OBJECTIVE OF THE DOCTRINE OF SEPARATION OF POWERS

INTRODUCTION

The doctrine of separations of power “stemmed from the observation of Locke of the condition prevalent in seventeen century England B.O Kuyomade (1984.5) Locke thought that it was convenient to confer legislative and executive power on different organs of government as the legislature can act quickly at interval while the executive must constantly be at work. In this way the different arms will be able to concentrate and carry out the affairs of government effectively. He argues that, it was foolhardy to give to law

markers the power executing the law, because in the process they might exempt themselves from obedience and suit of the law (both in making and executing it) in their individual interest. Locke (seventeen century 12-13). The doctrine of "separation of power" as understood today is due to the work of the French jurist Montesquieu who based his study on the works of Locke and on an imperfect understanding of the 18th century English

constitution". B.O Kuyomade (1984:5). In Nigeria, the 1999 constitution of Federal Republic of Nigeria provided for the practice of the separation of power. The three arms: The executive the legislative and judiciary were vested with power to carry out the functions of government differently without interference. The extent which this constitutional provision is applied in Nigeria leaves much to be desired. There is interference among the organs

of government. In most cases the executive who power dictate the tune in the functions of other arms of government. This is an abuse of power that is contrary to the doctrine of separation of power. To this end, some useful solutions to this problem are recommended.

CONCEPTUAL EXPLICATION

Power: Is the right, ability or capacity to exercise control; legal ability to do something or produce a certain effect for the purpose of political Science, power is the ability to influence or control others even against their will. Power is the chance of a man or of a number of men realizes their own will in communal action even against the resistance of others who are participating in the action (Shively, 2001).

Executive: is concerned with executing Laws, agreement etc, or with other administration or management. Executive is also concerned with making and carrying out decision that are goal-oriented in business and government (Eminue, 2005).

Legislative: Legislation is law-making; the law made while legislative is empowered to make legislation. Again the legislature is an arm of government whose primary function is to make law. (Eminue, 2005).

Judiciary: Is that department of government which administers the law. Again it is seen as that organ of government which interprets the law of the land Adegwe F. (1982)

OBJECTIVE OF THE DOCTRINE OF SEPARATION OF POWERS

The objectives of the doctrine of separation of power are as follows:

1. Avoidance of tyranny and ultimate safeguard of 1abour, all arms work for peaceful co-existence in society.

2. Separation of power makes for specialization in the sense that each arm of government specializes in some area of jurisdiction without interference.

3. Separation of power ensures decongestion of functions in one hand as functions are shared among the three organs.

4. Efficiency is employed in their suitable positions as a result of concentration in specialized functions. Separation of power brings about higher productivity as a result of dexterity in performance.

5. The corollary principle of separation of power enhances check and balances as one arm serves as a watch-dog over the other. In effect, there will. be independent co-operation as each arm monitors the activities of the other in an effort to preserve human liberty. Dare Leo and Oyewole A. (1989). In this doctrine so that it does not corrupt. By separation of power

Montesquieu meant:

1. There must be no interference into the affairs of one arm of government by the order.

2. No person should discharge more than one function.

3. No organ should exercise the functions of another organ.

It is pertinent to mention that the value of the doctrine lies with the checks and balances which are essential to prevent an abuse of the enormous powers vested in the rulers. Separation of power enables us to stop concentrating or vesting too much power in one organ and should this happen both democracy and rule of law will suffer in Nigeria. The doctrine has been well applied and represented under the 1999 constitution federal republic of Nigeria as follows:

THE LEGISLATIVE POWER

The legislative powers of the federal republic of Nigeria shall be vested in a national assembly for the federation which shall consist of a senate and House of Representatives. The National Assembly shall have power to make laws for the peace, order and good government of the federation or any part therefore with respect to any matter included in the exclusive list set our in part I of the second schedule to this constitution. Also, the legislative power of a state of the federation should be vested in the House of Assembly of the state. Part II section 4; 1, 2 and 6 of 1999 constitution federal republic of Nigeria. The legislative arm is empowered to make law for the power order and good government of the country. It has its functions as stated below.

Legislative Functions

1. Law making: This is the major function of the legislature. Bills are presented for debate in the house either through the executive or from the legislature and are signed into law by the president after successful deliberation.

2. The legislature determined the way In which government can raise and spend money by reviewing government annual budget.

3. Amendment of the constitution: The legislature has the authority to amend the constitution with two-third or one third majority depending. on the degree of rigidity of the constitution in question.

4. The legislative speaks on behalf of the people as their representative and also takes decision on their behalf.

5. Ventilation of grievances and expression of public opinion from their constituencies. Such opinions are discussed in the house and the executive alerted.

6. The legislature checks executive arbitrariness or the excesses of the judiciary.

7. Approval of executive appointment to state offices e.g. ministers board chairman, judges ambassadors etc.

8. Financial control: the legislature can audit government expenditure.

9. Investigation and checking abuse of office by public office holders.

10. Ratification of treaties and or declaration of war or state of emergency.

Dare Leo and Oyewole (1989) in summery, the main functions are as follow:

1. Law-making

2. Oversight functions

3. Public hearing and

4. Checks and balances.

It is pertinent to note that the area of coverage of legislature law varies in

its application. While that of the national assembly has a national outlook,

the state is limited to its jurisdiction.

The Executive Power

The power of the executive shall be vested in the president and may subject as afore said and to the provision of any law made by the National Assembly be exercised by him either directly or through the vice-president and ministers of the government of the federation or officer in the public service of the federation. This also extended to the state Executive. Part II 5/a and 2a of 1999 constitution federal republic of Nigeria. The executive arm carne

out decision that are goal oriented. It is geared toward initiating, formulating and directing general policy. It also includes the administration, implementation and application of policy directives.

