Thursday, February 25, 2016


The concept of Separation of Power is one which was developed to assist in the maintenance of the rule of law, limiting the powers of government as well as the abuse or misuse of powers. This concept postulates that if all the powers in a state are vested in a person or body of persons, the freedom and liberty of the citizens may not be guaranteed effectively.

For the purpose of separation, the powers of government are separated into legislative, executive and judicial powers.

Legislative power – power to make laws.
Executive power – power to enforce the laws made by the legislature.
Judicial power – power to settle disputes between persons and officers of the state.

It is very difficult to maintain a strict border line demarcation between the powers of the three organs of government. The separation of the powers of the legislature and judicial organs can be possible but that of the legislature and executive has proved abortive.
The idea of Separation of Power started in the European continent when the rulers were discovered to be wielding absolute powers. It was discovered that in England there was freedom and the rule of law which was attributed to Separation of Power.
Writing in 1690, an American philosopher, John Locke (1632-1704) said it is too great a temptation for human frailty for those who have powers to make laws, should also have in their hand, the power to execute such laws. When this happens, those who make laws disobey such laws at their execution to their whims and caprices or private advantage.
John Locke
In his argument, John Locke discovered that if powers to make laws and execute such laws were vested in a single authority, the rights and freedom of the people may not be effectively guaranteed.
The idea of Separation of Power was later developed upon by a French philosopher, Baron de Montesquieu (1689-1755) in the light of his study of the British society in the 18th century. This philosopher later paid dearly for his writing/views on Separation of Powers as he was asked to be executed by the French authorities on his return from Britain. They considered his ideas totally unacceptable and dangerous to France.
At that time in England, parliament succeeded in taking away from the king, the law making powers and the independence of the judiciary became established. After the passage of the Bill of Rights in 1683, the executive powers of the king became established.
Hence, Montesquieu found in England three functions to be performed by three authorities, provided they act in accordance with the constitution.
Baron de Montesquieu
Therefore, in England, there was freedom, liberty and the rights of individuals guaranteed.
By separation of powers, Baron de Montesquieu meant three things:
1.  There should be no overlapping of powers between one department and another.
2.  There should be no overlapping of functions between one department and another.
3.   No department should interfere or control the working of another.

It is these that Montesquieu posits that if all powers are vested in the same person or body of persons, the right and liberty of the citizenry will not be guaranteed.
While expounding on the advantages of Separation of Power, Montesquieu did not mean that there should not be checks and balances. The Americans while writing their constitution took note of this, and provided for an elaborate system of checks and balances. Each department of government while performing its constitutional functions is restricted by constitutional limitations. The executive powers are vested in the executive, legislative powers vested in Congress and judicial powers are vested in the courts.
While the law making power is vested in Congress, for a bill to become law, the assent or veto of the President is required. If the president declines assent to any bill, his veto power can be overridden if such a bill is passed by 2/3 majority of legislators in Congress.
The president is elected by the people and is answerable to same and not parliament. The president cannot dissolve parliament, neither can parliament dissolve the president and his ministers. The president appoints his ministers who are accountable to him.
The executive cannot sit or take part in parliamentary proceedings. The president is to send a bill to parliament to pass into law, but they are not bound to pass such bill to law.
The president has the right to appoint important government officials, ministers, and judges but subject to parliament’s approval.
The judicial function is that of the court, but parliament sometimes constitute itself into a trial court, where the president or any member of the executive is served with an impeachment notice for misconduct. The House of Representative frames such charges and the senate tries them.
Where the president is served impeachment notice and he is to be tried, the Chief Justice presides over the parliament.
The legislature makes laws, but the courts review such laws through Judicial Interpretation. This function has made the judiciary super-legislature.

The concept of separation of power is also enshrined in the Constitution of the Federal Republic of Nigeria, 1999.
S. 4 provides for legislative powers i.e. power to make laws. It is made up of the House of Representatives and the Senate.
S. 5 provides for executive powers exercisable by the president, vice president, ministers or government departments on behalf of the president. The president is to see to the implementation of the laws made by the National Assembly.
S. 6(1)(3) provides for judicial powers exercisable by the law courts that can be extended by a law of the National or State House of Assembly.
In Nigeria, the law making power is vested in the legislature but under the principle of delegation of power, members of the executive or judiciary are found to be exercising such powers. e.g. by S. 46, the Chief Justice has been authorized to make laws in respect to fundamental human rights of the citizens. The Chief Justice has made this law which is the Fundamental Rights Enforcement Procedure Rule, 2009.
Members of the legislature and the president are elected for four years in office. The president cannot dissolve the Senate neither can the Senate call the president to sack his ministers. Bills passed by the Senate require the assent of the president before such bills become law. Where the president declines his assent, such a bill becomes law when it is passed by at least 2/3 majority of members of the National Assembly. ~ S. 58 CFRN.
The president and his ministers are to be invited to attend a joint session of the National Assembly to make an address of national or fiscal issues bothering the country. ~S. 67(1)
Ministers are to appear before the National Assembly or any of its committees to give an address on operation of their ministries. ~ S. 67(2)
The National Assembly is empowered to direct or cause an investigation to be directed into the conduct of the affairs of any person, ministry, authority or department of government that is charged or intended to be charged with the duty for, or responsibility or the execution of laws made by the national assembly and the disbursement or administering moneys appropriated or to be appropriated by the National Assembly. ~ S. 88(1)
The functions ordinarily performed by the courts are performed by the legislature. e.g. S. 89, CFRN – the Senate is to summon any person to give evidence orally or in writing, direct or circumstantial in relation to any matter upon deliberation.
The legislature can also give a warrant for such a person to appear before them to present documents or give evidence when such a person fails to appear and as not adduced any reason for his failure to appear before the National Assembly.
The National Assembly is empowered to recover such moneys or expenses incurred in compelling such a person’s appearance. It can recover such fee just as a fine imposed by the court.
The Speaker of the House of Representatives or the Senate President of the Senate can give permit to any police officer or any person to compel its summon or warrant directed to any person.

Any question(s)?

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