The Doctrine of Separation of powers includes the following distinct but overlapping aspects;
Institutional separation of powers: (a tripartite separation of powers) – the need to have three major institutions or organs in a state i.e. Legislature, Executive and Judiciary.
§ Functional separation of powers: state power/functions must be vested and exercised by three separate institutions or organs i.e. law making, enforcement and interpretation.
Separation of personnel: (each organ with own personnel) – no person should be a member of more than one organ.
Limitation of appointing powers: state organs should not appoint or elect members for each other.
b) Modern (Contemporary) approach
This approach somehow departs or otherwise tries to refine Montesquieu’s strict doctrine of separation of powers. Essentially, this approach point out practical difficulties in the application of Montesquieu’s strict doctrine and thus advocates for a ‘mixed government’ or ‘weak separation of powers’ with ‘checks and balances’to prevent abuses. Therefore, this concept insists that the primary functions of the state should be allocated clearly and that there should be checks to ensure that no institution encroaches significantly upon the function of the other.
To them, Montesquieu’s strict doctrine presents the following problems:-
A complete separation of the three organs may lead to constitutional deadlock (disunity of powers). Thus, a complete separation of powers is neither possible nor desirable.
Partial separation of powers is required to achieve a mixed and balanced constitutional structure.
It would be impractical to expect each branch of government to raise its own finances.
The theory is based on the assumption that all the three organs of the government are equality important, but in reality it is not so. In most cases, the executive is more powerful of the three branches of government.
C) Marxist-Leninist approach
§ Unlike, the other two approaches, the Marxist-Leninist approach refute the application of the doctrine by arguing that the theory of the separation of powers is “nothing but the profane industrial division of labour applied for purposes of simplification and control to the mechanism of the state”. In essence, Marxist-Leninist theory rejects the theory of the separation of powers because it ignores the class nature of society. The existence in a socialist state of state bodies with different jurisdiction means that a certain division of functions in exercising state power is essential while maintaining the unity of state power.
DOES THE DOCTRINE OF SEPARATION OF POWERS EXIST?
Although Montesquieu separated governmental functions and separated governmental powers, there is no clear one-to-one correspondence between the two because he did not insist on an absolute separation.
§ Thus, although the executive is a separate branch, it properly partakes in a legislative function. This blending or overlapping of functions is in part necessitated by Montesquieu's intention that separation check the excesses of one or the other branch. Separation of powers here reinforces or even merges into balanced government.
In the case of Mwalimu Paul John Mhozya V. Attorney General it was held that the balance of power between the three function of the government , namely the executive, legislative and judiciary must be carefully maintained…….. One organ of the government should not usurp the powers of another.
The doctrine of separation of powers originated in France but it spread to other government. The United States of America was among the first governments which applied the theory. Also like other democratic constitution the constitution of the united republic of Tanzania adopted the theory of the separation of powers in both the territories.
That is the United Republic of Tanzania. Article 4 of the constitution provides for the exercise of the state authority of the united republic of Tanzania. That, the executive functions of the state will be carried out by two executive of the state, Union executive and that of the revolutionary government of Zanzibar.
The same applied to legislature, the legislative function will be carried by the Union parliament and house of representative of Zanzibar and judiciary of the united republic and judiciary of revolutionary government of Zanzibar.
Also in Tanzania there are special provisions in the constitution which shows that there is separations of powers in Tanzania. Such provisions includes Article 112 {3}of the constitution which provides that a person can not be appointed to be member of the judicially services commission if he is member of parliamanent , Article 84{2}&85{2} respectively provides that a minister or a deputy minister shall not be elected to be a speaker or deputy speaker .and also article 67{2} {g} which provides that a person shall not be elected to be a member of parliamanent if he holds a senior office in the united republic
It should be remembered that separation of powers do not mean lack of interaction among the powers of the government, but the main thing in separation of powers is the issue of check and balance.
Check and balance do not mean interfereence, rather than means control by one of the power or authority of the government against the other by making them counteract one another actions.
