Why respect for separation of powers principle is vital (Part 1)

By Dewa Mavhinga

One of the founding values and principles listed in section 3 of the new Constitution of Zimbabwe is observance of the principle of separation of powers.

Separation of powers between and among three distinct arms of government, that is, the executive (President and cabinet), the legislature (Parliament), and the judiciary (Courts), is a fundamental part of our supreme law.

It sets out rules on how government will exercise its authority over the people, and limitations on such power in the interests of citizens’ rights.

This article takes a closer look at this principle (including judiciary independence), its implementation in Zimbabwe and why it is important for the revival of the country’s image and economy.

The origins of the theory of separation of powers can be traced back to philosophers like Aristotle, Locke, and Montesquieu who viewed the principle as one of the best safeguards of citizens’ fundamental freedoms.

According to Montesquieu, to avoid despotism or repression, checks and balances are necessary whereby the arm of government that formulates policy and enacts laws (legislature), should be separated from the arm that implements policy action and the law (executive), and from the one that interprets the law and applies it according to procedural justice to resolve disputes (judiciary).

Montesquieu argued that a despotic ruler emerges when there is no separation of powers and the powers of the three arms of government are rolled into one and exercised by the executive.

To guarantee the protection of human rights and limit the power of the executive, it is essential that the judiciary and the legislature exercise their functions independently so that no single arm of government has excessive powers that may be open to abuse.

Each of the identified three arms of government must be independent of the other two. Separation of powers is closely related to the principle of rule of law, which requires that no authority can be exercised except according to the law, and that anyone can seek justice before the courts for a breach of the law.

In Zimbabwe, the principle of separation of powers is woven into the fabric of our constitution and is closely related to the principle of equality before the law, that all persons are equal before the law and have the right to equal protection and benefit of the law.

In practice, however, the separation of powers in Zimbabwe is not absolute as the President is part of the legislature, signing into law Bills from Parliament.

There is clearer separation of powers and roles between the executive and the judiciary. Section 164 of the Constitution guarantees the independence of the judiciary to prevent interference with its functions by the other two arms of government. It provides that the courts are independent and are subject only to the constitution and the law, which they must apply impartially, expeditiously and without fear, favour or prejudice.

Further, it provides that the independence, impartiality and effectiveness of the courts are central to the rule of law and democratic governance, and therefore neither the State nor any institution or agency of the government at any level, and no other person, may interfere with the functioning of the courts.

Without commenting on matters before the courts, the operation of the principle of separation of powers, and the independence of the judiciary, means that no person, including the president and his ministers, can interfere with judiciary processes without violating this constitutional principle.

For President Robert Mugabe to claim, as reported, that the courts do not have jurisdiction over Zanu PF disputes and that he would want to see which judge would preside over the case brought by former Zanu PF secretary for administration, Didymus Mutasa, constitutes a violation of the principle of separation of powers.

It amounts to interference with the judiciary and could also amount to intimidation of the judiciary given the president’s position as head of the executive.

Originally published in the Daily News