Doctrine of separation of powers

Separation of powers is the division of a state’s government into branches, each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with those of the other branches. 

It is also the vesting of the legislative, executive, and judiciary powers of government in separate bodies. Constitutional arrangements based on separation of powers

Separation of powers and responsibilities is an important principle in the organization of modern government.

In this article, we shall examine the principle behind the theory of separation of powers, its objectives and applications in selected countries, as well as its merits and demerits. 

Whereas separation of powers and responsibilities is key to the workings of modern government, no democratic system, in practice, exists with an absolute separation of powers or an absolute lack of it. 

Governmental powers and responsibilities essentially overlap because they are too complex and interrelated to be neatly compartmentalized.

Meaning nature of Separation of Powers

Separation of powers is the division of government responsibilities into distinct organs to limit any of the organs from usurping and exercising the core functions of another organ. 

The purpose is to prevent the concentration of power and provide for checks and balances.

The theory simply enjoys that the same body or person should not be in control of more than one arm of government. Power must not only be separated but must also be exercised by different persons or body of persons.

Separation of powers is the division of the powers and functions of government among the three independent and separate arms of government, that is, the legislature, executive and judiciary, to act as a check and balance on one another and prevent the excesses and abuse of powers. 

The primary purpose of the concept is to guard against dictatorial rule by avoiding concentration of all the powers of government in one hand, or more than one person being involved in more than one of the powers of government or one arm of government exercising control over the other.

According to a French political jurist – Baron de Montesquieu, the concentration of the legislative, executive and judicial functions in the same person or body of persons would be dangerous and would cause authoritarianism and despotism.

Hence, the need to separate these powers to provide a system of checks and balances to ensure that no one power became two strong and thus absorb the functions of the other.

However, while the separation of powers is fundamental to the operational effectiveness of the modern government, there is no democratic system where the separation of powers is absolute or completely absent.

In practice, governmental powers and responsibilities, rather than neat compartmentalization, intentionally overlap. As a result, there is an inherent measure of competition and conflict among the organs of government.

The doctrine of separation of powers is more pronounced in a presidential democracy than in a parliamentary democracy, where there is ‘fusion of powers’.

The practice of using power to check power, which is known as ‘checks and balances, is not necessarily, a violation of the theory of separation of powers; it merely seeks to promote some interrelationships among the organs to check abuse of government powers. For example, the laws made by the legislature are interpreted by the judiciary and could be declared void if found not to be consistent with the provisions of the extant laws.

The executive also initiates laws and presents budgets for the approval of the Legislature; otherwise, such budgets could not be spent by the Executive. 

In the same vein, laws made by the Legislature cannot become operative until it was given assent by the president. The president can, however, withhold his assent which amounts to an exercise of veto power. The Legislature can similarly decide to upturn the veto of the president by the use of two-thirds majority. The executive makes the appointment of senior judicial officers but it has to be ratified by the Legislature to take effect.

Read On: The Executive: Meaning, Types and Functions

Origin of Separation of Powers

The doctrine of separation of powers is associated with earlier political philosophers. It first originated in ancient Greece and became widespread in the Roman Republic as part of the initial Constitution of the Roman Republic.

The Aristotle (384-322 BC) in his book “The Politics” stated that: “There are three elements in each constitution in respect of which every serious lawgiver must look for what is advantageous to it…. The three are, first, the deliberative, which discusses everything of common importance; second, the official; and third the judicial element.” At the time of Edward, I reign (1272-1307), however, the separation of powers emerged in England, with the appearance of Parliament, the Council of King and the courts.

The doctrine of separation of powers, however, received its finest formulation by a French political thinker and jurist, Montesquieu who coined the term “trias politica” or “separation of powers”. His book, “Esprit des lois” “The Spirit of the Laws” published in 1748, is considered one of the great works in the history of political theory and jurisprudence, and it inspired the Declaration of the Rights of Man and the Constitution of the United States (Ojo, 1973).

Merits of Separation of Powers

The theory of separation of powers has been instituted to fulfill certain objectives.

These objectives can be regarded as its advantages. They include the following:

1. Prevention of Tyranny

It reduces the abuse of power because power is not concentrated in one arm of government but rather separated among the three arms. By so doing, the tendency of having an arbitrary rule is very low.

2. Specialization and Efficiency

The theory of separation of powers, which is the political application of the economic theory of division of labor, makes for specialization and efficiency in governance. By concentrating on the same job in a routine like manner, the maxim ‘practice makes perfect’ becomes the order of the day.

For instance, by concentrating on law-making, the legislators will gain expertise in it while the executive also becomes more adept in the task of policy formulation and its execution. Similarly, the judiciary acquires better erudition and distinction in its duty of interpretation of the law and settlement of disputes.