Through the theory of check and balance each branch controls the other without interfering or influencing the functions of other organ of the state. In this executive checks the function of the legislature, legislative to executive judicial to legislature and judicial to executive. Madison J. says in arguing for the separation of powers that:
Montesquieu did not mean that these departments ought to have no partial agency in, or no control over the act of each other, but the doctrine was one of mutual restraints or checks and balance.
Check and balance can be seen through the following things:
1. Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review (and possible invalidation) by the judiciary. A specific court with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority (such as the terms of a written constitution).
Judicial review is an example of the separation of powers in a modern governmental system (where the judiciary is one of three branches of government). This principle is interpreted differently in different jurisdictions, which also have differing views on the different hierarchy of governmental norms. As a result, the procedure and scope of judicial review differs from country to country and state to state.
For example in The Election Act section 112 in the case of Julius Ndyanabo v A.G the provision which required a petitioner to deposit a bond of 5 millions shillings in order to file an election petition, and the high court held the provision to be unconstitutional in respect of article {13} of the constitution of the United Republic.
2. Ministerial responsibility
This means that the respective minister is answerable to the parliament As it provided under article 63 (3) (a) of the Constitution of the United Republic of Tanzania that:
“For the purpose of performing its functions, the nation assembly may ask any question to any minister concerning public affairs in the United Republic which are with in his responsibility.”
Example the Parliament of the United Republic of Tanzania during the Bunge sessions before the other activities of the Bunge continue like the debate in the Bunge there is time for questions and answer, were by member of a parliament asks the questions to different ministry and answers from those ministry are replied either by minister or a deputy ministers.
Also article 53 of the Constitution of the United Republic of Tanzania gives the nation assembly power to pass a vote of no confidence in the prime minister.
For example under the supervision of Hon. Zitto Kabwe 70 signature was collected from the member of the parliament to vote for having no confidence to the Prime minister Hon. Mizengo Kayanza Peter Pinda.
v Application of the Doctrine of Separation of Powers in the United Republic of Tanzania
The Constitution of the United Republic of Tanzania (1977) represents a contemporary approach in constitutional doctrine of separation of powers. Essentially, there is no strict separation of powers under the Constitution of Tanzania, both in principle and practice. In the Constitution of Tanzania, the doctrine of separation of power is enshrined under Article 4 which, inter alia, provides that; 4.-(1) All state authority in the United Republic shall be exercised and controlled by two organs vested with executive powers, two organs vested with judicial powers and two organs vested with legislative and supervisory powers over the conduct of public affairs.
In principle therefore, Article 4 of the Constitution establishes three organs of the state i.e. executive, legislature and judiciary. In practice though, there is no strict separation of powers (but rather a mixed from government with checks and balance) in terms of functions of each organ and personnel conferred with state powers as exemplified below;
Incidences showing there is no strict separation of powers in Tanzania
It is the President (executive) who appoints Judges and Justices of Appeal (Judiciary) under Article 109 and 118.
The President (executive) is also allowed to appoint a certain number of members of the National Assembly (legislature) under Article 66(1) (e).
The executive do adjudicate in certain cases under ‘administrative tribunals’, e.g. Military Tribunal (Court Martial), The Tax Revenue Appeals Board, The Fair Competition Tribunal, and The District Land and Housing Tribunal.
Judges, in practice, do make laws.
The Chief Justice is allowed to make rules, e.g. Court of Appeal rules (2009) made under the Appellate Jurisdiction Act (RE: 2002, Cap. 141).
The Court can nullify Acts of parliament under Article 64(5).
Members of the executive such as President, Ministers, Directors and etc., are allowed to make subsidiary legislation as per Article 97(5).
The President is part of the Parliament (but not a member of the National Assembly) as per Article 62(2).
Ministers (executive) initiate Bills and the President assent to Bills into law or may veto the same [Article 97(1)(2)].
Ministers (Cabinet members) are also part of the National assembly [see, Article 55(4)]. The Attorney General (part of the executive) is also a member of the National Assembly under Article 66(1) (d).
