culled from VANGUARD, January 19, 2005
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 courts and interprets the laws. It is this latter function that constitutes the court’s power of "judicial review".
The above system is usually described as a "horizontal" separation of powers. In a federal structure, there is yet another type called "vertical" separation of powers whereby governmental powers are shared between the central government and the fringe governments (i.e the state and the local governments). Our aim in this essay is to expose the meaning and origin of this separation doctrine. We shall also relate our findings to the Nigerian constitutional provisions and harp on the need thereof for the growth of our nascent democracy.
MEANING AND ORIGIN OF THE CONCEPT
The doctrine of separation of powers developed over many centuries. The evolution of this concept can be traced to the British Parliament’s gradual assertion of power and resistance to the royal decrees during the 14th Century. The English scholar, James Harrington, was one of the first modern philosophers to analyze the doctrine. In his essay, "Commonwealth of Oceana" (1656), Harrington, building upon the works of earlier philosophers like Aristotle, Plato and Machiavelli, described a utopian political system that included a separation of powers. English political theorist, John Locke, gave the separation concept more refined treatment in his Second Treatise on Government (1690). Locke argued that legislative and executive powers were conceptually different, but that it was always necessary to separate them in government institutions. Judicial power, however, played no role in Locke’s thinking.
The modern idea of the separation doctrine was explored more profoundly in The Spirit of Laws (1748), a study by French political writer, Baron de Montesquieu. He based his exposition on the British Constitution of the first part of the 18th Century as he understood it. His statement of the doctrine has thus been interpreted: "If the executive and the legislature are the same persons, there must be a danger of the legislature enacting oppressive laws which the executive will administer to attain its own ends". Montesquieu therefore outlined a three-way division of powers in England among the Parliament, the king and the courts, although such a division did not de facto exist at the time. Nevertheless, Montesquieu believed that the stability of English government was due to this practice even though he did not use the word "separation".
It therefore goes without saying that Harrington, Locke, Montesquieu and other writers saw the concept of separation of powers as a way to reduce or eliminate the arbitrary powers of unchecked rulers. This is closely related to the doctrine of "checks and balances"—the notion that government power should be controlled by overlapping authority within the government and by giving citizens the right to criticize state actions and remove officials from office.
Thus, "separation of powers" as currently understood implies that none of the legislative, executive and judicial powers is able to control or interfere with the others (e.g the judges should be independent of the executive and the legislature), or that the same individuals should not hold posts in more than one of the three branches (eg that ministers should not be members of the legislature or vice versa), or that one branch of government should not exercise the functions of another (eg, that executive should not make laws).
Most democracies separate governmental powers to some degree in practice if not in their constitutions. Italy, for instance, has a separate constitutional court to review cases that raise constitutional issues. Such democratic countries create such mechanisms to ensure judicial independence from legislative and executive officials. But some scholars argue that creating an extreme separation of powers can make government less effective because it increases the possibility of governmental paralysis. If the leaders in different branches of the government disagree about fundamental objectives, the country’s official business can come to a standstill.
The critics of the doctrine of separation of power also point to countries like United Kingdom as examples of strong democracies without a separation of powers. In the United Kingdom, the Prime Minister and members of the cabinet are all members of Parliament. The courts, although they function independently, have no ultimate powers of judicial review as in the United States, and the highest appeal is to the House of Lords, a branch of the Parliament.
A total absence of separation of powers, however, often figures prominently in extreme repressive governments. Countries like China, Czechoslovakia, Poland, and Russia were ruled by communist governments for part of the 20th Century, and an absence of a separation of powers in these regimes made it easier for leaders to abuse their authority. In these countries, political party leaders held virtually all authority which was concentrated in a few very powerful ministries and other executive agencies. Courts and legislatures in these countries did not have enough power to prevent the military, police and other executive officials from repressing citizens. When the communist parties fell in many of the countries of Eastern Europe in the early 1990s, one of the first political reforms was to break up the concentration of government’s power and allocate responsibilities to separate branches.