3. Preservation of Liberty

The theory of separation of power also guarantees the rights and liberty of the citizens. If the powers of the three organs of government are placed under one authority there is the likelihood that tyranny and arbitrariness may ensue. According to Lord Acton, “Power intoxicates and absolute, power intoxicates absolutely”.

4. Safeguards Independence of Each Organ

Separation of powers also ensures the independence of each of the organs of government in the functions and also recognizes that the function assigned to each organ by the constitution requires distinct specialties.

For example, a judge must possess the qualities of impartiality and detachment combined with brilliance and erudition for him to succeed.

A legislator must not only be able to connect with his constituents, he must also possess the power of communication. Similarly, a chief executive must have the capacity to rank his priorities among many competing issues within the policy agenda.

Given the different qualities that are required by those that will occupy these different positions, it is most unlikely that these attributes can be found in one person.

Therefore, it is only through the separation of powers that individuals with these different but complementary attributes can be assembled to discharge the three functions of government.

Demerits of Separation of Powers

The theory of separation of powers has the following demerits:

1.  A rigid separation of powers may produce negative consequences because it can make it difficult for the legislature and executive, in particular, to cooperate.

In the event of lack of cooperation between the lawmakers and those who enforce these laws the machinery of government may be at best, be impeded, or at worse, grind to a halt.

2. The theory of separation of powers as propounded by Montesquieu has been criticized for being too idealistic and mechanistic, and therefore not realistic. The reason is that given the nature and process of government, it is impossible to keep the three organs of government in separate watertight compartments.

3. Although the idea of checks and balances is meant to introduce some level of flexibility, the mechanism of separation of powers can produce the unintended consequences of preventing government functionaries from taking quick decisions.

4. Critics of separation of powers argue that complete separation of powers and functions is impossible in reality. They argue that it is not possible to define the area of concern of each organ in such a manner that each is independent and supreme in its area without the other having a role to play.

For instance, the process of lawmaking is incomplete until the executive gives its assent.

Read on: The Judiciary: Meaning and Functions

Separation of Powers in the United States of America

The principle of separation of powers is clearly incorporated in the constitution of the United States. The American constitution was consciously and elaborately made an essay in the separation of powers and is today “the most important polity in the world which operates upon the principle (Finer, 1949).

The constitution of the United States divides the Congress into two bodies: the Senate and the House of Representatives; and the two legislative chambers are primarily and exclusively vested with the law-making powers.

The executive powers also solely lie with the executive arm, while the judicial functions are handled by independent courts. Through the mechanism of checks and balances, the needed flexibility is introduced into the operations of separation of powers in the United States (Duignan & Decarlo, 2018).

The fusion of Powers in Britain

The British constitution does not provide for the principle of separation of powers. Rather what obtains in Britain is what is popularly known as a fusion of powers. This is manifested in different ways.

First, the members of the legislature and the executive are brought into their different offices through the same election. Put differently, the Prime Minister, who is the head of the executive and his ministers who with him forms the cabinet must have been elected into the parliament before they can qualify to serve in the executive arm.

Second, the parliament in Britain comprises the House of Commons, House of Lords, and the Queen, and interestingly the monarch is the head of state in Britain, which makes him or her ceremonial head of the executive.

Third, the Lord Chancellor is not only the head of the House of Lords, the upper house in Britain, he is also the minister of justice, and the head of the Privy Council, the equivalent of U.S.’ Supreme Court.

The examples cited above imply that strictly speaking, there is no separation of powers in the operations of the British government.

Examples of Fusion of Powers under the Doctrine of Separation of Powers in Nigeria

Firstly, under section 4(8) of the 1999 Constitution of the Federal Republic of Nigeria, the exercise of the legislative powers of both National Assembly and a State Assembly “shall be subject to the jurisdiction of court of law and of judicial tribunals established by law”.

The second part of the provision is to the effect that the National Assembly or a House of Assembly “shall not enact any law that ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law”.

This completes the circle of an effect check on the powers of the legislature and also positions the judiciary as the custodian of the rule of law. Consistent with this declaration, is the view of Mustapher JSC in Inakoju v. Adeleke which is to the effect that: The courts have the jurisdiction and the competence and indeed are duty bound, to exercise their jurisdiction to ensure that the legislature comply with constitutional requirement.

In addition, the Chief Justice of Nigeria is empowered by virtue of section 46(3) of the Constitution of Federal Republic of Nigeria, 1999 to make rules with respect to the practice and procedure of a High Court for the purpose of enforcement of Fundamental rights. This has made the judiciary a promulgator instead of an interpreter of the law.

Thirdly, the President of the Federal Republic of Nigeria is empowered to make regulations, under section 32 of the Constitution, concerning citizenship and immigration matters. Whereas subsection (2) of section 32 requires the president to lay before the National Assembly such regulations, the promulgating authority here is the executive (that is the president), and not the legislature.

