KALU: Separation of Powers in Nigeria: An Anatomy of Power Convergences and Divergences

SEPARATION OF POWERS IN NIGERIA: AN ANATOMY OF POWER CONVERGENCES

AND DIVERGENCES*

Abstract
There are presently in Nigeria disputes and controversies concerning the meeting points of the powers
allotted the various organs of government. The executive arm of government today appears to dwarf
the other arms of government in the amplitude and plenitude of powers of wields. The legislative and
judicial arms of government appear to be at the receiving end it the endless erosion of their powers by
a blossoming state bureaucracy or executive expediency. There are however certain salient areas in
the interface or interplay of powers where the three arms of government must converge or meet for the
orderly regulation or governance of our society. This paper reviewed the hallowed concept of separated
powers of government, the meeting points of the powers and their areas of dislocation. It also examined
the practice in the Nigerian polity vis-à-vis some other jurisdictions of the powers of government across
the three arms of government in Nigeria. Some recommendations that will uplift the law and practice
of separated powers in Nigeria were made.

Keywords: Separation of Powers, Nigeria, Convergences, Divergences

1. Introduction
‘It may be too great a temptation to human frailty, apt to grasp at power for the same persons who have
the power of making laws, to have also in their hands the power to execute them whereby they may
exempt themselves from obedience to the laws they made, and suit the law, both in its making and
execution, to their own private advantage’. 1 Complementing the above, a French Jurist and Philosopher,
Baron De Montesquieu, in explaining the concept of separation of powers opined that:
Political liberty is to be found only when there is no abuse of power. To prevent this
abuse, it is necessary from the nature of things that one power should 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 judicial
power is not separated from the legislative and executive …. There would be an end
of everything if the same person or body, whether of nobles or of the people, were to
exercise all three powers2

The focus of this study is to review / appraise the three governmental powers in their interdependence
and divergences as they work the tightrope of balancing each other for the good of our society. Since
government, in the modern form, must be composed by the three organs, they must be confined to
respective spheres of authority through a strict balancing act, through credible checks and balances.
Little wonder, John Adams stated that: ‘A legislature, an executive and judiciary comprehended the
whole of what is meant by government. It is by balancing each of these powers against the other two,

*By Uwadineke C. KALU, PhD, BL, Reader, Department of Commercial and Property Law, Faculty of Law,
Nnamdi Azikiwe University, Awka, Nigeria. E-mail- [email protected], Phone: +234-8037727063
1
John Locke, Second Treatise on Civil Government, Chapters 12-13 quoted in Wade & Philips, Constitutional
and Administrative Law, 9th ed. (Bradley) P. 45.
2
Baron De Montesquiu, Espitdes des lois 9spirt of the Laws) chapter Xi (11) pp.3-6. In the words of Ikenga K.E.
Oraegbunam ‘the term separation of powers is an influential concept in modern democracies. It denotes the
practice of dividing the powers of a government among different branches thereof. Like the principle of ‘division
of labour’ in Adam smith’s economics, the doctrine of separation of powers is geared towards efficiency but also
more importantly towards guarding against abuse of authority’ – See Ikenga Oraegbunam, ‘Separation of Powers
and Nigerian Constitutional Democracy’ culled from Vanguard, January 19, 2005,
www.dawodu.com/oraegbunam/.httm Visited on 15th July, 2016.

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that the efforts in human nature towards tyranny can alone be checked and restrained, and any freedom
reserved in the Constitution’3 It therefore, follows that the powers of any government must be divided
into three-legislative, executive and judicial. The 1999 Constitution of Nigeria (as amended) upholds
this classification or division in Sections 4, 5 and 6. A poser that readily surfaces here is: ‘Does the
concept of Separation of Powers admit of total or complete division of powers. It does seem that there
can be complete diffusion of powers in any workable government at all. As Ojo opined, ‘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 too much power on any one
person or body, and the check of one power by another’. 4

2. Importance of Separated Powers of Government

Much juristic ink has flowed in the quest to find out what the true import or description of the concept
or doctrine is all about. Many scholars have lent their voices in the attempt to delimit the seminal
significance of this concept in constitutional or administrative law. Malemi posits that:
Separation of powers is the division of powers and functions of government among the
three independent and separate arms of government; that is, the legislature, executive
and the judiciary, to act as a check and balance on one another and prevent the excess
and abuse of powers. Thus, separation of powers is the constitutional doctrine of the
division of the 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
check and balance in the government ......... one branch of government should not
encroach on the domain of another branch of government nor exercise the powers of
another branch of government5

The Nigeria Supreme Court was expounding this concept when it held in Ugba v Suswan6 that:
The Constitution sets up a federal system by dividing powers between the federal and
state governments. It establishes a national government divided into three independent
branches. The executive branch makes the law, while the judiciary explains the law.
There is no document superior to the Constitution in Democratic Governance. It is the
heart and soul of the people…