FUNCTIONS OF THE EXECUTIVES

1. Legislation: The executive recommend bills to be considered as law and defend such bills in house up to approval stage.

2. Taking decision: the executive take decision about policies as lay down by law including ministerial or other directive such as resolution of EXCO.

3. Inspection: The way and manner particular activities are being carried out either by government official or private individual are organized by the executive.

4. Inquires: the executive in order to enhance smooth running of government set up inquiry into the operation of other government agencies and variety of event and circumstances. It could also be due to demand or public outcry.

5. Licensing: for the government to generate revenue, restriction in number of operators or regulating performance for the interest of the public, the executive bring specific activities of government under control through the instrumentality of licensing.

6. Liaison: the executive conduct international relation with other country.

7. Enforcement of standard: again the executive ensure standardization in the public interest as laid down in the legislationfitness for human habitation, fitness for consumption etc. Bisi Talwo (1982).

THE JUDICIAL POWER

According to the 1999 constitution of federal republic of Nigeria part II 6.1 the judicial powers of the federation shall be vested in the courts to which this section relates being courts established for the federation. The judiciary is the organ of government charged with the interpretation of the law of the land, legislation and arbitration. It is made up of legal experts divided into members of the bench and bars.

FUNCTIONS OF THE JUDICIARY

1. Interpretation of law: The judiciaries interpret the constitution of the land, the laws made by the constitution 'of the land, the laws made by the legislation and decree during the military era. It is worthy of note that there must be dispute between two or more persons (Lis Inter parties) or in case of inconsistencies of the law. The dispute must have locus standing justified and the judge must apply rule of law in his decision.

2. The judiciary has power to review the act of the legislature.

3. It protects the liberty of the individual. It is our last hope. Dare Leo and

Oyewole (1989). As it is in the words of Charles Evans Hughes in an address at Kimma New York on 3rd May 1997: "We are under a constitution but the constitution is what the judges say it is and the judiciary is the safe-guard of our liberty and our property under the

constitution".

THE EXTENT OF APPLICATION OF SEPARETION POWERS AND

SUBTAINABILITY OF DEMOCRACY IN NIGERIA

As a matter of fact, the principles of the doctrine of separation of powers have not been applied correctly in Nigeria. The country including the law enforcement agencies. Similarly the legislature may often be reluctant in voting for sufficient funding to the judiciary who tries to be difficult. Their salaries may even be withheld or delayed as what happened in Adamawa State judiciary resulted to industrials action. The three organs are not independence; there is constant interference in each others. The executive uses government machinery to influence decisions and policies articulated.

There was abuse of power during the military era; there was tyranny as they ruled by decrees. The effectiveness and independence of the judiciary which depends entirely on cooperation from the other arms of government is not feasible. The legislatures are influenced by the executive to dance to their tune. For instance the case of president Obasanjo who influenced the legislature to am8nd the constitution for third term agenda. Others were in area of appointments to favour a particular individual or groups, electoral

malpractices, award of contract etc. The judiciary who is a watch dog overseeing other arms of government through check and balances can not operate efficiently under influencing condition. It is only recently that the judiciary is waking up to its responsibility as can be seen in electoral tribunal judgment of Anambra state Mr. Peter Obi, Edo State and Delta State. The judgment pass by the Courts clearly shows that there is hope for democracy.

CONCLUSION

It is remarkable to note that the principle of the doctrine of separation of power can not be achieved without strict application. The value of the doctrine lies with the checks and balances which are essential to prevent an abuse of the enormous powers vested in the rulers. Separation of power enables us to stop concentrating or vesting too much power in one organ and should this happen; both democracy and rule of law will suffer. Again, the extent which the doctrine of separation of power can strive in Nigeria lies in the credibility of our leaders in these three arms in adhering to the rule of law, as Obaseki J .S.C. in Odi and Onor V. Asafile and Oner (1985) in W.L.R. 17 at 34 said:

"Laws are made for men and not men for laws. The administration of the purest principles of law among men for the good of men in its fairest Conception".

REFERENCES

Abdulsalami Ibrahim (1998:9). Principle and practice of administrative law in

Nigeria.

Adigwe.F. (1982) Essentials of government of West Africa Ibadan University

Press.

B.O. Kuyomade and B.U. Eka (1980) Cases and materials on administrative

law in Nigeria.

Beetseh, K. (2008). Electoral malpractice and political violence in Nigeria: a case study of

Kwande Local Government Area of Benue State.

Bisi Taiwo (1982) Government and Politic In West Africa, Great Britain

Wheaton A and Coy Ltd.

Charles Evans Hughes (1997: An address at Klnina, New York.

Dare Leo and Oyewole (1989) A Test-book of government for higher school.

Ibadan Onibonye Press and Book Ltd.

David Easton (1953:26). Model of system analysis Haguland Harop limited.

Eminue, O. (2005). Introduction to political Science 2nd edition Calabar: cats publishers.

F.R.N (1999). The 1999 constitution of Federal Republic of Nigeria.

Nwabueze, Ben (2003), Constitutional Democracy in Africa. Vol. I. Ibadan: Spectrum

Books.

Oberseki J.S.C (1982). Odi and Onei in N.W.L.R. 17 at 38.

Rosenfeld, Michel (1999). The Rule of Law and the Legitimacy of Constitutional

Democracy. Unpublished MS.

Shively, W.P. (2001). Power and choice: An introduction to political science 7th edition

New York: McGraw Hill.

Thomas T. Shut (2005:25) Introduction to Public Policy Making analysis.

Printed by Mono Expression Ltd.