African Journal of Law and Criminology Volume 1 Number 2 (2011) pp. 1 – 19
THE RELEVANCE OF SEPARATION OF POWERS IN A DEMOCRATIC
SYSTEM OF GOVERNMENT: A COMPARATIVE APPROACH
Edeko, Sunday E
Faculty of Law, Ambrose Alli University, Ekpoma Edo State Nigeria
ABSTRACT
The theory of separation of powers is to the effect that the three organs of
government-the legislature, executive, and the judiciary- should be independent. One
person or a body of persons should not be allowed to combine two or more powers.
Such combination of powers could lead to tyranny and erode the vital principles of
separation of powers. The doctrine was popularised by Baron de Montesquieu. It was
wholly embraced under the legal system of the United States of America. The same
principles have been imbibed into the legal tradition of Nigeria. The following
questions emanate from this: what is the origin of the doctrine of separation of
powers? How has the doctrine been used in the United States of America? What is
the position of the doctrine in Nigeria? What is the future of the doctrine of
separation of powers?
Keywords: Separation of Powers, Cooperation of Powers, Legislative Power, Delegated
Powers
INTRODUCTION
The doctrine of separation of powers is one of the means by which the principles of
the constitution are maintained. In every human society, reason dictates that the various
functions of the state should not be concentrated in the hands of one person or the same
body of persons. Where one person to concentrate on his hands the various functions of the
state, it could be impossible for his reason to encompass their plenitude and amplitude. This
could lead to bad governance. Therefore, it has always been desirable that the various
affairs of the state be shared between equal and coordinate bodies. Again, were one person
allowed to concentrate all powers in his hands, the spirit of power could move against the
common good and the donee of such power could soon see himself above all and treat them
like tools. This is why it is desirable to provide for the doctrine of separation of powers in
every jurisdiction. This doctrine, which is of old origin, has continued to dominate the
political life of every democratic society. Therefore, it is essential to ask, what is the origin
of this doctrine?
The doctrine of separation of powers finds its roots in the ancient world. Then the
precepts of governmental functions and the theory of fixed and balanced government
developed. The doctrine came to the limelight in 17th century England for the first time as a
coherent theory of government, clearly set out, and urged as the secret of liberty and good
government (Vile, 1967:3). But as the doctrine is understood today, it was popularised by a
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French jurist, Baron de Montesquieu in his work, The Spirit of Laws. However, before
Montesquieu wrote his work, Jean Bodin, in his work, The Republic, made a classic
statement of the principles underlying the separation of powers common under
constitutional rule. He advocated that different persons should perform different functions
of government because, ‘To be at once a legislator and judge is to mingle justice and the
prerogative of mercy, adherence to the law and arbitrary departure from it, if justice is not
well administered, the litigating parties are not free enough, they are crushed by the
authority of the sovereign’. However, Jean Bodin made no practical solution.
Moreover, John Locke made his own observation on the doctrine of separation of
powers in the 17th century England. He thought that it was convenient to confer legislative
and executive powers on different organs of government as the legislature can act quickly
and at intervals; while the executive must constantly be at work. He argued that it was not
wise to give lawmakers the power of executing the law, because in the process, they might
exempt themselves from obedience and suit the law to their individual interest. According
to Aihe (1984:32);
It may be too great a temptation to human frailty, apt to grasp power,
for the same persons who have the power of making laws, to also
have in their hands the power to execute them, whereby they may
exempt themselves from obedience to the laws they made, and suit
the law, both in its making and execution, to their own private
advantage.
The above statement reflects what Nigeria experienced during the various military
regimes from 1985-1998. Because of the inseparability of power under the military, the
liberty of the individual was easily reduced to a shadowy existence. The doctrine, as it is
understood today, proceeded from the work of Montesquieu, probably based on the
writings of Locke and on an imperfect understanding of the 18th century English
Constitution. He maintained that only the separation of powers could protect the political
liberties of the individual. It was his opinion that in every state:
There are three kinds of powers, the legislative power, the power
executing the matter falling within the law of nations, and the power
executing the matters, which fall within the civil law. Through the
first, the Prince or Magistrate makes the laws for the time being or
for all time and amends or repeals those previously made. Through
the second he makes war and peace, sends and receives
ambassadors, establishes order, prevents invasions. Through the
third he punishes crimes and judges the disputes of private
individuals. The last is called the Judicial Power and the second is
known as the Executive Power.
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Certainly, in every state, these are the kinds of powers; but the issue is how far they
are separated and the extent to which their separation is desirable. Montesquieu stated the
reason why separation of powers is desirable as follows:
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 if the judiciary power be not separated from
the legislative and executive. Were it joined with the legislative, the
life and liberty of the subject would be exposed to arbitrary control
for the judge would then be the legislator. Were it join to the
executive, however, the judge might behave with violence and
oppression. There would be an end to everything, were the same man
or the same body whether of the nobles or of the people, to executing
the public resolutions and of trying the case of individuals.
Sir William Blackstone confirmed this position in his work: Commentaries on the
Laws of England. According to him, in all tyrannical governments, the right of making and
of enforcing the laws is vested in one and the same body of men, and whenever these two
powers are united together; there can be no human liberty. The legislature may make laws
and execute them in a tyrannical manner, since he possesses the quality of a dispenser of
justice with all the power, which he as legislator thinks proper to grant to himself. Were the
judicial power combined with the legislature, the life, liberty and property of the subject
would be in the hands of arbitrary judges, whose decision would then be regulated only by
their own opinions, and not by any fundamental principles of law, which though makes
laws, it could depart from them. If it is joined to the executive, he further maintained, the
union might soon be an overbalance for the legislature (1970).