President has the power to dissolve the National Assembly [Article 97(4)], likewise the National Assembly can impeach the President, Vice-president and Prime Minister (Article 38(2)(d), 46A, 50(3) and 53A).
Some members of the National Assembly may also hold posts in the executive such as District and Regional Commissioners [see, Article 66(3)
A Judge can also be appointed as an Attorney General (the case of Judge Werema).
All in all, the Court of Appeal of Tanzania has also asserted affirmatively the doctrine of separation of powers in its various judgements. For instance, in DPP v. Daudi Pete [1993] TLR 22 (CA), a case which was concerned with restrictions imposed by Section 148(5) (e) of the Criminal Procedure Act, 1985 (on bail), Nyalali CJ refuted arguments made by Mwalusanya J (High Court), thus laid down circumstances under which the doctrine of separation of powers can be said to have been violated as following;
“In our view, the Doctrine of Separation of Powers can be said to be infringed when either the Executive or the Legislature takes over the function of the Judicature involving the interpretation of the laws and the adjudication of rights and duties in disputes either between individual persons or between the state and individual persons.”
Again, in Attorney General v. Lohay Akonaay and Joseph Lohay [1995] TLR 80 (CA), Nyalali CJ (as he then was) reiterated his position in Daudi Pete’s case and noted as follows (in relation to the encroachment of the Judiciary’s power by the Executive);
“It is the basic structure of a democratic constitution that state power is divided and distributed between three state pillars. These are the Executive, vested with executive power; the Legislature vested with legislative power, and the Judicature vested with judicial powers. This is clearly so stated under Article 4 of the Constitution. This basic structure is essential to any democratic constitution and cannot be changed or abridged while retaining the democratic nature of the constitution. It follows therefore that wherever the constitution establishes or permits the establishment of any other institution or body with executive or legislative or judicial power, such institution or body is meant to function not in lieu of or in derogation of these three central pillars of the state, but only in aid of and subordinate to those pillars. It follows therefore that since our Constitution is democratic; any purported ouster of jurisdiction of the ordinary courts to deal with any justiciable dispute is unconstitutional.” (pp. 92).
Further, in Mwalimu Paul John Mhozya v. Attorney General (No. 1) 1996 TLR 130 (HC), the issue was whether the President may be removed or suspended from office by the Court. Samatta JK (as he then was) in relation to the doctrine of separation of powers held that;
“The principle that the functions of one branch of government should not encroach on the functions of another branch is a very important principle, one of the principles which ensure that the task of governing a State is executed smoothly and peacefully. It seems to me to be an incontrovertible proposition of law, having regard to the use of the words `in accordance with the provisions of this constitution' in s 42(3)(d) of the Constitution, that removal or suspension from office of the President of the United Republic is the legislature's exclusive prerogative. Since s 46A of Constitution lays down the procedure to be used in removing or suspending the President, the attempt to remove or suspend him by a procedure other than that would not be legal.” (pp.137-8).
Recently, the Court of Appeal (under Ramadhani, CJ) in A.G. v. Rev. Christopher Mtikila [Civil Appeal No. 45 of 2009] reaffirmed the doctrine (though not so expressly) by restricting the role of the Court to that of adjudicating (and not legislating). The Court argued that;
“…..the issue of independent candidates has to be settled by Parliament which has the jurisdiction to amend the Constitution and not the Courts which, as we have found, do not have that jurisdiction.”
v The Application of the Doctrine in other Countries
Various scholarly works reveals that, there is no country in the world which has succeeded to implement Montesquieu’s idea of absolute or strict separation of powers to the fully. Some scholars claim rightly that even Montesquieu’s motherland i.e. France has failed to adhere to the doctrine strictly. However, a cross-section of constitutional jurists worldwide agrees in principle that, somehow the framers of the Constitution of the United States adopted and expanded the doctrine of separation of powers.