There is absolutely no doubt that the Nigerian Constitution acknowledge that sovereign power belongs
to the people of the nation and that government through the Constitution derives all its powers and
authority from the people.7 Powers of government, under the Constitution, in Nigeria is divided into the
legislature, the executive, and the judiciary8

The concept of separation of powers is amenable to both horizontal and vertical classifications.
Horizontally, our focus in this article it denotes how powers of government are shared between the
executive, the legislature and the judiciary. While the executive executes and approves the laws made
by the legislature, the judiciary interprets the laws. Vertically, it denotes the allocation of powers

3
Quoted by the Judge in Agbaje V COP (1969) 1 MNLR 176 at 177.
4
See Abiola Ojo, ‘Separation of Powers in a Presidential System of Government’ in Public Law Journal, 1981 p.
105.
5
Ese Malemi, Administrative Law (Lagos, Princeton Publishing Co, 2008) 3 rd edition pp. 56-57.
6
(2005) 1 WRN 1 at 64 Per Rhodes – Vivour JSC. See also Gov., Ekiti State (2015) 6 WRN 120 at 160 – 165.
Asogwa v Chukwu (2003) 17 WRN 71.
7
See S. 14 (2) (a) and (b) of the 1999 Constitution (as amended)
8
See Sections 4, 5 and 6 of the 1999 Constitution.

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between the federating units or levels of government. This refers to the allocation or sharing of
governmental powers between the federal, state and local governments in Nigeria. I am mindful of the
criticism that local government councils in Nigeria are mere appendages or vessels of the states17a. They
have been labeled ‘glorified agencies’ ‘or errand boys’ of their state governments. A bill to liberate
them is currently before the National Assembly and have just (in October / Nov. 2016) passed the
Second Reading in the Senate. Let the fate of the 4th July, 2013 of the Senate. Committee Report on
Constitution Review not befall this attempt. Autonomy for the councils, while recognizing them as a
third tier of government with elected officials and tenure of years is best for us all.

3. Horizontal or Cooperative Separation of Powers

Malemi opined that ‘the whole idea of separation of powers is that:
1. Neither the Legislative, Executive nor Judiciary should encroach on, or exercise
the powers of another branch. And, no branch is subject to control by the others
within its sphere of power but
2. This does not exclude influence, review or requirement of approval of certain
things by one branch of government over the acts of another as a check and
balance. Also, it does not prevent the exercise of the power of another branch
where it is an exception to the doctrine of separation of powers’9.

The whole purport or essence of the doctrine of separation of powers is the prevention of autocratic
governance or tyrannical rule, despotism and oppression. Thus, Hon. Justice Brandeis captured this
essence when in Myers v. United States10 he ruled that ‘the doctrine of separation of powers was adopted
...not to promote efficiency per se but to preclude the exercise of arbitrary power. The purpose was not
to avoid friction, but by means of the inevitable friction incident to the distribution of government
powers among the three departments, to save the people from autocracy’. Okeke had stated that
‘absolute power leads to tyranny. Tyranny is a reflection of the depraved nature of the average man who
is generally bad. With absolute power he can be more dangerous than a python, a viper, a lion or a
ravenous wolf.... absolute power concentrated on one person is the harbinger of tyranny; tyranny by
reason of cause and effect, promotes the burning desires to be absolutely free to do as one please which
in turn leads to anarchy’11 Taiwo stated that ‘one of the significant objective achieved by the observance
of the doctrine of separation of powers, according to the political theorist, is the prevention of
concentration of governmental power in a single body or person’12 Arising from this quote, the question
that begs for an answer or explanation, at this juncture is: Can there ever be a complete or straitjacketed
separation of governmental powers (Executive, Legislative or Judicial) in any clime or society? It is
practically impossible to have a watertight separation of governmental powers in the sense of absolute
non-encroachment in the allowed sphere or domain of powers of each branch13. Hence, our question
must be answered in the negative since in the words of Malemi, ‘it is not possible that each arm should
remain totally independent and supreme in its sphere of authority without some blending or any check

9
Ese Maleri op cit. p.56.
10
(1962) 272 US 52 Earl Warren CJ had in USA. Bromim 381 US 437, 443 (1965) opined that ‘the separation of
powers under the American Constitution was obviously not instituted with the idea that it would promote
government efficiency. It was on the contrary, looked at as a bulwark against tyranny’. See also John Ikongbeh
JCA ‘Separation of Powers under the Constitution of Nigeria 1999: A Critical Review of its Application since
29th May, 1999’ in Nigeria Law Journal, Vol. 1 No. 1, 2003 p.92.
11
G.N Okeke, Introduction to Consular Immunities and Privileges, Jurisprudence and Constitutional Law
(Enugu, Nolix Educational Publications (Nig) 2010) p.195
12
Ademola Adetayo Taiwo, Separation of powers; A key Principle of Democratic Governance (Ibadan, Ababa
Press Ltd, 2013) p.32.
13