What the doctrine seeks are checks and balances. Should there be an absence of
checks; an organ of government could rise above the constitution and the people. If there is
an absence of balance, one side of the ship of nation-building could be overloaded while the
other side virtually remains empty. The consequence is that the ship capsizes. However,
within the separation of powers, there should be coordination. As the Supreme Court said in
Attorney-General of Anambra State v. Okafor (1992:489), where a case is pending in court
and any arm of the executive is a party, the effect of any decision made during the
pendency of such action by the executive must be such as will not ridicule the court’s
decision. It continued that respect must be accorded to separation of powers as enshrined in
the constitution since no arm of government should take up or usurp the functions of the
other arms of government. Apart from mutual respect due to each arm, it is unwise to
disregard the constitution, more so, when the result of such a disregard may lead to social
disorder.
The system of checks and balances, which is founded on separation of powers,
works best in response to vigorous presidential leadership. It enabled the United States, for
instance, to face the greatest crises of its history like the civil war and the Watergate
scandal. Therefore, a vigorous presidential leadership is a sine qua non to the successful
working of a presidential constitution. The tyranny in the inseparability of powers was
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pronounced in the Federalist (1788) that, “the accumulation of all powers, legislative,
executive and judiciary, in the same hands, whether of one, a few, or many and whether
hereditary, self-appointed, or elective, may justly be pronounced the very definition of
tyranny”.
A strong and independent legislature is vital to make democracy to succeed,
although there appears to be an inexorable tendency toward executive centrism in modern
democracy. And the presidential system appears to provide that kind of independent, strong
legislature because of its more formal adoption of the principles of separation of powers.
The principle that no person may belong to both the executive and the legislative branches
at the same time is a significant aspect of separation of powers under the presidential
system.
The legislature checks the executive by its powers to approve or disapprove key
presidential appointments such as ambassadorial positions, the judiciary, the cabinet and
independent or quasi-independent executive agencies. Moreover, the legislature gives final
approval through legislation or through appropriation of money. Thus, the legislature
influences or checks the executive by closely looking at its proposals, and ensuring that
they are desirable.
Separation of powers is a matter of degree. The degree of separation in one jurisdiction
could be higher than that of another. There could be a partial separation of powers, fusion
of powers, and total separation of powers.
Whatever be the nature of the various theories of separation of powers, it is
essential to note that in practice, it is a flexible and accommodating doctrine. Justice
Jackson of the United States Supreme Court stated the position in Youngstown and Tube
Co. v. Sawyer (1952:579) that while the constitution diffuses the power to secure liberty; it
also contemplates that the practice will integrate the dispersed powers into a workable
government. It enjoins upon its branches separateness but interdependence, autonomy and
reciprocity.
The executive and the legislature must preside over a country that would work and
last in a changing world. The United States Supreme Court recognised in Buckly v. Valeo
(1976:1) that a ‘helmetic sealing of the three branches of government from one and another
would preclude the establishment of a nation capable of governing itself effectively’.
METHOD AND MATERIALS
The data used are secondary. The secondary data were collected from textbooks,
journals, magazines and periodicals. In the course of the research, the researcher will
consult the internet, Ambrose Alli University Main Library, Law Library of the Faculty of
Law of Ambrose Alli University Ekpoma, University of Benin Law Library, The
University of Benin Main Library, and the Library of the Centre for Strategic and
Development Studies, Ambrose Alli University, Ekpoma. The data will be analysed in line
with the research questions and objectives.
The research design of this study is informed by the very nature of the study.
Therefore the study used focus group discussion and content analysis. The effort to acquire
primary materials involved discussing questions in a focus group to obtain the views of
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participants. The process of content analysis involved investigating, recording and
analyzing past events with a view to discovering generalizations that were significant in
understanding of the past and the present in order to predict and deal with the issue under
consideration. To this end documented literature was relied on. Documented literature was
the major instrument of research, which are deemed to be able to stand alone if the need
arises. An examination of available literature shows that the survey method and the
regression analysis would be the most suitable instrument for this study. Therefore the
instrument developed: (a) Regression analysis of secondary data.
RESULTS AND DISCUSSIONS
In the United States of America, the framers of the Constitution of the United
States of America desired to protect human liberty from centralised power based on their
experience in the late colonial period (Brown, 1998:535). Gordon Wood and Jack Rakove
noted that many early proponents of a trifurcated government suggested the separation of
powers by citing the long abuses of power by unbridled royal governors before the
revolution and early omnipotent state legislatures that ruled between the revolution and the
time the constitution was framed.
Consequently, the framers separated government along multiple axes, and gave the
units of government the means to check one another.
To achieve this, the framers
divided power between the initial omnipotent states and the federal government. The
framers proceeded and divided power among the three branches of government. They made
the branches and the federal government accountable to the citizenry by making a provision
for regular elections. James Madison called the separation of powers among the branches ‘a
first principle of free government’.
Young J. of the Supreme Court of Indiana applied the principles of separation of
powers in State of Indiana v. Emsley Johnson (1970:322). He said at p. 22 of the
Judgement:
In Board v. Albright (1907) 168 Ind. 564, 578, 81 N.E 578, the following
language is quoted from Board etc. v. Stout (1893) 163, Ind. 53, 35 N. E.
683, 22 LRA 398; Courts are an integral part of government, and entirely
independent, deriving their powers directly from the Constitution in so far
as such powers are not inherent in the very nature of the judiciary. A
court of general jurisdiction whether named in the Constitution or
established in pursuance of the provisions of the Constitution cannot be
directed or impeded in its functions by any of the other departments of
the government. The Security of human rights and the safety of free
institutions require the absolute integrity and freedom of action of Court'.
By these provisions of the Constitution, the three departments of
government are made equal, coordinate and independent, Lafayette M. &
B. R. Co. v. Gerger (1834) 34 Ind. 185, and no department of the state
government can be controlled or embarrassed by another department of
the government, unless the Constitution so orders: State v. Shumaker
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(1928) 200 Ind. 716, 721, 164 N.E 408 63 ALR 218. Any act by which
the legislature attempts to hamper judicial functions or interfere with the
discharge of judicial duties is unconstitutional and void.
