Organs of Government and Separation of Powers

What you need to know

• The legislature makes, amends and repeals laws; the executive implements and enforces them; the judiciary interprets them and settles disputes. This threefold division is the basis of every modern constitution.
• The separation of powers, associated with Baron de Montesquieu in The Spirit of the Laws, holds that the three functions should be exercised by three different sets of persons and bodies, so that no one organ accumulates enough power to become tyrannical.
• Complete separation is impossible and undesirable, so constitutions combine separation with checks and balances, deliberate points of overlap that let each arm restrain the others. These overlaps are not breaches of the doctrine; they are what makes it work.
• In Nigeria the checks run in every direction: the President assents to or vetoes bills, and the National Assembly can override the veto by a two-thirds majority of each chamber; the Senate confirms ministerial, ambassadorial and judicial appointments; the National Assembly controls the budget and can impeach the President; and the courts can declare an act of the legislature or the executive unconstitutional.
• Other checks include legislative oversight through committees and public hearings, the power of the legislature to summon officials, the executive power to prepare the budget and to grant pardon, and the judiciary's security of tenure, which protects judges from dismissal for unpopular rulings.
• The Nigerian legislature is bicameral at the federal level: the Senate, where every state has three senators and the Federal Capital Territory one, and the House of Representatives, where membership reflects population through federal constituencies. State legislatures are unicameral Houses of Assembly.
• Functions of the legislature beyond lawmaking: approving the budget and authorising expenditure, ratifying treaties and senior appointments, overseeing the executive, representing constituents, amending the constitution, investigating matters of public concern, and impeaching the President or a Governor.
• Bicameralism is defended on the grounds that it gives the federating units equal representation, allows a second careful look at hasty legislation, and spreads legislative work. It is criticised as slow and expensive, with duplication of effort and the risk of deadlock between the chambers.
• The executive is divided into the political executive, which is the President, Vice-President, ministers and commissioners who come and go with elections, and the permanent executive, which is the civil service that stays. The political arm decides policy; the permanent arm advises on it and carries it out.
• Functions of the executive: implementing laws and policy, maintaining law and order, defending the territory, conducting foreign relations and signing treaties, preparing the national budget, appointing officials, and exercising delegated legislative power through regulations and bye-laws.
• The Nigerian judiciary is hierarchical: the Supreme Court at the apex, then the Court of Appeal, then the Federal High Court, the High Court of a State and of the Federal Capital Territory, the Sharia Court of Appeal and the Customary Court of Appeal, and below them magistrates', customary and area courts.
• Judicial independence is protected by security of tenure, salaries charged to the consolidated revenue fund so that the legislature cannot punish judges by withholding pay, appointment through the National Judicial Council rather than by the executive alone, removal only on stated grounds by prescribed procedure, and immunity for words spoken in the course of judicial duty.
• The judiciary safeguards the citizen through judicial review, the power to declare executive and legislative acts unconstitutional and void, and through the prerogative orders, chiefly habeas corpus, mandamus, certiorari and prohibition, which the citizen uses against unlawful detention or abuse of office.
• Delegated legislation is law made by a body other than the legislature under powers granted by an enabling Act, such as ministerial regulations and local government bye-laws. It saves parliamentary time and supplies technical detail, but it is criticised for weakening legislative control and for being made without public debate.