Posted on

Separation of Powers and Checks and Balances

Separation of Powers
As a direct consequence of division of governmental powers, the theory of separation of powers is formulated to guarantee the preservation of such divisions of power. Precisely, the theory means that no one individual should be in charge of more than one arm of government. This implies that in terms of persons and institutions, the three arm of government should be different from each other. The theory therefore limits the powers of government and frustrates any attempt of tyranny and dictatorship.

It is a common saying that “power corrupts and absolute power corrupts absolutely”. The philosopher behind the theory of separation of powers is Montesquieu who argued that the people of Britain were freer than the people of France because of separation of powers. However, it should be noted that the system in Britain is not separation of powers but fusion of powers.

In 1789, the American constitution emerged to practicalise the theory of Separation of Powers. As a result of this, Executive in America is quite different from the Legislature. The President cannot be a member of the American Congress. On the other hand, no Congress member can act in an executive position. The Nigerian Constitution of 1999 is also based on the theory of Separation of Powers. This is because the President cannot be a member of the National Assembly. Similarly, no member of the National Assembly can be in the Executive Council.

Checks and Balances
The Idea of Checks and Balances is built into many National Constitutions such as Nigeria in the 1999 Constitution or the American Presidential Constitution of 1789. This involves checking power with power. Each arm of government tends to check the operations of the other. This should in no way be regarded as interference in the operations of other arms of government but rather a means of balancing one idea with another. For instance, in the 1999 Nigerian Constitution, the presidential powers to appoint ministers are subject to the ratification of the National Assembly, similarly the presidential budget and salary review of all workers are to be approved by members of the National Assembly. On the other hand, any Bill by the National Assembly cannot pass through except it is accented to by the President. By so doing, the powers of the executive serve as a check on the powers of the legislature.

On the side of the Judiciary, the Judiciary has the powers of judicial review whereby certain laws made by the legislature can be reviewed. For example, the revenue allocation bill in the Second Republic failed to become a law because of the Supreme Court’s decision following the action taken by former Bendel State Government in 1982.