SEPARATION OF POWERS; DID MONTESQUIEU LIE? A lecture delivered by His Execellency Chief D.S.P. Alamieyeseiha, Ph.D Executive Governor, Bayelsa State at the annual lecture series of the Delta State House of Assembly Service Commission on Tuesday July 5, 2005.
Preamble
I am greatly delighted to be called upon to deliver this paper in the annual lecture series of the Delta State House of Assembly Service Commission, intended to stimulate intellectual discourse on issues that will benefit the social and political life of our dear nation.I am particularly glad to be here because of the topicality and timeliness of the theme of this lecture. It is stating the obvious that separation of powers, and the rule of law have become very salient considerations under the present state of Nigeria's political evolution.
In the light of the recent face-off between the National Assembly and the Presidency, I am not surprised that the Delta State House of Assembly Service Commission has thought it fit and proper to pose fresh questions on this subject in the enlightened interest of the nation.
Introduction
Distinguished ladies and gentlemen, this lecture is about power and its operation among the three arms of government. It is about the theory and structure of power and the way it operates in practice.When the French political philosopher, Baron Montesquieu, observed that there should be separation of powers among the three arms of government, he found words for one of the deepest convictions of modern liberals and democrats. Based on broad and well-considered sentiments, Montesquieu's aphorism instantly took on something of the quality of a law or of a fundamental axiom.
From time immemorial, there has been a steady and unmistakable feeling that, in the mechanics of governance, the holders of power should not observe absolute or arbitrary influence. Indeed, Aristotle had stated that "power corrupts and absolute power corrupts absolutely:' Undoubtedly, the concept was promptly incorporated into the doctrinal exercises of political thinkers. It also became an article of faith in the public declaration of democratic actions in the governance of a state or nation.
Before we proceed to analyze the fundamental assumptions of this lecture, it is pertinent to ponder some salient issues, which this lecture seeks to address.
Why do we concern ourselves at this material time with a proposition whose appeal is more or less outlandish? Why open a debate on the subject at all? Let us be blunt. We are challenging the truth of the unqualified Montesquieu aphorism in the context of Nigeria's political experience. Ultimately, we shall do well to illustrate the application of the principle of separation of powers as it pertains to democratic politics in our political landscape.
In the first place, the leadership question has become a recurring issue in any discourse of the Nigerian project. The country's shameful political antecedents, namely the pervasive and persistent socio-economic and political crises, need to be put in proper perspective.
Secondly, the process of political leadership is anchored on the capacity to allocate scarce resources, which determines the locus of power.
Thirdly, unless society knows how, where and by how much and to whom power has been relinquished, it cannot pass judgment upon the control of power. Neither can it decide which way to go.
This paradox is further deepened by the implications of the concept of power, legitimacy and hierarchy which I now invite us to consider.
Definition and Concept of Power
As a concept, power has always posed difficulties in terms of definition and application in political science as an academic discipline, and as an art of governance. But this seeming elusiveness should not constitute an obstacle in our minds to the clarification of the concept.Power can be defined as the capacity to affect the conduct of individuals and groups by offering them things they value or by threatening to deprive them of those things. These values include safety, health, the creation and distribution of wealth, among other things. To exercise power, then, control must be exercised over the things that are valued in society.
Power connotes a special kind of influence. Broadly speaking, influence is the product of intended effects. People who can achieve intended effects by any means are said to be influential. By the same token, people who can produce intended effects by the real or threatened use of rewards and punishments are said to be powerful.
The exercise of power assumes many different forms - the giving or withholding of many different values. Yet power bases are usually interdependent. In other words, individuals who control certain value resources are likely to control other resources such as wealth, economic power, political influence, etc.
Power is never equally distributed. Indeed power cannot be said to exist where there is equality. For power to be exercised, the "power holder" must control some basic values as rewards to others or deprive others of these same values.
Power is a relationship among individuals, groups and institutions in society. It is a relationship in which some individuals or groups have control over resources valued by others. The social relationship is based upon the logic that, since creation, man has developed a craving to dominate his fellow human being to his own primary benefit.
Power is exercised in large institutions - governments, corporations, schools, the military, churches, media houses, law firms, and so on. Power that stems from high positions in the social structure of society can be said to be stable and far reaching.A renowned sociologist, C. Wright Mills once observed as follows: "No one can be truly powerful unless he has access to the command of major institutions, for it is over these institutional means of power that the truly powerful are, in the first instance, powerful" What distinguishes governmental power from the power of other institutions, groups and individuals is that the power of government, unlike that of other institutions in society, is largely distinguished by
(1) legitimate use of physical force, and (2) coverage of the entire society rather than only segments of it.
Because governmental decisions extend to the whole of society, and because only. government can legitimately use force, government has the primary responsibility to maintain order and resolve differences that may arise between segments of society.
