4. Other Institutions of Government
In addition to the three main branches of Government, the Executive, the Legislature
and the Judiciary, there are other important institutions of the Government which
should be dealt with in a constitution. Some of these institutions form part of one or
other of the three branches. For example, in many countries the Government’s
functions are exercised through a Cabinet of Ministers, and in that event the
constitution should specify which Ministers form the Cabinet and what its functions
are.
In the Zimbabwean context, the security forces [the defence forces and the police
force] will need to be dealt with carefully because they exercise the coercive powers
of the State: that is to say, they compel individuals to do what the Government
wants, and the way they are currently exercising those powers is controversial. The
constitution should indicate how far the security forces are to be under the control of
the government – how far they are to be controlled by the President or the Prime
Minister or the Cabinet – and whether Parliament should have a supervisory role over
their activities.
Apart from the security forces, a constitution may set up other institutions such as
commissions to conduct elections, to appoint people to public offices, to foster
human rights, to combat corruption, and so on. These institutions should be
established by the constitution rather than by ordinary legislation if they need to be
independent in order to exercise their functions properly.
5. Appointment and Election to Governmental Institutions
A constitution must indicate how people are appointed or elected to the various
institutions of the State, so that the institutions can continue to exist beyond the lifetime of their first members. In the case of the Legislature, for example, the
constitution should state how members of Parliament are elected or appointed,
though in many countries the details of the electoral or appointing process are left to
be covered by ordinary legislation.
6. Relations Between Institutions of Government
A constitution must indicate how the different institutions of government function in
relation to each other. For example:
Relations between the Executive and the Legislature
The constitution should state whether members of the Executive such as Ministers
are to be members of Parliament. If not, how is the Executive to influence the laws
passed by Parliament [as it must do, in a modern State]? The constitution should
also indicate how far the Executive should participate in the law-making process: for
example, must Acts of Parliament be assented to by the Head of State?
Relations between the Executive and the Judiciary
By specifying how judicial officers are appointed, the constitution will indicate how
far the judiciary is to be independent of the Executive: in other words, if judges and
magistrates are appointed at the discretion of the Head of State they will be
subservient to the Executive, but if they are appointed by a non-partisan commission
they are likely to be independent. The constitution should also state to what extent
the actions of the Executive can be reviewed by the courts.
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