The Separation of Powers and the Rule of Law are important concepts or notions that operate within our legal System. A detailed discussion of these concepts is intended in a course of this nature.
Separation of powers implies the division of governmental authority into there branches of government – legislative, Executive and Judicial – each with specified duties on which neither of the other branches can encroach; the Constitutional doctrine of checks and balances by which the people are protected against tyranny. As we shall see, it is extremely difficult in practice to define precisely each particular power.
On the other hand, Rule of law may mean: A substantive legal principle The supremacy of regular as opposed to arbitrary power. The doctrine that every person is subject to the ordinary law within the jurisdiction.
Separation of Powers and Rule of Law
Separation of Powers This concerns the relationship of the organs of government inter se (which is a Latin phrase meaning between themselves or among themselves).
The doctrine of the separation of powers is a principle which, it is argued, is basic to democracy and the prevention of tyranny. The doctrine rests on the basis that the organs of government fall into three categories – legislative, executive and judicial all of which are separate from and independent of each other. This structure provides, so the argument runs, a system of checks and balances which is not present in a political system where, in effect, all power is held by one authority. The French political philosopher Montesquieu was a great advocate of the separation of powers and claimed that ‘to the separation of powers of government, the English people owed their liberty’.
Few people would maintain that the separation of powers is possible in a pure form today. In particular, it is impossible to separate the functions of the legislature from the executive. The reason is that the executive itself makes an enormous volume of the rules and regulations which govern our lives through the process of delegated legislation, so there is an immediate overlap of function with the legislative arm.
In any event the doctrine of the separation of powers has found its way into our Constitution. The legislative power is vested in the National Assembly, the executive power is held by the Executive Council (a body of government ministers acting in the name of the State) or the Presidency and the judicial power by the Judiciary.
Just as the relations between the States and the Federation have changed since 1954 (due to a large extent to the interpretation of the Constitution by the Apex Court, the present meaning of the separation of powers doctrine in Nigeria has also been determined by Courts.
In the Australian case of A-G for Australia & Kirby v R and The Boilermakers Society  AC 288, the matter in dispute was whether both judicial and non-judicial functions could be combined in one tribunal – in this case a tribunal dealing with industrial disputes. The Apex Court considered that they could not and in the judgment a number of important observations were made
A distinction must be drawn between the relationship of the legislature and the executive on the one hand and the relationship between these two arms of government and the judiciary on the other. A separation of the legislative and executive functions is not a critical fact in the preservation of a federation whereas the separation of the judiciary from either of the two arms is most crucial.
The reason why the separation of the judiciary is most important is because the federation rests upon a distribution of governmental powers and only the judiciary can safeguard this distribution.
A more recent decision confirmed that the doctrine of separation of powers was still powerful in the Australian case of Brandy v Human Rights and Equal Opportunity Commission and Others (1994 – 1995) 183 CLR 245. In that case, it was successfully argued that the Commission in having its determinations registered and enforceable as Federal Court Orders was exercising a judicial function and therefore unconstitutional.
In reality in Nigeria, there is not a three way separation of powers but rather a two way split between the executive and legislative on the one hand and the judiciary on the other. In fact, even this two way split can be quite blurred at times because courts have power to lay down their own rules of procedure. This is akin to legislation although in the overall scheme of things, it is not a major source of legislation.
The Rule of Law
This notion deals with the relationship between organs of government and the citizen. One of the constraints on the Federal and State Governments is the existence of the Federal Republic of Nigeria Constitution. Another more nebulous constraint is what is often called the rule of law.
The rule of law is not easy to define. It is concerned about a number of concepts and notions some of which are quite vague, yet it is considered to be very important in our legal system. The rule of law is a peculiarly an English concept, yet it is frequently referred to in wider legal debates such as in defining international law and justice.
To some people the rule of law is equated with the existence of public order, meaning that peace exists within a country and that its citizens obey the law. However, this is a very narrow interpretation of the doctrine because if we were to adopt that criterion alone it could be argued that the rule of law existed during the regimes of Stalin and Hitler, or Abacha, under whose Presidency Nigeria had been referred to as a pariah.
