Ministerial Responsibility- Separation of Powers

Ministerial responsibility means that all the ministers are collectively responsible to the elected parliament for the general policy of the administration. This responsibility is centred around the principle of accountability. Aihe and Oluyede quoted Chamberlain as describing collective 

responsibility as: 

absolute frankness in our private relations and full 

discussions of all matters of common interest …..the 

decision freely arrived at should be loyally supported 

and considered as the decisions of the whole 

government. Of course there may be occasions in 

which the difference is of so vital a character that it is 

impossible for the minority …..to continue their 

support and in this case the ministry breaks up 

orminority number or numbers resign.

In another sense, ministerial responsibility means the personal responsibility or liability of a particular minister for all the consequences of his ministry’s actions. And in the words of O.H. Philips: A minister must accept responsibility for the actions of the civil

servants in the Department, and he is expected to defend them from public criticism, unless they have done something reprehensible which he forbade or of which he disapproves and of which he did not have and could not reasonably be expected to have had previous knowledge. In the latter case, which is unusual, he may dismiss them.

Separation of Powers

The functions of the government were analysed firstly by Aristotle who was a Greek Philosopher; and in the 17th Century the doctrine of separation of powers was developed by John Locke, who saw in it a way of freeing mankind from the injustice and oppression which resulted from an absolute system of government.

Locke therefore concluded that the powers of the government should be shared between three independent bodies called the Legislature, the Executive and the Judiciary.

He therefore urged that it would be unwise to give any arm of the government power to do the duties of the others pari passu. That is, the Legislature must not have the powers to perform the functions of either the Executive or the Judiciary; that the Executive should not be conferred with the powers to perform either the duties of the legislature or the judiciary; and finally the Judiciary should not have any power to perform the duty of either the legislature or the Executive since they might use their powers to exempt themselves from the law they had made for their fellows.

It was however Montesquieu the pre-revolutionary philosopher who contributed immensely to the development of this doctrine and he did a lot to refine it so as to ensure justice and fairness in the running of the government.

In his treatise titled l’Esprit des Lois Chapter IX he said,

“Political liberty is to be found only when there is no 

abuse of powers, but constant experience shows us 

that every man invested with powers, is liable to abuse 

it and to carry his authority as far as it will go……To 

prevent this abuse, it is necessary from the nature of 

things that one power should be a check on another…. 

when the legislative and executive powers are united 

in the same person or body – there can be no liberty – 

Again, there is no liberty if the judicial power is not 

separated from the legislature and executive – There 

would be an end to every thing if the same person or 

body, whether of the nobles or of the people, were to 

exercise all these powers.” 

Montesquieu obviously based his ideas on the British Constitution of the first part of 18th century as he understood it then, and as explained by Garner the doctrine tried to explain three main issues viz:

1. that if the executive and legislature are the same person or body of persons, there must be a danger of the legislature enacting oppressive laws which the executive will administer to attain its own ends.
2.  that for laws to be enforced by the same body that enacts them will result in arbitrary rule and make the judge a legislature rather than an interpreter of the law; and
3.  that if then one body or person could exercise both executive and judicial powers in the same matter, there would be arbitrary power which would amount o complete tyranny.

The doctrine then explains that it will be foolhardy to give law makers the power of executing the law because in the process they might exempt themselves from obedience and suit the law (both in making and executing it) to their individual interests.

Please, note as reported by many eminent writers that Montesquieu did not mean that legislature and executive ought to have no influence or control over the acts of each other, but only that neither should exercise the whole or part of another’s powers.

Put in brief, the meaning of the words “separation of powers” may mean three different things:

1. That the same person should not form part of more than one of the three organs of government, e.g. that ministers should not sit in parliament;
2.  That one organ of government should not control or interfere with the exercise of its functions by another organ, e.g. that the judiciary should be responsible to parliament; and
3. That one organ of government should not exercise the function of

another e.g. that the ministers should not have legislative powers. This was the case in Lakanmi Vs. Attorney-General Western State where the supreme court ruled “that Decree No. 45 of 1968 was ultra

vires since it was nothing short of a legislative judgement, an exercise of judicial power”.

The Court held that the doctrine of separation of powers exists in Nigeria and it cannot be thus whittled down. The Supreme Court held thus:

“We must here revert again to the separation of powers, which the learned Attorney-General himself did not dispute is still the structure of our system of government. In the absence of anything to the contrary it has to be admitted that the structure of our Constitution is based on the separation of powers – the Legislature, the Executive and the Judiciary. Our Constitution clearly follows the model of the American Constitution”.

“In the distribution of powers, the courts are vested with the exclusive right to determine justifiable controversies between citizens and between citizens and the state”. See Attorney-General for Australia V. Queen. In Lovel Vs. United States Mr. Justice Black said as follows:

“Those who wrote our Constitution well knew the danger inherent in special legislative acts which

takeaway the life, liberty or property of particular named persons, because the legislature thinks them

guilty of conduct which deserves punishment. They intended to safeguard the people of this country
from punishment without trial by duly constituted courts”.

“These principles are so fundamental and must be recognised. It is to define the powers of the legislature that constitutions are written and the purpose is that such powers that are left with the legislature be limited; and that the remainder be vested in the courts”.

However this decision has been overruled by Decree No. 28. The Federal Military Government (Supremacy and Enforcement of Powers) Decree 1970 makes it clear that a Decree is the supreme law of the land during the military rule.

Thus generally legislative usurpation of judicial powers has been declared to be ultra vires as it was decided in the case of Liyanage Vs. The Queen when Lord Pearce said:

“In so far as any Act passed without recourse to section 29 (4) of the constitution purports to usurp or infringe the judicial powers, it is ultra vires – it goes without saying that the legislator must legislate, for the

generality of its subjects, by the creation of crimes and penalties or by enacting rules relating to evidence”.

But the Acts of 1962 had no such general intention. They were clearly aimed at particularly known individuals who had been named.

Thus it was pointed out that the doctrine of separation of powers exists under the Ceylonese Constitution.

It would therefore be unconstitutional for the legislature, through the Act of Parliament, to interfere with judicial functions.

Similar views were expressed in the case of Calder Vs. Bull where what happened was held to be a legislative judgement.

CONCLUSION

You ha learned about the relationship between a constitution and the people. You have learned the way in which people should be involved in the process of enforcing the constitution and the supremacy of the powers of the courts in adjudicating on constitutional issues.

SUMMARY

In this unit, you have learnt that there are many constitutional concepts, the inherent powers of the Federal Republic of Nigeria and the source of its authority.

TUTOR-MARKED ASSIGNMENT

1.  Explain the term ‘doctrine of ripeness’.
2.  What do you understand by judicial powers?
3. Explain the term ‘Ministerial Responsibility’