Separation of Powers
Introduction
The doctrine 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 system.
Doctrine of Separation of Powers
In essence, 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:
The Executive, 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.
The Legislature, which is the law-making branch. In Zimbabwe it consists of the
Senate and the House of Assembly.
The Judicial 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.
How Each Branch of Government is Appointed
Logically, 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.
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