SEPARATION OF POWER AMONG VARIOUS ORGANS OF GOVERNMENT AND ITS IMPACT ON NATIONAL DEVELOPMENT
1.1 BACKGROUND TO THE STUDY
The doctrine of “the separation of powers as usually understood is derived from Montesquieu, whose elaboration of it was based on a study of Lock’s writings and as imperfect understanding of the eighteenth century English Constitution. Montesquieu was concerned with the preservation of political liberty. “Political liberty” is to be found he says, “only when there is no abuse of power”. But constant experience shows its that every mans invested with power is liable to abuse it, and to carry his authority as far as it will go … To prevent this abuse, it is necessary from the nature of things that one power should be a check on another… when the legislature and executive powers are united in the same person or body… there can be no liberty … Again, there is no liberty if the judicial power is not separated from the legislative and the executive… There would be as end of everything if the same person or body whether if the nobles or of the people, were to exercise three powers”.
The question whether the separation of powers (i.e. the distribution of the various powers of government among different organs) in so far as is practicable, is desirable, and (if so) to what extent, is a problem of political theory and must be distinguished from the question which alone concerns the constitutional lawyer namely, whether and to what extent such a separation actually exist in any given constitution (Hood Phillips and Jackson 2001:12).
Thus, according to the doctrine, a person or body must not exercise more than one of the powers of government, one arm of government must not control or interfere with the others and one arm of government must not exercise the function of the other. This is because as has been observed Blackstone:
In all tyrannical government, the supreme magistrates, or the right both of making and of enforcing the laws is vested in one and the same man or one and the same body of men; and wherever these two powers are united together, there can be no public liberty.
Madison believes that:
… There can be no liberty where the legislative and executive powers are united in the same person or body of magistrates or if the power of judging be not separated from the legislative and executive powers.
Up till 1960, Nigeria was under colonial rule and the concept of separation of powers was in operation to a very limited extent because of the overriding authority of the colonial masters. After independence, the 1960 and 1963 parliamentary constitution operated the British concept of separation of powers whereby power was shared between the judiciary on one side, and the parliament and the executive on the other; the latter being as integral though distinct offshoot of the former.
Under the 1979, 1989 and 1999 Presidential Constitutions, there has a grater separation in a manner similar to that of the United States of America. Under all these constitutions section 4 vested Legislative powers in the National Assembly and Houses of Assembly; section 5 vested executive powers on the President and Governors, and the powers may subject to other constitutional provisions or laws made by the National Assembly, be exercised by them directly or through the Vice-President, Ministers or Officers of the Public service; and by virtue of section 6, judicial powers were vested in the courts established by the constitution (Mowoe, 2005: 24).
According to Professor Abiola Ojo:
… a complete separation of powers is neither practicable nor desirable for effective government. What the doctrine can be taken to mean is the prevention of tyranny by the conferment of too much power on anyone, person or body and the check of the power by another.
The courts have continuously pronounced on the importance of this concept. In Lakanmi and others v. Attorney General of Western State, the court noted, inter-alai:
We must here revert once again to the separation of powers, which the learned, Attorney General himself did not dispute, still represents the structure of our system of government. In the absence of anything to the contrary it has to be admitted that the structure of our constitution is based on separation of powers- the Legislative, the Executive and the Judiciary. Our constitution clearly follows the model of the American Constitution. In the distribution of powers the courts are vested with the exclusive right to determine justifiable controversies between citizens and the state…
In Senator Adesanya v. President of Nigeria, it was decided inter-alia by majority of the Judges of the Supreme Court that the courts have no power to challenge as Act of the legislature except in certain circumstances. For example, when civil rights are violated according to Bello JSC, in that case, upon the construction of section 6(6)(b) of the 1979 constitution, which confers judicial powers in the courts, standing will only be accorded a plaintiff who shows that his civil rights and obligations have been or die in danger of being violated or adversely affected by the act complained of.
In governor of Kaduna State v. House of Assembly Kaduna State the Kaduna State Governor challenged the amendment of some provisions in the Local Government Edict (now Local Government Amendment Law) by the Legislature on the grounds that is violated section 4 and 5 of the 1979 Constitution. He sought a declaration that the amendments were void because they encroached upon his executive powers. The court declared some of the amendments void and some unconstitutional and held inter-alia that the doctrine of separation of powers is enshrined in the 1979 Constitution. It is therefore the responsibility of the legislature to make laws, and the executive to execute laws made by the legislature…
In Attorney General of Bendel State v. Attorney General of the Federation and 22 others, the court held inter-alia, that by virtue of section 4(8) of the 1979 Constitution, the courts of law in Nigeria have the power and duty to see to it that there is no infraction of the exercise of legislative power, whether substantive or procedural, as laid in the constitution. If there is such infraction, the courts have the power to declare any legislation passed pursuant to it unconstitutional and invalid.