While the existence of public order is part of the rule of law, what is more important is the limitations which are placed on the use of arbitrary power by governments and the corresponding liberties enjoyed by the citizens of a State. Another way to express this principle is to say that the rule of law means that both the rulers and the ruled (the citizens) are under the law.
Historically, the development of the rule of law has been concerned with two main issues:
- Was the Sovereign under the law, which basically meant was he supreme or was Parliament? This issue was decided finally in the English Bill of Rights of 1689 in favour of Parliament.
- What constraint should be placed on Parliament to prevent an abuse of its power? The constraint came from two sources: by ensuring that Parliament is a representative legislature; and by the existence of the doctrine of the separation of powers.
In countries like America and Nigeria, there is a third constraint namely – the existence of a written constitution. For example, the Constitution of the Federal Republic of Nigeria places certain limits on the National Assembly and protects human rights, for example, the Constitution protects individual freedom of speech, association, movement etc.
In addition to the constraints which in theory at least should be placed upon the National Assembly, there are a number of other notions which are central to the rule of law:
The equal subjection of all classes of people (regardless of class or status) to the ordinary law of the land, administered by the ordinary courts. In particular the way in which the criminal law is administered is regarded as an acid test and there are certain requirements: police powers should be limited; crimes should be curtailed; penal statutes should be strictly construed by the courts; and penal statutes should not be retrospective.
There are three fundamental liberties: freedom of the person; freedom of property; and freedom of opinion.
If all of the notions referred to above were in fact present in our system then it would be said that the rule of law exists. In fact, however, there are a number of shortcomings, viz:
- The constraints on legislature are often quite weak. While legislature is a representative House the use of the party system does give the executive government at least control in the short term, i.e. between elections.
- The concepts of equality and liberty are vague. They are not bolstered by a written constitution.
However, the Court has found a number of Federal or State laws to be invalid, as being in conflict with the fundamental civil and political rights enshrined in the Constitution. Examples include: freedom of expression, at least in relation to public affairs and political discussion and of association which are indispensable to the efficacy of the system of representative government, for which the Constitution makes provision.
While the fundamental human rights are entrenched in the Constitution of Nigeria, suggestion has been made that there is still a need for a Bill of Rights. The cases for and against such a Bill are concisely set out in Evans et al. (1988, pp 36-8) as follows:
Bill of Rights
The Case for a Bill of Rights Those favouring a Bill of Rights believe it to be the only way to protect fully civil liberties. In summary, the claims are
- A Bill of Rights would provide the means for preventing abuses of power by governments, agencies and the police.
- As a signatory of several international pacts, such as the Declaration of Human Rights (United Nations), and the African Charter, Nigeria has a moral obligation to pass a Bill of Rights that applies to our own domestic situation as evidence of our support for the international agreements.
- Several other Commonwealth countries have passed a Bill of Rights and we should follow the pattern and support their direction.
- A Bill of Rights would provide the means for some judges to defend better, the civil rights of individuals and could bring about changes in the law as a result of successful legal actions against unfair practices.
- As a tool for educating society about the attitudes and values held, a Bill of Rights would be most valuable. Particularly, the Bill would challenge issues of religious, sex, or race discrimination and other violations of basic human rights and freedoms.
The Case against a Bill of Rights
ii. The problems of drafting an adequate Bill of Rights are great. The statements from another country cannot be simply grafted on to Nigeria. What should be included is one aspect of the problem; what it should declare as a liberty is another. For example, can the right of workers to be organized into unions co-exist with the rights of an individual worker not to join a union?
iv. Critics point to other countries where the most violent abuses of civil liberties often occur as those countries with the best-sounding Bill of Rights. The substance of this argument is that civil liberties declared in an Act can be manipulated in practice, either by being ignored by sections of the community or overruled by governments in the interests of national security.
You have learnt about the separation of powers of government to which, according to Montesquieu, the people owe their liberty. You also have learnt the very important concept of rule of law, equity and liberty. You are reminded always that “the Law Rules”.
From time to time, it is asserted that Nigeria should have a Bill of Rights. One of the arguments to counter this is that there are enough protections of individual rights provided for in the Constitution and in statute books.