In INS v. Chadha (1983:919), Chief Justice Burger recognised that the choices we
discern as having been made in the constitutional convention impose burdens on
governmental processes that often seem clumsy, inefficient, even unworkable, but those
hard choices were seriously by men who had lived under a form of government that
permitted arbitrary government acts go unchecked.
Certainly, the basis of separation of powers in the constitution cannot be divorced
from this. Moreover, Justice Brandeis in his famous dissenting judgement in Myers v. U.
S.,(1926:293) was of the view that the doctrine of separation of powers was adopted by the
convention of 1787, not to promote efficiency, but to preclude the exercise of arbitrary
power. The purpose, he said, was not to avoid friction, but, by means of the inevitable
friction incident to the distribution of the governmental powers among three branches, to
save the people from autocracy. Similarly, in Clinton v. New York (1998:2109), Kennedy,
J., wrote:
In recent years, perhaps, we have come to think of liberty as defined
by that word in the Fifth and Fourteenth Amendments and as
illuminated by the other provisions of the Bill of Rights. The
conception of liberty embraced by the framers was not so confined.
They used the principles of separation of powers and federalism to
secure liberty in the fundamental political sense of the term. In this
vision, liberty demands limits on the ability of any one branch to
influence basic political decisions.
Also, Young, J. On the Supreme Court if Indiana applied the principles of
separation of powers in State of Indiana v. Johnson (1970:355). He quoted the provisions of
the Constitution of Indiana to the effect that the powers of the government are divided into
three separate departments; the legislature, the executive, including the administrative and
the judiciary; and no person charged with official duties under one of these departments
shall exercise any of the functions of another except as established under the constitution.
He then supposed that the judicial department is absolutely independent of the other
departments of government.
The essence of separation of powers also presupposes that the judiciary should not
be controlled in the performance of its functions. Such was the view of the court in Board,
etc. v. Stout (1893:53) to the effect that the courts are an integral part of government, and
entirely independent, deriving their powers directly from the Constitution in so far as they
are not inherent in the judiciary. A court of general jurisdiction whether named in the
Constitution or established in pursuance of the provisions of the Constitution cannot be
directed or impeded in its functions by any of the other branches of government. Moreover,
the provisions of the Massachusetts Constitution of 1780 as regards the separation of
powers are relevant:
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In the government of this commonwealth, the legislative department
shall never exercise the executive and judicial powers or either of
them; the executive shall never exercise the legislative and judicial
powers or either of them; the judicial shall never exercise the
legislative and executive powers or either of them, to the end that it
may be a government of laws and not of men.
An important aspect of the separation of powers is its close link with the doctrine of
judicial independence. A distinction has been drawn between institutional judicial
independence and individual judicial independence (Abrahamson, 1996:70). Institutional
judicial independence or branch independence embodies the concept that the judicial arm of
government as a separate branch acts independently of the other arms. It includes the
relationships among the branches of government and is closely related to the doctrine of
separation of powers. Individual judicial independence reflects the idea that individual
judges decide cases fairly, impartially and according to the facts and the law, not according
to whim, prejudice or fear, or the dictates of the legislature or executive or the latest
opinion poll (Abrahamson, 1996:70).
Although, the Constitution of the United States does not expressly mention
separation of powers, by implication it provides for it by vesting the national legislative
power in a bicameral legislature, its executive power in a president and its judicial power in
the court system. It has been observed that the terms judicial, legislative and executive
powers are not self-defining and that the doctrine of separation of powers states the
principle of shared rather than completely separated powers (Abrahamson, 1996:71).
Certainly, this is normally the position because there must be a coordinate and yet separate
system or else everything would fail to work. In fact, it is a system of separateness
embedded in interdependence, reciprocity and autonomy. However, in so far as the
Constitution has created three branches of government, no branch is subordinate to the
other. No branch can arrogate to itself control over the other unless as provided for under
the Constitution; and no branch can exercise the power committed by the Constitution to
another (1082:709). Moreover, relevant to the doctrine of separation of powers is the
principle of the inherent jurisdiction of the judiciary. The inherent power of the judiciary
has been described in the following way:
In order that any human agency may accomplish its purposes, it is
necessary that it possesses power. In order to accomplish the
purposes for which they are created, courts must also possess
powers. From time immemorial, certain powers have been conceded
because without [which] ... neither maintain their dignity, transact
their business nor accomplish the purposes of their existence. These
powers are called inherent powers (1928:603).
Consequently, whenever any issue is raised in the context of a constitutional
challenge to specific legislation on the ground of violation of the doctrine of separation of
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powers or when the function of a court has been placed under threat by the act or omission
of the legislature or the executive, the court would be under a duty to determine the scope
of the powers of the various organs of government (Abrahamson, 1996:72). As a matter of
constitutional reality, each organ of government has a central area where it holds exclusive
sway and upon which another branch may not intrude. But there could be areas where the
judicial and legislative authority could overlap and in such areas, the legislature is barred
from unreasonably interfering with the function of the judiciary. In Friedrich v. Circuit
Court of Dane County (1995:34), the court summarised its view of separation of powers in
an American jurisdiction as follows:
Each branch has a core zone of exclusive authority into which other
branches may not intrude. Great borderlands of power lie in the
interstices among the branches’ zones of exclusive authority. When
the powers of the legislative and judicial branches overlap, the court
has declared that the legislature is prohibited from unreasonably
burdening or substantially interfering with the judicial branch. This
subtle balancing of shared powers, coupled with the sparing
demarcation of exclusive powers, has enabled a deliberately
unwieldy system of government to endure successfully for nearly
150 years.
