THE principle of law is that one cannot give that which he does not have. This principle is derived from the Latin maxim – nemo dat non habet. It is upon this threshold that modern state constitutions acknowledge and embody the doctrine of separation of powers in the delineation of governmental powers to institutions and functionaries of government in such a manner that each circuit of governmental powers namely: legislative, executive and judiciary are administered by separate and distinct individuals.
Legislative Arm of government is empowered to make, amend or even repeal laws. •Executive Arm of government is empowered to execute the constitution (laws), formulate policies and maintain law and order. Judicial powers of government are vested in court of law duly established or recognised by the constitution.
This delineation of powers among the three organs is a safeguard against over-concentration of powers in an organ which may lead to abuse of power. It also constitutes checks and balances on the use of these powers by the three organs of government.
In practice, each organ is constitutionally barred from encroaching on the boundaries of another organ. The above is the contextual background of this paper. Definition: The doctrine of the separation of powers is a model for the governance of a state.
Under this model, the government of a state is divided into branches, each with separate, distinct and independent powers and areas of responsibility so that the powers of one branch are not in conflict with the powers assigned to and associated with the other branches.
Separation of powers, therefore, refers to the division of responsibilities into distinct branches to limit any one branch from exercising the core functions of another. The purposive and teleological intent of the doctrine of separation of powers is to prevent the concentration of untrammeled and unchecked power by providing for “checks and balances” to avoid autocracy, over-reaching by one branch over another, and the attending efficiency of governing by one actor without need for negotiation and compromise with any other.
The separation of powers interacts with both the rule of law and the supremacy of the constitution; and the independence of the judiciary ensures that the executive will be kept within the legal powers conferred by the constitution, and thus, simultaneously upholding the rule of law and constitutional supremacy.
Historical development of the Doctrine of Separation of Powers
Various writers are associated with the doctrine of separation of powers in its classical form. Aristotle who lived between 384 BC and 322 BC identified the three elements of the constitution in his famous work “The Politics”. Aristotle postulated that: “There are elements in each constitution in respect of which every serious lawgiver must look for what is advantageous to it …If these are well arranged, the constitution is bound to be well arranged…. The three are: first, the deliberative, which discusses everything of common importance; second, the officials; and third, the judicial element.”
It is beyond any doubt that the constitutional seeds of the doctrine of separation of powers were sown several centuries ago and indeed as far back as 300 years before Christ, emphasizing the need for government to act according to and under the law, a requirement made possible by separation of functions between the three institutions of the state.
The constitutional historian, F.W. Maitland, traces the doctrine of separation of powers in England to the reign of Edward I, when he posited that: “In Edward’s day all becomes definite, there is the parliament of the three estates, there is the king’s crown, and there are the well-known courts of law.”
Viscount Henry similarly advanced the doctrine of separation of powers. He was concerned with the necessary balances of powers within a constitution, arguing that the protection of liberty and security within the state depended upon achieving and maintaining some equilibrium with the crown, parliament and the people. Addressing the respective powers of the king and parliaments, Bolingbroke observed that: “Since this division of powers and these different privileges constitute and maintain our government, it follows that the confusion of them tends to destroy it. The proposition is, therefore, true; that in a constitution like ours, the safety of the whole depends on the balances of the parts.”
The foregoing underscores the far-reaching importance and significance of the operation of the doctrine of separation of powers in modern states and goes to show the inevitable dangerous consequences of its negation by governments in any modern state, since it is trite and axiomatic aphorism that “power corrupts and absolute power corrupts absolutely”, and that the arrogance of power is the worst form of arrogance ever known to man, among all the forms of arrogance to which man is susceptible.
Furthermore, it can be seen from the postulations of these writers and jurists mentioned above that the doctrine of separation of powers and the independence of the judiciary can veritably be said to be the twin pillars on which modern states and all normative governments are based. Thus, the entire edifice or superstructure of all modern states and governments ought to be established on the three pillars of separation of powers in executive, legislature and judiciary. The imperative for separation of powers was beautifully summarised by Roy Moore who stated: “The basic premise of the Constitution was a separation of powers and a system of checks and balances because man was perceived as a fallen creature and would always yearn for more power.” The relevance of separation of powers and its application to Nigeria.
Nigeria as presently constituted is a creation of our colonial master, the Great Britain, which had suzerainty over what is Nigeria today from 1855-1960, and shortly after the Berlin Conference, which dealt with the partition of Africa by the European colonial powers. Great Britain acquired control over different entities comprising the present-day Nigeria at different points in time, culminating in the amalgamation of Southern and Northern Protectorates in 1914 and to which Independence was granted in 1960.
Lord Lugard of the Royal Niger Company introduced some sort of governmental system for the new colony and the colony went through various constitutional phases, ranging from indirect rule to the Clifford Constitution of 1922, Richard Constitution of 1946, the MacPherson Constitution of 1951, and to the Littleton Constitution of 1954, and the Nigeria Independence Constitution of 1960. During these eras, few eminent Nigerians such as Obafemi Awolowo, Dr. Nnamdi Azikikwe and Mallam Aminu Kano agitated for independence and self-determination from the Colonial Master, the Great Britain, which culminated in Nigeria being eventually granted independence on October 1, 1960.
Unfortunately, Nigeria has not been able to achieve sustainable democracy since her independence, owing to an array of factors that “held her back” and prevented the consolidation of democracy in Nigeria. Juan J. Linz and Alfred Stephan (1996) succinctly put it thus: “There are a variety of different forms of authoritarians that fundamentally constrain any democratic transition in characteristic ways and systematically create obstacle to affect democratic consolidation. Different authoritarianism regimes affect the subsequent trajectory of transition effort toward democratisation in systematic ways.”
The Nigerian state has been enmeshed in different kinds of authoritarianism right from the colonial era to this present day. The Nigerian state is engaged in fierce struggle to break loose from all forms of undemocratic governance.
( To be continued)
AARE AFE BABALOLA SAN, CON