There is no gainsaying the fact that a government of separated powers is less likely to be tyrannical and more likely to follow the rule of law. A separation of power can also make a political system more democratic. The division of powers also prevents one branch of government from dominating the others or dictating the laws to the public. Hence most democratic systems have some degree of separation of powers. In what follows, we shall concentrate on the Nigerian constitutional provisions for the principle and subsequently on the practical application thereof.
In the present 1999 Constitution of the Federal Republic of Nigeria, separation of powers is a fundamental constitutional principle. Relevant sections of the Constitution place each of the basic powers of government in a separate branch. Thus, while sections 4 and 5 deal with the legislative and executive powers respectively, section 6 is concerned with the judicial powers. These provisions are in pari materia with those of sections 4, 5 and 6 of 1979 presidential constitution. In the 1999 Nigerian Constitution, there is also a vertical separation of powers between the Federal Government and the state governments especially.
Thus while federal legislative power is vested by section 4 (2), (3) & (4), the state legislative power is conferred by section 4 (6) & (7). The adumbration of the contents of respective powers is contained in the second schedule of the Constitution. In the same manner, while the federal executive power is enshrined in section 5 (1), that of the state is contained in section 5 (2).
Again, that the local governments described as the third tier of government at the instance of Decree 17 of 1985, also have powers can be attested to by the provisions of section 7 (establishment) and of the 4th schedule (functions) of the 1999 Constitution. Thus, there is clearly a constitutional separation of power in Nigeria both vertically and horizontally.
But it must be noted that in Nigeria, the three branches are not completely sealed off from each other. There is no complete and total separation of powers. The president or the governor shares the law making power of the legislature by virtue of the constitutional provision for presidential or governor’s assent to bills before they become laws (see sections 58 (1) & 100 (1) ). This however shrinks at the event of presidential or gubernatorial refusal in which case the respective legislature can override the said refusal with 2/3 majority vote at fulfillment of relevant conditions. (see sections 58 (5) & 100 (5).
The presidential power to issue executive orders in some areas is another major exception to the separation of powers. Such orders include that of the prerogative of mercy or grant of pardon as contained in section 175 of the 1999 Constitution. Similar provision for the state governor is contained in section 211 (supra). These powers clearly derogate from the powers of the judiciary to impose sentence after a due process of adjudication. This is also the case in appointment of judges even though with the approval of the legislature. Again, the fact of legislative confirmation at the event of president’s or governor’s appointments of the member of the executive council and the legature is a clear testimony to an exception to the separation theory (see sections 147 (2) and 192 (2) of 1999 constitution).
Morestill, subject to the provisions of any Act or Law of relevant legislative bodies, the respective heads of each constitutional court (see section 6 (5)) may make rules for regulating the practice and procedure of the said court (cf sections 236, 248, 254, 259, 264, 274, 279 & 284 of 1999 Constitution). Hence insofar as the power of making rules or laws clearly belongs to the legislature, assigning such power constitutionally to heads of courts would certainly be an exception to the principle of separation of powers. Making of byelaws by bodies other than legislative is also located herein.
All these illustrations and more serve to point to the fact that Nigerian Constitution does not advocate for a total separation of powers. Therefore in Nigeria, the separation of powers necessary for maintenance of liberty is reconciled with the need for their co-operation with, and dependence on, each other. There is a realization that some union of powers promotes harmony in government and some separation makes for liberty, while both are essential for efficiency.
"SEPARATION THEORY" IN PRACTICE IN NIGERIA
One of the greatest mishaps to the smooth running of Nigerian polity is military dictatorship. More that two-third of its independent existence was an experience of military engineering during which people’s liberty and fundamental rights were trampled under foot. Usually, whenever the military strikes, the first legislative act is always in the form of constitution suspension and modification decree. By this act, ouster clauses become regnant. Decrees generally become supreme laws and all other laws including the constitution are seen as inferior and subject to decrees. These were the holdings of our courts in Abuna V. Attorney General of Federation (1995) 5 NWLR, pt 396, and in Attorney General of Anambra V. Attorney General of Federation (1993) 6 NWLR, pt 302, p.691.
