Can there be a Watertight Separation of Powers?
By David Njoku Chinedu
The doctrine of separation of powers has brought about numerous debates and heated arguments as to its practical application in the real world.
Many argue that separation of powers is a myth and, therefore, cannot apply in the real world. We shall discuss these arguments extensively.
The concept of separation of powers first originated in Ancient Greece with Aristotle. Aristotle pointed out that there are three elements that must be found in any democratic constitution. The three elements are deliberative, official, and judicial. The essence of these elements was to prevent arbitrariness and promote the rule of law.
This doctrine was later adopted by John Locke in England in the 17th century. John Locke proposed a threefold division of government. They are:
– Legislative Powers,
– Executive Powers, and
– Federative Powers.
He argued that it would be unthinkable and erroneous to vest all powers of government in one single arm. It would only undermine the rule of law and the supremacy of parliament.
Baron de Montesquieu, identifying the secret of the English Constitution, then proposed what we now know as the modern form of separation of powers. They are:
– The Executive,
– The Legislature, and
– The Judiciary.
The meaning of separation of powers is not far-fetched. Separation of powers simply means that governmental powers are not vested in a single arm. Powers must be separated to preserve the fundamental human rights of any democratic society.
The 1999 Constitution of Nigeria upholds this doctrine by virtue of sections 4, 5, and 6.
Section 4 vests legislative powers in the National Assembly and the House of Representatives. Section 5 vests executive powers in the President, Vice President, Governors, inter alia. Section 6 vests judicial powers in the courts.
The reason for the compartmentalization of these powers is to preserve the supremacy of the constitution and prevent dictatorial or arbitrary rule.
This area of law has been watered down by a plethora of judicial decisions. First among them is the case of Attorney General of Bendel State v. Attorney General of the Federation & 22 Others (SC. 17/1981) [1981] NGSC 5. Here, the Supreme Court upheld that the National Assembly cannot usurp powers reserved for the state.
Other notable cases include: Attorney General of Lagos State v. Attorney General of the Federation (2003), Governor of Ekiti State v. Olubunmo (2012), Inakoju v. Adeleke (2007), Attorney General of the Federation v. Abubakar (2007), inter alia.
From the foregoing judicial precedents, we can see that the court has tried to maintain the status quo of the separation of powers by preventing illegal and unconstitutional acts of the various arms of government.
Constitutional law tells us that vesting all governmental powers in one man or one central authority is not just an aberration of modern democracy but also foolhardy. Just as the saying goes: power intoxicates, and absolute power intoxicates absolutely. However, the bleak question, as pointed out above, remains: can there be a watertight separation of powers?
The simple answer is no. Separation of powers cannot be watertight. It cannot even be fully applied realistically. This is because there will be instances where one arm of government will encroach into the function of another arm, either to act as a watchdog for the other arms of government.
This brings us to the principle of Checks and Balances. This is a constitutional principle that ensures no organ of government has absolute powers. It is designed to limit the powers of the various arms of government.
For example, in Nigeria, the Senate and House of Representatives (Legislature) can impeach the President, Vice President, Governor, and Deputy for gross misconduct (S.143). The Senate must also approve ministers (S.147(2)). The Constitution also vests in the National Assembly the power to approve all government budgets (Ss.80–84).
The President (Executive) can veto any bill passed by the National Assembly (S.58(4)). The President also has the constitutional right to appoint Justices of the Supreme Court on the recommendation of the NJC, still subject to confirmation from the Senate (S.231(1)).
The courts (Judiciary), by way of judicial review, also uphold or nullify actions of the Legislature or Executive that are unconstitutional (see sections 1(3), 4(8), and 6(6)(b)).
A landmark decision of judicial review was applied in the case of Governor of Kaduna State v. Lawal Kagoma (1982).
The Supreme Court upheld the Governor’s power, affirming that the Executive had the constitutional right to set up commissions under the Commissions of Inquiry Law.
We can now see that a society that fuses the powers of government into one body or central government is most likely laying a foundation for dictatorship and abuse of power. A classic example is a military regime.
It is pertinent to note that the military practice their rule very differently from civilians. In a military regime, there is no room for opposition or separation of powers in the strict sense. Powers are fused in the head of military government, and they rule by their Decrees, Edicts, and unsuspended parts of the constitution.
In conclusion, we can see that, while there is no watertight separation of powers, there is still a need for powers to be shared amongst the different arms of government to ensure civilization and the rule of law.
About the Author
David Njoku Chinedu is the Founder of DNI Africa, a youth-focused nonprofit organization dedicated to promoting legal awareness, health education, AI literacy, seminars, and creative development among African youths. He is also the host and founder of Legal Talks With David, a legal podcast devoted to exploring all aspects of law. Njoku, a visionary at heart, firmly believes that Africa’s youth possess the capacity to transform the continent into a global powerhouse.
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