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Executive Powers Part I - Constitution Watch 2/2011
May 17, 2011
In an earlier
we outlined the doctrine of separation of powers between the three
branches of government, namely the Executive, the Legislature and
the Judiciary. We noted that although the doctrine shows how important
it is for the three branches to be autonomous, it does not deal
with the nature and extent of the powers that each of those branches
should exercise within their own spheres. In this and subsequent
Constitution Watches we shall deal with the powers of the individual
branches, starting with those of the Executive.
which is the branch of government headed by the President, is currently
the most powerful of the three branches. The President and his Ministers
control the Defence Forces, the Police and the civil administration;
they represent the country in its dealings with foreign governments;
and generally they are responsible for running the day-to-day affairs
of the country. The Executive is the branch of government which
impinges most frequently on the lives of ordinary people.
are the Powers of the Executive?
Under the present
Zimbabwean Constitution, the Executive’s powers can be grouped
roughly into the following categories:
- Power over
the Legislature, namely the power to summon, adjourn and dissolve
Parliament, and the power to appoint members of Parliament.
- Power over
the Judiciary, namely the power to appoint judges and other members
of the judiciary.
- Power to
appoint members of the Executive, namely Cabinet Ministers and
administrative officers such as public servants.
- Power to
appoint ambassadors and members of constitutional Commissions.
- Power over
the security forces, namely the Defence Forces and the Police.
power, namely the power to enact legislation.
- Power to
declare war and make peace
powers, such as the exercise of the prerogative of mercy and the
power to confer honours and precedence.
to the specific powers mentioned in the Constitution,
the President is vested generally with “the executive authority
of Zimbabwe” by section 31H(1). This seems to give him power,
through his Ministers, to run the general administration of the
Political Agreement [GPA] has not altered the nature of these
powers, though it has made some changes to the persons who can exercise
them [i.e. the President or Prime Minister or the Cabinet] and the
way in which they are exercised [i.e. with or without consultation].
for restraints on Executive’s powers
issue facing the Constitution Select Committee [COPAC] in its preparation
of a new constitution for Zimbabwe is how to limit the powers of
the Executive so as to create a real democracy with a proper balance
between the three branches of government, while at the same time
ensuring that the country is run efficiently. The question of who
should be vested with executive powers - President or Prime Minister
- though an important one, is not so crucial.
If there are
too few limits or safeguards on the exercise of executive power
then the country may develop into a dictatorship, whether the power
is exercised by a President or a Prime Minister; too many restrictions,
on the other hand, may lead to governmental paralysis and anarchy.
It is obvious,
particularly in the light of Zimbabwe’s history, that constitutional
restraints must be imposed on the powers of the Executive, whether
those powers are exercised by a President, a Prime Minister or a
Cabinet of Ministers. The reason is clear: power tends to corrupt,
and absolute power corrupts absolutely. The fewer restraints there
are on Executive powers, the more likely it is that those powers
will be exercised corruptly or in such a way as to violate peoples’
rights, and the more likely it is that the Executive will try to
extend its powers unlawfully.
On the other
hand, it is unwise to restrain the Executive too much. The Executive
must be able to govern the country, which means not only managing
its day-to-day affairs but also coping with crises when they occur.
The Executive must be able to act promptly and effectively in a
crisis, though not necessarily unilaterally or in such a way as
to violate peoples’ fundamental rights and freedoms. Crises
have overwhelmed even old-established democracies such as France:
in 1958 the French Fourth Republic proved incapable of dealing with
the Algerian war and had to give way to General de Gaulle and the
current Fifth Republic. Crises are particularly dangerous for a
young democracy such as Zimbabwe, and the institutions of State
must be strong enough to overcome them.
Where the constitution
requires the Executive to co-operate with other branches of government,
it should contain provisions that facilitate such co-operation in
order to avoid the governmental paralysis or gridlock that has occurred
recently in the United States, where President and Congress cannot
agree on a budget to deal with the financial crisis of 2008.
So a balance
must be struck between an Executive whose powers are limited to
prevent it evolving into a dictatorship and one which has enough
power to govern effectively.
of restraints needed
What sort of
restraints should the new constitution impose on the Executive,
to give Zimbabwe an effective government while preserving democracy,
separation of powers and the rule of law?
There are several
possible restraints, which may be grouped very roughly under three
on the nature of the powers that may be exercised by the Executive.
directed at the persons who exercise Executive powers.
directed at the way in which Executive powers are exercised.
We shall deal
with each of these topics in turn in Part
II, Part III
and Part IV
of Executive Powers
Watch 4/2009 of 27th June 2009 outlined the President’s
powers in the Kariba
draft constitution. Soft copies of the Kariba draft constitution
are available on request. Soft copies of the NCA
draft constitution and the Law Society model
constitution in which the powers are much less extensive are
also available on request. Please send requests to firstname.lastname@example.org
makes every effort to ensure reliable information, but cannot take
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