The Theory of Power
There are two predominant theories of power, namely the elitist and pluralist theories. In either theory, power is defined as the ability of groups or individuals to influence what a government does.
The elitist theory was developed by a small group of early twentieth -century European sociologists who viewed society as ruled by a relatively small group of leaders referred to as the elite. Roberto Michel, a French professor of political science, in his theory of the "iron law of oligarchy" asserts that in every political system, rulership ends up in the hands of a few.The pluralist theory, on the other hand, asserts that a plurality of power (centres) exists in every political system. Such pivots of power lie equally with labour unions, political parties, banks, manufacturing companies, churches, school systems and government agencies. These power centres compete with each other democratically, such that far reaching public policy positions emerge out of their competition.
Each of these power centres is powerful only within particular functional areas. Robert Dahl, an exponent of this theory, deliberately set out to test the hypothesis that New Haven was governed by the kind of economic and social elite that Floyd Hunter had discovered in Atlanta, USA. In his book entitled Who Governs? Dahl argues further that power is divisible and separable among groups in a democratically competing atmosphere.
The Doctrine of Separation of Powers
A. Origin of the Theory
The theory of separation of powers was fore grounded in political theory more than a century before the publication of Montesquieu's Spirit of the Law ( 1748), to which the origin of separation of powers is usually attributed, and by which political thinkers after him were supposedly inspired.The principle of Separation of Powers presupposes liberalism of the first order. Historically, the liberal democratic notion that the executive, the legislature and the judiciary should all be in separate hands, which could check or balance one another, was derived from a desire to check the autocratic tendencies of the French monarchs who, at one time, did indeed combine all three powers in the individual ruler.
This was certainly the point which the proponent of the theory, Montesquieu, sought to establish in his Esprit des lois (Spirit of the Law) in 1748.
However, Vyshinsky, another political philosopher of note stood the entire argument on its head when he said as follows: "Not separation of powers, but predominance of executive power characterizes the organization of government in capitalist countries." This evidently formed the basis upon which the famous Marxist-Leninist argument was built, to wit: what is important is who holds power, not whether there should be any checks or balances. The famous duo equally maintained that the people (or, in practice, the custodians of popular interest) ought to hold power, and that the more unfettered that power, the easier it is for them to act in the purported interest of the public. At any rate, it is obvious that this argument can only fit into a communist -oriented system.
In America, undoubtedly one of the most exemplary democracies in the world, the evidence of separation of powers can be traced to the Puritan landing in Massachusetts, and still further back to Calvin's Institutes of the Christian Religion (1536).
Power and the development of a counter-checking device were characteristic of both religious and political thought in America long before the constitutional convention of 1787. As has been noted, the power thesis is an ancient one in political speculation. It may be as old as Christianity itself. But the true parents of the theory who created an institutional setting for it appear to be Calvin and Harrington, rather than Locke and Montesquieu. Going by this viewpoint, the origin of separation of powers owes much more to early religious thought than to early political pontification.
When the word of God was joined to the voice of experience, as demonstrated by Calvin and the New England Puritans, there was no room for further discussion and debate. Consequently, the doctrine of separation of powers was a prime principle of political wisdom by 1776 and not, in the main, a subject for further inquiry or refined qualification.
For the framers of the American Articles of Confederation and the Constitution which evolved therefrom, the question was not "How power can be justified?" but "Who should have power, and how can power be distributed in such a way as to permit effective governance with no tendency to either despotism or corruption?" The preferred formula was the separation of powers doctrine, especially as it was applied and developed by Harrington, Locke, and Montesquieu.
Harrington equated political power to economic power, and argued persuasively that political stability depended upon an egalitarian distribution of property. But the good order of the common wealth was not to be based on economic conditions alone. He insisted on the primacy of the rule of law as incorporated in a written constitution and on the establishment of a tripartite division of government.
Enactments were to be framed by an Upper House or Senate, approved or disapproved by a lower body of the legislature, and enforced by an executive branch or "Magistracy." Moreover, the members of each governmental branch were to hold office for a limited time.
Almost one hundred years later, Montesquieu, the French political philosopher, developed a similar conception of republican government.
Eighteenth century admirers of the British constitution comprised the largest number of political philosophers of that age, but this Frenchman was second to none in his outspoken veneration for British principles of government.
Montesquieu argued, rightly or wrongly, that British political liberty was based on separation of powers. His words:When the legislative and executive powers are united in the same person, or in the same body of "magistrates;' there can be no liberty; because apprehension may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner... the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor.
Were the same men or the same body of men to enact the laws, execute them, and sit in judgment, "there would be" as Montesquieu put it, "an end to everything."
B. Meaning of the Theory
Distinguished ladies and gentlemen, I believe it is fairly clear to us now that separation of powers implies the division of governmental authority among the executive, legislature, and judicial arms of government. In the U.S.A, The Federalist Paper No.51, clearly expressed the ideal behind the creation of separate branches of government, with each exercising checks over the other, as follows:Ambition must be made to counter ambition... It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government, which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed, and in the next place oblige it to control itself.