Again, the President, or the Governor as the case may be, is empowered, under section 175 and 212, respectively, to pardon convicted persons or to exercise his prerogative of mercy, by remitting, blotting out or extinguishing a convict’s sentence imposed by the judiciary.

Yet still, by reason of section 292 of the 1999 Constitution, the president, together with the Senate or a Governor together with a House of Assembly may remove a judicial officer for stated misconduct. Not only has that, section 315 of the Constitution, allowed the President or a Governor to modify an existing law.

Furthermore, section 160 and 204, respectively of the 1999 Constitution, allow certain executive bodies established under the constitution to regulate their own procedure, confer powers and impose duties on any other or authority for the purpose of discharging its functions; provided the approval of the president or the governor, as the case may be, is obtained beforehand.

Elsewhere, the constitution allows the President or the governor  to attend any meeting of the National Assembly or State House of Assembly, respectively, either to deliver an address on national or state affairs or to make such statements on policy of government as he considers to be of National or State importance.

By the same token, a Minister of the Federal Government is obliged to attend either House of the National Assembly, if invited to explain to the House the conduct of his ministry and in particular when the affairs of that ministry were under discussion.

Similarly, a Commissioner of a state if invited to explain to the Assembly the conduct of his ministry and in particular when the affairs of that ministry were under discussion.

The legislative, on its part is empowered under section 143 and 188, of the 1999 Constitution to initiate, carryout and conclude the impeachment proceedings of the president or the vice-president; the Governor or the Deputy Governor.

Thus in Attorney General of The Federal & Ors v. Atiku Abubakar & Ors, the Supreme Court opined that: Impeachment or removal of the President or Vice President from office by the National Assembly is a strong political weapon and solution to political problems that may arise in the Presidency either in the discharge of the constitutional function or conduct of the personality involved.

Additionally, although a panel is to be appointed by the Chief Justice of Nigeria, or the Chief Judge of a state, as the case may be, to carry out certain investigations, such a panel will still submit it report to the legislature. Worst still, subsection (10) of both sections ousts the court’s jurisdiction to inquire into the outcome of the impeachment proceedings.

Again, the legislature must confirm all executive appointment of ministers and commissioners, who form an integral part of the executive. The National Assembly by virtue of the provision of section 80 of the constitution has authority over public funds and to determine the remuneration of members of the executive and the judiciary.

However, such remuneration must be charged on the Consolidated Revenue Fund. It must also not exceed what the Revenue Mobilization and Fiscal Commission prescribe.

Again, although the primary duty of the legislative is to make laws yet the constitution empowered it to conduct investigations, (which are strictly a quasi-judicial Act) in order, amongst other things, to expose corruption, inefficiency or wastes in the execution or administration of funds appropriated by it.

In addition, the constitution also gave what may be considered judicial powers to the Senate or the House of Representatives or a Committee so appointed.

Such powers include inter alia, the power to issue a warrant to compel the attendance of any person who, after having been summoned to attend, fails, refuses or neglect to do so and does not excuse such failure, refusal or neglect to the satisfaction of the House or the Committee in question.

In view of this provision, the Court of Appeal in Senate of the National Assembly & Ors v. Momoh has held, inter alia and to the effect that the provision of the equivalent of section 89 of the 1999 constitution did not amount to an infraction on the powers of the judiciary and the executive. Furthermore, the president can exercise veto powers over laws made by the legislature, but such can be overruled by two-thirds majority of the National Assembly.

However, in National Assembly v. President of the Federal Republic of Nigeria, the Supreme Court opined that such a veto can only be overturned by a two-thirds majority of the whole house and not a quorum and there must be a full reconsideration of the vetoed bill. That is it must go through all the stages for consideration of a bill.

Lastly, while legislative confirmation is needed for appointment of Chief Justice of Nigeria, Justice of the Supreme Court, Chief of a State, among others; certain judicial officers are empowered under sections 236, 248, 259, 264, 269, 274 279 and 284 of the 1999 Constitution, to promulgate rules for regulating the practice and procedure of the respective courts, such judicial officers superintend.

 
Conclusion on Doctrine of separation of powers

The principle behind the idea of separation of power is unassailable since it can help safeguard the liberty of the citizens by preventing accumulation and possible abuse of power.

However, in reality, it is impossible to have an absolute separation of powers and responsibilities among organs of government. This is why the practice of checks and balances, which we will discuss in the next post, has become inevitable.

In actual practice, the three organs of government function by cooperation.

We have discussed the doctrine of separation of powers, highlighting its origin, merits and demerits.

The article also posited that the doctrine of separation of powers is more pronounced in a presidential democracy than in a parliamentary democracy, where there is ‘fusion of powers.