SEPARATION OF POWERS AND THE PURPOSIVE APPROACH TO THE INTERPRETATION OF THE 1999 CONSTITUTION

SEPARATION OF POWERS AND THE PURPOSIVE APPROACH TO THE INTERPRETATION OF THE 1999 CONSTITUTION

Introduction

This contribution examines the Purposive Approach to the interpretation of the Constitution and the fear on the part of a few writers that it may offend the doctrine of the separation of powers.  The article begins with the definition of Government and the doctrine of the Separation of Powers, points out some imperfections in the 1999 Constitution of Nigeria and the judicial response aimed at solving this problem by resorting to the purposive approach.

Government: Functions and Powers

Government is a machinery for conducting or running the affairs of a country or State. In this sense government means the act of governing or governance.  On the other hand, the institution established to carry out the day-to-day administration of the State or Country may be referred to as the Government.  In this sense, for instance, the executive is referred to as the Government.  But the truth is that there are three arms, which constitute a government in modern democratic societies or systems.

These are the Legislature, the Executive and the Judiciary.  In Nigeria, these three arms of Government came into existence at the same time and by the same act of creation under the 1999 Constitution.  They are triplets born the same day or deemed to be so, by virtue of sections 4, 5 and 6 of the Constitution.  Accordingly, in Nigeria, no one arm of government is superior to the other, neither is any subordinate to the other.  Each organ is independent within its own sphere of influence. This is also the position under the American constitutional arrangement. Under the Constitution of the United States of America, Articles I, II and III thereof created the Legislature, Executive and the Judiciary respectively.

The functions of government are basically three, namely, Law-making

(Legislation); law-enforcement or execution and administration of justice (interpretation of laws and settlement of disputes). These functions are assigned to the three arms of government under the 1999 Constitution.  Section 4 vests the legislative powers of the Federal Republic of Nigeria in the Legislature (the National Assembly, a bicameral legislature, consisting of a Senate and a House of Representatives at the Federal level and the legislative powers of a State of the Federation in the House of Assembly of the State, a unicameral legislature.

Section 5 vests the executive powers of the Federation in the President at the Federal level and the executive powers in a State in the Governor of the State.

Section 6 vests the judicial powers of the Federation and a State therein in the Judiciary consisting of the Courts established for the Federation and the States by virtue of the provisions of the Constitution.

The Doctrine of Separation of Powers

Though arguments for separation of powers in government may be gleaned from ancient and medieval theories of government, the French author, Montesquieu, is credited with the first modern articulation of the doctrine of separation of powers.  Montesquieu improved on an argument of Locke in his book, Second Treatise on CivilGovernment, who in his postulates for democracy, insisted on the separation of the King, representing the Executive, from Parliament, representing the Legislature.

Montesquieu, who showed great concern for liberty and feared concentration of powers in one place in his book, The Spirit of Laws, thought that it was the presence of liberty under the British Constitution that was responsible for the constitutional arrangement showing the three arms of government at work within three separate departments. He then added a third arm, the Judiciary, to Locke’s earlier postulate, namely, King and Parliament.

SEPARATION OF POWERS AND THE PURPOSIVE APPROACH TO THE INTERPRETATION OF THE 1999 CONSTITUTION