In other words, under the American political system, each of the major decision-making bodies of government possesses important checks and balances over the decisions of the others. No bill can become law without the approval of both the Senate and the House of Representatives. The President shares in legislative power through the veto and responsibility of office to "give to the Congress information on the state of the union, and recommend for their consideration such measures as he shall judge necessary and expedient." The President can also convene sessions of Congress. But the President's powers to make appointments and treaties are shared by the Senate. The President must execute the laws, but to do so he must rely on the executive arm, and the laws must be conceived and debated by Congress. Moreover, the executive branch cannot spend money that has not been appropriated by Congress.
The President, with the consent of the Senate, must appoint federal judges, including members of the Supreme Court. Congress must create lower and intermediate courts, establish the number of judges, fix the jurisdiction of lower federal courts, and make "exceptions" for the appellate jurisdiction of the Supreme Court.
Perhaps the keystone of the system of checks and balances is the idea of judicial review, which entails the power of the courts to strike out laws that they believe conflict with the Constitution.
To a great extent, the Nigerian political system is reflective of what obtains in America. The Constitution of the Federal Republic of Nigeria grants federal courts the power of judicial review of state decisions specifying that the Constitution and the laws and treaties of the national government are the supreme laws of the land, super ceding any state laws or constitutions.
Distinguished ladies and gentlemen, you will agree with me that the power of government is truly awesome. This awesomeness has been a source of worry for centuries. It has provoked questions such as: How can governmental power be limited? How can we enjoy the benefits and protection of government and still not be enslaved by it? How can government leaders be restrained?
"The modern state;' to borrow the words of Harold Laski, "consists of a relatively small number of persons who issue and execute orders which affect a larger number in whom they are themselves included, and it is the essence of its character that, within its allotted territory, all citizens are legally bound by those orders." That is apparently why, since the time of Aristotle, it has come to be accepted that political power should be divided into three broad categories:
a. legislative power: The power to make laws for the society
b. executive power: The power to execute or implement the enacted laws, and
c. judicial power: The power to adjudicate the laws widely accepted by society.In actual sense, however, the branches have always been interdependent, and a mechanism of checks and balances has been infused into the process of governance itself. The daily operational interface of these three arms of government has invariably precipitated debate as to whether the wielding of these powers into a single body is the cause of disharmony or source of comfort, as the case may be, among members of the society.
Of course, it is perfectly possible to conceive of all governmental functions being performed by a single body or even harnessed in the name of a single person. In a modern democratic state, the distinction between them cannot, in fact, be consistently maintained.
Legislatures often perform executive acts, as when the Senate of the United States confirms the nomination of the President. They perform judicial duties as well. For example, the House of Lords virtually becomes a court when it deliberates upon impeachments authorized by the House of Commons.
Executive bodies, especially in recent times, perform acts that are sometimes indistinguishable from legislation.
Moreover, in every state there exists powers like that of declaring war and making treaties, of the legislature endorsing a government, of the executive exercising a veto over a legislation, all of which are no easy matters to classify with any precision.Indeed little is gained by the formal attempt to make judicial power merely a species of executive authority. It may yet be fairly argued that, in every state, some distinction between the three powers is essential for the maintenance of order and sanity. Since the work of Locke and Montesquieu, political theorists have generally come to admit the truth of Madison's remark that:
The accumulation of all powers in the same hands.. . may justly be pronounced the very definition of tyranny. The premise of this argument is not far fetched. Power that is not divided in some fashion is bound to be absolute; and power being, by its very nature dangerous to those who exercise it, needs to be controlled before it can be exercised with any degree of safety.
It is not possible to define the limits of each of the three authorities such that each can be said to remain independent and supreme in its allotted territory.
In truth, the separation of powers does not mean the equal balance of powers. Broadly speaking, it is the business of the executive to carry out laws enacted by the legislature. But the executive must retain the confidence of the legislature, and such confidence implies the power to compel subordination of the executive to the will of the law-making body. In other words, the legislature can directly secure, as a matter of right, the substance of executive acts in so far as it accords to its purposes.
The case is different in the relationship between the executive and the judiciary. It is the business of the judge to be the taskmaster of the executive.
It follows that every executive act should be open to scrutiny in the courts, and the decision of the judiciary should always be binding upon the executive unless the legislature otherwise resolves. There should never be the power in an executive body which enables it to escape the scrutiny of the other two arms of government.
What Prof Dicey calls the rule of law is fundamental to the balance of power. It means that the state must be put on an equal platform with all other bodies, and that it must answer for its acts; it means, also, that no mysterious prerogative should intervene to prevent the attainment of justice.