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and balance. Therefore, separation of powers does not necessarily mean equal balance of power among
the three arms of government. To be meaningful, power must create room for overlapping, co-operation
and coordination among the arms so that government business will not come to a halt due to rigidity
and opposition’. The three arms of government are interrelated and interdependent. They are partners
in good government and strict separation of power will hamper the smooth working of government.’14
The interdependence or interconnectivity of the three powers of government cannot be over stressed
as powers must be interlinked for there to exist a smooth running of governmental affairs. James
Madison had in the Federalist Papers No. 48 advocated that ‘Unless these departments be so far
connected and blended as to give to each a constitutional control over the other, the degree of
separation which the maxim requires, as essential to a free government, can never in practice be duly
maintained’.

4. Constitutional Checks and Balances--Power Convergences

The significance of checks and balances in the allocation and use of government powers is underscored
by the fact of the sharing of powers. Such a system ‘allows each of the arms to defend its position in
the constitutional framework of government. It works if it is allowed to be flexible. Each arm of
government must recognize the limits to which it can go and enforce these limits’15. There is absolutely
no doubt that the 1999 Constitution of Nigeria (as amended) is replete with convergences of
government powers shared between the three departments of government. Ojo had this in mind when
he wrote that:
The...Constitution conceded in many areas the fusion not only of powers but also of
functionaries and functions. The need to integrate the dispersed powers into workable
government was realized. While it entrenched separateness it insisted on
interdependence, while it provided for autonomy, it deferred to reciprocity. In one’s
view, the controversy about the doctrine of separation of powers has moved from the
desirability or need for it to the technique for control of powers16.

In view of the above facts, it is constitutionally provided that the President in the exercise of his
abundant powers cannot declare War on any other country except with the approval by resolution of
both Houses of the National Assembly sitting in a Joint Session. This is the provision of S.5 (4) a of
the 1999 Constitution (as amended). It is also provided that except with the prior sanction or approval
of the Senate, no member of the Nigerian Armed Forces shall be deployed on combat duties or to fight
outside Nigeria17.Again, under Section 8(1) of the Constitution the National Assembly in conjunction
with the Executive can create states and local government areas. Budgeting for or revenue allocation
to the created states or local government areas is an executive function. Though states can create local
governments constitutionally, the National Assembly must ratify such creations and no additional
revenue accrues to the newly created local governments and their names cannot be gazetted without
the approval of the National Assembly18. Under Section 12(1) of the Constitution, no treaty between
Nigeria and another country shall have the force of law except to the extent to which any such treaty

14
Ese Maleni op cit p.56 Justice Jackson of United States Supreme Court opined that it is this doctrine (separation
of powers) that ‘enjoins upon its branches (of government) of separateness, but interdependence, autonomy but
reciprocity’ in Youngtown Sheet and Tube Co.v. Sawyer (1952)343 US 579-635.
15
Hon. Justice Crabbe (Supra).p.5
16
See Abiola Ojo, Constitutional Law and Military Rule in Nigeria (1987) p.149. Also quoted in A.A. Borokini
‘The Doctrine of Separation of Powers and the 1999 Constitution’ in Journal of Private and Commercial Law,
Faculty of Law, University of Ado-Ekiti, Ado-Ekiti, Ekiti State p. 147.
17
See S.5 (4)(b) of the 1999 Constitution (as amended).
18
See A.G. Lagos State V. A.G. Federation (2003) 12 NWLR (Part 833)1.

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has been enacted into law by the Nationally Assembly. Any treaty not ratified by the National
Assembly is void. Nationally, it is the President that negotiates and signs treaties. A few months ago
(in September, 2016) President Muhammadu Buhari of Nigeria signed the Paris Climate Agreement
on the Environment. It is only when that Agreement is domesticated by the National Assembly
enacting the provisions thereof into law that it shall become enforceable within the shores of Nigeria.
To this end, S.12 (2) of the Constitution stipulates that ‘The National Assembly may make laws for
the Federation or any part thereof with respect to matters not included in the Exclusive Legislative List
for the purpose of implementing a Treaty’. In Abacha v. Fawehinmi19, the status of the African Charter
on Human and Peoples Rights was in issue before the Supreme Court of Nigeria following the arrest
and detention of the Respondent by SSS operatives. Construing S.12 of the Constitution, the Court
held in the words of Ejiwunmi JSC that ‘...no matter how beneficial to the country or citizenry an
international treaty to which Nigeria has become a signatory may be it remains unenforceable if it is
not enacted into the law of the country by the National Assembly’.

A look at S.81 (1) of the Constitution will reveal that the President (Executive) cannot spend or
authorize the expenditure of money from the Consolidated Revenue Fund without the approval of the
National Assembly. A look at sections 86(1), 147(1)20, 154(1) and 157(1) of the Constitution will
reveal or show that the President cannot appoint the Auditor-General of the Federation or Ministers of
the Federal Republic, Chairman and Members of federal executive bodies without the prior sanction
or ratification of such appointments by the Senate. The removal of some of them may require Senate
approbation.

