THE DOCTRINE OF SEPARATION OF POWERS

Jaba Shadrack (Assistant Lecturer), UDSM – School of law (Department of Public law)

jaba@udsm.ac.tz or jabashadrack@gmail.com

Visit: www.jabashadrack.blogspot.com or www.scribd.com/jabashadrack

…………………………………………………………………………

1. Introduction:

The doctrine of separation of power is said to be a bourgeois political-legal theory that claims that state power is not a single entity but rather a composite of different governmental functions (i.e. legislative, executive, and judicial) carried out by state bodies independently of each other. The legislature enacts laws; the executive enforces laws; and the judiciary interprets laws.

2. Origin:
The theory of separation of powers may be traced back in the writings of classical and medieval thinkers such as Aristotle[1] (384–322 BC). For instance, Aristotle in his book (“The Politics”) proclaimed that:

There are three elements in each constitution in respect of which every serious lawgiver must look for what is advantageous to it; if these are well arranged, the constitution is bound to be well arranged, and the differences in constitutions are bound to correspond to the differences between each of these elements. The three are, first, the deliberative, which discusses everything of common importance; second, the officials; and third, the judicial element. [Bk iv, xiv, 1297b35].

Further, Aristotle believed that any single form of government was unstable leading to a permanent cycle of disasters. In the same vein, Cicero preferred powers to be vested in the people and authority in the state. Apart from Aristotle and Cicero, other thinkers who rebelled against concentrating powers in one absolute leader were John Locke[2] and Jean Bodin. For instance, Locke stressed that the executive and legislative powers should be separate for the sake of liberty. As liberty is likely to suffer when the same human being makes the law and execute them[3]. Such thinking during the Age of Enlightenment (reasons) in Europe were refined and reformulated as a doctrine in the mid-18th Century by the celebrated French philosopher, Charles de Secondat, Baron de Montesquieu[4] (1689-1755) in his book, “De l’Esprit des Lois” (i.e. the Spirit of Laws), 1748.

Between 16-18th Centuries, the doctrine of separation of powers occupied an upper hand in the struggle of the bourgeoisie against absolutism and the arbitrary rule of kings (i.e. feudal monarchy). Again, the doctrine was used in a number of countries to justify a compromise between the bourgeoisie, which had won control over the legislature and judiciary, and the feudal-monarchical circles that had retained executive power. With the establishment of the capitalist system the principle of separation of powers was proclaimed as one of the fundamental principles of bourgeois constitutionalism.

3. Definition:

The phrase ‘separation of powers’ is ‘one of the most confusing in the vocabulary of political and constitutional thought’. According to Geoffrey Marshall (1971:97), the phrase has been used ‘with varying implication’ by historians and political scientists, this is because the concept manifests itself in so many ways. In understanding the concept of ‘separation of powers’ one has to take on board the three approaches i.e. traditional (classical), modern (contemporary) and Marxist-Leninist approaches.

(a) Traditional (Classical) approach

The traditional views are presented by Montesquieu who vigorously advocated for a “strict or pure or total or complete or absolute” separation of powers and personnel between three organs of the state i.e. the Executive, Legislature and Judiciary.

Power being diffused between three separate bodies exercising separate functions with no overlaps in function or personnel.

In Montesquieu’s days the monarchy in France had established despotism and the people enjoyed no freedom. The monarchy was the chief law giver, executor and the adjudicator. The statement by Louis XIV that “I am the state” outlined the character and nature of monarchical authority.

Montesquieu’s strict doctrine (tripartite system)

·   In every government there are three sorts of power i.e. legislature, executive and judiciary. The executive, makes peace or war, send or receives embassies, establishes the public security and provides against invasions. The legislature, prince and magistrate enact temporary or perpetual laws and amend or abrogate those that have been already enacted. The judiciary, punishes criminals, or determines the disputes that arise between individuals.

·       Montesquieu warned his countrymen about the danger of vesting all state powers in one person or body of people as follows;

When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty……….Again, there is no liberty if the power of judging is not separated from the legislative and executive. If it were joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be the legislator. If it were joined to the executive power, the judge might behave with violence and oppression. There would be an end to everything, if the same man, or the same body, whether of the nobles or the people, were to exercise those three powers, that of enacting laws, that of executing public affairs, and that of trying crimes or individual causes.