If a statute falls within the judiciary’s core zone of exclusive authority, the court
may abide by the statute if it furthers the administration of justice, as a matter of comity or
courtesy rather than as an acknowledgment of power. Thus the court acknowledges the
legislature’s power to declare itself on questions relating to the general welfare and the
court complies with the legislature’s declared policy as long as the policy aids but does not
obstruct the court in its own exclusive sphere.
The above is a rough test on when the judiciary may allow an intrusion into its
territory. Certainly, it is not a binding principle on all courts. It is an opinion of the
particular court where the ruling has been made, subject, of course to the rule of
precedence. Not all courts would accept such an invasion even if it fosters the course of the
administration of justice.
Abrahamson cited various instances where the Supreme Court of Wisconsin struck
down certain legislative acts which the court felt to be an intrusion into its territory. The
court struck down, on the ground of a violation of the doctrine of separation of powers,
legislation abrogating a judge’s power to appoint counsel for anyone other than the child in
abuse and neglect cases (1996:413). According to the court, the legislature’s elimination of
a trial court’s power to appoint counsel unreasonably burdened and substantially interfered
with the powers of the court. Further, the court’s inherent jurisdiction has been held to
extend to ordering the release of state’s funds to procure an automated legal research
system for the courts (1981:662); to a demand for payment installation of a courtroom air
conditioner (1980:884); to the decision to remain in an old courthouse when the county
government ordered a move to adequate facilities (1912:495) and to the retention of a court
janitor in the face of an executive branch effort to dismiss him (1874:421). However, the
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court has held that a State statute permitting a criminal defendant a peremptory right to
substitution of the judge assigned to hear the case was valid because on the basis of the
record, the court could not conclude that the statute materially impaired or practically
defeated the proper functioning of the judicial system (1982:724).
The practice of the United States courts has come to show the basis of its
separation of powers pronouncement. Certainly, the courts should not be seen to close its
doors to an aggrieved constituent who complains that an arm of government has violated
the rights of another which has the possibility of interfering with his rights under the laws
and constitution. Of importance is the court’s desire to prevent an aggrandisement of power
in a branch of government not constitutionally entitled to it. Over some period, the court
has insisted that the constitution and the branches of government, defines the limits of the
powers of the several branches. In achieving this task, the court protects against unchecked
power, which is regarded as a great danger to liberty. In certain instances, the court has
used the anti-aggrandisement principle to reach several important holdings. It uses it to
invalidate presidential action that has exceeded the constitutionally defined powers of the
office (1952:579); act of Congress that enlarges Congress power vis-a-vis the other arms of
government.
Also, in Metropolitan Washington Airports Authority v. Citizens for the Abatement
of Airport Noise, Inc. (1991:252); and Buckly v. Valeo (1976:1), the court held that
Congress impermissibly aggrandised its powers by placing its members on boards and
commissions that exercised executive powers. Moreover, in Bowsher v. Synar (1986:714),
the court held that Congress had aggrandised its power by retaining sole removal power
over a government officer performing the duties of the executive.
One authority (Kline, 2000:204) stated that in these opinions, the courts guard
against aggrandisement focusing on the text of the constitution, the history surrounding the
text, and the nature of the power at issue. He cited the case of INS v. Chadha, earlier cited,
where the court held that the bicameralism and presentment clauses forbid one House of
Congress from exercising a legislative veto over an executive branch decision. The veto in
Chadha had the effect of putting a resolution passed by one House of Congress on par with
a bill upon which both Houses and the president agreed. Accordingly, as it would have
emerged, by creating the legislative veto for itself, Congress improperly aggrandised its
power. The court viewed that separation of powers should be maintained because
something short of it could amount to an encroachment upon the power of a coordinate
branch. The idea that separate branches of government should not interfere in the exercise
of the duties assigned to other branches of government has proved vital in the separation of
powers cases. Take, for instance, City of Boerne v. Flores (1997:2157). The court
invalidated the Religious Freedom Restoration Act of 1993, in which Congress had
purported to overrule the court’s decision in Employment Division v. Smith (1990:879). City
of Boerne v. Smith above held that in passing the Act referred to above, Congress violated
the separation of powers by encroachment on the court’s primary power to interpret and
elaborate on the meaning of the constitution. Also, in Myers v. U. S. (1926:52), the court
held that pursuant to the Appointment Clause, Congress could not limit the president’s
authority to remove principal executive officers. The court observed that in placing
restrictions on the president’s ability to remove a postmaster, Congress had violated the
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separation of powers by encroaching upon the president’s ability to fulfil his constitutional
duty as the executive.
However, in Morrison v. Olsen (1988:695), the court ignored the encroachment
principle. The court held that Congress did not encroach upon the powers of the executive
by creating an Independent Counsel Office. Justice Scala, in his dissenting view,
recognised that:
1) In bringing prosecutions, the independent counsel surely executed the law;
2) The president had extremely limited power of removal over the independent
counsel, and thus little control over an official supposedly stationed in his branch
of government; and
3) Investigations conducted by the independent counsel could greatly interfere with
the president’s and his officers’ ability to enforce the law.
THE DOCTRINE OF SEPARATION OF POWERS IN NIGERIA
Under the Constitutions of the Federal republic of Nigeria of 1979 and 1999, power
is clearly divided between three branches of government. These are the legislature, the
executive, and the judiciary. No organ of government is allowed to lord it over the other or
others. This was recognised by the Supreme Court in Governor of Lagos State v. Ojukwu
(1986) where, Eso J.S.C. said:
I think, for one organ, and more especially the Executive, which holds the
physical powers, to put up itself in sabotage or deliberate contempt of the
other is to stage in Executive subversion of the Constitution it is to
uphold. Executive lawlessness is tantamount to a deliberate violation of
the Constitution. When the Executive is the Military Government which
blends both the Executive and the Legislature together and which permits
the Judiciary to coexist with it in the administration of the country, then it
is more serious than imagined.
