THE DOCTRINE OF SEPARATION OF POWERS AMONG VARIOUS ORGANS OF GOVERNMENT AND GOOD GOVERNANCE IN NIGERIA

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ABSTRACT

The term ‘Separation of Powers’ is an influential concept in modern democracies; it denotes the practice of dividing the powers of a government among different branches thereof like the principle of ‘Division of Labour’in Adam Smith’s economics, the doctrine of separation of powers is geared towards efficiency but also more importantly, towards guarding against abuse of authority. Hence, it is a liberty-sensitive concept. A government of separated powers assigns different political and legal duties to the legislative, executive and judicial departments. This means that while the legislature has the power to make laws, the executive branch has the authority to administer and enforce the laws so made. The judicial division, on the other hand, tries cases brought before the court and interprets the laws. This project seeks to address the various forms of separation of powers in Nigeria and the need thereof for the growth, good governance of our nascent democracy.  

CHAPTER ONE

INTRODUCTION

1.1       Background of the Study    

The doctrine of “the separation of powers as usually understood is derived form Montesquieu, whose elaboration of it was based on the study of Locke’s writing[1] who observed the conditions of the 17th century England. In his work, second Treatise on Civil Government[2], he reasoned that:

It may be too great a temptation to human frailty, apt to grasp at power, for the same persons who have the power of making laws, to have also 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 [3]

            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 experiences show it that every man 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 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 an end if the same person or body whether the nobles or the people were to exercise these powers.

            The question whether 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 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.

            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 functions of others. This is because, as has been observed by 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 person or body of magistrates or if the power of judging is not separated from the legislative and executive powers”. Up until 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 1953 and 1960 parliamentary constitutions 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 an integral though distinct offshoot of the former.

            Under the 1979 and 1999 presidential constitutions, there was a greater separation in a manner similar to that of the constitution of the United States of America. Under all these constitutions, Section 4 vested legislative powers in the National Assembly and Houses of Assembly respectively, section 5 vested executive powers on the president and Governors, and the powers may be subject to other constitutional provisions or laws made by the National Assembly, be exercised by them directly or through 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.

The case of Garba v. F.C.S.C and Governor of Lagos State v. Ojukwu: the court also upheld the same decision that the three arms of government are equal and should separate in a manner as not to sabotage the other or else there will be chaos. Issues of chaos and proletariat revolution were seen to have proliferated in the past due to tyrannical and dictatorial regimes; hence the need arose for a symptom such as democracy, a balanced system which therefore leaves very little room for chaos and resort which comes up as a result of tyrannical oppression and suppression.

            Consequently, without a democratic system which is the bedrock of good governance, the doctrine of separation of powers will be a vague term. Thus, good governance has taken an increasing importance in the last fifteen years developing cooperation and governmental administration. It is regarded today as essential prerequisite for human development and for the avoidance of usurpation of powers, be it among the three arms of government or on corporate world, and against the arbitrary or tyrannical use of power.

            Good governance entails transparency, accountability of the management of human, natural, economic and financial resources for the purposes of equitable and sustainable development Phillips, in an attempt to expatriate the meaning of good governance, posited that “good governance involves far more than the power of the state or the strength of political will, the rule of law, transparency, and accountability are not merely technical questions of administrative procedure or institutional design. While the rule of law, transparency, and accountability are outcomes of democratizing process driven not by committed leadership, but also by the participation of and contention among, groups and interest in society processes that are most effective when sustained and restrained by legitimate and effective institutions.

1.2       Statement of the Problem    

A common belief among political science scholars 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 as it is argued, would provide a safeguard against concentration of too much power in a single authority and to enhance democracy and good governance. Therefore this research work is conditioned to access and examine the role of the arms of government with regard to separation of powers and its impact in democracy and good governance in Nigeria, the challenges and the way forward.   

1.3       Objectives of the Study

            The main aims or objectives of this study are:

1.   To examine the extent to which separation of powers have helped in good governance.

2.   Determine the extent to which the legislature could be a basic institution for the translation of the masses preferences like provision of basic health facilities, roads, employment etc into public policy through appropriate legislation, etc.

3.   Provide enough exposition on the wider issues of democracy and good governance.

4.   Specifically determine whether the pace of economic development in Nigeria can at anytime be attributed to the separation of power on the country.

5.   Recommend ways through which the activities of the legislature, executive and judicial can be strengthened in order to obtain an enduring democracy in the country.  

1.4       Research Questions       

            This study is guided by the following research questions:

1.   Does the separation of power have any impact on good governance?

2.   Does separation of power help to balance the political system of the country?

3.   Does separation of powers help to regulate the powers exercise by each arm of government in Nigeria?

4.   What are the challenges of good governance in Nigeria?

5.   Under what circumstances can the doctrine of separation of powers and challenges of good governance be consummated

1.5       Research Methodology

This research is primarily library based and thorough deskwork. Accordingly, both hard copies of academic materials obtained from the library and internet respectively will be used as primary and secondary sources. The primary sources comprise of textbook, journals, and online materials while the secondary sources also to be used are case laws or judicial authorities, legal dictionaries, statutes, newspapers, scholarly articles that are related to this work.