For instance, in the US Constitution [Article I(1), II(1) and III(1), the three organs of government are both separated and balanced; Each organ has separate personnel and there are separate elections for executive and legislature; and Each organ has specific powers and some form of veto over the other.
The power of one organ to intervene in another through veto, ratification of appointments, impeachment, judicial review of legislation by the Supreme Court.
Though the US Constitution presents the best practice with regard to the application of the doctrine, to a certain extent, the same have been violated, the good example is when the Supreme Court interfered and resolved the dispute between Al Gore and George W. Bush with regard to the 2000 presidential election.
Apart from the US, the constitutional practices in other part of the world bring an impression that the doctrine is not strictly followed. For instance, under Article 86 of the Constitution of South Africa (1996), the executive President is elected by the National Assembly. On the other hand, Kenya has a Parliamentary system, where the president is both the Head of State and Government, and also an elected Member of Parliament.
IMPORTANCE OF THE DOCTRINE
It should be remembered that the notion of the doctrine or belief of the doctrine is in the assumptions that the three organs of the government and its functions should be distinguishable from one another;
The idea of abandoning the notion of the doctrine it means all functions of the government can be performed by one organ for example executive take all government functions like enacting the law, interpreting the law, provides peoples welfare, determines the rights of the people. There is a need of the doctrine of separation of powers; the following are the importance of having the notion
• The doctrine avoids the abuse of powers.
• This means that when a single person or a group of people have the extreme amount of power they can become dangerous to the citizens, so the doctrine of separation of power is a method of controlling the powers of the organs of the government, because it become more difficult to abuse the power.
• Even though the parliament has the power to enact the laws, the judiciary has the power to declare whether the law is constitutional or unconstitutional through check and balance.
• The insurance of justice to the people’s .Through separation of power each organ of the government can be independent so that people can get a fair justice through independence of judiciary.
• If the executive has the power over the judiciary then there could be a bias because the judges will act under the pressure or the interest of the executive.
• To avoid infringement of peoples liberty. According to Montesquieu he had a view that if the legislative and executive power is united in the same person or in the same person in the same body of magistrate there cannot be liberty. This is due to the reason that apprehension may arise lest the same monarchy or senate should enact tyrannical laws, to execute them in tyrannical manner.
• The same there is no liberty if the judicial power be not separated from the legislative and executive. Where it joined with the legislative, the life and liberty of the subject would then be legislator. When it is joined with the executive power the judge might behave with violence and oppression. Therefore in order to avoid that infringement of peoples right there should be a real separation of powers.
• It pays a major role in the formation of the constitution.
• The separation of powers plays a great role in formation of the constitution to the extent power can be and should be separate and distinct
• The requiring for judicially impartiality
• There is a need for separation of powers for the purpose of judicial impartiality. Example it was tested before the European court of Human rights in a judgment which has implication for the role of the lord chancellor in Mc Gonnel v United Kingdom as the case relating to the position of Baillift of Guernesey as the president of the states of deliberation and subsequently as the sole judge of law in proceeding relating to the application which had been refused. The court held that deputy Bailliffs position was capable of casting doubt on his impartiality and as a result was in violation.
• To control administrative actions
3. INDEPENDENCE OF JUDICIARY
Independence of judiciary, is the other factor for the true existence of rule of law , that is to say the existence of rule of judiciary which administer justice accordingly must be independent from the executive and legislature, political and individual influences.
The courts are supposed to administer justice basing on the knowledge of the law, experiance of the law and only on the provisions of the constitution and other guiding laws, it has to be free to administer justice in accordance to law.
The only tool to achieve judicial review which is active and meaningful is only when judicary is independent as it was observed in the case of V.G Chavda v The Director of Immigration Services, in which the court held that the high court has power to grant an interim interlocutary injuction before hearing an application fo leave for a prerogative order even against a decision of the Government.
In this case, the court of Appeal of Tanzania widened the scope of administrative law in Tanzania, hence the true picture of multiple factors for existence of the doctrine of Rule of law. Broadly speaking there is no way out the state can experience rule of law if no independence of the judiciary which administar justice in according to law.