There was separation of powers under the 1963 Republican Constitution and it had
been so applied by the courts. The locus classicus on this is the celebrated Lakanmi and
Anor v. Attorney-General (Western State) (1971:201). There, the Supreme Court held that
Decree No. 45 (Validation of Assets etc.) 1968 was unconstitutional, null and void because
it was "nothing short of legislative judgement, an exercise of judicial powers". The Court
said: “We must here revert again to the separation of powers, which the learned AttorneyGeneral did not dispute, is still 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 the separation of powers-the Legislature, 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 rights to
determine justiciable controversies between citizens and the State. See Attorney-General
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for Australia v. The Queen (1957) A. C. 288 at 311 etc. In Lovel v. United States (1946) 66
Supreme Court Reports 1073 at 1079, Mr. Justice Black said as follows:
Those who wrote our Constitution well know the danger inherent in the
special legislative Act, which takes away the life, liberty or property of a
particular named persons, because the legislature thinks them guilty of
conduct, which deserves punishment. They intended to safeguard the
people of this country from punishment without trial by a duly constituted
court.
Since the government of Nigeria, especially by virtue of the 1979 Constitution, is
founded on the doctrine of separation of powers, the executive cannot question the
legislature in its capacity to make or amend the law of the land provided it is so made or
amended in accordance with the Constitution. The case in issue is Governor of Kaduna v.
Kaduna State House of Assembly (1981:444). The Governor challenged certain
amendments to the Local Government Law of 1979 by the House of Assembly as violative
of his constitutional power under Section 5 of the 1979 Constitution, which dealt with the
executive functions of the Governor of a State. It was held that it was the responsibility of
the Executive Governor to execute them, and that the Kaduna State House of Assembly had
powers to enact any law relating to the Local Government since by virtue of the doctrine of
separation of powers, it was within their constitutional power.
In Unongo v. Aku
(1981), Aniagolu J.S.C. explained the operation of the principle of separation of powers in
the following words:
The principle of separation of powers is fundamental to our presidential
Constitution. The Constitution both at the Federal and the State levels
makes provision for three great departments of state - the Legislative,
Executive and Judiciary. Provisions have been made in the Constitution
as to the powers and functions of each department.
Under the principles of separation of powers enshrined in our Constitution, the
three organs of government are independent, equal and coordinate. No department is
controlled by the other, although each acts as a check on the other. The powers granted to
the Judiciary under the Constitution are extensive and Section 6 of the Constitution taken
together with other provisions of the Constitution is to act as protection for the individual
against arbitrary conduct, whether from the Executive or Legislative branches of
government. That is clearly the intention of the framers of the Constitution. Although in a
military regime, both the legislative and executive powers are united in the same body of
persons, the Nigerian judiciary has displayed to some extent the fact that the order of justice
must prevail over injustice and oppression. In Governor of Lagos State v. Ojukwu (1986),
Eso J.S.C. said:
I think it is a very serious matter for anyone to flout a positive order of a
Court and proceed to taunt the Court further by seeking a remedy in a
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Higher Court while still in contempt of the lower court. It is more serious
when the act of flouting the order of the Court, the contempt of the court,
is by the Executive.
Under the Constitution of the Federal Republic of Nigeria, 1979, the Executive, the
Legislature (while it lasts) and the Judiciary are equal partners in the running of a
successful government. The power granted by the Constitution to these organs by S. 4
(Legislative Powers), S. 5, (Executive Powers) and S. 6 (Judiciary Powers) are classified
under an Omnibus umbrella known under part two to the Constitution as "Powers of the
Federal Republic of Nigeria". The Organs wield those powers and one must never exist in
sabotage of the other or else there is chaos. Indeed, there will be no federal government. I
think, for one organ, and more especially the Executive, which holds all the physical
powers, to put up itself in sabotage or deliberate contempt of the other is to stage an
executive subversion of the Constitution it is to uphold. Executive lawlessness is
tantamount to a deliberate violation of the Constitution. When the executive is the military
which blends both the executive and legislature together and which permits the judiciary to
coexist with it in the administration of the country, then it is more serious than imagined.
The Executive can only enter into a contract within its area of control. Any
contract entered into contrary to the doctrine of separation of powers is of no force. In
Knight, Frank and Rutley Ltd, v. Attorney-General of Kano State (1990:210), the Kano
State Government entered into a contract in an area outside its jurisdiction. The Court of
Appeal held that under the 1979 Constitution, government is divided into three separate and
independent sections, namely, the executive, the legislature and the judiciary and it is the
duty of each arm to avoid encroachment by one on the sphere of the other.
The power of each arm of the government has been clearly defined. If the
legislature exercises its legislative power and enacts a law, it is not open to it to interfere
with the exercise of executive or judicial powers which are vested elsewhere. I am not
unmindful of the fact that under the military administration, both the legislative and the
executive powers are combined in the Military Government (1990:220).
It has been held that the judiciary has no power to annul legislative enactments as it
offends against the doctrine of separation of powers. In Amago-Amanze v. Governor of
Anambra State (1985:726), Nwokedi, J. of the High Court, sitting at Onitsha held that the
functions of government under our present system are apportioned between three
departments- the legislature, the executive and the judiciary; and in democracy neither
department may invade, control, direct or restrain the other. The courts do not possess the
power to annul legislative enactments without more. In this particular case the plaintiff's
complaint was that officials of the executive would enforce a statute claimed to be
unconstitutional and the court was asked to prevent it. The court said that to do so would
be not to decide a judicial controversy, but to assume a position of authority over the
government acts of another department. This is an authority it does not possess and which
in due course may lead to judicial dictatorship. However, in Attorney-General, Bendel State
v. Attorney-General of the Federation and Others (1981:1), it was held by Fatai-William
C.J.N. that the Allocation of Revenue (Federation Account etc) Act, 1981, and its provision
with regards to the division of revenue between the Federation and the States of the
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Federation were unconstitutional, null and void. The basis of this judgement was that the
purported act was not actually passed by the legislature.
