Separation of Power

SEPARATION OF POWER

Separation of power was presented by Baron de Montesquieu in the following words, “political liberty is to be found only when there is no abuse of power. Experience shows that every man invested with power will abuse it by carrying it 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, Executive and Judicial 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 executive…There would be an end of everything if the same person or body, whether of the nobles or of the people, were to exercise all three powers.” [Baron de Montesquieu, Espirit Des Lois. (Spirit of the Laws) Chapter II, pp. 3-6]

Separation of power, therefore, as Montesquieu himself conceived it was to serve as a buffer between dictatorship and accountable government. It is therefore comes to this, that the powers of state must not be concentrated in the hands of the same person or institution lest the society slips into despotism. To therefore secure accountability in governance, the powers of government; legislative, executive and judicial must be donated to different bodies.

Separation of power is inseparably bound to rule of law and supremacy of the constitution. This is so because where the rule of law is not upheld, then a body or arm of government may succeed in usurping the power of the other arms. Similarly, where there is no legal framework which has been accepted as the fountain of the authority of all the arms of government then it becomes possible for an arm of government to overstep its boundaries and usurp the powers of the other arms. It is therefore the constitutional framework, however denoted or conceived, that regulates the interaction between different organs of government and sets boundaries beyond which they cannot pass.

As Carl J. Friedrich warned, “Many who today belittle the separation of powers seem unaware of the fact that their clamour for efficiency and expediency easily leads to dictatorship.” [Constitutional Government and Democracy 1946. P. 175.] The nearest semblance of fusion of government powers are dictatorship, absolute control, no accountability etc. It is as pointed out by Professor Ben Nwabueze that “concentration of government powers in the hands of one individual is the very definition of dictatorship, and absolute power is by its very nature arbitrary, capricious and despotic.” [Prof. Ben Nwabueze. 1982. The Presidential Constitution of Nigeria, St. Martins Press, 1982. p. 32]

 “The main objective of the sometimes inconvenient separation of judicial from executive and legislative powers,” said Deane J in the High Court of Australia in Polyuchowich v The Commonwealth, (1991) 172 CLR 501 at 606, “had long been recognised at the time of the Federation. It is to ensure that the life, liberty, and prosperity of the subject is not in the hands of arbitrary judges, whose decisions are then regulated only by their own opinions and not by any fundamental principles of law.” The maintenance of a viable system where accountability reigns, rests on the shoulders of having an effective and well worked out separation of powers. [See Ekpenkhio v Egbadon (1993) 7 NWLR (pt. 308) p. 717 at 744 per Ogundare JCA.]

MERITS OF SEPARATION OF POWER

From the following, a lot of merits are visible;

1. Separation of power is the only guarantor of democracy, and prevention of dictatorship
2. It promotes accountability in the workings of government through a system of checks and balances
3. It promotes expertise and efficiency. This is true as each arm of government can competently focus on its own sphere of influence, without venturing into areas it has little competence. Such a situation as encroachment into judicial powers by the executive
4. It guarantees security for minority groups
5. It promotes adequate representation especially through the legislative houses
6. It secures the citizens fundamental human rights.

DEMERITS

1. Complex bureaucracy leading to delay and rigidity in the activities of government
2. It can breed rivalry between different arms of government, especially between the legislature and the executive
3. It can lead to a shutdown of governance where there is irreconcilable differences between arms of government, especially the legislature and executive,
4. It can lead to high cost of governance

CHECKS AND BALANCES

Checks and balances simply refers to the process, system and scheme where different arms of government acts as watch dogs over one another, ensuring that each of them are not only exceeding their authority, but are also acting in the best interest of the state. This involves encroachment into what should ordinarily be the exclusive preserve of another arm of government, by a different arm. Thus, the concept of Checks and Balances is not compatible with the idea of an absolute or water tight idea of separation of power.

The following are constitutional examples where there is interplay between different arms of government;

1. Law making: Although law making is the exclusive preserve of the legislature, the executive have enormous role to play in it. A bill passed by the National Assembly cannot become law in the first instance, until it is signed by the president. It can become a law in the second instance, where the president refuses to sign and the National Assembly vetoes the assent of the president. This however is not an easy process, because to do so, the sponsors of the bill will require two-thirds majority of both houses. See generally the sections 58 of the 1999 Constitution.
2. Appointment of Government Officials: The appointment of government officials though the exclusive preserve of the executive, is done through the collaboration of the legislature where it has been legally mandated. This acts as a check on the president, and ensures that the president does not use government positions as gift for incompetent people and his kinsmen. Examples abound, section 147 of the 1999 Constitution on the appointment of ministers; See sections 153 and 154 of the 1999 Constitution.
3. Appointment and Removal of Judicial Officers: At different levels, the appointment of judicial officers may require the collaboration of the judiciary, executive and legislature. The same thing may apply to the removal of judicial officers. The following sections are apposite, See sections 233 on the appointment of Supreme Court justices.
4. Making of Judicial Rules: The judiciary is empowered to make rules for the determination of matters before it, and this rules have strong and sometimes even supreme application in judicial processes before the courts. See sections 236 of the 1999 Constitution on the powers of the CJN to make court rules.
5. Impeachment: Impeachment proceedings is done through the collaboration of the legislature and the judiciary. The judiciary, through the Chief Judge or Chief Justice, is empowered to constitute the panel under the constitution, whose recommendations go a long way in determining whether an elected officer will be impeached or not. See section 143 of the 1999 Constitution.

The question that arises is simply this, is this interplay of government functions and organs a good thing?

The answer to this question has been so aptly answered by Chief Obafemi Awolowo, in the following words;

“But does this all mean that each must operate in a watertight compartment regardless of consideration for each of the other two?…Whilst the judiciary must be detached and independent from the other two organs and be manifestly seen to be so, the legislature and the executive must work in close and harmonious collaboration with each other, if the welfare of the people is to be truly and effectively served…it is quite clear that the objective of the legislature and executive are one and the same—to promote and serve the best interests of the people. If they work at cross purposes or refuse to cooperate and collaborate with each other, the interests of the people would be seriously endangered. When two persons or agencies are charged with joint responsibility to achieve a common objective, the two of them must constantly seek a consensus or, in the event of disagreement, one of the two must be allowed to have the last say. If each of the two, in the absence of consensus, claims the right of last say then, the common objective will either be unattainable, or be very slow of attainment. “ Separation of Powers Among the Three Arms of Government” [Voice of Courage, p. 166 at 173. ]