There is no doubt as to the need to separate the exercise of judicial organ from the executive and legislative organs. Nevertheless, the point should be noted that the separated organs are far more expensive to run than the fused system. In the final analysis the success of either form of government depends largely on the goodwill of the people to make it work (Agbede, 1993: 39).
1.2 STATEMENT OF THE PROBLEM
A common belief among Political Science scholars (Mill, 1958:230; Almond, 1970, Riggs, 1967, Oyovbaire, 1987), is that for liberty and freedom to be maintained, and to ensure justice and equity, there should be a separation of powers among the three branches of government, namely the Executive, the Judiciary and the Legislature. This system of government, it is argued, would provide a safeguard against the concentration of too much power in a single authority. While stressing that tyranny results when power of all the three branches of government are accumulated in the same hands Montesquieu, (1976:4) suggested that to preserve political liberty, the Constitution should ensure that the power of one branch of government should not be exercised by the same person(s) which possess the power of another branch. This situation, he concluded, would be destructive to liberty. This doctrine of separation of power is reflected in the Constitution of most countries of the world. For instance, in democratic countries, we often have constitutional provisions like; all legislative powers should be vested in the legislature; the executive powers in the presidency, and all judicial powers in an independent judiciary (Constitution of the Federal Republic of Nigeria 1999, Part 11, Section 4,5 and 6). In some system of government, however, especially those operating the Cabinet model like Great Britain, (Norton, and Hayward, 1986) it is impossible to achieve complete separation of powers as envisaged above because by definition, the Executive or the Cabinet consists of the leaders of the political party or coalitions which won the majority of seats in the Parliament. But even in this kind of political arrangement, the Cabinet is responsible to the Parliament and can, indeed, be voted out of office by the Parliament. This implies that some kind of difference between the Executive and the Legislature is recognized and maintained. Moreover, the Judicial branch is separated more distinctly and carefully from the more political branches (Executive and the Legislature) in order to ideally ensure the highest degree of judicial independence and impartiality.
1.3 RESEARCH QUESTIONS
This study is guided by the following research questions
1.3 OBJECTIVES OF THE STUDY
The main aims or objectives of this study are:
1.4 SIGNIFICANCE OF THE STUDY
The decision to embark on this work was anchored on a number of factors. First and foremost is the fact that Nigeria, after a prolonged period of military rule became a democratic nation on May 29, 1999. Its government, at all levels, was revamped and revitalized through competitive elections to serve the peculiar needs of democracy. With the return of democracy, there is the need to carry out some reflections on the nation’s political experience. Naturally, a state like Edo, which as we pointed out earlier is a poor agrarian community that has experimented with democracy at various times in the past, provides a good case study.
The emphasis on the Legislative arm of government is borne out of the fact that the prolonged military rule has adversely affected its operations much more than any other arm of government. For instance, it experiences intermittent disruptions. Its operations are always suspended each time there is military intervention. The legislative process was changed from the Parliamentary System during the First Republic (1960-1966) to Presidentialism in subsequent Republics (Coleman, 1986; Oyovbaire and Olagunju, 1996).
This development complicated matters. While under the Parliamentary System a member of the Parliament could serve as a Cabinet Minister, the Presidential System does not permit such dual roles. The confusion arising from these changes and from the constant punctuation of the legislative process is, without doubt, a cause for concern. This is more so as the Legislature which represents a core pillar of an enduring democracy is, according to Elaigwu (2000:1) primarily responsible for law-making, deciding on major public policy issues, checking the activities of the executive and judicial arms of government.
1.5 SCOPE OF THE STUDY
As pointed out, the Separation of Power is the major focus of this study. Similarly, the study covers all the past periods of democratic experiments in the State - from 1979 -1982; 1991-1993, with more emphasis on the Fourth Republican Legislature (1999 – 2003).
1.7 DEFINITION OF TERMS
Separation of power:
TERMS AND CONDITIONS
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