Blame the legislature

Montesquieu is often reputed as the guardian of the principle of separation of power. Separation of powers or classification of government powers is the division of government powers into the three traditional branches of legislative, executive and judicial powers, each to be exercised by a separate and independent arm of the government as a preventive measure against abuse of power, which will occur if the three powers are united in the same person or group of people. Under this constitutional doctrine, one branch of government should not encroach on the domain or exercise of powers of another branch of government. The three traditional arms or division of government and its powers are the: Legislature (The law making arm of government); Executive (The implementers of the laws); and the Judiciary (The interpreters and judges of the law).

The intention behind a system of separated powers is to prevent the concentration of power by providing for checks and balances. Checks and balance is the power of an arm of government to limit the powers of other arms of government within permissible scope allowed by the Constitution or other enabling laws. It is the legally stipulated or accepted means of limiting the powers of an arm of government by the other arms of government to ensure that none of the arms becomes tyrannical.

The aim of Montesquieu’s book, The Spirit of Laws, is to elucidate on the laws that establish the political liberty of citizens as it relates to the Constitution. The foundation of this book was reflected in the American declaration of independence in which the founding Fathers of America, of which Madison was one, declared that “We hold these truths to be self-evident that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are: life, liberty and the pursuit of happiness; that to secure these rights governments are instituted among men deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government”. He asserted that the discharge of this duty of securing the life, liberty, and the pursuit of happiness, will be impossible if power is concentrated in one person or body of persons or institution because everyman invested with power is apt to abuse it and carry his authority as far as it will go. Even virtue itself has need for limits, he warned.

For separation of power to work optimally, the powers of one branch must not be in conflict with those of the other branches or usurped by other powers. This postulation found its approval in the Federalist Paper 48, where James Madison concurred that, “It is agreed on all sides, that the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments.” He stated that in order to achieve this, each branch should have a will of its own; should not derive its powers from other branches and should have its own emoluments. Montesquieu opined that there will be disastrous consequences if these powers are not so clearly delineated as to ensure clarity of authority and responsibility relationship among the three powers to which James Madison agreed.

In delineating the authority and responsibility of the Legislature, Montesquieu postulated that the legislative power should reside in the whole body of the people because the only possibility of everybody being involved and being allowed to participate in the government of his State is by the people transacting, by their Representatives, what they cannot transact by themselves. To ensure this, the Representatives should be elected by people through voting in every designated place. This will make the representatives to be accountable to the people who elected them known as their constituents. This right to vote should not be denied anybody in the State.

To Montesquieu, the legislature should not be chosen from the executive but should concentrate on the making of laws and ensuring their implementation through oversight functions. He submitted that the legislature should meet regularly to ensure the efficient performance of their duties. In his opinion, legislative membership should not be permanent so that the people can change corrupt members and not be stuck with them. It’s noteworthy that James Madison agreed with all these postulations of Montesquieu in his Federalist Papers to the states and this is why the legislature in America today are being directly elected by the people and are consequently accountable to their constituents. Their membership of the legislative house is tenured and their constituents transact the government through them.

Montesquieu elaborated the consequences of these powers not being divided and operated by different persons and group of persons, for when the legislative and executive powers are united in the same person, or in the same body of persons, there can be no liberty; because apprehensions may arise, lest the same body of persons should enact tyrannical laws, to execute them in a tyrannical manner. He warned that the state will perish when the legislative power is more corrupt than the executive, and further warned that there would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals, for sadly where the three powers are together, every private citizen may be ruined by their particular decisions.

United States of America subscribed completely to the submissions of Montesquieu and clearly operates this separation of powers in all their government. The seat of their democratic government lies in the legislature not in the executive. The legislature holds the feet of their executive to the fire at all times and the executive performs according to law. It is their legislature that determines the amount of money that the executive will spend on any programme. It is the legislature that ensures that the money is spent the way it should be spent, and it’s the legislature that exposes corruption, waste, and inefficiency in their government. It is still the legislature that ensures that the officials that fail to adhere to the law is punished. Their legislature approves only competent persons to serve in their government by either confirming or rejecting any person or judge nominated for appointment by the executive. With this, their government is populated by competent people of integrity who have capacity and character.

They have been able to survive a civil war, natural disasters and great international adversaries because of their strict adherence to rule of law and tenets of democracy which includes free, fair and credible elections, independent and impartial judiciary, respect for the fundamental human rights of their citizens and so on. They achieved all these feat because their legislature is not corrupt. This achievement catapulted them to become the most powerful country on earth.

Contrast this situation with Nigeria. At the inception of Tinubu’s regime in May 29, 2023, he declared fuel subsidy was gone when there was an existing law that stipulated that fuel subsidy can only stop by June 30, 2023. What he needed to do to escape whatever illegal he wanted to do during his regime was to ensure that he chose the leadership of the legislature. He selected all the leaders of the legislature, and unfortunately, both the ruling party and the opposition party members of the National Assembly rubber stamped his choice. With this total subordination of the legislature to the executive, democratic norms in Tinubu’s first tenure is gone.

The National Assembly under Senator Godswill Akpabio has approved every expenditure Tinubu sends to it, even if it’s buying a private presidential jet and yacht when Nigerians are dying of acute poverty and malnutrition. They have also approved of any person or judge Tinubu’s government sends to them for confirmation, even if such persons are card carrying members of the All Progressives Congress to serve on the Independent National Electoral Commission (INEC) or a judge to serve on the Supreme Court bench who has been partisan in all his judgements at the lower court. This is why our country is racing towards becoming the last.

Our National Assembly has not deemed it necessary to extensively probe the rot and corruption going on in the oil sector where the Nigerian National Petroleum Company Ltd (NNPCL) has promised more than four times within Tinubu’s regime that the refinery will work, yet it has not. Today, fuel is selling for more than N1,200.00 per litre, naira exchanging for N1,700.00 per a dollar. Nigerians can not afford food, fuel, shelter, clothing, transportation, education, and healthcare. Nigerians are merely existing not living. We must blame the legislature for these woes because, as stated above, everyman invested with power is apt to abuse it and carry his authority as far as it will go. The legislature is not providing the needed checks and balance on the executive and if this continues, as Montesquieu has warned, the state will perish, and there would be an end of everything. The executive in Nigeria is exercising the three powers of government and this is why we are dying in Nigeria.