On the Monday, the 21st day of August, 2017, Toluwase Akintunde, a Law Student of Joseph Ayo Babalola University sought advice on the best approach to examine and address the follow legal statement on Separation of Powers:
The doctrine of separation of powers is a way of checks and balances of the legislative, executive and judicial power but in practice these is no watertight separation of power.
Omolola Oladipo, a Graduate of Political Science from the University of Ibadan gave the brilliant steps below:
1. First of all, examine the principles of separation of powers and the principles of checks and balances.
2. Note that while the federal or presidential system of government demands separation of power, using the same arms of government to check one another negates the sole purpose of separation of power which is to carry out duties independently without interference.
3. The truth is that there will NEVER be a CLEAR separation of power because they end up interfering in the affairs of one another in the name of checking the each other and creating a balance of power.
4. An evidence of the lack of watertight separation of powers is what happened on the morning of the 21st day of August, 2017. All Nigerians are aware through social media platform that the President Muhammadu Buhari is back from his medical vacation in London.
5. However, he dare not embark on any official duty without the acceptance by the Senate of his resumption as a follow-up to the letter he dropped in May to go for medical trip and most importantly assigning his duties to the Vice-President as Acting President.
6. Without checks and balance, he can go in and out of the country as he wishes but to prevent such, the Senate is the check.
Oluwatosin Sofowora, a Law Graduate of the University of Ibadan, gave another intelligent and more detailed approach as follows:
1. “Power corrupts and absolute power corrupts absolutely.” It will therefore be foolhardy to concentrate power in the hands of an individual or group of individuals
2. It is apposite to begin with what the concept entails. Separation of Powers in normal parlance is the division of powers between the Legislature, Executive and the Judiciary such that each one of them operates independent of the other in order to prevent abuse of power.
3. Explain how that the doctrine of Separation of Power is a vital tool in a Democratic State and in the operation of Rule of Law in the State.
4. Separation of powers implies that none of the legislative, executive and judicial powers is able to control or interfere with the others or that the same individuals should not hold posts in more than one of the three arms or that one arm of government should not exercise the functions of another.
5. This brings us to defining the roles of each arm of government as spelt out in the 1999 Constitution; state the relevant Sections of the Constitution that defines each of their functions. (Sections 4 and 5 deal with the legislative and executive powers respectively, section 6 is concerned with the judicial powers)
6. Now you’ll address the issue of checks and balances. How each of them checks the other. For instance, the President or the Governor shares the lawmaking 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) of the Constitution.
7. This however shrinks in 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).
8. Another example is Legislative confirmation at the event of President’s or Governor’s appointments of the members of the Executive Council (See sections 147 (2) and 192 (2) of 1999 constitution).
9. The instance of appointment of Judges is another example.
10. The following are exceptions to the principle of Separation of Powers: (this will drive home the point that there is no complete or absolute separation of powers in Nigeria)
i. The Presidential power to issue Executive orders in some areas. Such orders include that of prerogative of mercy or grant of pardon as contained in Section 175 and 211 of the 1999 Constitution.
ii. Powers conferred on the Executive to make laws i.e delegated legislations e.g bye laws
iii. Powers of the respective heads of each Constitutional Courts to make rules for regulating the practice and procedures of their said Courts subject to the provisions of any Act or Law of relevant legislative bodies, (see section 6 (5) also sections 236, 248, 254, 259, 264, 274, 279 & 284 of 1999 Constitution) amongst others.
11. Conclude by deducing that the Nigerian Constitution in itself does not advocate for a total separation of powers in view of the above mentioned sections.
12. As a matter of fact, a critical look at the principle of checks and balance reveals that the idea of separation of power is a facade far from reality.
What’s your own view?
THE LEGAL DIARY
Joseph Jagunmolu Ogunmodede
Joseph Jagunmolu Ogunmodede is a budding lawyer and the Founder of THE LEGAL DIARY.
He was born in Ogun State, Nigeria, and holds a Bachelor of Laws (LL.B) Degree from the prestigious University of Ibadan, Ibadan, Oyo State where he was awarded a First Class (Honours). He is currently a Bar Aspirant at the Nigerian Law School (Lagos Campus).