MEANING AND NATURE OF SEPARATION OF POWERS

INTRODUCTION The principle of separation of powers is regarded as one of the basic principles of public law. Separation of powers is one of the devices used by the Anglo-American systems of government to protect the rule of law and prevent exercise of arbitrary power by the sovereign. The continued application of this doctrine is anchored on checks and balances among the triple arms of government. Accordingly: Modern government should be a co-operative, coordinated effort and not a tug of war between theprincipal organs of government. Separation of executive and legislative function is necessary and desirable if limited government and individual liberty are to be secured but certainly not a rigid separation. In the light of the foregoing, this paper focuses on the critical analysis of the doctrine of separation of powers. The view as expressed in the paper is to the effect that, absolute separation of powers is impracticable in recent times; considering the various factors that appear to frustrate and limit the strict application of the doctrine. The paper is divided into three distinct but related segments. The first segment is made up of the meaning and nature of separation of power. Whereas the second segment focuses on the factors that limit the strict application of the doctrine; the last segment is the conclusion. Lastly, special emphasis has been placed on the provisions of the 1999 Constitution vis-à-vis separation of powers. MEANING AND NATURE OF SEPARATION OF POWERS Separation of powers2 is the division of the powers and functions of government among the three independent and separate arms of government; that is, the legislature, executive and judiciary, to act as a check and balance on one another and prevent the excesses and abuse of powers. The primary purpose of the concept is to guard against dictatorial rule by avoiding concentration of all the powers of government in one hand, or more than oneperson being involved in more than one of the powers of government or one arm of government exercising control over the other. The doctrine of separation of powers as it is understood today came largely from the work of the French Jurist Baron De Montesquieu in his book The Spirit of Law (chapter XI) who studied and expanded the work of John Locke.3 He was concerned with the preservation of political liberty of the citizen. According to him: 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. The 1999 Constitution of the Federal Republic of Nigeria recognizes the doctrine of separation of powers. While section 4 of the Constitutionvests the legislative powers of the federation on the National and State Houses of Assembly; section 5 and 6 vest the executive and judicial powers of the Federation on the President and Governors; and the courts established by the constitution, respectively. Additionally, section 147(4) of the Constitution provides that: a member of the legislature appointed as a minister of the Federation must vacate his seat in the legislature. This is consistent with the decision of the Court of Appeal in Hon. Abdullahi Maccido Ahmad v. Sokoto State House of Assembly & Anor, where the Court Per Salami JCA held inter alia that; The doctrine of separation of powers has three implications. A. that the same person should not be part of more than one of the arms or division of government; B. that one branch should not dominate or control another arm. This is particularly important in the relationship between (the) executive and the courts; C. that one branch should not attempt to exercise the function of the other…,The tripartite division of powers is necessary for the purpose of achieving balance of authority and power for the smooth running of government at any level. However, the doctrine of separation of powers is not without exceptions. The exceptions to the strict application of the theory of separation of powers are known as checks and balances. This is also provided for under the constitution for the purpose of checking the excesses one arm of government might indulge in, claiming constitutional protection. This is consistent with the view of Prof. Ben Nwabueze which is to the effect 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.Consequently, the framers of the constitution just made provisions which were not meant to amount strictly to checks and balances, but which somehow fused the powers allocated to the three arms of government intense. The focus of the next segment is on the limitations, exceptions or frustrations of the doctrine of separation of powers. INSTANCES OF FUSION OF POWERS UNDER THE DOCTRINE OF SEPARATION OF POWERS IN NIGERIA Firstly, under section 4(8) of the 1999 Constitution of the Federal Republic of Nigeria, the exercise of the legislative powers of both National Assembly and a State Assembly “shall be subject to the jurisdiction of courtof law and of judicial tribunals established by law”. The second part of the provision is to the effect that the National Assembly or a House of Assembly “shall not enact any law that ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law”. This completes the circle of an effect check on the powers of the legislature and also positions the judiciary as the custodian of the rule of law. Consistent with this declaration, is the view of Mustapher JSC in Inakoju v. Adeleke which is to the effect that: The courts have the jurisdiction and the competence and indeed are duty bound, to exercise their jurisdiction to ensure that the legislature comply with constitutional requirement. In addition, the Chief Justice of Nigeria is empowered by virtue of section 46(3) of the Constitution of Federal Republic of Nigeria, 1999 to make rules with respect to the practice and procedure of a High Court for thepurpose of enforcement of Fundamental rights. This has made the judiciary a promulgator instead of an interpreter of the law. Thirdly, the President of the Federal Republic of Nigeria is empowered to make regulations, under section 32 of the Constitution, concerning