The power of the judiciary over the executive is, therefore, essential. One limitation of note is that the courts cannot act propris motibus. There must be complaint before decision, and if the complaint is rightly proven, the executive should have no authority to transcend the judicial will. This separation of functions need not imply, though it has been taken to imply, a complete separation of personnel.
Montesquieu's view of the relation between the executive and legislature in England, consecrated as it was by Blackstone, led to the theory that no bridges ought to be built between the organs which represent these various powers.
As Duguit has pointed out, however, the execution of any order involves all recognisable authorities in the state and, as in the American Constitution, the attempt to separate the three powers rigidly, has only meant the consolidation of an extra-constitutional relationship between them.
It must be noted that the founding proponents of separation of powers did not intend to delineate the arms of government to the point of complete isolation of one from the other. In reply to critics who argued that the separation of powers was minimal or even entirely absent in the constitution, the authors of the American Federalist Papers maintained that no government could function on the principles of strict separation.
Ultimately, the separation of powers was designed to prevent the powers of two department~ from becoming merged in one. The three branches could properly be regarded as dependent on each other, with each given the power to check and restrain the other. Similarly, the relationship between the states and the central government was to be regarded as one of balance and mutual dependence.
Another method of providing political checks and balances is to divide the powers of government between two sets of authorities: on the one hand, a national (or "federal") authority whose writ runs over the entire national territory but only in respect of one particular set of matters, and, on the other, a number of other ancillary governments each with a restricted area to govern but responsible within this area for another range of powers. This arrangement is the basis of the territorial orderliness known as federalism.
The division of power between the two sets of authorities, federal and state, can, in matters of disputed or concurrent jurisdiction enable minorities to rally together within the security of the individual states of the federation. These individual states, especially those populated by the minorities, can band themselves into powerful polities capable of resisting undue suggestions from the central government.
The argument against separation of powers is that the territorial division or devolution of powers can bring about friction, delay and the necessity for consultation and compromise into the operations of government. All of these demand that, if government is to move forward, consultation must take place and some form of consensus between the contending bodies must be arrived at.
There are fifty-two governments in the United States - the federal government and fifty individual state governments. What has made America a model democracy so far is that each one of these governments revolves upon the pivot of separation of powers.
Separation of Powers:
The Nigerian Context Distinguished audience, by October 1,2005, Nigeria will have existed for forty-five years as a federation. To date, and in spite of the many hurdles besetting our existence as a nation, including a 3D-month civil war, Nigeria remains Africa's only example of a true federal state, imperfect as it may be.The Nigerian state emerged as a colonial entity where the foreign bourgeois class dictated the economic and political pace of development. It organized the socio-economy under the direct control of a global capitalist order. The state attained political sovereignty in 1960, automatically expanding the basis of capitalist accumulation to accommodate a newfound local bourgeois class.
Accordingly, the emergent leadership secured political power within the context of neo-colonial dependency. This political class pursued power within the framework of the British parliamentary system, which was based on the fusion, rather than the separation, of powers among the organs of government. The principle of collective responsibility, a bicameral executive, strong party discipline and strong opposition were the hallmarks of this system.
The British policy of governance was administered on the premise of a regional structure within the context of the federal system. The nature of the federal system allowed the regions to pursue policies and programmes dictated by their specific needs. Besides, the parliamentary system evolved leadership that enjoyed an immense followership and commanded an unquestioning legitimacy.
The regions under Obafemi Awolowo, Ahmadu Bello and Nnamdi Azikiwe, respectively, boasted of visionary and charismatic leaders whose individual dispositions set the pace and tone for politics and governance. The parties had clear ethnic origins with no clear-cut ideological positions, except perhaps for Awolowo who championed "welfarism" or the policy which underscored the factors that allow for individual well-being in society.
At any rate, fostering a sense ofbelonging and involvement among the various peoples of the Nigerian federation was a rightful constitutional provision.
Unfortunately, this was subverted with the coming of the military into governance. The logic of ruling Nigeria promptly became one of exploitation, domination ahd sheer opportunism.
The emergbnce of the military as a "de facto" political power contestant further hampered the prospect of Nigeria's stable democracy.
Today, amidst the noisy acclaim lavished on the nascent democracy in our nation, Nigerians as a people have proven themselves strong on the letter of the law, rather than on the spirit of the law, as obtains in the United States of America.
Nigeria has had its share of woes and agonies in the course of nation building. In its search for a home-grown model of government which would create relative stability and ensure national integration, the country has swung from one transition programme to another. In the course of this, the polity has often been heated up to unbearable proportions.
In a heterogeneous society such as Nigeria, policy choices are capable of generating dissenting opinions. The diversity that characterizes the Nigerian society has, instead of being an enduring source of strength, been a great source of strain and weakness.
With the exception of the tenuous collective resolve that characterized the politics of decolonization in Nigeria, both the ruling elite and the masses have I hardly felt the crucial imperative of appreciating issues from a nationalistic point of view.
