The Doctrine of Separation of Powers: A Comparative Analysis of Nigerian Constitutional Law

The Doctrine of Separation of Powers: A Comparative Analysis of Nigerian Constitutional Law

Esther Ikechukwu Ojeh

University Of Jos

     The Doctrine of Separation of Powers is usually understood as a constitutional doctrine that separates governments into autonomous institutions responsible for performing distinct functions. The most common system separates government into legislative, executive, and judicial arms. 

The legislative power creates laws, the executive power enforces laws, and the judicial power interprets laws. Each arm of government performs only it’s own function, and the individuals working within each arm should not concurrently work in another arm of government. The purpose of separating powers between independent arms of government is to prevent any individual or arm of government from accumulating excessive power and ruling tyrannically. The separation of powers is typically implemented with a system of checks and balances, with methods often included within a constitution for each arm to counter and restrain the power of other branches. Common checks include executive veto of legislative bills, legislative impeachment of the executive, and judicial overruling of executive and legislative actions.

Introduction | History:

   The concept of Separation of Powers is a fundamental principle in political theory and constitutional design. In the ancient and medieval eras, the elements of separation of powers can be seen in ancient Athens' democratic system and in the Roman Republic, where different officials held distinct powers and responsibilities. In medieval Europe, feudalism and the balance of power between monarchs and local lords also hinted at this idea.

During the Renaissance period, a revival of classical ideas and greater emphasis on individual rights and the rule of law were birthed. Thinkers like Niccolò Machiavelli analyzed power structures, but a systemic separation of powers wasn't fully articulated. The concept was more formally developed during the Enlightenment era. Baron De Montesquieu, a French philosopher, is credited with providing a comprehensive theory of separation of powers in his 1748 work The Spirit of the Laws. Montesquieu argued that political power should be divided into legislative, executive, and judicial arms to prevent tyranny and protect liberty. The principle of separation of powers was adopted and formalized in the U.S. Constitution of 1787. 

The framers of the Constitution, influenced by Montesquieu and other Enlightenment thinkers, created a system where the legislative, executive, and judicial arms were distinct and provided with checks and balances to ensure that no single arm could dominate. The success of the American model influenced other countries and their constitutions, spreading the concept globally.

Definition | Comparative Analysis of Separation of Powers:

Separation of Powers refers to the division of legislative, executive, and judicial functions of government among separate and independent bodies. Such a separation limits the possibility of arbitrary excesses by government, as the sanction of all three arms of government is required for the making, executing, and administering of laws.

The Doctrine of Separation of Powers is part of the heart and soul of Nigeria's 1999 Constitution (as amended), under which separation of powers is both horizontal and vertical. As regards the horizontal separation of powers, the framers of the 1999 Constitution (as amended) departmentalized the governmental powers into sections, namely, legislative powers (section 4), executive powers (section 5), and judicial powers (section 6). The 1999 Constitution of the Federal Republic of Nigeria outlines the duties of the different arms of government and leaves no one in doubt that it aligns with the doctrine of separation of powers and checks and balances.

The Legislative Arm [National Assembly]:

i. Makes laws for the country (Section 4).  

ii. Approves presidential appointments (Section 5, subsection (1), (a-u)).  

iii. Exercises oversight functions over the executive (Section 88, subsection (1) a, b (i), (ii), and (2) a, b).  

iv. Approves the budget and financial matters (Section 59, subsection (1) to (5)).  

v. Conducts investigations and inquiries (Section 89, subsection (1) to (4)).  

The power of the legislature to make laws for the good governance of Nigeria has been reaffirmed in the leading Supreme Court decision in Attorney General of Bendel State v. Attorney General of the Federation.

The Executive Arm [President and Cabinet]:

i. Executes the laws made by the National Assembly (Section 5).  

ii. Appoints federal officials, including ministers and ambassadors (Section 147, subsection (1) to (5)).  

iii. Conducts foreign policy and signs international agreements (Section 145, subsection (1) to (3)).  

iv. Commands the armed forces (Section 218, subsection (1) to (4)).  

v. Grants pardons and reprieves (Section 175, subsection (1) to (3)).

The Judicial Arm [Supreme Court and other courts]:

i. Interprets the constitution and laws (Section 6, subsection (6) (a)).  

ii. Resolves disputes and administers justice (Section 6, subsection (1) to (6)).  

iii. Declares laws and government actions unconstitutional (Section 46, subsection (1) a, b, c, and (2)).  

iv. Tries civil and criminal cases (Section 236, subsection (1) to (3)).  

v. Exercises judicial review over government actions (Section 46, subsection (1) (c)).

