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THE CHALLENGES OF THE DOCTRINE OF SEPARATION OF POWERS UNDER THE 1999 NIGERIAN CONSTITUTION

ABSTRACT

This long essay examines the doctrine of separation of powers under the 1999 Constitution of the Federal Republic of Nigeria with a view to critically assessing the challenges facing same in Nigeria. The doctrine has been adopted in most democratic States as an important device against autocratic, arbitrary and the over use of government power, be it by the executive, the legislature or the judiciary. The researcher adopting doctrinal analysis discovered that a water-tight application of the doctrine is not possible. It is in recognition of this fact that the founders of the doctrine of separation of powers developed the principle of checks and balances which empowers each arm of government to serve as a check on the others to ensure that they do not go out of their constitutionally assigned roles. The researcher also discovered that the principle of checks and balances is the root cause of the challenges facing the separation of powers in Nigeria and went further to make recommendations germane to the effective application of the doctrine in Nigeria.

CHAPTER ONE

HISTORICAL DEVELOPMENT OF SEPARATION OF POWERS

1.1   INTRODUCTION

Among the numerous political theories operating in a democracy, none deserves to be more developed than the principle of power division and separation. In every democratic State, the major institutions of the State are divided into three- the executive, the legislature and the judiciary. It is however important that those to be in charge of running these institutions are independent of the other. According to Montesquieu in his book[1], when the legislature and executive powers are united in the same person or body of officials, 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. The guarantee of liberty in any given government thus is the practice of the principle of checks and balances.

The principle is a constitutional control whereby separate branches of government have limiting powers over each other so that no branch will become supreme. The concept of the principle of checks and balances arose as an outgrowth of the classical theory of separation of powers, by which the legislative, executive, and judicial powers of government were held properly to be vested in three different units. The purpose of this, and of the later development of checks and balances, was to ensure that governmental power would not be used in an abusive manner. Separation of powers according to Gettel, implies that, the three functions of the government ‘should be performed by different bodies of persons; each department limited to its own sphere of action and within that sphere should be independent and supreme’[2]. The doctrine of separation of powers is based on the acceptance that there is a division of governmental powers into the three branches of legislative, executive and judicial powers, each to be exercised by a separate and independent arm of government as a preventive measure against abuse of power, which will occur if the three powers are exercised by the same person or group of people[3]. Its justification was based on the natural law philosophy traceable back to Plato and Aristotle and later articulated by the 16th and 17th centuries French Philosopher Jean Bodin and British politician John Locke. However, it is the French Montesquieu who formulated the doctrine systematically and scientifically in his book[4]. He was not the pioneer of the doctrine as Aristotle in his Treatise known as Politics had made the same distinctions but Montesquieu gave it clarity and developed a model which has with variations influenced the format of modern constitutions[5]. It is indisputable among constitutional lawyers that the Montesquieu model of separation of powers is theoretically plausible but difficult to effect in practice without modification or adaptations. The Montesquieu model is without its defects; it is in addressing the defects that some constitutional lawyers argue that there are two dimensions of the doctrine- one being institutional and the other functional. It is in relation to the functional aspect that the doctrine should be taken to mean checks and balances based on a constitutional scheme. What is important in modern democracies is not separation in the strict sense of it but checks and balances. This is obviously because the concentration of power in one branch can cause grave hardship on the citizens thereby jeopardizing the idea of democratic value and constitutionalism. With the changing needs of the society, it is important that reasonable restrictions be placed upon the executive, legislature and the judiciary in a compartmentalized form albeit not a water tight one[6].

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