It is true that the President has the power to issue a Proclamation of a State of Emergency provided
that such must be lawfully ratified by the National Assembly. In this respect, S.305 (1) and (2) of the
Constitution of Nigeria, 1999 (as amended) provides thus:
Subject to the provisions of this Constitution, the President may be instrument
published in the Official Gazette of the Government of the Federation issue a
Proclamation of a State of Emergency in the Federation or any part thereof. The
President shall immediately after the publication transmit a copy of the Official Gazette
of the Government of the Federation containing the proclamation including the details
of the emergency to the President of the Senate and the Speaker of the House of
Representatives, each of whom shall forthwith convene or arrange for a meeting of the
House of which he is President or Speaker as the case may be to consider the situation
and decide whether or not to pass a resolution approving the Proclamation.

No one authority or arm of the government can effectively act alone as that will surely rock the boat
of stability and usurp due constitutional order or process. The marriage or convergence of this power
acts as a restraint, a brake on the arbitrary exercise of power to the detriment of any section of the
society. Section 143(1) and (2) of the 1999 Constitution (as amended) stipulates that the National

19
(2000)FWLR (pt.4)533 See also R.T.N.A.C.H.P.N.v. M&H.W.U.N (2008)2 NWLR (pt.1072)575 where the
Court of Appeal held the conventions 87 and 98 of the International Labour Organization (ILO) Conventions,
having not been enacted into law by the National Assembly, have no force of law in Nigeria and cannot possibly
be applied or given effect to in Nigeria. Justice Niki Tobi is of the opinion that S.12 of the Constitution enacts the
transformation doctrine as opposed to the incorporation doctrine. Contrast Commercial and Estates Co. v. Board
of Trade (1925) I.K.B. 271 and Chung. Chi Chung v. The King (1939) A.C. 160. West Band Central. Gold Minning
Co. v The King (1905) 2.K.B 391. He further posited that ‘the transformation doctrine is rather ambitious for a
developing country like Nigeria’.
20
See M.F.C.T. v. S.P.R.D. (2010) All FWLR (pt. 505). 1706. Tangentially, the case of A.G. Rivers State A.G.
Akwa Ibom State (2011) NWLR (pt. 579)1023 is again instructive.

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Assembly can impeach or remove the President or Vice-President from office21. The section alone by
virtue of its very existence is a major deterrent to political misconducts or abuse of office by the
Executive. In the case of A.G of the Federation v. Alhaji Abubakar Atiku22, the President of Nigeria
had declared the office of the Vice-President (Alhaji A. Atiku) vacant due to the fact that the VP left
the PDP to ACN (another party). The 1st Respondent was aggrieved and filed a suit against the
Appellants and the 2nd - 4th Respondents at the Court of Appeal. He did so under S.239 of the 1999
Constitution (as amended). The Court of Appeal suo motu raised the issue of Atiku’s constitutional
right to freedom of association. It determined the matter without hearing the parties on this point. The
Supreme Court had held that, unlike Ministers, the Vice- President cannot be removed by the President.
The process of removal of the President or the Vice-President is provided for in S.143 of the
Constitution which is through the process of impeachment which is solely the responsibility of the
National Assembly according to that section.

The executive arm of government has also been invested with powers to appoint key officials of the
judicial arm of government in Nigeria. This is a measure of leverage and control. It checks the excesses
of the judicial arm when they know that they can be axed or removed from office by the executive arm
of government. The recent swoop on Judges and Justices in Nigeria by the DSS (an arm or organ of
the Executive) and the revelations23 made thus far is a pointer in this regards. Section 231 of the 1999
Constitution (as amended) provides that the appointment of the Chief Justice of Nigeria and the
Justices of the Supreme Court of Nigeria shall be made by the President on the recommendation of the
National Judicial Council subject to confirmation by the Senate. It is again noteworthy that S.238 of
our Constitution stipulates that the President shall appoint the President and other Justices of the Court
of Appeal which appointments shall be ratified/ confirmed by the Senate. Similarly, the Chief Judge
and Judges of the Federal High Court24, Chief Judge and Judges of FCT High Court25, Grand Kadis
and Kadis of Sharia Court of Appeal26, and the President and Judges of Customary Courts of the
Appeal27 shall all be appointed by the Executive (President or Governor) subject only to Senate
approval or confirmation.

