The Role of Law in Maintaining Sanity and Preventing Impunity in a Democratic Setting (Part 3)

Introduction

Last month, we continued and concluded our discourse on Democratic setting, followed by an in-depth exploration of rule of law. Today, we shall focus on the concept of separation of powers and its adjunct – checks and balances. Enjoy.

Separation of Powers

It must be noted that, the doctrine of separation of powers has been developed over the centuries. The evolution of the concept of separation of powers can be traced to the British Parliament’s gradual assertion of power and resistance to the royal decrees during the 14th century. James Harrington, an English scholar was one of the first modern philosophers to analyse the doctrine of Separation of Powers. Harrington in his essay, “Common Wealth of Oceana” (1656), built upon the works of earlier philosophers like Plato, Aristotle and Machiavelli, and described a utopian political system that included a separation of powers. In his second Treatise on Government (1690), John Locke, an English Political theorist, gave the concept of separation of powers more refined treatment. John Locke argued that legislative and executive powers were conceptually different. But that it was necessary to separate them in government institutions. However, in Locke’s conception, judicial power played no significant role (Ibid).

The modern idea of the doctrine of separation of powers was vigorously explored in the “Spirit of Laws (1748)” by Baron de Montesquieu, a French Political writer. He based his exposition on the British Constitution of the first part of the 18th century. As a doctrine, it postulates that,

“where an individual occupies the position of both the executive and the legislature, there is the danger of the legislature enacting oppressive laws which the executive will administer to attain its own ends”.

Montesquieu went on to outline a three-way division of powers in England amongst the parliament, the king and the courts, even though such a division was not in existence at that time. Montesquieu apparently believed that the stability of the English government was due to this practice of separation of powers, despite the fact that he did not use the word “separation” (Ibid).

It is worthy of note that Plato, Aristotle, Harrington, Locke, Montesquieu and other commentators saw the concept of separation of powers as a way to eliminate the arbitrary powers and check dictatorial tendencies. One condition of liberty is the separation of the legislature from the executive, and the existence of an independent and impartial judiciary. It is also as a result of this that, Montesquieu regarded the separation of powers as an essential safeguard of liberty. According to him, “there is no liberty if the judicial power be not separated from the legislative and executive” Gettel aptly captured this when he stated that the doctrine implies that the three functions of the government “should be performed by different bodies of persons; each department limited to its own sphere of action, and within that sphere should be independent and supreme” (ibid).

Hence, separation of powers is presently understood to mean that, none of the legislative, executive and judicial powers is able to interfere with the powers and function of the others. For example, the Judges should be independent of the executive and legislature, or that the same persons should not hold posts in more than one of the three branches, and that, one branch of government should not exercise the functions of another.

For the avoidance of doubt, mention need also be made of the fact that, strict observation of the principle of separation of powers leads ultimately to checks and balances, which is also very germane in any democratic setting in ensuring that sanity is highly maintained, and impunity and rule by whims and caprices of individuals, prevented. I shall now consider briefly, the principle of checks and balances.

Checks and Balances

It is pertinent to mention here, the theory of Checks and Balances, which is intertwine with the doctrine of separation of powers. The theory of “checks and balances” is to the effect that, governmental power should be controlled by overlapping authority within the government and by giving citizens the right to criticise State actions and remove officials from office in deserving cases (ibid). Thus, in addition to separation of powers, there is great need for checks and balances to ensure that each arm of government does not abuse its powers and create unnecessary political instability in the system.

