- Governor. Thus in Attorney of the Federation and Ors. V. Atiku Abubakar and Ors.( (2007) 10NWLR, (pt. 1041) 1 at 125 ) The Supreme Court stated that:
“Impeachment or removal of the President or Vice-President from office by the National Assembly is a strong political weapon and solution to political problem that may arise in the Presidency either in the discharge of the constitutional function or conduct of the personality involved.”
Despite the constitutional provisions, there have been criticisms that the principle of separation of powers in Nigeria is more of a myth than a reality. This is because there have been instances where the Executive arm of government has interfered with the work of the Judiciary and the Legislature. For example, there have been instances where the Executive has disobeyed court orders, and there have also been instances where the Legislature has been accused of being a rubber-stamp for the Executive.
One criticism of the separation of powers in Nigeria is that the Executive arm of government has too much power, particularly in terms of controlling the country’s finances. The Constitution gives the President significant control over the country’s budget, and there have been concerns that this can be used to influence the actions of the Legislature and Judiciary.
Another is that the Judiciary is not always independent and impartial. There have been instances of judges being influenced or coerced by the Executive, and there have also been concerns about the appointment and promotion of judges being influenced by political considerations.
In addition,there have been criticisms of the Legislature, particularly in terms of its effectiveness and accountability. There have been concerns about the quality of legislation passed by the National Assembly, as well as allegations of corruption and misconduct among some lawmakers.
Despite these criticisms, there have also been some positive developments in terms of the separation of powers in Nigeria. For example, there have been instances where the Judiciary has asserted its independence and ruled against the Executive, and there have been efforts to strengthen the independence and effectiveness of the National Assembly.
Conclusively, the effectiveness of the separation of powers in Nigeria will depend on the commitment of the different arms of government to upholding the Constitution and respecting each other’s roles and responsibilities. This will require a culture of accountability, transparency, and respect for the rule of law. The Supreme Court in A. G.
Abia State v. A. G. Federation per Niki Tobi (1979) held
that:
“The Constitution is the fons et origo, not only of jurisprudence but also of the legal system of a nation. It is the beginning and the end of of the legal system. In Greek language, it is the Alpha and the Omega; it is the barometer with which all statutes are
measured. In line with
this kingly position of the constitution, all the three arms of government are slaves of the constitution, not in the undergoing servitude or bondage, but in the sense of legal obeisance and loyalty to it.”
In Ugba v Suswan(2005) 1 WRN 1 at 64, the Court Per Rhodes –Vivour JSC, stated
that:
“The Constitution sets up a federal system by dividing powers between the federal and state governments. It establishes a national government divided into three independent
branches. The executive branch makes the law, while the judiciary explains the law. There is no document superior to the Constitution in Democratic Governance. It is the heart and soul of the people…”
About the Authors
Simeon Akala
08110468699
Simeonakala217
Emmanuella Odufa Masagbor
Masagborella@gmail.com
Both writers are Law students of Ambrose Alli University, Ekpoma, Edo State.
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