4. Constitutional Accommodation--Power Divergences

Among the ubiquitous powers of the legislature in Nigeria is the investigative function. It uses this
power to admonish, advise or otherwise investigate the actions, conduct and functioning of arms or
departments of the executive arm of government. S. 88(1) of the 1999 Constitution stipulates that each

21
There has been unsuccessful attempts to impeach the President in Nigeria. For example, on 13 th August, 2002
the House of Representatives passed a resolution demanding the resignation of the President Olusegun Obasanjo
within 14 days. He was alleged to have unilaterally amended the Revenue Allocation Formula, made extra
budgetary expenditure on the National Identify Card. System Scheme, the National Stadium Project and purchase
of Houses for members of the Executive. He also paid N21 billion to Justus Berger without National Assembly
approval and the massacres of innocent citizens in Odi, Zaki Biam, Gbaji, Vasse and Ampiim. Set the piece
‘Impeachment Saga’ Times Magazine, vol. 11, No. 25 of (2) September 2002.
22
(2007) 10 NWLR (pt. 1041)1.In other crimes, the insistence of the President on Mr. Magu as EFCC boss, grant
of bailant funds to States unilaterally, swoop or raid on judges disobedience to court order, may be considers
impeachable misconducts offences.
23
On October, 8th 2016 he homes of Hon. Justices Sylvester N. Nglwuta, John Inyang Okoro, A.F.A Ademola,
and others were raided by the Department of State Service (DSS) and according to the DSS recovered about N360
million. See http://www/vanguard.com/2016/10 anti-corruption-condram-DSS-recovers-over-n360-m-3-judges-
jomes/accessed on 12th Feb. 2017 at 2.45pm
24
See S.250, CFRN; 1999 (as amended)
25
S.256, CFRN; 1999 (as amended)
26
S.261, CFRN; 1999 (as amended)
27
S.266, CFRN; 1999 (as amended)

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of the two Houses of the National Assembly has the right to direct or cause to be directed an
investigation into: Any matter or thing with respect to which it has power to make laws; and The
conduct of affairs of any person, authority, ministry or government department charged or intended to
be charged with the duty of or responsibility for: i. Executing or administering laws enacted by the
National Assembly and

ii. Disbursing or administering moneys appropriated or to be appropriated by the National Assembly.

Subsection (2) restricts the exercise of the power by the National Assembly for the purposes only of
enabling it to (a) Make laws with respect to any matter within its legislative competence and correct
any defects in existing laws and (b) Expose corruption, inefficiency or waste in the execution or
administration of laws within its legislative competence and in the disbursement or administration of
funds appropriated by it28. The power enables the legislature to insist on the executive properly
executing all made laws. It is not a usurpation of executive function or responsibility but a modest
check to see that there exist proper execution of laws and the due and orderly governance of the society.
Many Ministries, Agencies and Departments of government, both at the Federal and States level, have
been investigated pursuant to this power29.

Further in our consideration of constitutional accommodation of power divergences which aid societal
smooth governance, Sections 58 and 59 of the 1999 Constitution must be highlighted. They represent
an ‘extra-cautious approach where the intention of the constitution-makers is both to serve some check
on the legislature’s law-making power and at the same time usher cooperation between the legislature
and the executive’30. Section 58 makes it compulsory that bills passed by both Houses of the National
Assembly must be assented to by the President to become law except where the contrary is expressly
provided. The President must signify his assent or refusal to assent within 30 days of the bills’
presentation to him. However, of importance is the further stipulation in S. 58(5) that ‘Where the
President withholds his assent and the bill is again passed by each House by two-third majority, the
bill shall become law and the assent of the President shall not be required’ For example, in National
Assembly v. The President of Nigeria31, the Court of Appeal refused to accept what the National
Assembly did in merely passing a motion of veto to override ‘the President’s decline of assent as not
meeting the requirement of S.58(5)’. It held that ‘Under section 58(5) of the Constitution, in order to
override the veto of the 1st Respondent each of the two Houses of the National Assembly has to pass
the bill again. The language used by S.58 (5) is ‘and the bill is again passed by each House’. This
means that the bill must go through the same process it had previously gone through when it was first
passed...It means the repetition of the earlier process.32. What informed the above judicial decision is
the imperative that ‘the opinion of the executive on any Bill is to be given due weight because its

28
In the case of El-Rufai v. The House of Representatives (2003) FWLR (pt. 173)162, based upon S.88 (2), the
Court of Appeal held that the power and duty of investigation constitutionally conferred on the legislature cannot
extend to investigation of an alleged defamatory statements made by the Plaintiff in the matter. See also Order
XVIII Rule 184 of the Standing Orders of the House of Representatives. See Saleh Mohammed; ‘Separation of
Powers in Nigeria; A Myth or Reality’ in Current Law Journal, Dept. of Property and Commercial Law Faculty
of Law, University of Jos, Plateau State p. 173.
29
The problem with this is that ‘the recommendations of the various investigative committees concerning critical
areas of the Nigerian economy set up by the legislature are not being implemented by the executive’ See Leon
Usigbe’ Jonathan’s Democracy Day Symposium and Matters Arising’. The Nigerian Tribune Thursday 7 th June,
2012 p.41. See Ibraheem Ojo Tajudeen ‘Towards a Friction-free Relationship between the Executive and the
Legislature’ in NAU Awka Journal of Public and Private Law vol.5. September 2013 p.271.
30
Asari Young op.cit.p.23. S.59(1)-(4) repeats the averments or provisions of S.58 but differ in the sense that it
must be with respect to money or appropriation bills See Section 59(1)-(5) of the 1999 Constitution (as amended).
31
(2003)9 NWLR (pt.824)104 at 150.
32
Per Oguntade JCA (as he then was).

