Pos 102 Organization of government

Defining Government

Government affects all aspects of people’s lives. What we eat, where we go to school, what kind of
education we receive, how our tax money is spent. In fact, even what we do in our free time is
somewhat affected by government. Nigerians and citizens of many other countries are often unaware
of the pervasiveness of government in their everyday lives, and many are unsure precisely what it
does.

Government as an institution of the state

Government as an institution of the state is defined as the machinery that is setup by the state to
administer it’s functions and duties. It can be seen as a ‘machinery’ set up by the state, to keep the
state organised, run its affairs and administer its various functions and duties.

The coming together of people to live in a society resulted in the need to form a body (government)
which will handle the administration of the society. If a state should exist without this kind of body
(government), anarchy is said to reign in such a state.

Government as an art of governing

Government is an art of governing. A government is a body vested with the supreme power of the
affairs of a state. The supreme power of a state lies in the hands of the government thus giving it the
authority to make and enforce laws and implement policies as well. The government can also punish
any erring member of the society that breaks the law. The principle of separation of power aids the
government in efficient administration.

Government as a field of study

Government is also a subject, a social science subject, studied in various educational institutions
(primary, secondary and tertiary). It is known as Political Science in higher institutions. Government
Studies covers a range of International Relations, Comparative Politics, Public Administration and so
on.

Major Characteristics and Features of Government

Given below are the major characteristics and features of the government in a state:

Constitution: This is a major characteristic of a government. The government make a set of agreed
rules which guides it in the administration of the state.

Periodic Change: A government is meant to change after a specific period of time. No government is
permanent, particularly a democratic or elective government which changes through periodic
election.

Legitimacy: A government must enjoy the support of the people.

Revenue: The government makes revenue in different ways to enhance its administration.

Political Power: The government must possess political power which is a tool of rooting orderliness in
a state.

Universality of Government’s Reach: The jurisdiction of the government must reach or extend to
everyone within the state.

Public Institutions: The institutions comprising the government of a political society, differ from the
other institutions within the society.

Functions Of Government

Before we look at the functions of government it is imperative to view two contrasting perspective of
how the state originated as this aid our understanding of what to expect from government.

1, Social Contract Theory:

According to the social contract theory the state was the creation of the people living in a state of
nature which was a lawless and order-less system. The slate of nature was controlled by unwritten
laws prescribed not by men but by nature. The exponents of the theory gave conflicting views about
the nature of the state of nature. Some considered it gloomy, while others painted it as bright like
paradise

But to Thomas Hobbes in his book Leviathan delineates very precisely and straightforwardly the
creation of the state by an agreement. To begin with, before the state was created, there was a state
of nature in which a war was raging. There was no law or justice. Human life was marked by force and
deceit. Might was right in that situation. Hobbes gave a gloomy picture of the state of nature in his
oft-quoted words “Solitary, poor-nasty, brutish, short”.

The people became fed up with the state of nature. In order to get rid of the unbearable condition
they entered into an agreement by which they established a government or authority to which they
surrendered all their rights. The surrender was unconditional and irrevocable. The authority was a
single person or a group of persons endowed with unlimited power. The authority to rule was the
result of the contract.

The central idea is that people abandoned the state of nature replacing it with civil society by a
contract. That done, they made another contract by which the government in the person of the King
was set up. Here the ruler was a party to the contract. The people would obey him so long he would
protect their life and property.

From this perspective therefore the major faction of government will be to protect lives and property.
But from the feminist perspective, life in the state of nature came as a critique of the Hobbesian
theory, this perspective asked a fundamental questions about how society were to continue if the
state of nature was nasty brutish and short, how did reproduction take in such an environment. To
them the state of nature was peaceful with people cooperating with each other. But as the families
began to expand and they gave birth to gen which stands for a household. Several gens made one
clan. A group of clans constituted a tribe. A confederation of various tribes based on blood relations
for the purpose of benefiting from their comparative advantages formed one commonwealth which is
called the state.

From the feminist standpoint therefore government does not exist only to protect lives and properties
but to enhance the living standard of the citizen and providing an enabling environment for
cooperation.

The major functions modern government include

Law Making

Military defense of the country

Provision of employment

Maintenance of law and order

Promotion of economic growth and development

Maintaining good relations with other sovereign states or countries (foreign diplomacy)

Protection of civil liberties

Protection of lives and properties

Administration of justice

Formulation and implementation of policies

Provision of social-welfare services

2. The three arms of government

The three organs of government are the legislative, executive, and judicial. Most governments around
the world, though arranged differently, exercise these powers in one way or another. Since many
governments around the world have a system of government not unlike those of the United States and
Great Britain, I have used them as illustrative examples:

Legislative: This refers to making laws, a power usually vested in a representative assembly of some
kind. In the federal republic of Nigeria, the legislative branch is divided into two houses, each of which
must approve potential legislation by a majority vote. In Great Britain, this power is held by Parliament.