As things stand, federalism in Nigeria lacks the critical sustaining element of cooperation among the federating units. This lack of cooperation is derived, in large part, from the perceived and sometimes manifest socio-economic and political imbalances among the constituent units, which have considerable potential for generating acrimony, rather than harmony, in their interactions.
Against this backdrop, any discerning mind can appreciate the recurrent protest among the Niger Delta people against decades of neglect and marginalization.
There is no doubt that any federal system that is manifestly characterized by social cleavages on account of lack of fairness and equity as guiding principles of resource allocation, will necessarily be vulnerable to both internal and external subversion. The reason for this is simple: the loyalty, patriotism and nationalism of the citizenry can hardly be effectively harnessed.
This unflattering model of Nigerian federalism has threatened, rather than enhanced, the viability and efficacy of governments at all levels in the country.
It should be noted that a federal arrangement was adopted as an appropriate supportive framework for the accommodation of diverse ethnic collectivities so as to ensure a balanced and stable system. However, the Nigerian experience of federalism clearly negates the ideal. The precursor to this sad state of things was the overbearing presence of the military in the country's political arena.
To stem the tide of maladministration and ensure the prevalence of the rule of law in the system, devolution of power from the centre to the state should be effective and the zoning system must be strictly adhered to.
More than anything else, states from which mineral resources are being exploited must exercise control over the proceeds from those resources, from which they should remit tax to the central government as they consider fit.Some General Observation on Montesquieu's
Theory of Power Separation
Is the power separation theory of Baron Montesquieu working in the real sense of the word or is it a mere theory that must be left to scholars and students of government? Has it worked anywhere or is it simply a bench mark for cautioning diktats and tyrants? Let us look at the role of judges in their attempt to perfect their assigned role, and examine the Legislature and the Executive in action in a modern democracy.JUDGES AND LAW MAKING
Did Montesquieu direct his mind to the possibility and reality that in the cause of judicial adjudication, the gentlemen of the bench may not be satisfied with the mere interpretation of the law as enacted by the legislature?As has been demonstrated repeatedly, judicial pronouncements are capable of transcending the ambit of adjudication, and venturing into the ozone of lawmaking. Except it is foreclosed by an overriding law resulting from overwhelming political imperatives, decisions taken under the doctrine of precedent remain as law, as the judges so will. In such cases, society is left with no option than to respect and abide by the rule of law. A recent example is the decision of the Supreme Court on the offshore/onshore dichotomy with regard to our God-given resources from our seas and oceans, a natural continuation from our land.
Strict separation of powers such as Baron Montesquieu envisaged may give no room for redress, should injustice occur at the point of interpretation. But judge-made laws are becoming a fact of our daily life. That is why we must evolve political solutions to problems, rather than surrender our destiny to technicalities and legalism~
EXECUTIVE THIRST FOR DOMINANCE
Of the three arms of government upon which the Montesquieu theory is dependent, the executive seems to be most pronounced in the daily affairs of governance. It can also be the most powerful and easily the most vulnerable. In some societies where an attempt has been made to practicalize the doctrine of separation of powers as preached by the erudite French philosopher, the powers of the executive President have proven to be so imperial that, were Montesquieu to arise from his grave, he would be alarmed!Take Eyadema's Togo, Mobutu's Zaire, Houphet Boigny of Ivory Coast, for example. Although all three leaders are dead, we cannot escape a quick look at how powers were separated in those countries. Were the citizens not afraid of their leaders? Did the executive not dominate the political space in such a way as to make the other two arms of government almost irrelevant?
Eyadema ruled Togo for thirty-eight years. The parliament was powerless, and so was the judiciary. Mobutu and Boigny were in the same boat. Our hope and prayer is that no tier of government should allow itself to fall prey to such unsavoury and ignoble manifestations.
Our great party, the PDP, has the potential of setting standards by allowing democracy at all times to prevail. As we move away from the period of democratic experimentation, our fIxed objective should be to ensure that the executive at all levels - local, state and federal - must respect justice and equity.
Our party can encourage the movement to this new level of consciousness by bringing about noble policies and enforcing party discipline. Where policies are designed to punish the stubborn along geographical or ethnic lines, injustice is bound to prevail.
THE FEAR OF LEGISLATIVE IMPERIALISM
The law making arm of government, the legislature, can also be unduly powerful to the extent that it can dominate the political space and render the executive comatose. Did Montesquieu ever consider the possibility that a parliament dominated by a political party other than that to which the head of the executive belongs, can create a major schism that can readily bring government to a halt? Probably not. President Bill Clinton had a dose of republican anger in the infamous Lewinsky saga. He spent almost three years of valuable governance hours defending himself.In the course of the "inappropriate relationship" debacle which the President faced, his loyal wife, Mrs Hilary Clinton, now the Senator for New York, described the persecution and travail of her husband as coming from a "vast right wing conspiracy:' You can read the republican party into this.