citizenship and immigration matters. Whereas subsection (2) of section 32 requires the president to lay before the National Assembly such regulations, the promulgating authority here is the executive (that is the president), and not the legislature. Again, the President, or the Governor as the case may be, is empowered, under section 175 and 212, respectively, to pardon convicted persons or to exercise his prerogative of mercy, by remitting, blotting out or extinguishing a convict’s sentence imposed by the judiciary. Yet still, by reason of section 292 of the 1999 Constitution, the president, together with the Senate or a Governor together with a House of Assembly may remove a judicial officer for stated misconduct. Not only that, section 315 of the Constitution, allows the President or a Governor to modify an existing law. Furthermore, section 160 and 204, respectively of the 1999 Constitution, allow certain executive bodies established under the constitution to regulate their own procedure, confer powers and impose duties on any other or authority for the purpose of discharging its functions; provided the approval of the president or the governor, as the case may be, isobtained beforehand. Elsewhere, the constitution allows the President or the governor to attend any meeting of the National Assembly or State House of Assembly, respectively, either to deliver an address on national or state affairs or to make such statements on policy of government as he considers to be of National or State importance. By the same token, a Minister of the Federal Government is obliged to attend either House of the National Assembly, if invited to explain to the House the conduct of his ministry and in particular when the affairs of that ministry were under discussion. Similarly, a Commissioner of a state if invited to explain to the Assembly the conduct of his ministry and in particular when the affairs of that ministry were under discussion. The legislative, on its part is empowered under section 143 and 188, of the 1999 Constitution to initiate, carryout and conclude the impeachment proceedings of the president or the vice-president; the Governor or the Deputy Governor. Thus in Attorney General of The Federal & Ors v. Atiku Abubakar & Ors, the Supreme Court opined that: Impeachment or removal of the President or Vice President from office by the National Assembly is a strong political weapon and solution to political problems that may arise in the Presidency either in the discharge of the constitutional function or conduct of the personality involved. Additionally, although a panel is to be appointed by the Chief Justice of Nigeria, or the Chief Judge of a state, as the case may be, to carryout certain investigations, such a panel will still submit it report to the legislature. Worst still, subsection (10) of both sections ousts the courts jurisdiction to inquire into the outcome of the impeachment proceedings. Again, the legislature must confirm all executive appointment of ministers and commissioners, who form an integral part of the executive. The National Assembly by virtue of the provision of section 80 of the constitution has authority over public funds and to determine the remuneration of members of the executive and the judiciary. However, such remuneration must be charged on the Consolidated Revenue Fund. It must also not exceed what the Revenue Mobilization and Fiscal Commission prescribe. Again, although the primary duty of the legislative is to make laws yet the constitution empowered it to conduct investigations, (which are strictly a quasi judicial Act) in order, amongst other things, to expose corruption, inefficiency or wastes in the execution or administration of funds appropriated by it. In addition, the constitution also gave what may be considered judicial powers to the Senate or the House of Representatives or a Committee so appointed. Such powers include inter alia, the power to issue a warrant to compel the attendance of any person who, after having beensummoned to attend, fails, refuses or neglect to do so and does not excuse such failure, refusal or neglect to the satisfaction of the House or the Committee in question. In view of this provision, the Court of Appeal in Senate of the National Assembly & Ors v. Momoh has held, inter alia and to the effect that the provision of the equivalent of section 89 of the 1999 constitution did not amount to an infraction on the powers of the judiciary and the executive. Furthermore, the president can exercise veto powers over laws made by the legislature, but such can be overruled by two-thirds majority of the National Assembly. However, in National Assembly v. President of the Federal Republic of Nigeria, the Supreme Court opined that such a veto can only be overturned by a two-thirds majority of the whole house and not a quorum and there must be a full reconsideration of the vetoed bill. That is it must go through all the stages for consideration of a bill. Lastly, while legislative confirmation is needed for appointment of Chief Justice of Nigeria, Justice of the Supreme Court, Chief of a State, among others; certain judicial officers are empowered under sections 236, 248, 259, 264, 269, 274 279 and 284 of the 1999 Constitution, to promulgaterules for regulating the practice and procedure of the respective courts, such judicial officers superintend. Conclusion The foregoing constitutes an erudite attempt to show that an examination of the constitutional provisions reveals that separation of powers was not intended to be water tight or exclusive. This is supported by the opinion of Prof. Ojo, which is to the effect that: A complete separation of powers is neither practicable nor desirable for effective government. What the doctrine can be taken to mean is the prevention of tyranny by the conferment of too much power on any one person or body and the check of one power by another. According, while the constitution proclaimed the separation of powers, it allowed for interdependence, and an expressly built in system of checks and balances.