From the above, it should be seen that the doctrine of separation of powers is
provided for under the Nigerian law. But, the position seems different in a military era
where there is a combination of the legislative and executive powers in the hands of the
same body of persons. This explains why it is very easy for the military to violate the
fundamental rights and liberties of the Nigerian citizenry.
Over the centuries, the doctrine of separation of powers in certain jurisdictions has
held sway. For instance, it is widely agreed that there is a high degree of separation of a
presidential system of government. But, it seems that the above is not absolutely true
because, in every political society, there is a glaring evidence of cooperation of powers
inasmuch as there is evidence of separation of powers, and both shall be addressed in this
case. Accordingly, it is intended to go on a voyage of discovery into the 1999 Constitution
of the Federal Republic of Nigeria to reveal the extent of cooperation between the executive
and the legislature and the weakness of the separation of powers theory. The most
important areas where this weakness of separation is glaring concern the role of the
legislature in approving presidential appointment without which such appointments could
be invalid. This assertion is better understood if we consider the various sections of the
1999 Constitution where the legislature plays an important role in approving executive
appointments.
Under Section 136 (1) of the Constitution, if a person duly elected as President dies
before taking and subscribing the Oath of Allegiance and oath of office, or is for any reason
whatsoever he is unable to be sworn in, the person elected with him as Vice-President shall
be sworn in as President and he shall nominate a new Vice-President. Such nomination to
be must be supported with the approval by a simple majority of the National Assembly at a
joint sitting. There is a similar provision where the office of the vice-president becomes
vacant. Where the office of Vice-President becomes vacant: (a) by reason of death or
resignation, impeachment, permanent incapacity or removal in accordance with section 143
or 144 of this Constitution; (b) by his assumption of the office of President in accordance
with subsection (1) of this section; or (c) for any other reason, the President shall nominate
and, with the approval of each House of the National Assembly, appoint a new VicePresident (1999 section 146). The President shall if the nomination of any person to such
office is confirmed by the Senate, make any appointment to the office of Minister of the
Government of the Federation (1999 section 147). The special advisers nominated by the
president are entitled to a remuneration package prescribed by a law or resolution of the
National Assembly (1999 section 151:2). Moreover, the chairman and members of certain
Federal executive bodies are appointed by the president and subject to the approval of the
National Assembly (1999, sections 153:1 & 154:1).
The public officers referred to in section 153 (1) may only be removed from that
office by the President acting on an address supported by two-thirds majority of the Senate
praying that he be so removed for inability to discharge the functions of the office (whether
arising from infirmity of mind or body or any other cause) or for misconduct (1999 section
157:1). In addition to the above, an appointment to the office of Ambassador, High
Commissioner or other Principal Representative of Nigeria abroad shall not have effect
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unless the appointment is confirmed by the Senate (1999 section 171:4). The appointment
and removal of certain judicial officers by the president must be approved by a resolution
of the National Assembly (1999, sections 230, 231, 238, 250, 256, 266 & 292). So many
things can only be carried into effect by the president by an Act of the National Assembly
(1999 sections 214-220, 228, 288, 299 & 300). The allocation of revenue is taken care of by
an Act of the National Assembly. It should be noted that subject to an exception provided
by the Constitution, laws made by the legislature are required to be signed by the executive
(1999 sections 58 & 59).
From the above, one could easily see that there is a high degree of cooperation
between the executive and the legislature. Without such cooperation, the machinery of
government may never work. So, there is no absolute separation of powers. It only exists to
the extent that it acts as a check on the powers of other organs of government.
The doctrine of Separation of Powers is the same everywhere. But because some
countries operate different constitutions, it is necessary to discuss how the principle of
separation of powers works in other jurisdictions. Ayinde J. of Lagos High Court in Mr.
Dele Giwa v. I.G.P. (1985:387) opined that those struggling for a separate court where
matters in which the Federal Government or its agencies could be heard and decided or
determined and who see the Federal High Court as a ready court, are labouring under a
misapprehension of the nature of the 1979 Constitution. He thought that they needed to be
reminded that the separation of powers in that document is not as rigid as exists in the
United States of America. It is unconstitutional for the legislature or the executive to usurp
the throne of the judiciary. It is contrary to the principles of separation of powers. Where it
is usurped by the legislature, upon the authority of Chase J. in Calder v. Bull (1879:386), it
is a "Legislative judgement, and an exercise of judicial power". In Liyanage v. The Queen
(1967:259), the appellants were charged with participation in an abortive coup d' etat
against the government of Ceylon. By the Criminal Law (Special Provisions) Act, No. 1 of
1962, the legislature of Ceylon sought retrospectively to legalise their prolonged
imprisonment without trial, to create ex post facto a new criminal offence so as to cover the
situation of the abortive coup, to alter the law of evidence so as to render admissible much
that would have been otherwise inadmissible, and to prescribe a minimum penalty. All
these remarkable provisions applied only to those appellants and to the circumstances of the
coup. By another Act, a special tribunal, nominated by the Chief Justice was established to
try the case, and this, with reluctance, held itself bound by the legislation. The Judicial
Committee of the Privy Council, however, declared the legislation to be invalid because it
infringed the doctrine of separation of powers, which was part of the Ceylon Constitution.
The same decision was reached in the Solomon Islands case of Kenilorea v.
Attorney-General (1986:126). The appellant, the Leader of the Opposition in the National
Parliament of the Solomon Islands, had sought, inter alia, a declaration that sections 4 and
5 of the Price Control (Retrospective Operation and Validation) Act 1983; were void as
being contrary to Section 77(1) of the Constitution of the Solomon Islands. The 1983 Act
had been passed to validate actions taken under the Price Control Act, 1982, including
Orders, which had been challenged in proceedings against the Attorney-General on the
ground that, as the 1982 Act had never been brought into force, the orders were invalid.
