Definition of the Concept Called Separation of Powers

Separation of powers or classification of government powers is the division of government powers into three branches of legislative, executive, and judicial; each to be exercised by a separate and independent arm of government as a preventive measure against abuse of power, which will occur if the three powers are exercised by the same person or group of persons.

MUST READ:B

1. Attempts at Defining the Rule of Law-Supremacy of the Law
2. Basis and Justification of Federalism
3. CHARACTERISTICS OF A FEDERAL SYSTEM OF GOVERNMENT
4. CONSTITUTIONAL LAW AND ADMINISTRATIVE LAW
5. Colonial Period in Nigeria – 1951-1953-The MaCpherson Constitution 1951-The Lyttleton Constitution, 1954
6. Constitution as a Social Contract
7. Constitutional Forms
8. Definition of the Concept Called Separation of Powers
9. Enforcement of Rights and Protection
10. Equality before the Law

Thus, the concept of separation of powers may mean at least three different things.

1.  That the same person should not form part of more than one of the three organs of government.
2. That one organ of government should not control or interfere with the work of another. For example the judiciary should be independent of the Executive and the Legislative.
3.  That one organ of government should not exercise the function of another. E.g. the Legislature should not carry out judicial  functions.

Thus, separation of powers is the constitutional doctrine of the division of powers of government into the three branches of legislative, executive and judicial powers, each to be exercised by a different group of persons as a means of checks and balances in the government structure itself, and to protect the people against tyranny.

The three traditional arms of government or types of government power or division of government are the:

1.  Legislative: the law making arm of government 
2.  Executive: the implementation of laws 
3.  Judiciary: the interpreters and judges of the law. 

The doctrine of separation of powers as understood today came largely
 from the work of the French jurist, Baron De Montesquieu, in his book “The Spirit of Law” (Espirit Des Lois Chapter XI) who studied and expanded the work of John Locke. He was concerned with preservation of the political liberty of the citizen. According to Montesquieu:

Political liberty is to be found only when there is no abuse of  power. Experience shows that everyman invested with power  will abuse it by carrying it as far as it can go. To prevent this

abuse, it is necessary from the nature of things that one power  should be a check on another. When the Legislative, Executive  and judicial powers are united in the same person or  body…………. There can be no liberty………..again there is  no liberty if the judiciary powers is not separated from the  legislative and executive……. there would be an end of  everything if the same person or body, whether of the nobles or  of the people, were to exercise all there powers.

Therefore concentration of powers in the same person or body would no doubt lead to tyranny because power corrupts and absolute power corrupts absolutely.

In this vein, Prof Ben Nwabueze said “Concentration of government powers in the hand of one individual is the very definition of dictatorship, and absolute power is by its very nature arbitrary capricious and despotic”. In the words of Chief Obafemi Awolowo, 

“Man loves power, in the family, vicarage, town and state, in the club, groups, association businesses, in the institution of learning, newspaper office……. In this entire sphere, you see him always exacting in the use and abuse of power”.

In another breath he said “An independent judiciary is one of the bulkwarks of the liberty of the citizen….. a judiciary which is subservient to the executive and the legislature will be bound to administer the law with partial affection for those in authority and to the prejudice of the governed”.

According to Abiola Ojo, “a complete separation of powers is neither practicable nor desirable for effective government. What the doctrine can be taken to mean is the prevention of tyranny by the conferment of two much power on anyone person or body and the check of one power by another”. The courts have continually pronounced on the importance of this concept.

In Lakanmi and others V Attorney General of Western State, the court noted inter alia   We must here revert once again to the separation o powers, which the learned, Attorney General Himself did not dispute still represent the structure of our system of government. In the absence of anything to the contrary it has to be admitted that the structure of our constitution is based on separation of powers – the legislature, the Executive and the Judiciary. Our constitution clearly follows the model of the American constitution. In the distribution of powers, the courts are vested with the exclusive right to determine justifiably controversies between citizen and the state … we must once again point out that those who took the government of this country in 1966 never for a moment intended to rule but by the constitution. They did in fact recognize the separation of powers and never intended an intrusion on the judiciary. Section 3(1) of Decree 1 of 1966 does not envisage the performance of legislative function as a weapon for exercise of judicial powers, nor was it intended that the federal military government should, in its power to enact decrees, exceed the requirements or demands of the necessity of the case.

In Bamidele and others V Commissioner for Local Government and Community Development Lagos State Uwaifo JCA, as he then was, remarked on the important role of the courts in seeing that the constitution observed in a society.

“In a democratic society governed by a democratically elected government under the law and the constitution, this illegality, no matter its salutary intervention should not be permitted. Once a situation like that is allowed to go unchallenged by whoever is affected, more serious infractions will soon be committed. In due course, the constitution is rendered irrelevant. That means a slide into authoritarianism. All these and the non observance was connived at or acquired in, and the court in a competent action did nothing about it. That does not augur well for democracy and the rule of law. It rather weakens their framework and their practice”.

Unfortunately, it is because of the incapacitation of the courts in this respect under military rule that those traditional concepts cannot exist.