It was also held in Military Government Ondo State V. Adewomi (1988) 3 NWLR, pt 82 and in Okechukwu V. Alagba (1991) 8 NWLR,pt 207, p.64 that during the military era, the unsuspended portions of the constitution are taken as incorporated into the various supremacy decrees which can alter, amend, abrogate or repeal any part of the constitution.
The net effect is that in militarism, the concept of separation of powers endemic in democratic and federal system of government is abused. The military usurps and merges into itself the executive and legislative arms of government. The judiciary is only left with determining the question of inconsistency between an edict and a decree, and between a decree and the unsuspended portions of the constitution. The judiciary is also left with adjudicating on only those matters not affected by the ouster clauses.
Such as the above was the case under Decree 107 of 1993 where the Head of the Federal Military Government (FMG) was effectively the embodiment of the legislature insofar as decrees he signed or said he signed were self-sufficient and could not be challenged in terms of whether the Provisional Ruling Council (PRC) actually authorized them ( cf sections 3 (1), 3 (4) and 5 of Decree 107 of 1993). Thus, we remember the courageous attempt in late 1994 by Olu Onagoruwa, the then Attorney General of Federation to challenge the validity of some decrees which he said were never deliberated upon at the PRC and never passed through his office. He failed and was actually bulldozed out of the government. Similarly, section 6 of the said Decree 107 vested the executive powers of the Federal Republic of Nigeria on the Head of the FMG.
It is only in respect of the judicial sphere that a battle was waged. There is however no doubt that if the Head of the FMG so decreed, the judicial powers should have been transferred to him. The Supreme Court had so admitted in a number of cases including the case of Ojukwu V. Governor of Lagos State (1986) 1 NWLR, pt 18, p. 621. This position was also upheld in Obeya Memorial Hospital V. Attorney General of the Fed. & Anor (1987) 7 SCNJ, p. 42.
In Ojukwu however, Eso JSC had cause to say that though the FMG had undoubted power to rule arbitrarily, but insofar as it had chosen to operate under laws, it must obey court orders and refrain from exercising powers within the judicial sphere. But this judicial dictum could not deter the FMG from inflating the Court of Appeal decision in M.K.O. Abiola V. The Fed. Republic of Nigeria (1994) 1 NWLR, p. 155.
This was an appeal against the refusal of bail by Justice Mustafa of the Federal High Court, 14th July,1994. The Court of Appeal, Kaduna Division allowed the appeal and granted bail to M.K.O. pending the determination of the main charge against him by the lower court. Instead of complying with this court order, the FMG held tight to Chief Abiola and purported to appeal to the Supreme Court. This was in spite of the well known rule that an appeal does not automatically constitute a stay of execution of the order appealed against. The contempt continued until Abiola lost his dear life.
Quite apart from the refusal to obey the court orders, the military tried in many ways to exercise the judicial powers of the state. They enacted ad hominem decrees which passed individual judgements such as decrees proscribing the GUARDIAN, CONCORD and PUNCH group of newspapers in 1994. In Lakami V. Attorney Gen. West (1971) 1 UILR, p. 201, the supreme court said this sort of law was illegitimate but unfortunately Decree 28 of 1970 overruled it.
The Supreme Court based its decision on the argument that ad hominem decrees against specific named individuals amounted to a judicial rather than a legislative act, and that only the courts are entitled to make judgments on individual cases. Unfortunately, the matter was not handled with the same courage in a similar issue raised in 1994 in the case of Guardian V. Federal Republic of Nigeria.
Similarly, under the various Robbery and other Special Civil Disturbances decrees including the 1987 version under which Ken Sarowiwa was killed on 10 November 1995, the military stealthily encroached on the judicial field insofar as it reserved for itself the position of ultimate appeal court.