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officials have to deal with the situation directly. This procedure also introduces a second thought on
the Bill in any case of disagreement between the legislature and the executive’33.Suffice it to state that
in spite of this power, the executive does not become a law-making organ or body. The legislature
retains their absolute power of law-making. Veto grants confidence to the executive which makes the
reversionary power effective and meaningful. Such a veto is not absolute. It would be too great a grasp
of power, conceivably bringing governance to a standstill, produce confrontation between the
legislature and the executive and raise questions of superiority between the two arms of government34.

The truth is that any attempt to invoke the oversight power puts the legislature in competition against
the executive. As noted by Tajudeen35, ‘Legislators often lack the political incentives to carry out this
responsibility. Other activities such as policy issues, constituency service or seeking re-election are
frequently higher on legislator’s agenda while oversight is perceived of as boring. Politicians are more
concerned with retaining their seats and amassing wealth than performing any function of government.
The least thing a politician wants to do is to engage in activity that challenges the policies and actions
of their own party’s government.... There is no better time than now to monitor government businesses
and our Commonwealth for probity, fidelity and above all efficiency without being adversarial. The
lawmakers must at all times invoke every necessary legislative instrument necessary for its work.
Oversight remains a veritable weapon’36.
It is noteworthy that most times the President’s power of veto does not stop or forestall abuses of power
by the legislature. Rather, sometimes it exacerbates it. In the opinion of Udombana:
Presidential veto power, in essence really does not always serve as an effective check
on the legislative abuse of power. On the one hand, it may in cases where it is
overridden only succeed in putting a question mark on the propriety of such law on the
minds of the people. On the other hand, the fact that it can be overridden may suggest
an effort to ensure that the final say comes from the more diverse group of
representatives of the people. Importantly, the legislature’s power to override the
President’s veto is a two pronged accountability device. Firstly, it provides conceptual
and practical safeguard against absolutism of executive power of veto. Secondly, it in
turn checkmates abuse of legislative exercise of the power by the more demanding
requirements of fresh passage by two-third majority. Since so far the actual exercise
and threat of exercise of Presidential veto has not resulted in the development of any
determinable yardstick for the exercise of such power, the Constitution should be
amended to specify the ground(s) upon which the power can be exercised so that its
deployment would truly serve to check public service unaccountability rather than
serve to heighten it37 .

To straighten our practices of separation of power, the criteria in the USA and the United Kingdom for
the exercise of veto power by the Executive over the laws of the legislature may be helpful. The
American President can veto legislation ‘he believes, in its core provisions, so fundamentally negated

33
Asari Young op. cit.p.23
34
Asari Young op.cit.p.24
35
Ibraheem Ojo Tajudeen, Towards a Friction-free Relationship between the Executive and Legislature” in
Nnamdi Azikiwe University, Awka Journal of Public and Private Law vol.5 September, 2013 pp.270 – 271.
36
Op. Cit
37
Ngozi J. Udombana, “Critical Examination of Accountability Mechanisms on the Legislature” in the Calabar
Law Journal vol.16,2013 – 15 pp.23-51 particularly at 29

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the constitution that he cannot with a straight face declare its constitutional merits outweigh its flaws38.
Legislations must conform to serve the policies and political interests of the President if he must not
veto it. Again, the content of legislation must not be found objectionable by the President’39.
In the United Kingdom the Queen may veto an enactment
(a) Seeking to amend the Constitution that provides, directly or indirectly, for the
circumvention or curtailment of the discretionary power confered upon the Prime
Minister by the Constitution.
(b) Providing, directly or indirectly, for varying, changing or increasing the powers of the
Central Provident find. Fund Board to invest the money belonging to the central
provident Fund.
(c) Providing, directly or indirectly, for the borrowing of money, the giving of any
guarantee or the raising of any loan by the Government, if in the opinion of the Prime
Minister, the bill is likely to draw on the reserves of the Government which were not
accommodated by the Government during its current term of office etc.40

