The Doctrine of the Separation of Powers

17 September 2007
THE DOCTRINE OF THE SEPARATION OF POWERS

In our contemporary world, state authority is supported by three pillars. There is the Parliament/Legislature chosen by the people in a democratic election, sometimes called a general election. Then there is the Executive lead by a president/prime minister, in most instances, chosen in a popular vote but in other cases by an electoral college. Lastly, there is the Judiciary whose independence is safeguarded and protected against infringement by the Executive.

Legislatures are known by many names, the most common are parliament and congress, although these terms also have more specific meanings. The main job of the legislature is to make laws. In parliamentary systems of government, the legislature is considered a power branch which is equal to, and independent of the Executive. In addition to enacting laws, legislatures usually have exclusive authority to raise taxes and adopt the budget and other money bills.

The Legislature makes decisions and the Judiciary and the Executive Branch enforce its decisions with the help of the forces funded by the Legislature to enforce its laws (e.g. police force, prison service). The duration of Parliament can be anything between four and five years, in most countries.

In political science and constitutional law, the Executive is the branch of government responsible for the day-to-day management of the state. In many countries, it is referred to simply as the government, but this usage can be confusing in an international context. Under the doctrine of the separation of powers, the Executive is not supposed to make nor to interpret laws: in practice, this separation is rarely absolute. The Executive is identified by the Head of Government. In a presidential system, this person may also be the Head of State, whereas in a parliamentary system he or she is usually the leader of the largest party in the legislature and is most commonly termed the Prime Minister.

The Head of Government is assisted by a number of ministers, who usually have responsibilities for particular areas (e.g. health, education, local government, defence, foreign affairs), and by a large number of government or civil servants.

In law, the Judiciary or judicial system is the system of courts which administer justice in the name of the state, a mechanism for the resolution of disputes. The term is also used to refer collectively to the judges, magistrates and other adjudicators who form the core of a judiciary, as well as the support personnel who keep the system running smoothly.

Under the doctrine of the separation of powers, the judiciary is the branch of government primarily responsible for interpreting the law. The judiciary acts as a competent administrator to ensure compliance with the laws crafted by the Legislative Branch.

Most democracies have safeguards to protect the independence of the Judiciary from the Executive, such as the impossibility of the Executive to dismiss a judge. Similar safeguards may apply to other categories of government employees, in order to allow them to conduct their functions without undue political pressure. In return, judges and government employees may be expected not to take part in active politics themselves. In the United States the Congress has all the power and the sole responsibility of removal by means of impeachment.

Zimbabwe's Lancaster House Constitution was modelled on the West Minster style of democracy. Its major weaknesses were that it implied a winner-takes-all status and that it was basically a transitional document. It also stipulated that changes to the document could be made after ten years or two Parliaments, whichever came first.

It should be noted that although ZANU (PF) was the majority party with 57 seats (out of a possible 80) in the First Parliament in 1980, it did not master the two-thirds majority needed for changing those provisions in the constitution which were not entrenched. Amendments to the Constitution were not deemed to have been duly passed by Parliament unless at the final vote they received the approval of not less than two-thirds of the members of the Senate and not fewer than 70 members of the House of Assembly. In addition, amendments to entrenched clauses relating to the representation of whites required the approval of all the members of the House of Assembly.

To overcome these "obstacles", ZANU (PF) devised a policy of reconciliation where-by PF-ZAPU, with its 20 seats, was co-opted into a coalition government. In addition, former Rhodesia Front members of parliament were brought into the independence Cabinet.

Thus, in 1986 Parliament was able to pass the Presidential Powers (Temporary Measures) Act which allows the President to assume legislative powers on behalf of Parliament even in circumstances that do not warrant decrees. This Act infringes on the doctrine of the separation of powers. In other words, Parliament delegated its law-making powers by permitting the president via the Presidential Powers (Temporary Measures) Act (Chapter 10:20) to make laws as he pleases.

On countless occasions, President Robert Mugabe has used the Presidential Powers (Temporary Measures) Act to thwart the Judiciary and to declare decrees even when the situation did not warrant such action by the Executive. For example, Zimbabwe's intervention in the civil war in the Democratic Republic of Congo in August 1998 was done without consultation with Parliament. After Zimbabwe's intervention, the Zimbabwe dollar lost an average 20.7% of its value to the US dollar.