The relevance of the above adumbration of military violation of the principle of separation of powers is to help us demonstrate the fact that things have not even so mush fared better even in the present ‘democratic’ dispensation. The recent flouting of the order of the Court of Appeal, Enugu Division per Justice Mahmud Mohammed, 12 January 1004 by the Inspector General of Police (IGP), Mr. Tafa Balogun, a lawyer, is a case in point. The IGP following the 2 January 2004 order of Justice Stanley Nnaji of Enugu State High Court, removed, inter alia, the security orderly of Governor Chris Ngige of Anambra State.
It was on appeal by the Governor that a superior order by the Court of Appeal, a superior court, was made to preserve the res and maintain the status quo ante bellum. The continued and flagrant disobedience to this court order until recently is a clear recast of the executive macabre drama that took place in the case of MKO Abiola (supra). No doubt, that executive action (the police belongs to the executive) tantamount to a stark derogation from the principle of separation of powers for by the inflation of the Court of Appeal decision the executive is invariably usurping the adjudicatory and interpretative functions of the court.
Recently, too, the unilateral imposition of fuel fax by the chief executive of the federation, an act that violates the provisions of section 59 of 1999 constitution, is another case in direct collision with the separation theory. The section provides for the mode of exercising federal legislative power on money bills. Subsection 2 thereof requires that such bills, including "imposition of or increase in any tax," (cf section 59 (1) (b)) must be passed by both houses of the National Assembly plus the presidential assent before they become laws.
But what happened in the instant case was that the bill emanated from the chief executive and was at the same time passed by the same executive without any legislative consideration. This, no doubt, was a state-of-the-art imitation of the military way in clear usurpation of the duty of the legislature. It was only thanks to the suspension order of the Abuja Federal High Court per Justice Salami at the instance of the anti-fuel tax protest by the Nigerian Labour Congress that the matter is for the time being rested.
On yet another development, even as we have not been aware of the outcome, the so-called local government reform moves initiated by the executive recently is not unconnected with the failure to observe the principle of separation of powers. The 1999 Constitution of the Federal Republic of Nigeria does not in any section make provisions for the procedure for any reform in the local government structure. The implication of this is that any move to engage in such a reform must proceed in form of a bill that must be passed by the National Assembly insofar as the reform pertains to the whole local government areas in the nation. What we witnessed however was that everything hereunder was enshrouded in mystery and the National legislature was carefully schemed out. Right now we hear nothing about the reform or its result. But it seems the hiddenness of the executive agenda in this regard is most manifest in the recent local council elections in which the ruling PDP carried almost the whole day.
On the vertical separation plain, the matter is not different. The recent death blow by the federal government on the creation of new local governments by some state Houses of Assembly is quite illustrative. With due respect, we wish to submit that everything about the creation of new local governments constitutionally belongs to the state House of Assembly (cf section 8 (3)). The role of the National Assembly thereafter is clearly stated in the constitution. Hence section 7 (6) (a) urges the National Assembly to "make provisions for statutory allocation of public revenue to local councils of the federation".
And by virtue of section 8 (6), the state House of Assembly is only required to "make adequate returns to each House of the National Assembly "for the purpose of making provisions with respect to the name and headquarters of the local governments in accordance with section 8 (5) of the constitution. It is good to note that none of the acts involving creation per se includes the participation, approval or disapproval by the National legislature. The latter’s role is only after the said creation has been made according to the relevant conditions. Therefore the recent seizure by the federal government of revenue allocations belonging to some states on account of creation of new local councils by the latter seems to amount to a derogation from the separation principle.
It is also good to note that the dictatorial tendencies that characterize some of the executive fiats and polices within the present Nigerian polity speak volume of the non adherence to the separation doctrine. The economy is in shambles. Life is not worth more than a nickel. From Odi to Zaki-Biam’s cold blooded massacre of harmless children and women; from Ikeja Military cantonment bomb blast to various internecine wars; from vicious armed robbery attacks to hired assassinations, the present government has a lot of questions to answer.