Clinton was doing well. The USA economy was booming. He had succeeded in creating employment and reduced the debt. He balanced the budget but election was round the corner! How else could the Republicans win? There is this theory that the Clinton investigation was not only about ensuring the moral and political probity of those who aspired to high office; it also confirmed a determined bid to wrest power from the democrats at all cost! Did Montesquieu envisage the power of conspiracy?
In my home, Bayelsa, a goodwill gesture by our government aimed at encouraging and supporting the legislature during our first term was abused and later hijacked. I signed a self- accounting law for the legislature and got myself in a terrible predicament, such that the beneficiary of that gesture attempted to undermine our quest for peaceful coexistence and developmental acceleration.
Only citizens action, through the intervention of the court, resolved the matter. The example from Bayelsa contrasts with that of the US because a legislative house need not only be dominated by members of the opposing parties for the executive to be threatened or, to use Montesquieu words, prevent the emergence of "tranquillity of mind." The individual political actors in the various chambers, whether executive or legislative, have a lot to do with how power separation becomes a vehicle for tranquillity or justice. Broad-minded actors who carry all persons along are likely to allow the theory of power separation become a fact of our every day life which can then serve to enhance our democracy.
It is my considered opinion that Montesquieu's suggested solutions to power abuse did not go far enough to recognize the peculiarities we know today.
There were mistakes in his postulations, but the general framework can be guiding pillars to our achieving a society where all citizens aspire to enjoy the bounties of what cooperative governance is all about.
Did Montesquieu Lie?
Baron Montesquieu studied the power equation in England and, in grounding his theory of separation of powers, wrote:The political liberty of the subject is a tranquility of mind arising from the opinion each person has of his safety. In order to have his liberty, it is requisite that the government be so constituted such that one man needs not be afraid of another.
For him, therefore, the exercise of power must be built around the pillars of liberty and freedom from fear so that this will ultimately lead to good governance for which the citiiens will be prime beneficiaries.
At the time of writing his famous treatise, did this erudite French philosopher have Nigeria in mind? It is no news that our forty-four years of existence as a nation have been dominated by the military. Since independence, therefore, governance has been characterized by a flagrant disregard for power separation.
Military rule, ladies and gentlemen, is made possible by the command and control doctrine which is the basis for service delivery.
What constitutes the legislative and executive arms of government are fused into one body and reflected in the persons or personnel occupying the positions of Head of State, Governors or Administrators. The only arm of government that may be outwardly insulated from this militaristic fusion seems to be the judiciary.
But the judiciary, according to some analysts, was not allowed to function as a separate arm of government. If it was, the unbecoming description of some judicial decisions from our court would not have been. In recent times, phrases such as "judicial timidity;' "judicial rascality;' etc. have been used to describe some judges and their judgments.
In fact, as far as the Nigerian experience goes, when military governments take over power, the first thing they do is to suspend the Constitution and jettison the rule of law.
If Montesquieu Were To Live In The Nigeria Of 1999-2005, What Would he Observe?
On May 29, 1999 Nigeria began its march towards democracy by ushering into our polity a civilian government at various tiers - local, state and federaL These governments were apportioned powers by the Constitution of the Federal Republic of Nigeria, 1999. The Constitution further delineated powers to the various arms of government namely, the executive, legislative, and judiciary.Six years of democracy in Nigeria have revealed that, in apportioning power, the power separation theory as preached by Montesquieu can only work if we ourselves devise survival strategies that take into cognizance our African cultural inheritance, ethos of brotherhood and communal togetherness. All these must be directed at making government work for our people.
Clearly, the good intention of Montesquieu was to prevent tyranny, promote civil liberty and encourage the growth and application of the rule of law so that governance does away with arbitrariness and selective justice.
If Montesquieu were to be alive and around in present day Nigeria, what would he observe? What would he suggest to make his theory of power separation believable and acceptable to our people and our country?
I have taken a deep reflection of our present practice of democracy in the last six years and have arrived at the following preliminary conclusions. The reflections and observations can only be preliminary because the jury on the matter of our democratic practice is not out yet with a dependable verdict. We are still a young democracy and we need to work harder to meet the expectations of our people.
Observations and Suggestions
1. The present Nigerian Constitution 1999 is not only anti- separation of powers, it is a supporter of dictatorship. Montesquieu would be glad to compare ours to the imperial kingdoms of old Europe.2. There is the need for co-operation among the various arms of government at the state and federal levels so that government can best deliver the goods of good governance. There is a lack of cooperation, leading to frequent face-offs between the executive and the legislature at the center and in some states.
3. There is the need for the various tiers of government to be truly separate in their exercise of power in a federal system of government. The present practice where the Federal Government constitutes itself into a headmaster and the states and local governments are mere prefects and students, does not augur well for our evolving democracy. Peaceful co-existence cannot be decreed, it can only be encouraged to evolve.