·         That concentrated power is dangerous and leads to despotism of government (tyranny);

·         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. Again, judges should not appoint members of the Executive.

·         That it is the people who should elect members of executive, legislature and judicial officers.

·         State officials should not form part of or belong to two or more organs.

·     He argued, if separate powers of government are placed in different hands, no individual or group of people can monopolize political powers (i.e. differentiation of functions). Thus, he was against absolute power residing in one person or body exercising executive, legislative and judicial powers.

·         To him, the state will perish when the legislature power become more corrupted than the executive.

·      He based this model on the Constitution of the Roman Republic and the British constitutional system. Montesquieu took the view that the Roman Republic had powers separated so that no one could usurp complete power.

·   He (mistakenly) believed that the English constitution establishes functional separation between the legislature, executive and judicial powers. In England, the monarch exercises executive powers, legislative power are shared by hereditary nobility and the peoples’ elected representatives, judging powers vested in persons drawn from the body of the people. His ideas were highly influenced by his stay in England between 1729–1731.

SUMMARY

The Doctrine of Separation of powers includes the following distinct but overlapping aspects;

Institutional separation of powers: (a tripartite separation of powers) – the need to have three major institutions or organs in a state i.e. Legislature, Executive and Judiciary.

Functional separation of powers: state power/functions must be vested and exercised by three separate institutions or organs i.e. law making, enforcement and interpretation.

Separation of personnel: (each organ with own personnel) – no person should be a member of more than one organ.

Limitation of appointing powers: state organs should not appoint or elect members for each other.

  

(b) Modern (Contemporary) approach

This approach somehow departs or otherwise tries to refine Montesquieu’s strict doctrine of separation of powers. Essentially, this approach point out practical difficulties in the application of Montesquieu’s strict doctrine and thus advocates for a ‘mixed government’ or ‘weak separation of powers’ with ‘checks and balances’[5] to prevent abuses[6]. Therefore, this concept insists that the primary functions of the state should be allocated clearly and that there should be checks to ensure that no institution encroaches significantly upon the function of the other.

To them, Montesquieu’s strict doctrine presents the following problems:-

* A complete separation of the three organs may lead to constitutional deadlock (disunity of powers). Thus, a complete separation of powers is neither possible nor desirable.

*  Partial separation of powers is required to achieve a mixed and balanced constitutional structure.

* It would be impractical to expect each branch of government to raise its own finances.

* The theory is based on the assumption that all the three organs of the government are equality important, but in reality it is not so. In most cases, the executive is more powerful of the three branches of government.

(c) Marxist-Leninist approach

Unlike, the other two approaches, the Marxist-Leninist approach[7] refute the application of the doctrine by arguing that the theory of the separation of powers is “nothing but the profane industrial division of labour applied for purposes of simplification and control to the mechanism of the state”. In essence, Marxist-Leninist theory rejects the theory of the separation of powers because it ignores the class nature of society. The existence in a socialist state of state bodies with different jurisdiction means that a certain division of functions in exercising state power is essential while maintaining the unity of state power.

4. Application of the Doctrine of Separation of Powers in the United Republic of Tanzania

The Constitution of the United Republic of Tanzania (1977) represents a contemporary approach in constitutionalising the doctrine of separation of powers. Essentially, there is no strict separation of powers under the Constitution of Tanzania, both in principle and practice. In the Constitution of Tanzania, the doctrine of separation of power is enshrined under Article 4 which, inter alia, provides that;

4.-(1) All state authority in the United Republic shall be exercised and controlled by two organs vested with executive powers, two organs vested with judicial powers and two organs vested with legislative and supervisory powers over the conduct of public affairs.

(2) The organs vested with executive powers shall be the Government of the United Republic and the Revolutionary Government of Zanzibar; the organs vested with judicial powers shall be the Judiciary of the United Republic and the Judiciary of the Revolutionary government of Zanzibar; and the organs vested with legislative and supervisory powers over public affairs shall be the Parliament of the Untied Republic and the House of Representatives[8].

