THE DOCTRINE OF SEPARATION OF POWERS AS ITS APPLIES IN THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999

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.

1Johnson Ugoji Anyacle, Comprehensive Government for Senior Secondary School (Lagos: Johnson Publishers Ltd, 1991) page 69..

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

2 John Locke, second treatise on civil government chapter 12-20.

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.

3 SS 4,5,6 of the constitution of the Federal Republic of Nigeria, 1999.

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.

                  4 SS. 4, 5 and 6 of the Constitution of the Federal Republic of Nigeria 1999.

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

5 SS. 4, 5, 6 of the Constitution of the Federal Republic of Nigeria 1999.

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:

1. Legislature can at quickly and at intervals; and

6 P. O. Oluyele and D. O. Ache, cases and materials on constitutional law in   Nigeria (UP UPL publishers Ltd) page 65.

• 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

7  John Locke, second Treatise on Civil Government, Chapter 12-15.

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.