In fact, it is through the proper application of these doctrines of separation of powers, and checks and balances that abuse of office and impunity in exercise of governmental powers are curtailed. Checks and balance is thus, an arrangement, whereby an arm of government supervises and checks another arm of government against any possible abuse of powers. This implies that checks and balances as a constitutional tool, enables the branches of government to resist any illegitimate expansion of power by other branches (Anyim-Ben, Francisca. O., et al, “The Doctrine of Separation of Powers and Checks and Balances in the Nigerian Executive-Legislative Relationship” Nnamdi Azikiwe Journal of Philosophy. Volume 9, No 1 p.79). Of course, this is in tandem with Magstadt’s (2006) view when he argued that:

“The Madisonian solution was to structure the government in such a way that selfish interests (faction) pursuing selfish ends would encounter as many hurdles as possible. It was this idea that won the day in Philadelphia and came to be enshrined in the Constitution of United States America as the famous checks and balances”.

Checks and balances therefore, is a mechanism for ensuring that each of the arms of government supervises and checks one another against possible abuse of powers. Hence, the different arms of government are vested with the responsibility to monitor the activities of other arm(s) and also limit the powers of other arm(s). For good governance, separation of powers and checks and balances must coexist. This implies that when an individual is vested with such powers of abating and probating or executing and adjudicating, there is every possibility that such a person will become despotic if unchecked.

Separation of Powers and Checks and Balances in Nigeria

In Nigeria, the principle of separation of power for the purposes of checks and balances are well envisaged by the 1999 Constitution of the Federal Republic of Nigeria(as altered), (the Constitution). The Constitution makes salient provisions that seek to ensure the observation of these principles. By Section 4 of the Constitution, the legislative powers of the country are vested on the legislative arm. The judicial powers on the other hand are by the provisions of Section 6 of the Constitution vested in the Judiciary, while the executive powers, are by Section 5 of the Constitution vested in the President, and may be exercised by him in person or through his vice or Ministers).

The Constitution has provided overlapping functions for the arms of government in order to ensure checks and balances, to prevent impunity and abuse of power by government officials. For instance, Section 231 of the Constitution empowers the President to appoint the Chief Justice of Nigeria and other justices of Supreme Court on the recommendation of the National Judicial Council (NJC), subject to the confirmation of such appointment by the Senate. Section 4(8) of the Constitution states that save as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of courts of law and of Judicial tribunals established by law and accordingly, the National Assembly or a House of Assembly shall not enact any law, that ousts or purports to (ibid) oust the jurisdiction of a court of law or of a judicial tribunal established by law.

By Section 58(1) of the Constitution, the Power of the National Assembly to make laws shall be exercised by bill passed by both houses, and except as otherwise provided by subsection (5) of this section, assented to by the President. Section 58 (4) &(5) of the Constitution is to the effect that, where a bill is presented to the President for assent, he shall within thirty days thereof signify that he assents or withholds assent. Where the assent of the President is withheld, and the bill is again passed by each House by two-thirds majority, the bill shall become law and the assent of the President shall not be required.

The foregoing and so many other similar provisions in this regard, contained in the Constitution tend to ensure the observation of the doctrine of separation of powers, and to check abuse of power. For instance, the power of the National Assembly to override the assent of the President is to prevent a situation where a President would decide to whimsically veto bills by withholding his assent to bills, for his personal interest. The Power of the legislature to appropriate or approve money to be spent by the executive under Sections 81, 82 and 83 of the Constitution, and also the power to impeach the President in deserving circumstances under Section 143 of the Constitution also provide great checks against the arbitrary exercise of powers by the executive. More so, the power of the President to veto bills and to appoint members of the judiciary acts as a check on the powers of the legislature and the judiciary respectively. The judiciary on the other hand, is widely empowered to adjudicate over issues arising from the policy implementation of the government as well as other decisions taken by the other arms.

Having said that, whether or not the provisions of the law in this regard are complied with to ensure the smooth application of these principles, and in so doing ensure that sanity is maintained and impunity curtailed in our democracy is indeed a different thing altogether. An attempt shall however be made subsequently in this work, to look at germane issues on these principles and possibly take a stand on the observation or otherwise of same. (To be continued).

THOUGHT FOR THE WEEK 

“In law, a man is guilty when he violates the rights of others. In ethics, he is guilty if he only thinks of doing so.” (Immanuel Kant)