SEPERATION OF POWERS AND THE THREE STATE ORGANS: LEGISLATURE, EXECUTIVE AND JUDICIARY

The principle of separation of powers can easily be described as one of the most important concepts of modern constitutional law. It has been said, for instance, besides criticism that it is impossible in theory and practice to separate legislative, executive and judicial authority completely; this separation is a feature of all constitutional systems. There is virtually no constitution in which the distinction is not made formally and in which different government bodies are not established along these lines (I.M. Rautenbach and E.F.L.J Malherbe, Constitutional Law 2nd Edition 1996 Butterworths). The doctrine of separation of powers is usually attributed to Montesquieu but the doctrine should be traced back to John Locke and to as far back as Aristotle. According to Montesquieu, the doctrine has the following 3 features: 1. There are 3 main classes of governmental functions the legislative, the executive and the judicial.
2. These are or should be the 3 main organs of government in a state the legislature, the

executive and the judiciary. One organ should not interfere with the work of another. 3. To concentrate more than one class or function in any one person or organ is a threat to individual liberty. An organ should not exercise the functions of another nor should it interfere with the other. In the words of Montesquieu himself, When the legislative and executive powers are united in the same person, there can be no liberty. Again there can be no liberty if the judicial power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary controls for the judge would then be the legislator. Were it joined to the executive, the judge might behave with violence and oppression. There would be an ending to everything where the same man or the same body whether of the nobles or of the people was to exercise those 3 powers, that of enacting laws, the public resolution of disputes and that of executing. Although a debatable point, the doctrine is that the same persons should not form part of more than one of the 3 organs of government. In practice there are different models of separation of powers. There is no universal model. The essence of the concept of separation of power is to promote individual liberty and to discourage abuse of governmental power. It is a constitutional technique for guaranteeing limited government. Its one of the most indisputable ways of promoting democratic governance. As A.W Bradley and K.D Ewing put it, The essential values of law, liberty and democracy are best protected if the three primary functions of a law based

government are discharged by distinct institutions. The whole idea is to organize political authority in such a way that it cannot be used oppressively or arbitrarily. Two senses of the doctrine of separation of powers should be noted. One has been termed the pure separation of powers principle there is separation in the absolute sense. No country subscribes to separation in this sense. The second is known as the partial separation or the system of checks and balances. This does not require that only one institution exercise a particular function of government. Instead each organ is able to check the exercise of power by the other. This is either by participating in the functions conferred by the other or reviewing those functions. The U.S constitution which is widely accepted as having carried furthest the principle of separation of powers adopts the version of checks and balances. In the U.S constitution there is an elaborate system of checks and balances. Legislative powers are vested in a congress which consists of senate and a house of representatives (Article 1 of the constitution), the executive power is in the President (Article 2 of the constitution) and the judicial power is in the Supreme Court and other federal courts (Article 3 of the constitution). The President is not a member of congress and is separately elected. His cabinet is drawn from outside congress. He is not dependant on majority support in congress and may be from a different party from that which has a majority in congress. His term of office need not coincide with that of congress. He has no direct power of initiating Bills and securing their passage through congress, although he may recommend legislation. He cannot dissolve congress. However, the President has power to veto legislation. This can be overridden by two-thirds majority of congress. The President and his ministers are not directly responsible to congress on context of the executive function. In general the President cannot be removed from office by congress. He may be removed from office by impeachment by senate but only for misconduct and not incompetence. The Presidents appointments require the approval of the senate which may refuse to do. The Supreme Court may set aside legislative acts. In the U.K separation of powers is less enshrined than it is in the U.S. At one stage it was even asserted that No writer with a good reputation would claim that separation of powers is a central feature of the modern British constitution. The theory is an irrelevant destruction for the English law student and his teacher. (Book 1, pg 2) There is much overlap of power in the British system. On paper the Queen is head of the legislature and the executive. Members of cabinet are drawn from Parliament. The Prime Minister is a Member of Parliament and is the leader of the majority party in the House of Commons. To be Prime Minister one must first be elected as a Member of Parliament. In theory it means that Parliament controls the executive. Through a vote of no confidence Parliament can replace the executive and the Prime Minister. On the other hand, the government enjoying a majority can exercise a decisive voice in Parliament to the extent of having all its proposed legislation approved This the more common relation (the executive controlling Parliament). At the heart of the parliamentary system (Westminster system) is the relationship between the executive and the legislature with the executive being the dominant player in practice

but in theory it is the contrary. In the British system the Lord Chancellor is a member of cabinet but is also head of the judiciary and is the leader of the House of Lords in its legislative capacity In Zimbabwe the constitution formally recognized the separation of powers by creating the legislative (Chapter 5), an executive (Chapter 4) and a judiciary (Chapter 8). The concept of independence of the judiciary which is derived from the principle of separation of powers is expressly guaranteed in Section 79 (b) where it is provided as follows, In the exercise of his judicial authority, a member of the judiciary shall not be subject to the direction or control of any person or authority. This appears to be the only aspect which shows some familiarity with separation of powers. The constitution then creates an all-powerful President enjoying the best of both worlds Westminster and Presidential system. Before 2008, the President was separately elected in a separate election and served a term in office which did not coincide with that of Parliament. He is not a Member of Parliament but all his cabinet ministers have to be members of Parliament. A minister may serve up to 3 months without a seat in Parliament. Parliament cannot remove a President from office by the mere device of a vote of no confidence. Where Parliament passes a vote of no confidence in the government he merely has an option to resign which is at his absolute discretion. The other option he has is to dissolve Parliament itself. He may veto legislation and Parliament has no power to override the Presidential veto because the President has the power, through the constitution to dissolve Parliament if by two-thirds majority it sends back to him a bill he has vetoed. Presidential appointments are not subject to the control of Parliament except in a few instances brought about by Amendment 19. These are appointments related to what are called Independent Commissions where the President makes appointments from a shortlist compiled by Parliament. The powers of the President under the Zimbabwean constitution make no sense of the principle of separation of powers. There are no checks and balances worth talking about.