. doctrine of separation of powers Governance that is based on a constitution premised on the doctrine of separation of powers safeguards the nation against abuse of power by the rulers.
Origin of the doctrine
The French philosopher Montesquieu developed the concept of separation of powers. He categorized governmental functions as legislative, judicial and executive because he believed that those possessing power would grasp more powers unless checked by other power-holders. Therefore, separation of powers presupposes a separate, distinct, and independent function of the three arms. In principle, the doctrine of separation of powers is never meant to be rigid, but a system which forestalls the risks of a concentration of powers in one arm of government.
Three arms of government
(i)Executive
The executive arm of government is responsible for the daily administration of the state bureaucracy. The separation of powers system is designed to distribute authority. The role of the executive is to enforce the law passed by the legislature and interpreted by the judicial system.
(ii) Legislature
The legislature is the law-making arm of government in Zimbabwe, it deliberates on issues and has the power to pass, amend and repeal laws. In the separation of powers doctrine, the legislature is equal to and independent of both the judiciary and the executive. In Zimbabwe legislative authority is vested in Parliament, which is composed of the House of Assembly and Senate.
(iii) Judiciary
The judiciary is the system of courts (Supreme Court, High Court and the Magistrate Court), which interprets and applies the law. The judiciary provides a mechanism for the resolution of disputes.
Constitution making
Article VI of the Global Political Agreement (GPA) acknowledges the fundamental right and duty of the Zimbabwean people to make their own constitution. The principals to the GPA express their determination to create conditions for the people to write their own constitution, mindful of the need to ensure that the new constitution entrenches democratic values and principles. There is need for all stakeholders’ participation in the constitution making process to ensure a people driven constitution. During this period, people need to take into consideration the doctrine of separation of powers as a core value of constitutionalism.
The Zimbabwean experience
Judge President Justice Rita Makarau notes that there is a gross violation of the doctrine in Zimbabwe. The executive in the past has been very powerful and has stifled other arms of government. This compromised the independence and the impartiality of the judiciary, and the vibrancy of the legislature.
An example of such power is the Presidential Temporary Measures Act that gives the president powers to create law. The act allows the president to make regulations when it appears to him that a situation has arisen or is likely to arise which needs to be dealt with urgently in the interests of defence, public safety, public order, public morality, public health, the economic interests of Zimbabwe or the general public interest and the situation cannot adequately be dealt with in terms of any other law
Even though Chapter VIII of the Constitution of Zimbabwe provides for the judiciary, the executive is the one that appoints judges to the bench. In spite of guarantees of non interference by the executive in the operations of the judiciary, evidence of manipulation of the judiciary has been recorded. Such cases need urgent attention in the constitution making process.
The spirit of constitutionalism is in the separation of powers between the judiciary, executive and the legislature. This practice forms the basis of all democratic societies. Zimbabwe subverted this noble doctrine by allowing the executive to dominate other arms of government in the past. The drafting of a new constitution affords the people of Zimbabwe an opportunity to make right this wrong and ensure that there are safeguards in place to ensure that it does happen in the future. Article prepared by the Zimbabwe Human Rights NGO Forum.
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