In principle therefore, Article 4 of the Constitution establishes three organs of the state i.e. executive, legislature and judiciary. In practice though, there is no strict separation of powers (but rather a mixed from government with checks and balance) in terms of functions of each organ and personnel conferred with state powers as exemplified below;

*    It is the President (executive) who appoints Judges and Justices of Appeal (Judiciary) under Article 109 and 118. 

*  The President (executive) is also allowed to appoint a certain number of members of the National Assembly (legislature) under Article 66(1)(e).

*  The executive do adjudicate in certain cases under ‘administrative tribunals’, e.g. Military Tribunal (Court Martial), The Tax Revenue Appeals Board, The Fair Competition Tribunal, and The District Land and Housing Tribunal[9].

 * Judges, in practice, do make laws[10].

* The Chief Justice is allowed to make rules, e.g. Court of Appeal rules (2009) made under the Appellate Jurisdiction Act (RE: 2002, Cap. 141).

* The Court can nullify Acts of parliament under Article 64(5).

 *  Members of the executive such as President, Ministers, Directors and etc., are allowed to make subsidiary legislation as per Article 97(5).

* The President is part of the Parliament (but not a member of the National Assembly) as per Article 62(2)[11].

* Ministers (executive) initiate Bills[12] and the President assent to Bills into law or may veto the same [Article 97(1)(2)].

* Ministers (Cabinet members) are also part of the National assembly [see, Article 55(4)].

* The Attorney General (part of the executive) is also a member of the National Assembly under Article 66(1)(d).

* President has the power to dissolve the National Assembly [Article 97(4)], likewise the National Assembly can impeach the President, Vice-president and Prime Minister (Article 38(2)(d), 46A, 50(3) and 53A).

 * Some members of the National Assembly may also hold posts in the executive such as District and Regional Commissioners [see, Article 66(3)][13].

 *   A Judge can also be appointed as an Attorney General (the case of Judge Werema).

All in all, the Court of Appeal of Tanzania has also asserted affirmatively the doctrine of separation of powers in its various judgements. For instance, in DPP v. Daudi Pete [1993] TLR 22 (CA), a case which was concerned with restrictions imposed by Section 148(5)(e) of the Criminal Procedure Act, 1985 (on bail), Nyalali CJ refuted arguments made by Mwalusanya J (High Court), thus laid down circumstances under which the doctrine of separation of powers can be said to have been violated as following; 

“In our view, the Doctrine of Separation of Powers can be said to be infringed when either the Executive or the Legislature takes over the function of the Judicature involving the interpretation of the laws and the adjudication of rights and duties in disputes either between individual persons or between the state and individual persons.”

Again, in Attorney General v. Lohay Akonaay and Joseph Lohay [1995] TLR 80 (CA), Nyalali CJ (as he then was) reiterated his position in Daudi Pete’s case and noted as follows (in relation to the encroachment of the Judiciary’s power by the Executive);

“It is the basic structure of a democratic constitution that state power is divided and distributed between three state pillars. These are the Executive, vested with executive power; the Legislature vested with legislative power, and the Judicature vested with judicial powers. This is clearly so stated under Article 4 of the Constitution. This basic structure is essential to any democratic constitution and cannot be changed or abridged while retaining the democratic nature of the constitution. It follows therefore that wherever the constitution establishes or permits the establishment of any other institution or body with executive or legislative or judicial power, such institution or body is meant to function not in lieu of or in derogation of these three central pillars of the state, but only in aid of and subordinate to those pillars. It follows therefore that since our Constitution is democratic, any purported ouster of jurisdiction of the ordinary courts to deal with any justiciable dispute is unconstitutional.” (pp. 92).

Further, in Mwalimu Paul John Mhozya v. Attorney General (No. 1) 1996 TLR 130 (HC), the issue was whether the President may be removed or suspended from office by the Court. Samatta JK (as he then was) in relation to the doctrine of separation of powers held that;

“The principle that the functions of one branch of government should not encroach on the functions of another branch is a very important principle, one of the principles which ensure that the task of governing a State is executed smoothly and peacefully. It seems to me to be an incontrovertible proposition of law, having regard to the use of the words `in accordance with the provisions of this constitution' in s 42(3)(d) of the Constitution, that removal or suspension from office of the President of the United Republic is the legislature's exclusive prerogative. Since s 46A of Constitution lays down the procedure to be used in removing or suspending the President, the attempt to remove or suspend him by a procedure other than that would not be legal.” (pp.137-8).