Section 4(8) of the 1999 Constitution provides that ‘the National Assembly shall not enact any law that
ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal otherwise the courts shall
declare such laws null and void’. It cannot be gainsaid that in all democratic societies such as ours, ‘the
judiciary plays a crucial role in fostering the rule of law’. This is possibly why Justice Arthur Vanderbilt
wrote that: ...It is in the court and not in the legislature that our citizens primarily feel the keen cutting edge
of the law. If they have respect for the work of the courts, their respect for law will survive the shortcoming
of every other branch of government, but if they lose their respect for the work of the courts, their respect
for law and order will vanish with it to the great detriment of society’41. It is incontrovertible that the
judiciary is the weakest arm of government vis-a-vis the other two arms of government-the executive and
legislature. Maybe that was why Hamilton lamented that: ‘The judiciary....has no influence over either the
sword or the purse, no direction either of the strength or of the wealth of the society, and can take no active
resolution whatever. It may truly be said to have neither FORCE NOR WILL but merely judgment and
must ultimately depend upon the aid of the executive arm even for the efficiency of its judgments42. The
main preoccupation of the doctrine of separation of powers on this issue is that judicial institutions or our
courts must be independent of the other arms of government. It must have both political, institutional and
financial autonomy and independence. The Executive and the Legislature must never invade the province
of the Judiciary43. None of the other arms must pronounce judgments or influence the judgment of the courts
or have the ability to override the judgments of the court as delivered or rendered. On the issue of
accommodation, Asari Young asserts and I wholeheartedly agree that ‘it is the State House of Assembly
that has been given the power to create inferior courts like the Magistrates courts44. Separation of
powers as a system of checks and balances implies checks on the judiciary in order to avoid arbitrariness
in judicial functions45.

38
See J.B.Gilmour ‘Institutional and Individual Influences on the President’s Veto’ (2002)64 J. vol.198 at 202,
212 and 216. R.A Cass and PL Strauss, ‘The Presidential Signing Statement Controversy’ (2007)16 Wm & Mary
Bill Rights Journal, 11 at 25.
39
Contrast the US case of Field v. Clark, 143 U.S.649 – 669(1892) which held that with respect to constitutional
rules the President has a duty to refuse to sign bills enacted in violation of such rules.
40
See Epiphany Azinge ‘Executive Assent and Veto’ in Azinge and S.Ofuani (eds), Nigerian Legislative Process
(Lagos, NIALS, 2012)321.
41
See ‘The Challenge of Law Reform’ (Princeton, University Press, 1955).pp.4-5 quoted in C. Osim Ndifon op.
cit. p.3.
42
Alexander Hamilton, The Federalist Papers, No. 78. Also quoted in Asari Young op. cit. p. 25.
43
Contrast the raid of the DSS on the 7 Judges being presently investigated for corrupt practices in Oct. 2016.
44
See S.6 (4) a of the 1999 constitution (as amended).
45
Asari Youg op. cit. p. 26

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This discussion will not be complete without adverting our minds to the issue of supremacy of the courts
over the acts or actions of the National Assembly as it seems. This is a fallacy and not true. One may be
tempted to state that the courts are superior to the legislature here for being given the power/authority to
mollify or void the laws of the latter. The correct view in my mind is that the right of ‘declaration by the
court as to the validity of a statute made by the National Assembly is not a show of its power but the function
assigned to it by the Constitution..... By declaring any law unconstitutional, the judiciary is not
reprimanding or stopping the legislature either from passing unconstitutional laws in the future, but it is
only serving as a guide to point out the illegality in the law made46.

Further, we must appreciate the concept of judicial review as arising from the inherent checks and balances
that the concept of separation of powers entails. ‘Under the doctrine of checks and balances, the judiciary
is vested with the power to keep a check on the executive and legislature. This has given rise to Judicial
Review through which the judiciary curtails any form of executive or legislative excesses or other form of
abuse of power. Judicial review is undertaken through interpretation of the constitution and laws made by
the legislature and implemented by the executive47. Predicated on S.4(8), the issue of judicial review simply
refers to the authority of the court both to review the constitutionality or validity of legislative acts and to
disregard, or direct the disregard of acts that are unconstitutional or violate applicable statutes48.

5. Reform Projections
Permit me to recommend to our courts and judges that on issues bordering on interpretation of constitutional
or statutory provisions dealing with separation of powers, a hybrid of both the aggressive judicial activist
approach and the self-restraint approach should be adopted. Whereas the aggressive judicial activist
approach seeks ways and means to involve the courts in various acts of the legislative and executive arms
to government with a view to reviewing their activities, the self-restraint approach admonishes the judiciary
to step in only when clear statutory or constitutional provisions or stipulations have been expressly and
clearly breached or viotated. The purposive approach 49 here will be to review all legislative and executive
actions not supported by legal rules, regulations or the constitution. To this end, I recommend and endorse
the statement of Pats Acholonu JCA (as he then was) in Asogwa v. Chukwu that
In the United States of America, these schools of thought have been reduced to what is
described as judicial self-restraint and the preferred freedom concept. Justices like Chief
Justice Burger...believe that judicial review should be reduced to the barest minimum as it
is described as ‘a lethal instrument’ to be used only in clear cut cases where agencies of
national or state government patently foil the constitution. On the other hand, Brennan and
Marshall felt that having regards to the provisions of the Bill of Rights, and particularly,
the First Amendment, the court ought to play more activist role. These acronyms do not in
the least denote either abnegation of courts responsibility or unnecessary intrusion rather,
they are based on the concept and premise of what is good for the nation’50