Executive: The executive power is broadly defined as the power to enforce, or carry out, laws. In the
United States, this power belongs to the President and the Executive Branch. In most countries, the
actual work of enforcing laws is done by an enormous and complex bureaucracy which the President is
tasked with supervising. In Great Britain and other parliamentary systems, the executive power is
exercised by a number of ministers who head offices similar to those in the United States.

Judicial: The judicial branch basically interprets and applies laws, including the Constitution, through
legal decisions. In the Nigerian federal government, there is a judicial branch is the third arm of
government.

The executive branch is responsible for enforcing the laws passed by the legislative branch. The
executive branch consists of the President, the Vice President, and the Presidential Cabinet, along with
several other federal agencies and committees. The executive branch is responsible for the day-to-day
administration of the government and is responsible for implementing policies and programs that reflect
the priorities of the president. It is also responsible for national security and defense. Examples of
executive branch actions include issuing executive orders, conducting foreign policy negotiations, and
appointing Supreme Court justices. The executive branch also plays a critical role in the checks and
balances system, as it has the power to veto legislation passed by Congress, but Congress can override a
presidential veto with a two-thirds vote in both chambers.

The judicial branch is responsible for interpreting the laws and ensuring that they are applied fairly and
consistently. It is composed of the Supreme Court, as well as the lower federal courts. The Supreme
Court is the highest court in the land and has the final say on issues related to the constitutionality of
laws and the interpretation of federal law. The Supreme Court is made up of nine justices, who are
appointed by the president and confirmed by the Senate. The judicial branch is responsible for
upholding the rule of law and ensuring that the other branches of government act within the limits of
the Constitution. It is also responsible for protecting individual rights and liberties.

Examples of judicial branch actions include interpreting the Constitution and striking down laws that
violate it, as well as interpreting federal law and issuing rulings in cases involving civil rights and liberties.

The judicial branch also plays an important role in the checks and balances system, as it has the power
to declare laws unconstitutional and to interpret the Constitution and federal law.

The legislative branch, also known as Congress, is responsible for making laws. It is composed of two
chambers – the House of Representatives and the Senate – and is responsible for representing the
people of the United States. The legislative branch has the power to introduce and pass bills, which then
become law after they are signed by the president. It is also responsible for overseeing the budget and
taxation, as well as declaring war and regulating commerce.

3.Basic principles of the Theory of Separation of Powers and Balance of power theories

The three organs of the government—Legislature, Executive and Judiciary— perform the three essential
functions of law-making, law-application and law- adjudication. This threefold division of governmental
functions is universally accepted as the best way of organizing the government. These three functions
are inter-related and inter-dependent. But these are performed by three different organs.

Basically the Central Idea of the Theory of Separation of Powers holds that the three organs of
government must be separate and independent from one another. Any combination of these three
functions into a single or two organs is harmful and dangerous for individual liberty. Separation of
powers of the three organs is essential for the efficiency of the government and the liberty of the
people.

Government can work systematically and efficiently only when each of its organs exercises its own
powers and functions. Similarly, the liberty of the people can be protected only when there is no
concentration or combination of the three governmental powers in the hands of one or two organs.

The theory of Separation of Powers posits that keeping the government limited, is a prerequisite for
protecting the liberty of the people, the three functions of government should be separated and
performed by three separate organs.

II. Meaning of Separation of Powers:

In simple words, the theory of Separation of Powers advocates that the three powers of the government
should be used by three separate organs. Legislature should use only law making powers, Executive
should undertake only law enforcement functions, and Judiciary should perform only
adjudication/Judicial functions. Their powers and responsibilities should be clearly defined and kept
separate. This is essential for securing the liberty of the people.

In his book The Spirit of The Laws’ (1748), Montesquieu enunciated and explained his theory of
Separation of Powers. Thus,

(1) If the legislative and executive powers are combined in the same organ, the liberty of the people gets
jeopardized because it leads to tyrannical exercise of these two powers.

(2) If the judicial and legislative powers are combined in the same organ, the interpretation of laws
becomes meaningless because in this case the lawmaker also acts as the law interpreter and he never
accepts the errors of his laws.

(3) If the judicial power is combined with the executive power and is given to one-person or one organ,
the administration of justice becomes meaningless and faulty because then the police (Executive)
becomes the judge (judiciary).

