Seperation of Power free essay sample

Pursuant to the basic features for a presidential system, Nigerian administrative system vested the governmental powers of legislating, implementing and interpreting laws into three separate but co-ordinated bodies namely; Legislature, Executive and Judiciary respectively. Hence, the 1999 constitution of the Federal Republic of Nigeria like 1979 and 1989 constitutions leanly and succinctly provides for separation rather than fusion of power. Based on this provision therefore, members of the law making body (parliamentarians) at both Federal and State levels and even at the Local government being the third tier of government are not allowed to be members of executive or judiciary and vice versa. Unlike the Great Britain where the Prime Minister is the leader of the party that has the majority in the parliament, and has a parliamentary status, President in Nigeria is elected in a general election on the basis of Universal Adult Suffrage and for the time being in power as the head of the executive and Commander-in- Chief has no parliamentary status. We will write a custom essay sample on Seperation of Power or any similar topic specifically for you Do Not WasteYour Time HIRE WRITER Only 13.90 / page The Judiciary headed by the Chief Justice of the Federation is an independent body charged primarily with the responsibility of interpreting law does not have her membership drawn from legislative or executive branches and as such cannot exercise legislative or executive powers unless the powers are delegated. In view of this, separation of power is an integral part of the Nigerian governmental process based on her adoption of the US modeled presidential system of government since 1979. â€Å"When the people know their rights and act on them, the revolution is already on the go. † Separation of powers is a key characteristic of a liberal democracy where the government has an inherent control system to ensure that no arm of it is able to abuse power. Under this model, the government is divided into three branches with separate and independent powers and areas of responsibility, This political arrangem  ent creates a   division of the legislative, executive, and   judicial functions of the government among separate and independent bodies. Such a separation limits the possibility of arbitrary excesses by government since the sanction of all three branches is required for the making, executing, and administering of laws. The separation of powers creates checks and balances which allows for a system based regulation that allows one branch to limit another, such as the power of Legislative to alter the composition and jurisdiction of the federal courts or the Judiciary ruling that a law is unconstitutional. Unfortunately, the Judiciary and the Legislative can not be said to be independent of the executive in our system. The executives mostly wield overwhelming influences on the other arms of the government. Legislative This is an arm of the government that is solely responsible for making laws. Legislatures may be unicameral or bicameral. In Nigeria, at the federal level, we have a bicameral Legislative (the Senate and the House of Representative) while at states level, we have the unicameral Legislative i. e. the state Assemblies. Their powers includes writing and passing laws, enacting taxes, authorising borrowing, declaring a war, establishing the government’s budget, confirming executive appointments, ratifying treaties, investigating the executive branch, impeaching and removing from office members of the executive and judiciary, and redressing constituents’ grievances. Members are elected directly from constituencies representing an entire population. In presidential system, the executive and Legislative branches are clearly separated; in parliamentary systems, members of the executive branch are chosen from the Legislative membership. The Legislative In Nigeria Section 4 of the Nigerian Constitution states as follows: 4. (1) 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. 2) The National Assembly shall have power to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution. (3) The power of the National Assembly to make laws for the peace, order and good government of the Federation with respect to any matter included in the Exclusive Legislative List shall , save as otherwise provided in this Constitution, be to the exclusion of the Houses of Assembly of States. 4) In addition and without prejudice to the powers conferred by subsection (2) of this section, the National Assembly shall have power to make laws with respect to the following matters, that is to say:- (a) any matter in the Concurrent Legislative List set out in the first column of Part II of the Second Schedule to this Constitution to the extent prescribed in the second column opposite thereto; and (b) any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution. 5) If any Law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail, and that other Law shall, to the extent of the inconsistency, be void. (6) The Legislative powers of a State of the Federation shall be vested in the House of Assembly of the St ate. 7) The House of Assembly of a State shall have power to make laws for the peace, order and good government of the State or any part thereof with respect to the following matters, that is to say:- (a) any matter not included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution. b) any matter included in the Concurrent Legislative List set out in the first column of Part II of the Second Schedule to this Constitution to the extent prescribed in the second column opposite thereto; and (c) any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution. 8) Save as otherwise provided by this Constitution, the exercise of Legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of courts of law and of judicial tribunals established by law, and accordingly, the National Assembly or a House of Assembly shall not enact any law, that oust s or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law. (9) Notwithstanding the foregoing provisions f this section, the National Assembly or a House of Assembly shall not, in relation to any criminal offence whatsoever, have power to make any law which shall have retrospective effect. Executive This is a branch of government charged with executing or carrying out the laws and appointing officials, formulating and instituting foreign policy, and providing diplomatic representation. The executive is vested with the power to spend money allocated for certain purposes as in the budget and may veto laws and grant pardon to convicted criminals. This arm of government wages war at the direction of the Legislative because the Legislative makes law for the military. The executive is usually empowered to make decrees or declaration such as declaring a state of emergency or promulgating lawful regulations and executive orders. In an ideal situation, a system of checks and balances keeps the power of the executive more or less equal to that of the judiciary and the legislature. The executive power is vested in the President to   preserve, protect, and defend the Constitution and the laws of the country. The principal responsibility of the President is to ensure that the laws are faithfully executed. The Constitution does not require the President to personally enforce the law; rather, officers subordinate to the President may