There is also vertical separation of powers, where power is devolved among three tiers of government: the Federal, State, and Local governments. The notion of both horizontal and vertical separation of powers is well captured in the opinion of the Supreme Court of Nigeria, per Rhodes-Vivour J.S.C., in Ugba v. Suswan. The rationale behind the doctrine of separation of powers is that neither the legislative, executive, nor the judiciary should exercise the whole or part of another's power, but this does not exclude checks by one arm over the other.

In the United States and Nigeria, separation of powers is understood to mean an executive composed of non-parliamentary members. The states practice a presidential system of government where executive powers are vested in the president, who has a cabinet made of heads of departments under the executive arm. The heads of departments are personally responsible to the president and neither to Congress nor the National Assembly. 

The importance of this doctrine has been judicially emphasized in Liyanage v. The Queen, where the Judicial Committee of the Privy Council pointed out that there exists, under the Ceylonese Constitution, a tripartite division of power and that it would be unconstitutional for judicial functions to be interfered with by the legislature by means of an Act of Parliament. The import of this doctrine transcends the liberty of citizens.

Justice Louis Dembitz Brandeis of the U.S. Supreme Court, in Myers v. United States, said: "The doctrine of separation of powers was adopted by the convention of 1787 not to promote efficiency but to preclude the exercise of arbitrary powers. The purpose was not to avoid friction incident to the distribution of governmental powers among the three departments, but to save the people from autocracy."

The theory of separation of powers is a fundamental principle of state governance under the 1999 Constitution, but it is evident that this doctrine has become somewhat impractical and has been whittled down. Despite the constitutional provisions, there have been criticisms that the principle of separation of powers in Nigeria is more myth than 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 cases 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 holds 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 power can be used to influence the actions of the legislature and judiciary. There have also been instances of judges being influenced or coerced by the executive, with judicial appointments and promotions being affected by political considerations.

In addition, there have been criticisms of the legislature, particularly in terms of its effectiveness and accountability. Concerns have been raised about the quality of legislation passed by the National Assembly, as well as allegations of corruption and misconduct among some lawmakers.

In the British Constitutional System, Montesquieu discerned a separation of powers among the monarch, Parliament, and the courts of law. He stated, "In every government there are three sorts of power: the legislative; the executive in respect to things dependent on the law of nations; and the executive in regard to matters that depend on the civil law." Montesquieu argued that each power should only exercise its own functions. He was explicit in his assertion: "When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty, because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner."

Separation of powers requires a different source of legitimization, or a different act of legitimization from the same source, for each of the separate powers. If the legislative arm appoints the executive and judicial powers, as Montesquieu indicated, there will be no separation of powers, since the power to appoint carries with it the power to revoke. Montesquieu specifically stated that the independence of the judiciary must be real and not merely apparent.

The British Constitution on Separation of Powers:

The United Kingdom has a unique system, as it does not follow any standard structure; rather, it is a mixture. The legislature is dominated by the executive because the government is formed by the leader of whichever party wins the most seats in the House of Commons. Consequently, the legislature might receive considerable pressure from the executive. Therefore, even though it is the parliament's job to legislate, in reality, the government mainly controls it. The executive also dominates the judiciary, as the appointment of senior judges is in the hands of the Lord Chancellor, which creates an element of executive dominance.

The United States Constitution on Separation of Powers:

By comparison, in the eighteenth-century ideal of separation of powers, the United States has come closer to full realization. A system of **"balanced"** or **"united"** government was conceived as part of a codified constitution, which ensured a clear distribution between legislative, executive, and judicial powers. In addition, as part of its oversight functions of administrative action, Congress assumes a crucial role in scrutinizing the executive arm through its powerful committee systems. It has been remarked that while **"the president proposes, Congress disposes."**

The Supreme Court, as the highest court of appeal, has an important formal role in adjudicating controversial constitutional issues, such as in **Brown v. Board of Education** and **Roe v. Wade**. However, it is important to note that the Supreme Court is often viewed as an intensely political and activist institution. The Constitution of the USA and Nigeria, to some extent, expressly incorporated the doctrine of separation of powers, while in other countries like England, India, and Canada, the doctrine is not expressly provided or impliedly incorporated.

Conclusion:

The effectiveness of the separation of powers in Nigeria will depend on the commitment of the different arms of government to uphold the Constitution and respect each other's roles and responsibilities. This will require a mindset of accountability, transparency, and respect for the rule of law, as emphasized by the Supreme Court in Attorney General of Abia State v. Attorney General of the Federation, per Niki Tobi.

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