4. We must all commit ourselves to respecting the rule of law. Decisions taken by any arm of government - such as the Supreme Court - ought to be obeyed irrespective of our personal preferences. Disrespect is a recipe to chaos and conflict.
5. There is the need for the citizenry to become fully mobilized so that they can be the defenders of our democracy byway of protecting the separation of power principle as a way of checking power excesses.
6. Powers accruing to an arm of government must not be used to persecute and prosecute those who hold a different view. To continue in this manner as we have seen these past six years is to bring our country into unnecessary conflict and disrepute.
7. We must subordinate personal preferences into collective interest. Political actors must not be allowed to arrogate unto themselves the power that belongs to our people and to whom we all must report back.
8. We must be vigilant. On no account must one arm of government be allowed to expand its appointed rights, duties and obligations beyond the outward and inward reaches of justice.
9. Power must not be allowed to remain with one person or one group of people for so long as to encourage self and group power perpetuation
l0. Our quest for justice, fair play and good governance must not be allowed to recognize ethnic affiliation, religious persuasions or ideological alliance.
Conclusion
Your Excellencies, distinguished guests, ladies and gentlemen, this paper has largely examined the effect of separation of powers at various levels of government, federal, state and local, and by so doing demonstrated that the doctrine put forward by Montesquieu may essentially serve to frustrate the popular will, confuse responsibility of governmental actions, and retard the effective formulation of policy at State, National, and International levels if the theory is not bonded by a common vision and backed by political will directed at protecting the citizenry.The palpable truth about separation of powers in the Nigerian polity is that it has manifested itself as an outright political fraud because power has never been fairly distributed.
Separation of powers may present unsavoury consequences where it is applied without due respect to institutionalization and observance of fair and just laws. In such a situation, it may force an increase in the personal and extra-constitutional powers of those who sit at the apex of governmental institutions such as Presidents, Governors, and Local Government Chairpersons etc.
Thus, where power is allegedly separated but without obedience to fairness and justice, the result can be governmental persecution and despotism.
Whatever the doctrine of Separation of Powers may imply, the effect must be that the President, the Governors and others who are mandated to lead us are accountable to the electorate and posterity for our stewardship of the nation's economic and social welfare.
Indeed, it is pertinent to observe that past chief executives who have left their mark on the pages of history have been those whose relations with the other branches of government were harmonious and cordial.
Put simply, the cloud of doubt surrounding the doctrine of Separation of Powers in Nigeria has been borne out not by programmes and policies which were achieved through a consultative application of a given power, but by the exercise of fiat. The only anti-dote against such arbitrariness is democracy. The time is ripe for Nigeria to evolve a nationalist political class that will alter the texture of politics, balance politics with economic imperatives, respond to the dynamics of globalization, and consolidate democratic structures and programmes anchored upon the well-being of the people.
To evolve a new political culture and leadership, we must moderate the intense struggle for political authority. The principle of proportional representation should serve as a strategy to mitigate political contestation, heighten the noble bid to share power, and foster political stability.
This option, I believe, is more appropriate for a multi-ethnic and multicultural nation like ours that aspires to national cohesion and political stability.
Your Excellencies, distinguished ladies and gentlemen, I am done. I thank you for your kind and patient attention.
PROFILE
Dsp Alamieyeseigha, Ph.d
Executive Governor, Bayelsa StateDiepreye Solomon Peter Alamieyeseigha was born to a devout Christian family on November 16, 1952 in Amassoma, Ogboin North Local Government of Bayelsa State.
He began his early education at St Stephen's Primary School, Amassoma, and later proceeded to Bishop Dimeari Grammer School, Yenagoa, for his post primary education. He soon marked himself out as a student of distinction, finishing in 1972. He was one of the exemplary prefects in the school.
Diepreye Alamieyeseigha later worked briefly as an accounts clerk in the Rivers State Civil Service. He proceeded to the Nigerian Defence Academy 15th Regular Combatant Course as a Cadet Officer in 1974, after which he joined the Nigerian Air Force NAp, as one of the fortunate few from the Niger Delta area in that service arm.
Alamieyeseigha was one of the few officers that marked himself apart from his peers as an expert in logistics. He was repeatedly in charge of the critical and strategic department of Logistics and Supply. He remains a specialist in that area.
His first extended project work was Cost Reduction Approach to Weapons Logistics Management in the Nigerian Air Force. He is a professional affiliate of several foreign institutes, including the Institute of Purchasing and Supply and the Institute of Materials Handling, England.
Realizing his leadership qualities, the NAF entrusted him with several command and staff positions, which he creditably held at various commands within the force He was at various times, Officer Commanding Supply Squadron NAF Station, Enugu; Commanding Officer 3 Supply Depot, Markurdi; Supply Instructor, Technical Training Group, Kaduna; Commanding Officer Data & Inventory Control Centre, Equipment Supply Depot NAF, Ikeja; Staff Officer 1 Supply, HQ NAF (MOD); Military Assistant to a one- time Military Governor of Rivers State; Depot Supply Officer; Equipment Supply Depot, and Commanding Officer 27 Technical Supply Wing ATG NAF, Ikeja.