1.6       Scope of the Study

            The scope of this study relates to constitutional law and administrative law respectfully, as well as good governance in related courses, the legality of separation of powers which is to the effect that powers must be duly separated for the avoidance of arbitrariness. Also in relation to this work, we shall discuss the principles of separation of powers, it necessities, application, and violations as well as the powers and functions of the legislature, executive and judicial arm of government.

            To be discussed also are the nature of governance and it challenges as well as the prospects for an effective and representative government which shall be duly adumbrated. In view of the fact that the doctrine of separation of powers and good governance are also matters of international concern, reference would be made where necessary, to other countries of the world by way of comparison.

1.7       Significance of the Study  

The decision to embark on this work was anchored on 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 carryout some reflections on the nation’s political experience and to also examine the activities of the government in entrenching democracy and its effort in contributing to the welfare of the citizens with regards to good governance.

1.8       Organization of the work

The study is organized in five chapters which discuss broadly on the doctrine of separation of powers among the various organ of government and good governance in Nigeria. Chapter one gives an introduction and definition of terms and review relevant literatures. Chapter two deals with the historical analysis and nature of the doctrine of separation of powers and it goes ahead to discuss the relevancy of the doctrine in Nigeria. Chapter three introduced the concept of good governance, its relevancy and application in Nigeria. Chapter analyze the concept of good governance its applicability and relationship with the doctrine of separation of powers Nigeria. Chapter five closes with the summary of the research, recommendations and conclusions arrived at from the outcome of the work. 

1.9        Definition of Terms

Power according to Black’s Law Dictionary[4], power implies “the ability to act or not act, especially, a person capacity for acting in such a manner as  to control someone else’s responses, it also refers to as dominance, control, or influence over  another, control over one’s subordinates. Power for the purposes of contract refers to “the capacity of change a legal relationship. In this terminology the officered has, before the contract is made a power to create a contract by means of acceptance.    

Jurisdiction: The Black’s Law Dictionary states that jurisdiction is “a court’s powers to decide a case or issue a decree[5]. Strouds” judicial dictionary of words and phrases views jurisdiction to be a courts limits which are imposed upon its power to hear and determine issues between persons seeking to avail themselves of its process by reference to (1) the subject matter of the issue or (2) to the kind of relief sought, or to any combination of this factors.

Governance: According to Oxford Advance Learners dictionary[6], governance implies the activity of governing a country or controlling a company or an organization the way in which a country is governed or an institution is control is controlled.

Constitution: The constitution is the fundamental and organic law of a nation or state that establishes the institutions and apparatus of government sovereign powers, and guarantees individual civil rights and civil liberties.

1.10     Literature Review

In view of the fact that the “Doctrine of Separation of Powers” and good governance” are central to this work, it is opposite to consider this two issues as per, the entails of separation of powers in the Nigerian situation, the functions, limitations and prospects of separation of powers? What are the challenges facing good governance. The learned author, Jain asserts that “the doctrine of separation of powers refers to the division of government responsibilities into distinct branches to limit any one branch from exercising the core functions of another; the intent is to prevent concentration of power and provide for checks and balances.[7] Thus, the doctrine of separation of powers is one of the fundamental principles upon which the basic structure of democratic state is based. The doctrine of separation of powers runs contrary to the concept of concentration of powers which existed in the ancient medieval period where, all the powers of the three organs of government[8] remain concentrated in the sovereign.

            In the same vein, Jefferson asserted that “the concentration of all the powers in the same hands is precisely the definition of despotic government[9]. The doctrine of separation of powers was adopted by the convention of 1787, the doctrine was not to promote efficiency but to preclude the exercise of arbitrary powers[10]. The purpose was not to avoid fraction but, by means of the inevitable friction incident to the distribution of governmental powers among three departments to save the people from autocracy.[11]

            According to Osita, separation of powers also ensures that the judiciary determines the limit of the power granted to the other organs and will restrain them from exceeding their limits.[12] The principles of separation of powers is as applied most vigorously in the United States of America. The American colonies experienced tyrannical rule which eventually culminate in civil wars. America held the view that the main defect of the system is that the principle of separation had not been followed because of the influence of the king in parliament.[13] Thus, separation of powers ensures that every executive acts affecting the rights and obligations of the people has a foundation in law enacted by a body, different and separated from the executive.

            Also, broadly and Ewing[14] stressing the importance of separation of powers remarked that this threefold division of labour, between a legislation, an administrative official, and an independent judge, is a necessary condition for the rule of law in modern society and therefore for democratic government itself.

THE DOCTRINE OF SEPARATION OF POWERS AMONG VARIOUS ORGANS OF GOVERNMENT AND GOOD GOVERNANCE IN NIGERIA