1.1 Background of the Study
The origin of this doctrine started from the work of the British philosopher John Locke who observed the conditions of the 17th century England. In his work, second Treatise on Civil Government, he reasoned that:
“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” (italicized by researcher)
Power which is not checked may become absolute. This position agrees with the views of Ben Nwabueze:
“Concentration of government powers in the hands of one individual is the very definition of dictatorship and absolute power is by very nature arbitrary, capricious and despotic…” (italicized by researcher).
However, the applicability of this doctrine has been the subject of controversy in modern democracies across the world. This may be particularly due to the fact that there is no strict or watertight application of the doctrine of separation of powers. In actual practice, there is flexibility which logically leads to Principle of checks and balance. One branch or arm of government operates as a check on the other. James Madison, a Republican and Fourth President of the United States of America have this to say:
“In framing a government which is to administered by men, the great difficulty lies in this; you must first enable the government to control the governed, and the next place oblige it to control itself…”
Nigeria operates a democratic system of government. As obtainable in other similar jurisdictions, the concept of separation of power is an essential element of the Rule of Law and is enshrined in our Constitution. However, in practice, the doctrine operates in such ways that each arm of government acts independently of one another but also serves as a check and balance on one another to prevent the excess and abuse of power.
1.2 Statement of the Problem
There is need for a review and amendment of the Nigerian Constitution to reflect the practicability of the doctrine of separation of powers. This is because the applicability doctrine is an ever increasing controversy. The dynamics of the modern democracy has thrown up new constitutional challenges relating to the exercise of government powers.
Under the Constitutional arrangement, one branch of government should not encroach on the jurisdiction of another nor exercise the powers of another branch of government. The concentration of powers in the same person or body would lead to tyranny because based on the saying that power corrupts and absolute power corrupts absolutely, if the exercise of these powers do not have limits, there would be massive abuse of these powers.
However, in practice, it is not possible that each arm of government should remain totally independent and supreme in its sphere of authority without blending or collaborating with other arms of government. No arm of government can also exist independently devoid of any check and balance. Separation of powers does not necessarily mean equal balance of power among the three arms of government.
In effect, for separation of power to be meaningful, individuals’ powers must create room for overlapping, co-operation, co-ordination and an equitable balance among the arms of government so that government business will not grind to a halt due to rigidity and opposition.
Therefore, this research seeks to analyze how this separation of powers are used by different arms of government and how one arm checks and balances the exercise of the power of the other in the running of business of government so as to make recommendations aimed at improving and maintaining this doctrine.
1.3 Research Questions
The following research questions constitute the main thesis of this work namely:
a. What is the origin, meaning and rationale for the doctrine of Separation of Powers andChecks and Balance?
b. How is the doctrine of Separation of Powers applied in Nigeria?
c. What aspects of the doctrine of Separation of Powers and Checks and Balances need modification in Nigeria especially under the Constitution?
1.4 Objectives of the Study
The objectives of this academic research project are:
a. To provide a theoretical exposition of the principles of Separation of Powers and Checks and Balances in terms of their origin, meaning and rationale.
b. To critically appraise the application of the doctrine of separation of powers under the constitution of the Federal Republic of Nigeria 1999 as amended.
c. To critically appraise the application of the principle of checks and balances under the constitution of the Federal Republic of Nigeria 1999 as amended
d. To offer recommendations for future review and amendment of the Constitution of the Federal Republic of Nigeria 1999 as amended in relation to the doctrines of Separation of Powers and Checks and Balances
1.5 Significance of the Study
This research project is significant because it critically appraises the application of the doctrines of separation of Powers and Checks and Balance under the constitution of the Federal Republic of Nigeria 1999 as amended and theoretically reviews the various contributions made by academics and practitioners in this area
Recent agitations and clamor for constitution amendments by academics, political office holders, lawmakers, stakeholders, politicians, community leaders and constitutional lawyers has brought to the fore the necessity of examining the Constitution of Nigeria relating to the application of the doctrine of separation of Powers in Nigeria. This is intended to highlight the various inadequacies in the Constitution and suggest an effective legal framework for future amendments.
The study will provide essential clarifications on the subject matter and give the reader a proper conception of what the doctrine entails. It also draws the attention of future researchers to enormous literature on the issue.
1.6 Scope of the Study
Geographically, the study covers the Nigerian system. However, the content encompasses different expositions on the concept of separation of powers, origin, meaning, scope, applicability, its limitations, an overview of doctrine through the judicial interpretations of the constitution of the Federal Republic of Nigeria 1999, as amended. To achieve this work assesses and analyses various judicial and statutory authorities relevant to the issues, and present an extensive review of available and relevant literature.
1.7 Methodology of the Research
The methodology to be adopted in this work is analytical, comparative and prescriptive. The appraisal as well as the critical examination of the application of doctrine of separation of powers and checks and balances makes the analytical approach a preferred option. The comparative method is a derived from the need to borrow a leaf from the approaches and positions in other compatible jurisdictions around the worlds. The prescriptive method is adopted because recommendations and useful suggestions for constitutional amendments are proffered. It is also descriptive in its objective consideration of the issue as well as the numerous literature which form the basis of analysis.
1.8 Organization of Study
In order to archive a coherent analysis and presentation, this research project is organized into five chapters.
Chapter one provides the background to the study, statement of the problem, theoretical framework and the available literature review.
Chapter two outlines the origin of the doctrine of Separation of Powers, the rationale for the doctrine, the examination of various arms of government and further discusses the doctrine under Civilian and Military Regimes..