His outstanding career in the military did not go unnoticed.
Alamieyeseigha was duly decorated with the Forces Service Star, FSS, General Service Medal, and the National Service Medal.It is also on record that Chief Alamieyeseigha made history as the first commissioned Nigerian Air force Office to receive the Nigerian Air force ensign of regimental colours from the then Head of State, General Olusegun Obasanjo, a military ceremony which gave the Air Force its legitimacy and integrity as an arm of the Nigerian Armed Forces.
Following his voluntary retirement from the Air force in 1992 as a Squadron Leader, Chief Alamieyesigha took up various appointments. He was Sole Administrator of Pabod Supplies Port Harcourt and later, Head of Budget, Planning, Research and Development, of the National Fertilizer Company (NAFCON) In 1993, Chief Alamieyeseigha served as Special Assistant to the Honorable Minister of Information. At the end of that national assignment, he was recalled to NAFCON as Plant Services Manager.
In 1995, he was appointed Chairman Board of Directors of the Port Harcourt Flour Mills Limited. He was later to combine that engagement with being the Corporate Administrative Manager of IPCO Nigeria/ Ambico Sendiram Nigeria Limited in 1996.
Chief Alamieyeseigha was later drafted into politics by a convergence of well meaning public forces. He convincingly secured the mandate of the electorate and on May 29, 1999 he was sworn in as the first Executive Governor of Bayelsa State, the first son of Izon land to serve in that exalted capacity.
A dynamic thinker, he conceived a rigorous development agenda for Bayelsa State which has so far dictated the steady growth of the State. So far, the giant steps taken by his administration include the establishment of the Niger Delta University, provision of a reliable health care scheme, establishment of a worthwhile housing programme, and sustaining local electricity power supply in the state in the absence of a national grid connection. The government has equally ensured an effective road network and water supply system.
The Alamieyeseigha administration in Bayelsa State has gained distinction as the first civilian government in the 44 year history this nation to have created 24 additional local government areas.
His efforts at conflict resolution have paid off handsomely, so much so that Bayelsa State is now peaceful enough to race ahead on the fast lane of development. In like manner, his popularity has soared on account of his selfless campaign for resource control, and his unrelenting crusade to enthrone equity and justice in a restructured Nigerian state where true federalism holds sway.
In recognition of his people-oriented achievements, Chief Alamieyeseigha received a fresh electoral mandate and was sworn in for a second term on May 29, 2003.
Chief DSP Alamieyeseigha has won various academic laurels including the First Aluminum Company Nigeria Limited Prize for best graduating student in Management at the Rivers State University of Science and Technology, Port Harcourt. He also won the Dean's Prize for best graduating student in the Faculty of Management Sciences. He holds a Bachelor of Science Degree in Management, and an MBA from Rivers State University of Science and Technology, Port Harcourt.
In 2002, Chief Alamieyeseigha bagged a doctorate degree in Strategic Management from the University of Northern Washington, USA. In addition, he is an honorary Professor of the Institute of Economics and Advanced Technologies, Ukraine. Only recently, he was conferred with an honorary Doctor of Law degree (Honoris Causa) by the University of Port Harcourt.
Dr Alamieyeseigha has won one accolade after another among them The Award of Distinction by the Civil Service Union at its 48th anniversary ceremony. He received a National Media Merit Award for enviable achievement in the area of housing and infrastructural development. He has also lifted the Golden Trophy for Good Governance. Chief Alamieyeseigha is also a Fellow of the journalism profession, an honorary Fellow of the Nigerian Academy of Education, and a Paul Harris Fellow of Rotary International. Only recently, he was awarded the honorary fellowship of the Nigerian Computer Society.
He was also conferred with the award of the Best Governor on Security under the auspices of Security Watch in association with the Africa Independent Television and the Nigeria Police.
As a rallying point for the Ijaw people, Dr. Alamieyeseigha has come to be known and accepted as the of Governor General of the Izon Nation, He has equally earned the titles of Amaebi Dou-Owei 1 of Amassoma, OgbofiniOwei 1 of Wilber force Island, Izonebi Dou- Owei of Izonland and the Eze Ndigbo 1 of Afaruku Community, Abia State.
Chief Diepreye Alamieyeseigha, Justice of the Peace, is happily married to an amiable wife, Her Excellency Mrs Margaret Alamieyeseigha, with whom he has a number of children.
Widely traveled he is the distinguished author of the book, Employee Productivity in Nigeria: A Strategic Approach. Two new books, Managing Youth Unrest in Nigeria: A Wholistic Approach and The Environmental Challenge of Developing the Niger Delta have just been published.