Separation of Power in Government

Separation of Power in Government
Separation of Power in Government

INTRODUCTION:The existence of government is also said to be a necessary evil. An evil that no Society can afford to ignore or do without. Granted is irony, the attempt has always been as to how to ensure the maximum utilisation of the benefits of the welfare of the Citizens.

These accords with Bentham Theory of the “Greatest happiness of the greatest number” in the political Society as essence of law and government.As administrators and agents of government, it is imperative and very necessary to understand that the doctrine of Separation of Powers is a principle of democratic governance which enjoins that the functions of governments be exercised by different organs or branches so as not to concentrate the functions in one particular agency.

Itis also vitally important to state that the doctrine of Separation of Power of administrative functions and agencies is recognised and provided for in the sections 4, 5 and 6 of the 1999 constitution of the Federal Republic of Nigeria, which clearly defines the power and functions of the three organs or arms of government, i e the Legislature, the Executive and the Judiciary.

However, it appears it appears to be a sharp contrast and many have argued and held that the doctrine of Separation of Powers is to administrative law, since administrative agencies perform the duties that the three arms of government perform.

Though, and for the purpose of this discourse, one may not duelve into that argument, but suffice it to say that even if administrative agencies perform the same functions performed by the three arms of government as subordinates, it does not, but encourages the mainstream and whole purport of the doctrine that governmental functions should not be vested in one and same person as it is the practice with military administrations.


The doctrine of Separation of Power is one device used by the Anglo American System of government to protect the rule of law and to prevent the exercise of arbitrary Power by the sovereign [King, Ruler or President in modern political ranking].


The doctrine of Separation of Powers is traceable to early political thinkers as Plato and Aristotle who realising the danger of an unchecked Power conferred in any human being for a co-ordinate exercise of power, called attentions to the basic types of functions of a State.

Not much impact of the doctrine was felt by the inputs of the afore mentioned Philosophers until about the 16th century when a French philosopher John Bodin expressed more ideas about the doctrine and in the 17th century, a famous British Politician John Locke alluded to the three functions of government emphasizing emphatically that to prevent arbitrariness there should be a constitutionally created government divided into the Legislative power for creation of Rules to protect rights; The Executive Power by which laws are enforced; Federating Power which concerns the making of peace and external relations.

Locke did not make any conscious attempt to separate the Legislative and Executive Powers from the Judiciary.

However, in 1748 a French jurist Montesquieu gave the concept is modern bearing. According to Montesquieu:

“When the Legislative and Executive Powers are United in the same person, or in the same body of magistrates, there can be no liberty, because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical mManner. Again, there is no Liberty if the Judicial Power be not separated from the Legislative and Executive. Where it is joined with the Legislative, the life and Liberty of the subject will be exposed to abituary control, for the judge would be then the legislator. Where it is joined to the Executive Power, the judge might behave with violence and oppression. There will be an end of everything, where the same man or the same body, whether the nobles or the people, to exercise those three powers that of enacting laws, that of executive the public resolutions and of trying the causes of individuals”.

The beauty of Montesquieu’s systematic exposition of the doctrine is that it contains both the idea of the doctrine as well as the consequences of failure to observe the doctrine. In a nutshell, he contends that if power is not checked, it will be abused.

Montesquieu’s idea fell in agreement with the thinking of Lord Acton who observed that ;Every Power tends to corrupt and absolute Power tends to corrupt absolutely”.

The summary of his exposition is that ;No organ of government shall exercise the function of another organ. No one organ shall control or interfere with the function or power of another.That the same persons or body of persons shall not form part of more than one of the three organs of government.


The doctrine of Separation of Power greatly influence the political and democratic development of the Nations of the world, Nigeria inclusive section 4, 5 and 6 of the Constitution of the Federal Republic of Nigeria is a practical demonstration of the doctrine of Separation of Power.