(4) Finally if all the three legislative, executive and judicial powers are combined and given to one person
or one organ, the concentration of power becomes so big that it virtually ends all liberty. It establishes
despotism of that person or organ.
As such, the three powers should not be combined and given neither to a single organ nor to two
organs. These three powers should be used by three separate organs of the government. It is essential
for safeguarding the liberty of the people.

Main Supporters of the Theory of Separation of Powers:

The British jurist Blackstone and the founding fathers of the American constitution, particularly,
Madison, Hamilton and Jefferson, extended their full support to the theory of separation of powers.
They regarded Separation of Powers essential for protecting the liberty of the people.

Theory of Separation of Powers: Criticism:

1. Complete Separation is not possible: The government is a single entity. Its three organs can never be
completely separated. The legislative, executive and judicial functions are interdependent and inter-
related functions and hence cannot be fully separated.

2. Complete Separation is not desirable: Complete separation of three organs of government is neither
possible nor desirable. It is not desirable because without among mutual coordination these cannot
carry out its functions effectively and efficiently. Complete separation of powers can seriously limit the
unity and coordination needed by the three organs.

3. Impracticable in itself: We cannot fully use separation of powers. The function of law-making cannot
be entrusted only to the legislature. The needs of our times have made it essential to provide for law-
making by the executive under the system of delegated legislation. Likewise, no one can or should
prevent law-making by the judges in the form of case law and equity law.

4. Unhistorical: The theory of Separation of Powers is unhistorical since it has never been operative in
England. While formulating and advocating this theory, Montesquieu advocated that it was at work in
England. Under the British parliamentary system of government, there was and continues to be a close
relationship between the British Parliament and the Cabinet. Even there is no separation of judiciary
from legislature in so far the British House of Lords acts as the highest court of appeals. The British
Constitution has never been based on the theory separation of powers.

5. The three Organs of Government are not equal: The Theory of Separation of Powers wrongly assumes
the equality of all the three organs of the government. The legislature of the state is always regarded as
the primary organ of government. The work of the government begins by law-making. However, in
actual practice the executive acts the most powerful organ of the government. The judiciary is the
weakest of the three organs, yet it is always held in high esteem by the people. Hence the three organs
are neither equal nor equally respected.

6. Separation of Powers can lead to deadlocks and inefficiency: Separation of powers can lead to
deadlocks and inefficiency in the working of the government. It can create a situation in which each
organ can get engaged in conflict and deadlocks with other two organs.
7. Liberty does not depend only upon Separation of Powers: The critics reject the view that liberty can
be safeguarded only when there is a separation of powers among the three organs of the government.
They argue that in the absence of fundamental rights, independence of judiciary, rule of law, economic
equality and a spirit of democracy, there can be no liberty even when there may be present full
separation of powers.

8. Separation of Functions and not of Powers: The name ‘Separation of Powers’ is wrong because this
theory really advocates a separation of functions. Power of the government is one whole. It cannot be
separated into three separate parts. It is at the back of the functions of all the three organs of
government.

The theory of separation of powers is really a theory of separation of functions. Thus, the theory of
Separation of Powers has several limitations. All scholars accept that absolute and rigid separation of
powers is neither possible nor desirable. Three organs of government cannot be and should not be
totally separated into unrelated water-tight compartments.

The theory of Checks and Balances:

Furthermore, in using the theory of Separation of Powers, we need the adoption of another theory i.e.
the theory of Checks and Balances. Under this theory each organ, along with its own power, enjoys
some checking powers over the other two organs. In the process a system of checks and balances
governs the inter-organ relations.

The theory of Checks and Balances holds that no organ of power should be given unchecked power in its
sphere. The power of one organ should be restrained and checked with the power of the other two
organs. In this way a balance should be secured which should prevent any arbitrary use of power by any
organ of the government.

The legislative power should be in the hands of the legislature but the executive and judiciary should
have some checking powers over it with a view to prevent any misuse or arbitrary use of legislative
powers by the legislature. Likewise, the executive powers should be vested with the executive but
legislature and judiciary should be given some checking powers over it.

The same should be the case of the judiciary and its power should be in some respects checked by the
legislature and executive. In other words, each organ should have some checking power over the other
two organs and there should prevail, a balance among the three organs of government.

For example, the legislative branch has the power to make laws, but the executive branch can veto
those laws. However, the legislative branch can override a presidential veto with a two-thirds vote in
both chambers. Similarly, the judicial branch can strike down laws that it deems unconstitutional, but
the legislative branch has the power to amend the Constitution. Another example of checks and
balances is the confirmation process for Supreme Court justices. The president nominates a candidate,
but the Senate must confirm the nomination, ensuring that the president cannot unilaterally appoint
someone to the highest court in the land.

In fact, the theories of Separation of Powers and Checks and Balances always go together. These have
been together in operation in the Nigerian constitution.