46
ibid. G. Marshall had opined that ‘where constitutional law places restrictions on legislative power, a duty to
declare the law seems to imply a duty to declare when such restrictions have been violated, whether by the
legislature or by anyone else’ See, also Asari Young op. cit. pp.26 - 27
47
Ngozi J. Udombana op. cit.p.36. Judicial Review have been seen as ‘an appropriate judicial function, since the
law is the judge’s stock-in-trade, the field in which they are professionally expert. But they are not independent
decision makers and have no business to act as such. They have in all probability no expertise in the subject matter
of the decisions they are reviewing. They are authors of legality, no more, no less’,- T. Bingham, The Rule of Law
(London Penguim Books, 2010)p.61
48
ibid
49
See the dictum of Lord Griffiths in Pepper (Inspector of Taxes v. Hart (1993) 1 All E.R. 42 at p.50- ‘the courts
must adopt a purposive approach which seeks to give effect to the true purpose of legislation’
50
ibid p. 98

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Further, if we agree that what our Constitution has provided for is ‘separate institution sharing powers
together’51, then there is an urgent need for an Act to clearly clarify or specify the powers allocated to each
arm or organ. Areas of reciprocity must also be delineated in such legislation. Where the organs of
government must maintain their separate or independent identities should also be legislated upon to avoid
friction and clashes/conflicts of interests. After all ‘modern government should be a cooperative,
coordinated effort and not a tug- of- war between the principal organs of the government ...52. Again, those
who are entrusted with heading or controlling the organs of government should blend the principles of
checks and balances into the practice of separation of powers. Practitioners should at all times seek proper
knowledge of the two doctrines for a better practice of democracy in Nigeria. We agree that ‘the infusion
of the principle of checks and balances (will) allow peaceful interference of exercise of powers without
allowing one organ to exercise superior powers over another. The two doctrines, separation of powers and
checks and balances, are cherished by all the democratic nations of the world for their ability to forestall
dictatorship, tyranny and obnoxious regime at the expense of innocent citizens’53.

Many people have supported Alexander Hamilton in seeing the judiciary as the weakest arm of government.
To him, ‘The judiciary ....will always be the least dangerous to the political rights of the (people)....The
Judiciary,...has no influence over either the sword or the purse, no direction either of the strength or of the
wealth of the society, and can take no active resolution whatsoever. It may truly be said to have neither
FORCE nor WILL, but merely judgment and must ultimately depend upon the aid of the executive arm
even for the efficacy of its judgment’54. While urging the judiciary to rise up to the fullest exercise of its
power of judicial review as donated to it under Section 4(8) of the Constitution, this least dangerous arm
must through the sagacity and forthrightness of its decisions particularly respecting conflicts between the
organs of government ensure that there is separateness and interdependence as well as reciprocity and
cooperation among the three arms of government.

6. Conclusion
This article has looked at the meaning of the concept ‘Separation of Powers’ in our constitutional domain.
It analyzed the sharing or allocation/distribution of governmental powers amongst the Executive,
Legislature and Judiciary. This article reviewed the areas of power differences or divergences among them.
Those areas where they must cooperate were also highlighted in the review. Reform projections were also
made on the ways of advancing the utility of this concept. We agreed that; ‘Montesquieu did not at all
advocate that there shall be no influence by the Legislature and the Executive over each other’s act, but that
neither should exercise the whole power of the other. The whole idea behind the doctrine is to ensure that
no one single organ or single person should hold the other organs and indeed the society to ransom. The
doctrine, which is based on democratic principles, is the antithesis of tyranny, despotism and
totalitarianism’55. We further analyzed or discussed the areas of confluence of powers amongst the three
departments of government as well as their areas of power dislocations and divergences. This article found
that in all true democratic systems of government round the globe, the three departments or arms of
government cannot be in separate or watertight compartments but must interface, cooperate and mingle in
such a manner that governance is enhanced and enabled.

51
A.A Borokini, The Doctrine of Separation of Powers and the 1999 Constitutions, Journal of Private &
Commercial Law vol.1, 2008 p.146 quoting Fred Agbaje, The Doctrine of Separation of Powers (Unpublished
L.M Seminar Paper (1992)p.9, submitted to the Faculty of Law, Obafemi Awolowo University, Ile-Ife.
52
Constitution Drafting Committee Report volume 1, 1976 p. XXXII
53
A.A Taiwo ibid p. 30.
54
Alexander Hamitton, The Federalist Papers No. 78
55
Niki Tobi, The Exercise of Legislative Powers in Nigeria (Lagos, NIALS, 2002)p.4

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