The term “separation of powers” was coined by the French social and political philosopher Charles-Louis de Secondat, baron de La Brède et de Montesquieu, in the 18th century in his publication, Spirit of the Laws. According to him, the political authority of the state is divided into legislative, executive and judicial powers. He asserted that, to most effectively promote liberty, these three powers must be separate and acting independently.
Separation of powers, therefore, refers to the division of government responsibilities into distinct branches to limit any one branch from exercising the core functions of another. The intent is to prevent the concentration of power and provide for checks and balances.
What is the separation of powers?
The concept of separation of powers as opined by Baron de Montesquieu suggests that:
Political liberty is to be found only when there is no abuse of power. To prevent this abuse, it is necessary from the nature of things that one power should check on another… When the legislative executive and judicial powers are united in the same person or body… There can be no liberty… Again there is no liberty if the judicial power is not separated from the legislative and executive …. There would be an end of everything if the same person or body, whether of nobles or of the people, were to exercise all three powers.
To expound this concept, the Nigerian Supreme in Ugba v. Suswan held that: The Constitution sets up a federal system by dividing powers between the federal and state governments. It establishes a national government divided into three independent branches. The executive branch makes the law, while the judiciary explains the law. There is no document superior to the Constitution in Democratic Governance. It is the heart and soul of the people
Separation of powers and the 1999 Constitution
The 1999 Constitution makes provision for the Separation of Powers of the 3 arms of Government in the Federal Republic of Nigeria. These provisions define, demarcate and allocate powers and responsibilities to the 3 arms of Government. We shall reproduce some of the relevant sections of the 1999 Constitution (as amended) that provide for the Separation of Powers between the 3 arms of Government that is the Legislature, the Executive and the Judiciary.
Section 4 of the 1999 Constitution (CFRN) provides for the powers of the Legislature in Nigeria. It provides that the Legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the Federation, which shall consist of a Senate and a House of Representatives. They will have the power to make laws for the peace, order and good governance of the Federation. And power on all matters included in the Exclusive Legislative List set out in Part I of the Second Schedule to the Constitution. The Legislative powers of a State of the Federation is vested in the House of Assembly of the State.
Section 5 CFRN provides that the Executive powers of the Federal Republic of Nigeria shall be vested in the President and may subject to the provisions of any law made by the National Assembly, be exercised by him either directly or through the Vice-President and Ministers of the Government of the Federation or officers in the public service of the Federation. The Executive powers shall extend to the execution and maintenance of the Constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has, for the time being, power to make laws.
While the Executive Powers of the Federation is vested with the President, at the state level, it is squarely vested with the governor of that state as provided by section 5(2) of the Constitution which reads:
‘Subject to the provisions of this Constitution, the executive powers of a State: (a) shall be vested in the Governor of that State and may, subject as aforesaid and to the provisions of any Law made by a House of Assembly, be exercised by him either directly or through the Deputy Governor and Commissioners of the Government of that State or officers in the public service of the State (b) shall extend to the execution and maintenance of this Constitution, all laws made by the House of Assembly of the State and to all matters with respect to which the House of Assembly has for the time being power to make laws.’
The executive powers vested in a State above shall be exercised not to impede or prejudice the exercise of the Executive powers of the Federation, endanger any asset or investment of the Government of the Federation in that State or endanger the continuance of a Federal Government in Nigeria.
The powers of the Judicial arm of the Government are divided between the courts that are established for the Federation and those for the States. Section 6(1) of the Constitution provides that “The judicial powers of the Federation shall be vested in the courts to which this section relates, being courts established for the Federation.” While Section 6(2) reads “The judicial powers of a State shall be vested in the courts to which this section relates, being courts established, subject as provided by this Constitution, for a State.”
The courts to which are established by the Constitution for the Federation and for the States, are considered as the only superior courts of record in Nigeria; and save as otherwise prescribed by the National Assembly or by the House of Assembly of a State, each court shall have all the powers of a superior court of record. These courts are the Supreme Court of Nigeria; the Court of Appeal; the Federal High Court; the National Industrial Court the High Court of the Federal Capital Territory, Abuja; the High Court of a State; the Sharia Court of Appeal of the Federal Capital Territory, Abuja; the Sharia Court of Appeal of a State; the Customary Court of Appeal of the Federal Capital Territory, Abuja; the Customary Court of Appeal of a State. The Judicial Powers vested in the courts extends to the following:
- Shall extend, notwithstanding anything to the contrary in this constitution, to all inherent powers and sanctions of a court of law
- Shall extend, to all matters between persons, or between government or authority and to any persons in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person;
- Shall not except as otherwise provided by this Constitution, extend to any issue or question as to whether any act of omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of this Constitution;
- Shall not, as from the date when this section comes into force, extend to any action or proceedings relating to any existing law made on or after 15th January 1966 for determining any issue or question as to the competence of any authority or person to make any such law.
The 1999 Constitution as seen above provided for the Separation of Powers, it made sure that Governmental powers are separated and neatly compartmentalized to avoid interference into the powers of an arm of Government by another. However, despite the clear Separation of Powers between the 3 arms of the Government, interdependence amongst them is important for Checks and Balance. As rightly commented by Ali, “it is pertinent to state that, despite the clear separation of powers provided for under the 1999 constitution, which distinctly made provisions for the respective functions of the three arms of government, interdependence among the aforementioned arms of government is desirable in order to ensure checks and balances. As rightly pointed out that, no man is an island to himself, the legislature, the executive and the judiciary must relate and cross path in the discharge of their functions, toward ensuring smooth governance in the interest of the populace that voted them into power and which must reap the dividends of democracy.”
While Separation of Power is key for the smooth administration of the COnstitution and Nigerian Government. it is said, that no democratic system exists with an absolute separation of powers or an absolute lack of separation of powers. Governmental powers and responsibilities sometimes overlap and are too complex and interrelated to be precisely compartmentalized. As a result, there is an inherent measure of competition and conflict among the branches of Government.
 Separation of Powers in Nigeria: An Anatomy of Power Convergences and Divergences NAUJILJ 9 (1) 2018
 (2005) 1 WRN 1 at 64 Per Rhodes – Vivour JSC. See also Gov., Ekiti State (2015) 6 WRN 120 at 160 – 165. Asogwa v Chukwu (2003) 17 WRN 71
 Section 4(1) CFRN
 Section 4(2) CFRN
 Section 4(6) CFRN
 Section 5(1)(a) CFRN
 Section 5(1)(b) CFRN
 Section 6(3) CFRN
 Section 6(6) CFRN
 Microsoft Word – SEPARATION 1999 CONSTITUTION OF THE.doc (yusufali.net) assessed 1st June, 2021
 Supra note 1