Using these powers on the 27th November 1998, the President suspended parliamentary powers for six months and amended the Labour Relations Act to make strike action illegal. This was after the ZCTU had organised a series of highly successful job stay-away on the 11th and 18th of November.

On 22 September 2000, a landmark judgement by the Supreme Court nullified the Zimbabwe Broadcasting Corporation's (ZBC) broadcasting monopoly. The judgement made null and void the Broadcasting Act under which ZBC was pronounced the sole broadcaster in Zimbabwe. The legislative vacuum was then quickly filled by the 4 October New Broadcasting Regulations, which came under the Presidential Powers Act (Temporary Measures) Act.

Under normal circumstances, such regulations are to be brought before parliament and passed or thrown out by legislators, who are the legitimate lawmakers, according to the Constitution.

During the farm invasions and the June 2000 elections, people where murdered. The presidential powers were used to put murderers beyond the reach of the law. For example, what happened to the killers of Talent Mabika and Tichaona Chiminya, murdered on April 15 2000 and who were clearly identified in the High Court? What happened to the killers of David Stevens and other farmers such as Gloria and Martin Olds, gunned down in cold blood? Did the public have confidence that where there had been victims of political violence, the police could investigate impartially and take appropriate action?

The independence of the judiciary was under constant threat after the farm invasions. There were a number of strong verbal attacks on the judiciary in general as well as on individual judges. These culminated on 24 November in an invasion of the Supreme Court by a group of "war veterans" who disrupted a court hearing and threatened to kill the judges.

The government complied with court rulings in a selective way. There was no evidence that police took any action to comply with a 30 March Supreme Court order to investigate the abduction and torture of two journalists (Mark Chavunduka and Ray Choto) in January 1999. Court rulings ordering the police to evict those who invaded farms were routinely ignored. The government did not act to comply with court rulings which declared their land reform scheme unconstitutional. In some cases the authorities openly stated that they would not comply with court decisions. For example, the police commissioner publicly stated that the ZRP would not act in what he called "political matters", regardless of court rulings.

A scathing attack by President Robert Mugabe in March 2005 against the newly established Electoral Court only helped to undermine the independence of the court and the judiciary at large. The Electoral Court was set up earlier that year to adjudicate on all electoral disputes. Section 64 of the Electoral Act does not allow appeals against the court's decisions. However, Mugabe on March 16 publicly lambasted the Electoral Court Justice Tendai Uchena, describing his decision to allow jailed opposition MDC party legislator, Roy Bennett, to contest the upcoming election as "madness." The President ordered electoral officials "to proceed as if nothing has happened" and Justice Uchena had to suspend his own ruling before an appeal.

Zimbabwe remains essentially a dictatorship manipulating the levers of state power. Perhaps the worst dimension of this is a suborned judiciary unwilling to uphold rights enshrined in the Constitution. The fact that MDC court applications against violence and fraud in the June 2000 election remain outstanding underlines this point. Presidential powers can even reverse Supreme Court rulings.

The High Court of Zimbabwe in October 2000 ordered the return of equipment confiscated from Capital Radio, a newly launched independent FM station. It also ordered the country's Commissioner of Police to show why he should not be jailed for contempt of court.

Instead of complying with a September 22 Supreme Court ruling, the government began a series of manoeuvres to subvert it. The Supreme Court ruling recognized Capital Radio's right to broadcast in Zimbabwe. The court ruled that the state's broadcast monopoly violated article 20 of the Constitution, which guarantees freedom of expression.

Furthermore, in November 2000, Zimbabwe's Supreme Court ruled that the so called "fast-track" land seizures were illegal. The Supreme Court heard arguments about the constitutionality of farm seizures. Arguing for the state, the deputy Attorney-General was reported to have agreed that the current fast-track resettlement was chaotic. This was the first Supreme Court ruling against farm invasions in Zimbabwe. It followed two similar High Court rulings that had been largely ignored by President Robert Mugabe's government.

Constitutional lawyers in Zimbabwe feel the use of presidential powers to reverse Supreme Court rulings was illegal because the President cannot overturn a Supreme Court ruling without making amendments to the Constitution itself. Arguably, in one move the President takes over the legislative function from Parliament.

Commenting on a case where a Chinhoyi magistrate was forced by politicians to release murderers on bail this September 2007, the Minister of Justice and Parliamentary Affairs, Patrick Chinamasa, was reported as having said, "That is news to me. But that would be very unlikely of our judiciary because it operates independently of political or any other influence. We are a model (judiciary)."

