Application of Separation of Powers in Nigeria

Simply put, separation of powers is the division of governmental powers into the three branches of Legislative, Executive and Judicial powers, each to be exercised by a separate and independent branch of government.

The theory was best expounded and popularized by the French political scientist, Baron de Montesquieu in his book “‘Espirit des Lois, Chapter XI” which means the “spirit of the law” .

It should be noted, however, that the theory of separation of powers has its root from the Greek political Ideas. Both Plato and Aristotle conceived the idea of a mixed state as a means of avoiding undue concentration of government powers in the hands of one class or group of people. Baron de Montesquieu is only noted because his work, gave a very detailed and eloquent treatment of the theory.

Complete separation of powers has never thrived in practice for various categories of governmental functions are so mixed that they usually run into one another in a manner that makes it impossible for any one to sort them out neatly into their appropriate groups.

Consequently, although we generally say that the legislature makes the law, the executive executives the law and the judiciary interprets the law and apply it in the adjudication of disputes, we are not unmindful of the fact that the functions of the three classes are not exclusively for one another.

It is correct to say that the classification of governmental functions is generally dictated by administrative convince and not by any natural or inherent quality distinguishing one function from another.

Since there is usually no clear difference between the functions of the branches of the government, it is also difficult to put the doctrine into practice. Nonetheless, some constitution has actually adopted it hook line and sinkers.

For example; Article XXX of the constitution of Massachusetts, 1780 provides that;

“In the government of this common wealth, the legislative department shall never exercise the executive and judicial powers or either of them; the executive shall never exercise the executive and judicial power or either of them; the executive shall never exercise the legislative and judicial powers, or either of them. The Judiciary shall never exercise the legislative and executive or either of them; to the end of it may be a government of law and not of man”.

In Nigeria, the 1999 Constitution has provided for separation of powers in sections 4, 5 and 6. Sections 4 and 5 deals with the legislative and executive powers respectively, while section 6 is deals with the judicial powers.

Section 4 provides that;

“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 a House of Representatives.”

Section 5 states that;

“Subject to the provisions of this Constitution, the executive powers of the Federation: (a) shall be vested in the President and may subject as aforesaid and to the provisions 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 officers in the public service of the Federation”

And Section 6 states as follows;

“The judicial powers of the Federation shall be vested in the courts to which this section relates, being courts established for the Federation.”

Application of Separation of powers in Nigeria under military rule

With the advent of military rule in Nigeria, beginning from January 15, 1966 the military suspended and modified the 1963 constitution by virtue of the constitution (Suspension and Modification) Decree No. 1, 1966. By virtue of this decree, the 1963 constitution only existed to the extent it was not suspended and modified.

It also dissolved the parliament and fused Legislative and the Executive powers in the Supreme Military Council (SMC) which was the ruling military council. This fusion of both legislative and executive functions or powers is repeated in every military regime. The ruling military council has also been known as Armed Forces Ruling Council (AFRC) and Provisional Ruling Council (PRC), and so forth, in various military regimes.

In 1970, the military passed the Federal Military Government (Supreme and Enforcement of Powers) Decree No. 28 of 1970. In effect, this Decree jettisoned the constitution and made it impossible for any court to question the validity of any Decree or Edict.

Take for instance, whenever any Edict is clashing with the provision of a Decree, the jurisdiction of the court was ousted from looking into the matter. A popular case where this played out was the case of the Council of the University of Ibadan (UI) v Ademolekun (1967) All NL 225 SC.

Though the judiciary was never abolished nor its powers taken away by the military, it was usually not allowed to look into important matters in which the military government was interested in. Consequently, the theory of separation of powers was not practicable during military rule in Nigeria as the military wielded a lot of powers, especially leglislative and executive powers.

The reason why the Judiciary was left to still be in place was because, it is a very important branch of every government. That notwithstanding, the military still had judicial powers to themselves in most cases. An example is the case of Lakanmi v AG Western state (1971) 1 U.I.L.R. 201 and Governor of Lagos State and Ojukwu (1986) 1 NWLR (Pt. 18) 621.

It is essential to also note that while there was a total breakdown of the theory of separation of powers during the military rule in Nigeria, some smart judges were still able to circumvent the dictatorship of the military in some occasions.

The case of Tai Solarin & Ors v IGP Unrep. Suit No. M/55/84 Lagos High Court is one of the fortunate cases where the court was able to set the applicants free because their detention order were not made under the hand of the then Chief of Staff Supreme Military Headquarters as required by the statute.

Application of Separation of powers during civil regime in Nigeria

Nigeria has always entrenched the principles of separation of powers in her constitution, considering how important it is in a heterogeneous and democratic state. This is why Ogundare J.C.A in Ekpenkhio v Egbadon (1993) 7 NWLR pt. 308 p. 717 at 744 CA stated that;

“A Cardinal principle of our federal constitution in 1960, 1963 and even 1970 is the separation of powers of the Executive, Legislature and the Judiciary, but the judiciary has added the responsibility as a guardian and protector of the constitution.

Therefore, whenever the Executive or Legislative arm of government exceed their constitutional powers, the Judiciary on a proper application to it, will curb the exercise of such excessive powers and declare it a nullity”.

During civil rule, the constitution is the supreme law of the land and the rule of law is the basis of government actions. Conversely, any action by any branch of the government that is not in line with the provisions of the constitution is void to the extent of its inconsistency.

The current 1999 constitution of the federal republic of Nigeria has shared the government powers of the branches of government in section 4, 5 and 6. Section 4 provides for legislative powers, Section 5 provides for executive powers and section 6 provides for judicial powers.

Though, the constitution actually allows for checks and balances amongst the branches of the government, whenever any branch acts outside its powers, it will not be tolerated. This has also corroborated by the court of appeal in Orhiomwon Local Government Council v Ogeiva (1993) 4 NWLR Pt. 288 p. 468. In this case, the court held that;

“The principle of checks and balances in the local government system is meant to enhance the smooth administration of the local government councils and not to cripple it.”

Conclusion

The importance of the theory separation of powers cannot be over emphasized. Clarl J. Friedrich once said that “many who today belittle the separation of powers seem unaware of the fact that their clamour for efficiency and expediency easily leads to dictatorship”. By this, Friedrich was trying to say that, where there is no separation of powers there is always dictatorship.