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DOCTRINE OF SEPERATION OF POWERS IN A DEMOCRATIC DISPENSATION

  • Department: POLITICAL SCIENCE
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INTRODUCTION  

The Doctrine of Separation of Powers emphasizes that all the governmental powers that exist in a given state should not be vested or concentrated in one person or one organ of government. It believes that if these powers are divided into the different organs of government, being the Legislature, the Executive and the Judiciary, the chances of dictatorship or tyranny will be reduced to the barest minimum.

It is equally argued that if rights, liberties and freedom of citizens are to be maintained and guaranteed in any society under democratic rule, then the three organs of government must be separated and entrusted to different people to administer. It is believed, that there will be chaos, violence, dictatorship, tyranny and oppression if there is no separation of powers such that the functions of governmental law making, execution and adjudication are handled by different organs of government without interference.

This paper seeks to examine the doctrine of separation of powers in a democratic dispensation. Systematically, the paper is sub-divided into six sections. The first section is the introduction, followed by conceptual clarification of the doctrine of separation of powers and its proponent; separation of powers in a cabinet system of government; the doctrine of separation of powers in the presidential system of government; critique of doctrine of separation of powers; conclusion and recommendations.

CONCEPTUAL CLARIFICATION

The Doctrine of Separation of Powers, according to Anyaele (2003:69), may be defined as the division of governmental powers that exist in any given state into the three organs of government. It was a French political thinker and jurist, Baron de Montesquieu, who developed and popularized the principle of separation of powers in his book titled “Espirit des Lois”, which is ‘The Spirit of Laws’ published in 1748.

Political scientists like John Locke, Jefferson, Jean Jacques Rausseau, Jean Bodin, Plato and Aristotle, had earlier expressed their views on the principle of separation of powers.

According to Montesquieu (1748), if rights, liberties and freedom of citizens are to be maintained and guaranteed in any democratic society, the three organs of government must be separated and entrusted to different people to administer.

He argues that there will be chaos, violence dictatorship, tyranny and oppression if there is no separation of powers.

In order for us to clearly understand the application of the doctrine of separation of powers in a democratic dispensation, there is the need to equally understand the concept of democracy as part of the conceptual clarification.

Democracy, which gives the idea of democratic dispensation in this paper, could be regarded as government which is derived from public opinion and is accountable to the people (Anyaele, 2003:15).

According to Abraham Lincoln, democracy refers to government by consent of the governed.

Democratic dispensation is therefore representative of all peoples and interests. Joseph Schumpeter refers to democratic dispensations as periods of institutionalized governmental

arrangements in which the people exercise the governing powers either directly or through representatives periodically elected by themselves.

SEPERATION OF POWERS IN A DEMOCRATIC DISPENSATION

According to Anyaele (2003:69), separation of powers guarantees and maintains the rights, liberty and freedom of the citizens. This is because powers are separated among the organs of government in order to avoid chaos, violence, dictatorship, tyranny and oppression in a country. Separation of powers in a democratic dispensation among the Executive, Legislature and Judiciary, therefore, leads to division of labour and specialization in the art of governance.

The doctrine of separation of powers also results in one organ checking the activities of other organs known as check and balances. The checks and balances that apply in separation of powers make government officials cautious and meticulous in carrying out functions very efficiently and orderly.

Anyaele (2003:69) expresses further that the rule of law which is one of the ingredients of democracy is guaranteed if powers are separated among the three organs of government. Where there is separation of powers, there is equally stability in the political system of any country. In the final analysis, the doctrine of separation of powers prevent excesses and recklessness on the part of the organs of government and by so doing brings about efficiency and orderliness in the administration of a country.

The application of the doctrine of separation of powers in a democratic dispensation takes place in either the parliamentary or cabinet system of government. It could be observed that there is more separation of powers in the presidential system of government than in the cabinet or parliamentary system. This paper now turns to look at separation of powers as it operates in both the cabinet and presidential systems of government.

SEPERATION OF POWERS IN THE CABINET SYSTEM OF GOVERNMENT

In the words of Anyaele (2003), there is fusion rather than separation of powers between the Executive and the Legislature in the parliamentary or cabinet system of government.

This is because the functions of these organs tend to overlap. For stance ministers in the cabinet system of government belong to both the Executive and the Legislative organs of government. The executive organ of government under the cabinet or parliamentary system of government tends to have full control of the Legislative organ and even the judiciary.

Another instance to show that there is more fusion rather than separation of powers in the parliamentary (cabinet) system of government is that the head of the judicial organ of government in Britain that practices, the cabinet system is also a member of the legislature (Annyaele, 2003:70). The executive is therefore collectively responsible to the parliament for its actions.

Understandably, the parliament can dismiss the entire executive, also known as cabinet, with its votes if no confidence.

Meanwhile, almost all bills initiated by the executive in the parliamentary system of government are passed in the Legislature because its members are also parliamentarians who pass these bills.

In Britain, for example, one chamber of the Legislature, called the House of Lords, which is the Upper House is the highest Court of Appeal.

This shows that there is fusion rather than separation of powers in the parliamentary system of government as practiced in Britain between the legislature and the judiciary. Incidentally the executive appoints the head of the judiciary who does not really check the activities of those that appointed him. Hence there seems to be no act of separation of powers among the different organs of government in the cabinet or parliamentary system of government but complete fusion of powers. This is opposed to the situation in the presidential system of government under democratic dispensations.

SEPARATION OF POWERS IN THE PRESIDENTIAL SYSTEM OF GOVERNMENT

There is no gain reiterating the fact that there is no fusion between the Executive and the Legislature in the presidential system of government. The two organs are separated both in functions and Membership. In the presidential system of government, ministers do not belong to both organs, any legislator appointed a minister must first resign his or her appointment as a member of the legislature which he was elected. The legislature and the judiciary are not controlled by the executive. Meanwhile, the president is elected but not appointed from the parliament and therefore not controlled by the parliament. These show the high level of separation of powers among the different organs of government in the presidential system of government.

More so, in the presidential system of government, the Chief Justice who is the head of the judiciary is not a member of the other two organs of government and the executive is not collectively responsible to the parliament for its actions.

In the presidential system of government, the upper chamber of the Legislature, the Senate, as the case with Nigeria and USA, does not act as the highest Court of Appeal and not all bills initiated by the executive are passed in the parliament into laws as it happens in the cabinet system.

All these show that the acts of separation of powers among the different organs of government seems to be more visible in the presidential system far more than cabinet system because functions of these organs do not over lap in the presidential system like in the cabinet system.

CONCLUSION AND RECOMMENDATIONS

This paper discusses the doctrine of separation of powers in a democratic dispensation with the argument that powers are more separated in a presidential system of government than in a parliamentary system.

The paper recommends that there should be adequate separation of powers so as to enhance the rights, liberties and freedom of individuals in a democratic dispensation.

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