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Separation of Powers Part I - Constitution Watch Content Series
November 18, 2010
Doctrine of Separation of Powers – its Values and Limitations
of separation of powers was touched on in an earlier Constitution
Watch. It is one of the essential elements of the rule of law,
because without a proper separation of powers the rule of law
will be imperilled, but the doctrine has a wider application and
this Constitution Watch will examine it in greater detail. It
will be seen that although the doctrine represents an ideal which
cannot be put into practice absolutely, it does emphasise the
need to provide adequate checks and balances within the governmental
of Separation of Powers
the doctrine of separation of powers is that for a free and democratic
society to exist there must be a clear separation between the
three branches of government, namely:
which is the branch that executes the business of government.
It comprises the President, Vice-Presidents and Ministers, the
Public Service, the Defence Forces, the Police Force and other
law-enforcement organisations. All the administrative, law-enforcement
and coercive organs of the State fall within the Executive Branch,
making it potentially the most powerful of the three branches
of government unless its powers are subject to limitations.
which is the law-making branch. In Zimbabwe it consists of the
Senate and the House of Assembly.
Branch, which interprets the law. It comprises judicial officers
and the courts over which they preside. In Zimbabwe the courts
are divided into superior courts, namely the Supreme Court and
the High Court, and the lower courts, which are principally
magistrates courts and customary-law courts. There are also
specialised courts such as the Administrative Court, the Labour
Court and the Fiscal Appeal Court.
If one of
these branches encroaches upon the functions of the others, so
the doctrine goes, freedom and the rule of law are imperilled.
If, for example, the Executive (i.e. the President or a Minister)
makes laws and enforces them, then we no longer have the rule
of law but rule by a man or woman, and the governmental system
will tend towards autocracy and tyranny.
In short the
doctrine states that, liberty and human rights can flourish only
where each branch sticks to its proper role.
Each Branch of Government is Appointed
the doctrine of separation of powers should extend to the appointment
of the members of each branch. For example, according to the strict
doctrine of separation of powers the Legislature should not appoint
members of the Executive [i.e. Parliament should not elect the
President or the Prime Minister]; and for the same reason the
Executive should not have a role in electing members of the Legislature.
Neither the Executive nor the Legislature should appoint members
of the Judiciary, for if they do the Judiciary will lose its independence.
And it goes without saying that judges should not appoint the
Executive — though that is what may have happened in the
United States when the Supreme Court decided the result of the
2000 presidential election.
according to the doctrine of separation of powers, should appoint
members to the three branches of government? In all the principal
draft constitutions produced so far - the Kariba
draft, the NCA draft and the Law
Society draft - it is stated that all legal and political
authority derives from the people, so logically the people should
elect the President and the Prime Minister as well as all members
of Parliament. And judges and other judicial officers should also
be directly elected by the people.
Each Branch is Financed
It would be
impractical to expect each branch of government to raise its own
finances. The financing of all the branches must therefore come
from the central government fiscus, and may limit their independence
because whichever branch controls the fiscus can starve the other
branches of funds. In order to maintain the independence of the
different branches, the Constitution could make it obligatory
for each branch to be provided with adequate funding to enable
it to carry out its functions.
on the Separation of Powers
There is probably
no country in the world in which the doctrine of separation of
powers is applied strictly and absolutely. There are not always
clear dividing lines between administrative, legislative and judicial
functions — jurists have wasted oceans of ink and mountains
of paper in trying to define those terms precisely — and
in a modern State there must be a great deal of co-operation and
interaction between the Executive and the Legislature, in particular,
if the State’s business is to be efficiently conducted.
In modern countries, therefore, there is always some overlapping
of functions. For example:
has become so far-reaching and complex that Parliament cannot
enact all of it. Acts of Parliament must leave details to be
filled in by regulations made by other authorities, usually
Ministers. Hence the Executive branch must be given some law-making
powers. At present all subsidiary legislation must be laid before
Parliament, but Parliament has no power to repeal it. It would
be closer to the ideal of separation of powers if Parliament
did have such a power.
of government has expanded so greatly that many decisions which
affect peoples’ lives must be made quickly, and some of
these decisions require specialised knowledge which is not possessed
by judges or magistrates. Many of these decisions are made by
administrative tribunals established by and answerable to Ministers.
Hence the Executive branch is increasingly given judicial powers.
This is not necessarily undesirable so long as the tribunal
obey the basic standards of fairness laid down by the law and
so long as the courts are able to review their decisions.
generally recognised that in a legal system such as ours, judges
do not just interpret the law. They develop and adapt the law
to take account of changing circumstances, and in that way they
actually make law. Hence the judicial branch has some law-making
or legislative powers, but this power should not go beyond refining
and developing existing law.
countries the Head of State is elected by Parliament, not by
the people. This is usually the case where the Head of State
is non-executive, but in South Africa the executive President
is elected by the National Assembly. While this violates the
strict doctrine of separation of powers it has the advantage
of ensuring that the Executive does not get too powerful and
is ultimately answerable to Parliament.
constitutions provide for the direct election of judges and
magistrates. They are usually appointed, subject to safeguards
to ensure their independence, by the Executive or the Legislative
branch, or by both branches.
cannot be a complete separation between the different branches
of Government, the doctrine of separation of powers can best be
defined as a governmental system of separated institutions sharing
power fairly between them. Relative powers of each branch should
of the Doctrine of Separation of Powers
the doctrine of separation of powers cannot be applied absolutely,
it retains considerable value.
first place, it emphasises the need for a State to have strong
independent institutions in order to check arbitrary rule by
the Executive. This is particularly important in a country such
as Zimbabwe which does not have a long history of democratic
rule. The Executive will always try to increase its powers by
encroaching on the functions of the other branches of Government,
sometimes for the best of motives. Without strong institutions
to oppose it these encroachments by the Executive will continue
until the other branches lose their power to check it.
the doctrine provides a yardstick against which constitutional
proposals can be assessed in order to determine whether or not
there will be adequate checks and balances within the governmental
system to ensure that individual rights are protected.
of Powers Not the Only Test of a Good Constitution
As a test
for determining whether a constitution or governmental system
is good or bad, the doctrine of separation of powers must be applied
with caution. It is fair to say that constitutions which completely
ignore the doctrine are usually bad ones – one of the branches
of government will be found to overshadow the others or liable
to do so. But constitutions in which the doctrine is observed
are not necessarily good ones. If the doctrine is observed so
strictly that the different branches do not co-operate with each
other, there may be governmental gridlock. And the doctrine has
nothing to say about the nature of the powers that can be exercised
by each of the branches within its own sphere. If, for example,
all the powers of the Executive are vested in one individual and
there are no limits on his or her power, then the State will be
a dictatorship or nearly so; and if the Legislature, though completely
independent, is not elected by universal suffrage, then the State
will be undemocratic; and if judges, though completely independent
and irremovable from office, are ignorant and corrupt, then there
will be no rule of law. So the doctrine of separation of powers
has its limits in determining whether or not a State is well governed.
It is only one of several tests to be applied.
In the second
part of this Constitution Watch we shall compare the three main
constitutional proposals that have been put forward since 2000
- the so-called Kariba draft constitution, the NCA draft and the
Law Society’s draft - to see how far they provide for a
separation of powers.
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