Using the various state apparatuses of coercion, the federal chief executive has been galloping roughshod across the length and breadth of Nigeria playing god. In an unparalleled vindictiveness, he threw all his perceived enemies into jail, destroyed the businesses of the remaining ones and cowed the rest. This is despite the fact that the manner in which the present government assumed power is far from fair. It appears to us that since "separation of powers" is a liberty-sensitive concept, the high level of unfreedom and violation of fundamental rights of Nigerians is a clear testimony to the fact that the separation theory is never considered.
As if these were not enough, the declaration of state of emergency in Plateau State by the federal government, May 18, 2004, is yet another menace to the separation theory. Section 305 of the 1999 constitution of the Federal Republic of Nigeria vests on the president the power to declare a state of emergency. But it should be noted that such a state can never be declared unless certain relevant conditions are met. Besides, a declaration of a state of emergency comes only as a last resort.
So that in a federalism, characterized as it were by a separation of power, a proclamation of a state of emergency with its consequential action of suspension of the elected arms of government and an enthronement of a sole administrator accountable only to the president should be an equitable relief. Because of that , such a proclamation must be a result of a conscionable, equitable, conscientious and even moral consideration.
Therefore, the fact that most critics of the Obasanjo’s administrative act hold, and rightly so, that the situation in Plateau State was not as bad as that in Kano, Kaduna, Lagos and Niger Delta areas casts an aspersion to the sincerity behind the proclamation. Thus, insofar as the situation on ground in Plateau enclave was not enough as to warrant a proclamation of the state of emergency, then the action of the federal government could really be said to be a usurpation of the powers of the government of Plateau State in total disregard of the vertical separation principle. So the question is not so much of whether the act was constitutional as to whether there was sufficient reason for it.
Moreover, some recent events in which some members of the federal executive have been fingered and alleged as perpetrators in relation to internal problems of some states can rightly amount to a direct assault to the practice of vertical separation of powers. Hence in Plateau state, it was a plot for non-return after emergency rule, of Dariye over an alleged false declaration of assests. In Delta state, it was the removal of Ibori over a case of confused identity of one Ibori who was convicted by Bwari Area Court in 1995.
But it was in Anambra State that this federal interference seemed to have reached its apogee. In a bid to satisfy some selfish interests, some thugs, by way of some circumstantial evidence, conspired with the Federal government to intimidate or even to unseat a democratically elected governor, Ngige.
The correctness of this assertion cannot be in dispute as the Police, a very important federal agency, merely sat and watched the State engulfed in an inferno due to the activities of arsonists (cf S.443(a) of the Criminal Code, C.C.) and those who could not but be guilty of treason (S. 37 (1) of C.C.) were they to face court trial. By that, the Balogun-led Nigeria Police cannot exonerate herself from the offence of concealment of treason as created by section 40 of the Nigeria Criminal Code. But it appears the Police merely acted a script written by the federal executive. What a derogation from the separation doctrine!
The above considerations constitute only a tip of an iceberg of what can be discussed about the doctrine of separation of powers vis-à-vis governance in Nigeria. There is no gainsaying the fact that a genuine practice of separation of powers is germane to the sustenance and survival of democracy in Nigeria. But such a practice would not be one in which there is separation of functions but no separation of the functionaries as in military dictatorship.
Nor would it be one in which the functionaries are separated but the functions remain unseparated as obtainable in centuria centuriata and comitia tributa of the Roman Empire. It would certainly be one in which both the functions and functionaries are respectively separated in such a way that no one person holds more than one function both vertically and horizontally. It is only this type that would guarantee the much needed liberty, respect for human rights, justice, peace and general welfare of Nigerian citizens in what is supposed to be a democracy and not a dictatorship.
Fr. Ikenga Oraegbunam is the Vice Rector of All Hallows Seminary Onitsha and a Law student at Nnamdi Azikiwe University Awka.