Daly, C. J., in a judgement delivered in the High Court refused the application and the
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appellant appealed to the Court of Appeal. The Court of Appeal (White, P., Connolly and
Pratt, JJ.A.) held that the Constitution of the Solomon Islands clearly provided for a
separation of powers and that the separate powers of the judiciary could not be usurped or
infringed by either the executive or the legislature.
In the same vein, the courts, cannot usurp the functions of other arms of
government. It is unconstitutional and offends the doctrine of separation of powers. That
was the Trinidad and Tobago case of Attorney-General v. K. C. Confectionery Ltd.
(1986:172). There, it was held by the Court of Appeal (Kelsick, C.J., Bernard and Persaud,
JJ.A) that the Constitution of Trinidad and Tobago, based on the Westminster Model,
provides for the separation of powers in the State and the courts must be careful not to
usurp the functions which are purely within the plenitude of the powers conferred on
another organ of the State.
The doctrine of separation of powers can only work if the judiciary is free.
Therefore, the independence of the judiciary is a necessary vehicle for the realisation of the
principles of separation of powers. The Lesotho case of Law Society of Lesotho v. Prime
Minister of Lesotho and Another (1986:481) is relevant. The Lesotho Law Society applied
to the High Court for a declaration that the respondents had contravened Sections 2(1) and
16 (6) of the Human Rights Acts by appointing as an acting Judge of the High Court a
member of the staff of the Director of Public Prosecutions and Solicitor-General. The
Society also sought an order calling upon the respondents to terminate forthwith the
appointment of the acting Judge. Levy A.J., dismissed the application on the ground that
there was no reason to doubt the independence and impartiality of the individual appointed.
An appeal was made to the Court of Appeal. The Court of Appeal (Schultz, P., Mohammed
and Agron, JJ.A.) while allowing the appeal, held that though it was difficult to ascertain
the precise facts as to the appointee in question and his relationship with the executive, and
whatever the personal integrity of the individual concerned, the concept of the
independence of the judiciary involved not a question of subjective impartiality, but the
appearance of independence. An acting Judge temporarily seconded from the prosecution
could be faced with a string of applications and cannot be able to deal with questions
involving the lives and liberties of members of the public. The Crown as one of the most
frequent litigants before the High Court could then find itself in a most unfortunate
situation. The appointment was, therefore, in contravention of the State's duty under
Section 16(6) of the Human Rights Act to guarantee the independence of the courts.
It is unconstitutional for the judiciary to direct the legislature to make a law. This is
outside its powers. It is contrary to the doctrine of separation of powers. That was the
Indian case, State of Himachal Pradesh v. Student's Parent, Medical College (1986:208)
where Justice Bhagwati of the Supreme Court held it was an indirect attempt to compel the
State Government to initiate legislation and therefore, outside its jurisdiction. It was
entirely a matter for the executive branch of the Government to decide whether or not to
introduce legislation.
It is an essential and fundamental principle of the law of constitution that powers
should be separated. It is essential and fundamental because of the hazards the individual
will face if powers are not separated. That is why civilised countries have established
governments founded on separation of powers. As has been said, its chief aim is to prevent
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abuse of power and tyranny. According to Sir William Blackston, “in all tyrannical
governments the supreme magistracy, or the right both of making and of enforcing the
laws, is vested in one and the same body of men, and whenever these two powers are united
together, there can be no public liberty”. The Magistrate may enact tyrannical laws, and
execute them in a tyrannical manner, since he is possessed in quality of a dispenser of
justice with all the power, which he as legislator thinks proper to give himself.... Were it
(the judicial power) joined with the legislative, the life, liberty, and property of the subject
would be in the hands of arbitrary judges, whose decision would be then regulated only by
their own opinions, and not by some fundamental principles of law; which, though
legislates may depart from, yet judges are bound to observe. Were it joined to the
executive, this union might soon be an overbalance for the legislative (1970:269).
It should be clear from the above that the doctrine of separation of powers is
virtually the same in every democratic society. The position is slightly different in a
parliamentary system of government. Under the British parliamentary system of
government, some members of the legislature, including the prime minister, are members
of the executive. The House of Lords, which is an arm of the parliament is the highest court
of appeal in Britain. The position is again slightly different in Australia. Although the
government of Australia is parliament, there is a higher degree of separation of powers in
Australia than in Britain. Although some members of the Australian parliament are
members of the executive, no member of the Australian judiciary is a member of either the
legislature or the executive (Srivastana et al, 1996:15-16). So, there is always separation of
powers in every jurisdiction, but it is a matter of degree. Also, there is element of
cooperation of powers in every jurisdiction. That is to say, there is no water-tight separation
of powers.
CONCLUSION
There is an extent to which separation of powers is desirable. Although the powers
are separated, the interest of order and progress demand that such powers be at the same
time coordinate. It is only essential that one organ of government does not have a
controlling influence over another. As it has been said, the theory of predominance is the
controlling factor. As long as one organ of government does not and cannot dominate the
proceedings of another organ of government, there is separation of powers. Separation of
powers, therefore, is desirable only to the extent that one organ does not control or exercise
the powers of the other. Coordination of powers is not a contravention of the doctrine of
separation powers. The theory of separation of powers merely means that a different body
of persons is to administer each of the three departments of governments; and that no one of
them is to have a controlling power over either of the others. Such separation is necessary
for the purpose of preserving the liberty of the individual and for avoiding tyranny.
Sufficient has been said to indicate that a complete separating of the Legislature,
the executive and the judiciary is not found in any modern Constitution. All Constitutions
recognise the fact that government is an organic body. Therefore, the separation of powers
necessary for the maintenance of liberty has to be reconciled with the need for their cooperation with, and dependence on each other. They realize that some Union of powers
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promotes harmony with governments and some separation makes for liberty, while both are
essential for efficiency. The question naturally arises as to what extent separation is
desirable and practicable.