Recently, the Court of Appeal (under Ramadhani, CJ) in A.G. v. Rev. Christopher Mtikila [Civil Appeal No. 45 of 2009] reaffirmed the doctrine (though not so expressly) by restricting the role of the Court to that of adjudicating (and not legislating). The Court argued that;

“…..the issue of independent candidates has to be settled by Parliament which has the jurisdiction to amend the Constitution and not the Courts which, as we have found, do not have that jurisdiction.”[14]

5. The Application of the Doctrine in other Countries:

Various scholarly works reveals that, there is no country in the world which has succeeded to implement Montesquieu’s idea of absolute or strict separation of powers to the fully. Some scholars claim rightly that even Montesquieu’s motherland i.e. France has failed to adhere to the doctrine strictly. However, a cross-section of constitutional jurists worldwide agrees in principle that, somehow the framers of the Constitution of the United States[15] adopted and expanded the doctrine of separation of powers. For instance, in the US Constitution [Article I(1), II(1) and III(1)];    

* the three organs of government are both separated and balanced;

* Each organ has separate personnel and there are separate elections for executive and legislature; and

* Each organ has specific powers and some form of veto over the other. The power of one organ to intervene in another through veto, ratification of appointments, impeachment, judicial review of legislation by the Supreme Court.

Though the US Constitution presents the best practice with regard to the application of the doctrine, to a certain extent, the same have been violated, the good example is when the Supreme Court interfered and resolved the dispute between Al Gore and George W. Bush[16] with regard to the 2000 presidential election.

Apart from the US, the constitutional practices in other part of the world bring an impression that the doctrine is not strictly followed. For instance, under Article 86 of the Constitution of South Africa (1996), the executive President is elected by the National Assembly[17]. On the other hand, Kenya has a Parliamentary system, where the president is both the Head of State and Government, and also an elected Member of Parliament[18].

SOP

** Constitution of the Republic of Uganda, 1995 [Chapter 6-8]; not clearly stated

** Constitution of the Republic of Rwanda, 2003 [Article 60]; separate, independent & complementary.

** Constitution of the Republic of Kenya, 2010 [Article 1(3), 174(i), 175(a), 185(3)]

6. Conclusion:

As we have seen throughout this brief essay, the doctrine of separation of powers is not consistently followed in the constitutional practices of the capitalist countries. It is argued that, the wide use of the system of checks and balances (in presidential republics) is a significant divergence from the doctrine. Under the system of checks and balances, the legislature is dependent on the executive branch because of the right of the head of state to veto legislative enactments and because of the judicial review of the constitutionality of laws.

Apart from criticisms directed and registered towards the doctrine of separation of powers, the doctrine still retains considerable value as follows; i.e.

*  It emphasizes the need for a State to have strong independent institutions in order to check arbitrary rule by the Executive.

* 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.

* The functions of the government are vast and varied. It is therefore necessary to entrust these functions to specific organs, so that the responsibility for performing these functions may be effectively fixed.

*  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.

* Separation of powers according to Montesquieu is the best guarantee of the liberty of the people.

* Separation of power promotes efficiency in the administration.

* Separations of powers prevent absolutism (as in monarchies or dictatorships where all branches are concentrated in a single authority) or corruption arising from the opportunities that unchecked power offers.

* It is considered as one of the pillars of democratic government.

END NOTES

---

[1]The Father of Political Science

[2] See, Second Treatise of Civil Government

[3] In Middle Ages (especially during slavery and feudalism), the King/Queen proclaimed the laws, enforced the law, and adjudicated.

[4]The Father of Constitutional law

[5] Checks and balances allow for a system based regulation that allows one branch to limit another

[6] See, Sir Ivor Jennings, Sir William Blackstone

[7] K. Marx and F. Engels, Soch., 2nd ed., vol. 5, p. 203.

[8] See also, Article 34(1), 64(1), and 107A(1).