Section 4 provides thus;4 [1]. 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 the House of Representatives. Section 5 [1] [a] Provides; Subject to the provisions of this Constitution, the executive powers of the Federation-[a] Shall be vested in the President and may, subject aforesaid to the provisions of any law made by the National Assembly be exercised by him either directly through the Vice-President and Ministers of the Government of the Federation or Officers in the Public Service of the Federation. Section 6 Provides thus ; 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.

An extreme demonstration and adherence to the third limb of Montesquieu’s summary of the doctrine of Rule of Law was provided for the section 147 [4] of the Constitution of the Federal Republic of Nigeria 1999 to the effect that; “Where a member of the National Assembly or of a House of Assembly is appointed as Minister of the Government of the Federation, he shall be deemed to have resigned his membership of the National Assembly or of the House of Assembly on his taking the oath of office as Minister. Far back as 1968, the Supreme Court upholding the doctrine of Separation of Powers in Nigeria declared the Ultra Vires and invalid Decree No. 45 of 1968 which was considered by the Court as an exercise of Judicial Power by the Executive. As the Court observed ;”

In an attempt to abate crown the efficiency of the decree, it purported to about all actions and appeals pending before any Court.

In short, it stopped the pending appeal of the appellant in the Western State Court of Appeal. We have come to the conclusion that this decree is nothing short of Legislative Judgement, an Exercise of Judicial Power. It is in our view Ultra Vires and invalid”.

Please read the following cases carefully:1. Nwosu V. Imo State Environmental Sanitation Authority [1990] 2 NWLR [Pt. 135] Pg. 630. 2. Sode V. Attorney – General of the Federation [1990] 1 NWLR [Pt 128] Pg. 500.


It is vitally important at this juncture to ask the fundamental question; what exactly do we mean by the words “control” or” interfere”.

It is note worthy to state that the words – “control or interfere” are covered by the Principle of Checks and Balances which adds beauty and colour to Democratic governance in any society.

It is a process by which the Constitution of the Federal Republic of Nigeria 1999 empowers the arms of government to carry out oversight functions on one arm of government to verify functions of another organ or arms of government.

For instance, Sections 88 and 143 of the Constitution of the Federal Republic of Nigeria 1999 respectively authorises the National Assembly to investigate the financial engagement or dealing of the executive and to impeach the President. Recall the threat to impeach Former President Goodluck Jonathan if he fails to implement 2012 Budget up to 100% by September, 2012.

Also, appointment of Ministers by the President must be confirmed by the Senate, then he can sack at his will. Vitally too, the President may initiate bills but he cannot participate in National Assembly proceedings toward the passage of the bill.

Also, the legislature can delegate Powers to the executive to make laws, this includes administrative agencies. Armed with such delegated powers, the executive and administrative agencies make rules and regulations.

Consequently, Section 32 of the Constitution of the Federal Republic of Nigeria 1999 empowers and authorises the President to make subsidiary legislation regarding Nigerian citizenship as follows:

“The president may have regulations…. prescribing all matters which are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to the provisions of…. and for granting special immigrant status with full residential rights to non – Nigerian spouses of Citizens of Nigeria who do not wish to acquire Nigerian Citizenship”.Interestingly also, the legislature and executive arms of government participate in the appointment of judicial officials at whatever level [ be it federal or state].

The executive, one way or the other may be members of the Judiciary particularly quasi-judicial body such as tribunals, etc. Note, judicial workers salaries are paid by the executive.

Judicial decisions and judgements against government interests are perceived as judicial control and interference in the functions of the executive.

Another vital point is delegation of Powers and functions where administrative agencies appointed or an appendage of the executive perform judicial functions such as mobile court on environmental sanitation or traffic violation.

Similarly, judicial Arms of government interprets the laws made by the legislative arm thereby exercising some form of control and interference particularly when it declares such laws as Ultra Vires or inconsistent with the provisions of the Constitution of the country also made and amended by the legislature.

In the light of the foregoing, the doctrine of Separation of Power is a conceivable idea which ensures discipline in the exercise of administrative and governmental functions, yet its observance is not without the qualification of exceptions and cannot on its own be an idol to democratic tenets and good governance.

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