Separation of Powers

SEPARATION OF POWERS
i) Legislative: Making the Laws

ii) Executive: The implementation of Laws
iii) Judiciary: The interpretation of Laws
The doctrine of separation of powers establishes that the powers of each organ are exercised
without overlapping, no arm of government is entitled to infringe on the functions of others.
Therefore, an exercise of executive power which interferes with the judicial power will be
declared unconstitutional.
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 book of John Locke. He was concerned with the
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 every man vested
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 Judiciary powers are united in the same body, there can be no
liberty. Again, there is no liberty if the judiciary powers are not separated from the legislative
and executive. There would be an end of everything if the the same person or body, whether
of the nobles or of the people, were to exercise all their 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. From the foregoing, it is clear that the doctrine as
originally conceived appears to be generally applicable in constitutional law, i.e. amongst the
three arms of government – the Legislature, the Executive and the Judiciary.
Governor of Kaduna State v. House of Assembly, Kaduna State [1982] 2 N.C.L.R. 358;
Senator Adesanya v. President of Nigeria. However, it is noteworthy that attempts to strictly
implement the classical form of the doctrine are unfeasible and unworkable. In other words,
strict separation is impossible and self-defeating due to the necessity for organs of
government to cooperate in governmental administration. Under a Parliamentary system of
government like the one practiced in the United Kingdom, it is definitely not operational as
between the parliament and the executive because members of the former are equally
members of the latter. Under this kind of governmental relationship, separation of powers
loses its essence and meaning. In a presidential system like Nigeria’s, the three (3) organs of
government are mutually cooperative and independent. In order to ensure that no arm of
government degenerates into a terrific island, there are constitutional provisions which
empower the three arms to interfere with the duties of one another through checks and
balances.
Thus, separation of powers is the constitutional doctrine of division of powers of government

into the three branches of legislative, executive and judicial powers, each to be exercised by
different group of persons as a means of checks and balances in the government structure
itself, and to protect the rights of citizens.
In a Presidential system like Nigeria’s, the three arms of government are mutually
cooperative and independent. In order to ensure that no arm of government degenerates into a
terrific island, there are constitutional provisions which empower the three arms to interfere
with the duties of one another through checks and balances. The idea of checks and balances
is an insurance against arbitrariness, and authorizes some of the things an arm of government
is doing to be made available for investigation, vetting, concurrence or confirmation by
another arm. Thus, although Sections 4, 5 and 6 of the CFRN 1999 respectively allocate the
law-making, implementing and adjudicatory powers of the federation to the legislature, the
executive and the judiciary, there are other constitutional provisions which empower one arm
to oversee or verify the operations of another.
See the case of Ojukwu v. Governor of Lagos State [1985] 2 NWLR PT. 10 Pg 86.
However, notwithstanding the provision of section 4, 5 and 6. The constitution still
recognises the need for interaction between the three arms of government for example while
it is necessary for a bill to receive the assent of the president before becoming laws as
required under the law.

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SEPARATION OF POWERS

i) Legislative: Making the Laws

Thus, separation of powers is the constitutional doctrine of division of powers of government

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