This sounds quite hypocritical coming from a learned law practitioner and Zimbabwe's former Attorney-General. It is not farfetched to observe that the Mugabe regime has literally chased judges and magistrates out of the country, with most of them now in Britain, Botswana, South Africa and surrounding countries.

In a decree on August 29 2007, the president froze wages, school fees and service charges for six months alongside a price reduction ordered in June. In doing so, President Robert Mugabe invoked the Presidential Powers (Temporary Measures) Act. The new regulations bar employers, retailers, professional bodies and schools from pegging any future increases of prices or wages on the Consumer Price Index. All further increases are to be authorised by the National Incomes and Pricing Commission, which has been handed sweeping powers that give it more authority than government ministries or the Cabinet Taskforce on Prices led by Industry and International Trade Minister, Obert Mpofu.

In the face of the decree to freeze salaries, disquiet within the labour movement grew after statistics supplied by Finance Minister, Samuel Mumbengegwi (in his 2007 supplementary budget statement), revealed that President Mugabe's annual salary had been raised by Z$1.4 billion. In the original 2007 budget, the President's salary had been put at Z$62.3 million.

Labour experts pointed out that Statutory Instrument 159 A of 2007 issued under the Presidential Powers (Temporary Measures) Act (Amendment of National Incomes and Pricing Commission Act and Education Act) Regulations, 2007, was an attempt by the Executive to make up for its failure to implement sound policies to address the economic crisis bedevilling the nation.

The Statutory Instrument is seeking to amend Acts of Parliament - the National Incomes and Pricing Commission Act and the Education Act. Constitutional experts say any amendment of an Act of Parliament should go through Parliament which has the mandate to amend and make new laws as it is representative of the views of the public.

By freezing salaries and prices, the government is hoping to stabilise prices and rein in inflation, which independent economic analysts put at over 12,000% - the highest in the world. No one can doubt the sincerity on the part of the government in wanting to cushion consumers from the harsh effects of inflation. However, in as much as one cannot dispute the fact that the consumer price index, in particular, had become the source for inflationary expectations through indexing, it is outlandish to think that freezing salaries and prices is the panacea for the country's problems. It is like trying to repeal the law of gravity!

It is pertinent to note that the inflationary expectations were created by the government's failure to implement correct policies in order to resuscitate the ailing economy. The perennial budget deficits, which are widening year-in, year-out, are a major component of the country's inflation.

Over the past ten years, Mugabe's government has established more than a dozen commissions to run various arms of government. Commissions are given sweeping powers under the Presidential Powers (Temporary Measures) Act. Some of the commissions have taken over the powers of permanent secretaries and cabinet ministers to run parastatals.

Commissions established under these powers include, among others, the Zimbabwe Electricity Regulatory Authority, the Competition and Tariffs Commission, the Anti-Corruption Commission, the Zimbabwe Electoral Commission, the Harare (council) Commission and the Media and Information Commission.

The latest commission, the National Incomes and Pricing Commission, has rendered most government ministries superfluous. It has taken over powers formerly vested in ministers to approve such statutory as school fees, tariffs and other charges by government departments, state universities, statutory bodies (including statutory professional associations) and companies where the state is a majority or sole shareholder.

All this was done as part of the ZANU (PF) government's Operation Dzikisa Mitengo (Price War) that started in July and saw manufacturers, wholesalers and retailers forced to slash prices of goods and services by 50%. As a result, the price war has left many shops empty.

The establishment of commissions was a clear sign of a government in desperation. The commissions have done little, while others have done nothing for the benefit of the country besides drawing huge sums of money from the Treasury, which funds could have been channelled towards social development.

Law historians will find striking similarities and continuities between Rhodesia and Zimbabwe in respect of the political leadership's relationship and attitude towards the law and legality wherein the law is seen and consistently used as a tool of political and social repression and also frequently manipulated to grant wide discretionary powers to executive organs.

The President quite often goes against court rulings by using the Presidential Powers (Temporary Measures) Act. The cumulative effect of this systematic undermining of the rule of law has been so overwhelming that it has become evident that there is one law for the povo and another for the political elite. When the allies and friends of the political elite are prosecuted and convicted by the courts, the presidential power of pardon is used to place them beyond the reach of the law or punishment.

The history of democratic governments, from the ancient republics of Greece and Rome to the modern states that have replaced earlier totalitarian governments, shows that governing by presidential decrees, or commissions, never works in times of crisis.