Home » Governance » Why Respect for Separation of Powers Principle Is Vital [opinion]

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.

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 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.

To claim that the courts do not have jurisdiction over ZANU-PF disputes, constitutes a violation of the principle of separation of powers.

Where an individual feels that their constitutional rights have been violated by anyone including the organisation they belong to, they have a right to seek justice at the Constitutional Court which has jurisdiction over all constitutional matters.

Unfortunately, actions or utterances by representatives of the Executive arm of government that may unduly influence, compromise or undermine the principle of separation of powers and the independence of the Judiciary are not confined to recent remarks over the Didymus Mutasa case.

Attempts by the ZANU-PF government to compromise the independence of the Judiciary in recent times can be traced back to the beginning of farm invasions in 2000 when the government began by ignoring a series of court orders in favour of white commercial farmers.

When the Supreme Court, in December 2000, ruled that the government’s land reform programme was unconstitutional and violated article 16 of the Constitution, which guaranteed property rights, judges were described as guardians of “white racist commercial farmers.”

In total disregard of the principle of separation of powers and in a clear sign of a breakdown in the rule of law, it was said that the courts could do whatever they wanted, but none of their decisions would stand in ZANU-PF’s way on the land issue and that ZANU-PF should not be defending its position in the courts.

In 2005 when Justice Tendai Uchena ruled that a jailed Movement for Democratic Change Member of Parliament, Roy Bennett, was eligible to contest the March 2005 election from jail. The decision was described as “stupid” with ZANU-PF supporters being asked to ignore the ruling.

Subsequently Justice Uchena reversed his decision and disqualified Bennett.

There is a g perception, based on these and many other examples, that the ZANU-PF government is prepared to disregard the constitutional principle of separation of powers and observance of the rule of law in cases where it feels the courts may rule against it.

This attitude helps entrench the international view of Zimbabwe as a pariah state where the Executive acts outside the rule of law, with impunity. Instead, of encouraging or defending statements that undermine the independence of the judiciary, aisors to the President and Cabinet should actively push for the ZANU-PF government to openly defend and enforce the principle of separation of powers and ensure that the independence of the judiciary is jealously guarded.

The principle of separation of powers is an important guarantor of human rights which is an essential element for any functional democracy.

Investors would want to invest in countries where they are assured that there is observance of the rule of law, that all are equal before the law, and that if they take their grievances and disputes to court they can expect justice and fairness.

If the government is serious about socio-economic development then a key ingredient which can easily be implemented, is to make a clean break with the past and take clear steps to restore the rule of law and the independence of the judiciary.

The best way to say Zimbabwe is open for business, and to re-engage the international community, is to demonstrate by consistent action, that Zimbabwe is not under despotic rule where the Executive has swallowed the Legislature and the Judiciary.

The author is a civil society activist and human rights aocate based in South Africa.

Source : Financial Gazette