[9] The National Defence Act, no. 2 of 1965, Cap. 192 [RE: 2002], 1^st Schedule; The Tax Revenue Appeals Act, no. 15 of 2000, Cap. 408 [RE: 2002], Part II (ss.4-11); The Environmental Act, no. 20 of 2004, Part XVII; The Fair Competition Act, no. 8 of 2003, Part XIII (ss. 83-91); The Courts (Land Disputes Settlements) Act, no. 2 of 2002, Part V (ss. 22-36); The Ward Tribunals Act, no. 7 of 1985, Cap. 206 [RE: 2002], Part II (ss. 3-7). See also, The Courts (Land Disputes Settlements) Act, no. 2 of 2002, Part IV (ss. 10-21). Compare with Articles 57(1)(g); 83(2); 110A(3)-(5); 130(5); 131(2)(a); and 144(3)-(5) of the Constitution of Tanzania (supra).

[10] Ref., Francis Ngaire’s case.

[11] Contra, Article 66(2)

[12] Parliamentary Standing Orders, 2007 [Orders 52(1) and 82(1)] made under Article 89 of the Constitution

[13] It is common in Tanzania to find members of National Assembly who also hold posts in the executive e.g. Regional and District Commissioners. This practice is exemplified by Monica Mbega (M.P for Iringa town constituency, and R.C for Ruvuma), Mohamed Abdul-Aziz (R.C for Tanga), Henry Shekifu (R.C for Manyara), James Nsekela (R.C for Mwanza/Dodoma) and Christine Ishengoma (R.C for Pwani/Ruvuma).

[14]Read also the following English cases:- M. v. Home Office [1992] QB 270, 314 (per Lord Nolan L.J); R. v. Secretary of State ex parte Fire Brigades Union [1995]2 ALL ER 244, 267 (per Lord Mustill); Duport Steels Ltd v. Sirs [1980]1 ALL ER 529, 551 (Lord Scarman), and Pepper (Inspector of Taxes) v. Hart [1993]1 ALL ER 42.

[15]Adopted in Philadelphia on May 14, 1787

[16] Bush v. Gore, 531 U.S. 98 (2000)

[17] Other countries with similar system includes; Trinidad and Tobago, Slovakia, Albania, Bangladesh, Botswana, Czech Republic, Ethiopia, Germany, Greece, Hungary, India, Iraq, Israel, Italy, Latvia, Lebanon, Libya, Malta, Mauritius, Nepal, Pakistan, and etc.

[18] President Mwai Kibaki is also a Member of Parliament for Othaya constituency.

________________

References

Alder, J. (2002) General Principles of Constitutional and Administrative Law, (4^th Ed.) New York, Palgrave Macmillan.

Barnett, H. (2002) Constitutional and Administrative, (4^th  Ed.)  London, Cavendish Publishing Limited Law (pp. 3-15, Chapter 1).

Brian, T. (1993) Textbook on Constitutional and Administrative Law. London: Blackstone Press.

Carroll, A. (2007) Constitutional and Administrative Law, (4^th Ed.) England, Pearson Education Limited.

Chipeta, B.D. (2009) Administrative Law in Tanzania: a Digest of Cases. Dar es Salaam: Mkuki na Nyota Publishers.

De Smith, S.A., et al, (1981) Constitutional and Administrative Law (4^th  Ed), England: Penguin Books Ltd, 1981.

Loveland, I. (2006) Constitutional Law, Administrative Law, and Human Rights: A Critical Introduction, (4^th Ed.) Oxford University Press.

Maina, C.P. (1997) Human Rights in Tanzania: Selected Cases and Materials. Cologne, Germany.

Manning, J.F. (2011) Separation of Powers as Ordinary Interpretation. Harvard Law Review, Vol. 124:1939.

Mvungi, E.S.A (2007) Constitutional Law in Context: A Book on General Principles of Constitutional Law. Vol. I, unpublished.

Philips, O.H and Jackson, P. (1978) Constitutional and Administrative Law, (7^th Ed.) London: Sweet & Maxwell, 1978.

Shivji, I (ed) (2004) Constitutional and Legal System of Tanzania: a Civics Sourcebook. Dar es Salaam: Mkuki na Nyota Publishers.

Wheare, K.C. (1964) Modern Constitutions. Oxford University Press, London, 1964.