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Military Rule and Separation of Powers- Civil Rule and Separation of Powers

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The organization of government under the military rule is contrary to the concepts of separation of power, traditionally or modern. It must be noted that the primary purpose of the concept is to guard against dictatorial rule by avoiding concentration of all the powers of government in one hand. With the advent of the military rule in Nigeria beginning from January 15, 1966, the military suspended and modified the 1963 Constitution by virtue of the constitution (suspension and modification) Decree N. 1, 1966. By virtue of the decree, it dissolved the parliament and fused legislature and the executive powers in the Supreme Military Council (SMC) which was the ruling military council. This fusion of both legislative and executive functions or powers is repeated in every military regime. The ruling military council has also been known as Armed Forces Ruling Council (AFRC) and Provisional Ruling Council (PRC) and so forth in various military regimes. The military also passed the federal military Government (Supremacy and enforcement of powers) decree No. 28 of 1970, by virtue of which decree became the supreme laws of the land and the validity of any decree or edit cannot be inquired into by any court of law. But whenever an edict was inconsistent with a decree it became null and void to the extent of such inconsistency. Though the judiciary is never abolished nor its power taken away, its judicial powers was ousted in various matters by ouster clauses contained in the relevant decrees /edits which stripped those courts of power or jurisdiction to look into such specified matters. A military regime wields a lot of powers especially legislative and executive powers. They also exercised judicial powers as they deemed fit from time to time. It could, by a decree, determine a person’s guilt and mete out penalty.

Civil Rule and Separation of Powers

The Nigeria Constitution of 1999, provided for a presidential system of government. The constitution also provided for a clear division of the three powers or branches of government as follows:

Section 4The Legislature with Legislative powers
Section 5The Executive with executive powers
Section 6The Judiciary with judicial powers

During Civil rule, the Constitution is the Supreme Law of the land and the rule of law is the basis of government actions. Any law or action that contravenes the provisions of the constitution is void to the extent of such inconsistency.

In Attorney General of Bendel State V Attorney General of the federation and others. The court declared unconstitutional the precedence by which the appropriation bill was passed by
the National Assembly.
  Also In the Attorney General of the Federation V Attorney General
of Abia state, the Supreme court declared unconstitutional and contrary to the provisions of section 162 of the 1999 constitution the Act of the Federal Government in charging certain funds, like that of the judiciary, settlement of external federal debt joint venture contracts and the Nigeria National
Petroleum Corporation (NNPC) priority projects, special allocation to the Federal Capital Territory in the federation Account out of which all the various levels of government are to take a share.

CONCLUSION

We draw our conclusion from the observation made by the Constitution Drafting Committee of the 1979 constitution which said: Strict compartmentalized separation is not possible under
modern systems of government as modern governments should be a co-operative co-co-coordinated effort and not atug of war between the principal organs of government. Separation of executive and legislative function is necessary and desirable if limited government and individual liberty are to be secured, but certainly not a rigid separationAnd this tallies with the views of Abiola Ojo, that

  “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 anyone person or body and the check of one power by another”.

SUMMARY

In this unit you should be able to explain the concept separation of powers and its application under:
Democratic dispensation  Military dispensation  In a Parliamentary System of Government.  

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