The principle of vesting the exercise of the three powers of government- the
Legislature, the Executive and the Judicial- in three distinct organs, which Willoughby has
called an organic separation of powers as distinct from a personal separation, is
fundamental to the efficient working of government. More than one department may be
under the direction of the same person as regards their superior officers, as the legislative
and executive departments in Britain are directed by the cabinet; what is essential is that
each department should be in the main confine itself to the work which properly belongs to
it. This is merely the political application of the economic principle of division of labour; it
makes for specialisation and efficiency and, no one department should have absolute
control over the other two, for that is inimical to liberty. Within the limits set by these two
general principles, there must be points of contact and interaction between the three
departments, so that there may be the maximum harmony and co-operation between them
in the essential tasks of government (Appadorai, 1970:517-522).
The doctrine of separation of powers as popularised by Montesquieu has become a
vital aspect of law and government. From its early beginning, it was embraced by the
Americans who did not want to experience tyranny in any guise having secured its
independence from the British after a bitter struggle. Accordingly, the United States
judiciary had relied on the doctrine of separation of powers to declare null and void certain
executive and legislative acts. The same principles have been accepted fully into the legal
system of Nigeria. Although separation of powers is not expressly mentioned in the
constitution of Nigeria, it could be implied since the constitution has assigned the three
branches of government to different bodies of persons. However, it should be noted that
there is no absolute separation of powers the branches of government are still coordinated
because the system may not work if it is not allowed a little leverage in its joints.
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Abrahamson R. (1996) in ‘Remarks of the Honorable S. S. Abrahamson Before the
American Bar Association Commission on Separation of Powers and Judicial
Independence’, Saint Johns Journal of Legal Commentary Vol. 12 Issue 1 Fall
Aihe D. O. (1981) Selected Essays on Nigerian Constitutional Law Ibadan: Idodo Umeh
Appadorari A., (1970) The Substance of Politics NY Blavan
Constitution of the Federal Republic of Nigeria 1999
Kline N. ‘The Line Item Veto Case and Separation of Powers’ in California Law Review,
Vol. 88 Number 1 2000 p. 204
Srivastana D. K., T. Delkin, & P. Singh (1996) Introduction to Australian Law LBC
Information Services NSW
Vile C. (1967) Constitutionalism and Separation of Powers Clarendon Press Oxford
William Blackstone Commentaries on the Laws of England Vol. 1
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African Journal of Law and Criminology Volume 1 Number 2 (2011) pp. 1 – 19
CASES
Amago-Amanze v. Governor of Anambra State (1985) 6 NCLR 716
Attorney-General of Anambra State v.Okafor, (1992) 2 NWLR pt. 296 at 489
Attorney-General v. K. C. Confectionery Ltd (1986) LRC (Const) 172
Attorney-General, Bendel State v. Attorney-General of the Federation and Others 1981
Board, etc. v. Stout 163, Ind. 53 (1893)
Bowsher v. Synar 478 U. S. 714 (1986)
Brown (1998) ‘Accountability, Liberty, and the Constitution’ 98 Columbia L. R. 535-538
Buckly v. Valeo 424 U. S. 1 (1976)
Buckly v. Valeo 424 U. S. 1 (1976)
Calder v. Bull (1879), 3 Dallas U.S.S.C. 386
City of Boerne v. Flores 117 S. Ct. 2157 (1997)
Clinton v. New York 118 S. Ct. at 2109 (1998)
Dele Giwa v. I.G.P (1985) 6 NCLR 369 at 387
Employment Division v. Smith 494 U. S. 872, 879 (1990)
Friedrich v. Circuit Court of Dane County 531, N. W.2d 32, 34 (1995)
Governor of Kaduna v. Kaduna State House of Assembly (1981) NLCR 444
Governor of Lagos State v. Ojukwu (1986)
Governor of Lagos State v. Ojukwu 1986
In re Court Room etc., 134N. W. 490, 495 (Wis. 1912).
In re Janitor 35 S. C. Wis 410, 421 (Wis. 1874)
INS v. Chadha 462 U. S. 919, 959 (1983)
Joni B. v State, 549 N. W. 2d 411, 413, (Wis. 1996)
Kenilorea v. Attorney-General (1986) LRC (Const) 126
Knight, Frank and Rutley Ltd, v. Attorney-General of Kano State (1990) 4 NWLR (Pt.143)
210
Lakanmi and Anor v. Attorney-General (Western State) (1971) 1 U.I.L.R. 201
Law Society of Lesotho v. Prime Minister of Lesotho and Another, (1986) LRC (Const) 481
Liyanage v. The Queen (1967) 1 A. C. 259, (1966) 1 AER 650
Metropolitan Washington Airports Authority v. Citizens for the Abatement of Airport Noise,
Inc 501 U. S. 252 (1991)
Morrison v. Olsen 487 U. S. 654, 695-696 (1988)
Myers v. U. S 272 U. S. 52 (1926)
Myers v. U. S. 272 U. S. 52, 293 (1926)
State of Himachal Pradesh v. Student's Parent, Medical College (1986) LRC (Const) 208.
State of Indiana v. Emsley Johnson 322 IN 355
State of Indiana v. Johnson 322 IN 355
State v County Court of Kenosha County 105 N. W. 2d 876, 884 ( Wis. 1960).
State v Department of Administration 307 N.W. 2d 658, 662 (Wis. 1981)
State v Holmes, 315 N. W. 2d 703, 724 (Wis. 1982)
State v. Cannon, 221 N. W. 603, 603 (Wis. 1928)
State v. Holmes 315 N. W. 2d 703, 709(Wis. 1982)
Unongo v. Aku (1981) S. C.
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Youngstown and Tube Co. v. Sawyer 343 U. S. 579 (1952)
Youngstown Sheet & Tube Co. v Sawyer 343 U. S. 579(1952)
19