perform such duties. The Constitution, empowers the President to ensure the faithful execution of the laws made by Legislative. Legislative may itself terminate such appointments, by impeachment, and restrict the President. The Presidents responsibility is to execute whatever instructions he is given by the Legislative. As a check and balance, the President can exercises a check over the Legislative through his power to veto bills, but Legislators may override any veto by a two-thirds majority in each house. When the two houses of Legislative cannot agree on a date for adjournment, the President may settle the dispute. Either house or both houses may be called into emergency session by the President. The President, as noted above, appoints judges with the Senates advice and consent. He also has the power to issue pardons and reprieves or amnesties as it is ongoing in the Niger Delta part of the federation. Such pardons are not subject to confirmation by either the House of Representatives or the Senate, or even to acceptance by the recipient. The President is the civilian Commander in Chief of the Armed Forces. However, it is the Legislative that has the power to raise, fund and maintain the armed forces, and to prescribe the laws and regulations under which the armed forces operate. Legislative also has the sole power to declare war, and requires that all Generals appointed by the President be confirmed by a majority vote of the Senate before they can assume their office. The Executive in Nigeria Section 5 of the Nigerian Constitution states as follows: 5. 1) Subject to the provisions of this Constitution, the executive powers of the Federation: (a) shall be vested in the President and may subject as aforesaid and 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; and (b) shall extend to the execution and maintenance of this Constitution, all laws made by the National Assembly and to all matters with respect to whi ch the National Assembly has, for the time being, power to make laws. 2) 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; and (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. 3) The executive powers vested in a State under subsection (2) of this section shall be so exercised as not to:- (a) impede or prejudice the exercise of the executive powers of the Federation; (b) endanger any asset or investment of the Government of the Federation in that State; or (c) endanger the c ontinuance of a Federal Government in Nigeria. 4) Notwithstanding the foregoing provisions of this section:- (a) the President shall not declare a state of war between the Federation and another country except with the sanction of a resolution of both Houses of the National Assembly, sitting in a joint session; and (b) except with the prior approval of the Senate, no member of the armed forces of the Federation shall be deployed on combat duty outside Nigeria. 5) Notwithstanding the provisions of subsection (4) of this section, the President, in consultation with the National Defence Council, may deploy members of the armed forces of the Federation on a limited combat duty outside Nigeria if he is satisfied that the national security is under imminent threat or danger: Provided that the President shall, within seven days of actual combat engagement, seek the consent of the Senate and the Senate shall thereafter give or refuse the said consent within 14 days. Judiciary This is the branch of government whose task is the authoritative adjudication of controversies over the application of laws in specific situations. This power to decide cases and controversies is vested in the Supreme Court and lower courts established by the laws made by the legislative. The judges are appointed by the executive with the advice and approval of the Legislative and can be removed by the Legislative through impeachment proceedings. In the course of the its duty and power, the judiciary does the following:   Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚   Determines which laws Legislative intended to apply to any given case  ·Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚   Determines whether a law is (un)Constitutional  ·Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚   Determines how Legislative meant the law to apply to disputes  ·Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚   Determines how laws should be interpreted to assure uniform policies in a top-down fashion via the appeals process, but gives discretion in individual cases to low-level judges. (The amount of discretion depends upon the standard of review, determined by the type of case in question.  ·Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚   Polices its own members As a check and balance, Supreme Court decisions are binding across the nation. The power to review the constitutionality of laws may be limited by Legislative, which has the power to set the jurisdiction of the courts. The only constitutional limit on Legislative’s power to set the jurisdiction of the judiciary relates to the Supreme Court; the Supreme Court may exercise only appellate jurisdiction except in cases involving states and cases affecting foreign ambassadors, ministers or consuls. The Chief Justice presides in the Senate during a Presidents impeachment trial. The rules of the Senate, however, generally do not grant much authority to the presiding officer. Thus, the Chief Justices role in this regard is a limited one. Judiciary In Nigeria 6. (1) The judicial powers of the Federation shall be vested in the courts to which this section relates, being courts established for the Federation. 2) 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. (3) The courts to which this section relates, established by this Constitution for the Federation and for the States, specified in subsection (5) (a) to (1) of this section, shall be 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. 4) Nothing in the foregoing provisions of this section shall be construed as precluding:- (a) the National Assembly or any House of Assembly from establishing courts, other than those to which this section relates, with subordinate jurisdiction to that of a High Court; (b) the National Assembly or any House of Assembly, which does not require it, from abolishing any court which it has power to establish or which it has brought into being. (5) This section relates to:- (a) the Supreme Court of Nigeria; (b) the Court of Appeal; (c) the Federal High Court; d) the High Court of the Federal Capital Territory, Abuja; (e) a High Court of a State (f) the Sharia Court of Appeal of the Federal Capital Territory, Abuja; (g) a Sharia Court of Appeal of a State; (h) the Customary Court of Appeal of the Federal Capital Territory, Abuja; (i) a Customary Court of Appeal of a State; (j) such other courts as may be authorised by law to exercise jurisdiction on matters with respect to which the National Assembly m ay make laws; and (k) such other court as may be authorised by law to exercise jurisdiction at first instance or on appeal on matters with respect to which a House of Assembly may make laws. 6) The judicial powers vested in accordance with the foregoing provisions of this section: (a) shall extend, notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a court of law (b) 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; (c) 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; (d) 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.