Article 107B provides for the independence of judiciary in Tanzania and what it is supposed to be and this was also provided in the case of Hamisi Masisi and six others v. Republic .
It is in a democratic governed state where one can find the elements of independence of judiciary while under authoritarian government, due to the nature of its rule, the judiciary can not be independent as every decision is done under the authority and directives of the person in power.
On the basis of the principle of separation of powers, the State surrenders judicial power to the judiciary, which will have compulsory jurisdiction to inquire into disputes and then give binding, authoritative and enforceable decisions.
Independence of the judiciary means every judge or magistrate, as the case may be, is free to decide matters brought before him in accordance with his assessment of the facts and his understanding of the law without any improper influence, inducements, or pressures direct or indirect from any quarter or for any reason. This is in accordance with the oath of office, which they take to do justice without fear or favour, affection or ill will.
There is a tendency of thinking that independence of the judiciary means just independence from the legislature and the executive. In reality it means more than that. It also means independence from political influence whether exerted by the political organ of the State, or by political parties, or the general public, or brought in by the judges themselves through their involvement in politics. This may take two forms namely, deciding in favour of dominant sections in the society such as the ruling party and, or of membership of judicial personnel to political parties.
Independence of the Judiciary is legal doctrine which calls for the freedom of the judiciary in the administration of justice. This freedom includes the court and its personnel such as judges and magistrates in exercising their powers of dispensing justice.
Independence referred here, is not only the independence or freedom from the domination of the executive and legislature, but the freedom of the judges and magistrates to decide the cases brought to them without being intimidated, induced or pressured by any person.
Independence of judiciary should not be mistaken as the freedom of the judges and magistrates to do as they please but to pay adherence to accepted legal values, substantive and procedural rules of law applicable in the country.
Independence of judiciary should not be mistaken as the freedom of the judges and magistrates to do as they please but to pay adherence to accepted legal values, substantive and procedural rules of law applicable in the country.
The doctrine of independence of judiciary in Tanzania was introduced by the Independence Constitution 1961. The vision founded upon inter alia the bed rock of separation of powers and the respect for the rule of law entrenched virtues of racial equality before the law, separation of the executive and judicial function and professionalization of judicial.
One feature of this era, perhaps the most significant is that the Tanzania Judiciary attained a significant level of maturity and an appreciation of the importance of the need for efficiency and effectiveness of delivering of judiciary services. The then independence movement leader Mwalimu Julius K. Nyerere declared that:
“Our judicial at every level must be independent of the executive arm of the state. Real freedom requires that any citizen feels confident that his case will be impartially judged, even if it is a case against the prime minister himself.”
Prerequisites of Independence of the Judiciary(dimensions)
Independence of the judiciary has a number of requisites. The first is that the State should guarantee it by entrenching clauses in the Constitution on the tenure, security, emoluments and independence of judges.
The second is that the State should surrender through constitutional provisions the function of administering justice to the judiciary. It should also guarantee fundamental rights and freedoms of individuals in the Constitution. This is important especially in cases of conflict of interest between the State and an individual or group of citizens collectively.
The third requisite is the relative non-partisanship on the part of the judiciary in adjudication of disputes where individual rights are in conflict with those of the State.
The judiciary does not work alone, but with others. Therefore, for it to be really independent, then it is essential that the freedom and independence of the Bar be also guaranteed. This is because the Bar complements the judiciary in the process of administration of justice in the country. A docile and intimidated Bar cannot contribute to the independence of the judiciary.
Factors undermining the Independence of Judiciary
However, the said independence of the judiciary secured by the Constitution poses a great challenge as to whether it is a reality or a myth due to the nature of the prevailing circumstances in the judicial system in relation to their freedom in the exercise of dispensing justice.
Independence of Judiciary has been facing great impede which has resulted in the violation and undermining of the said independence .
The factors that pose as elements undermining and/or violating independence of judiciary according to Chris Maina are said to be of two categories; external factors and internal factors .
Under internal factors things which undermine the independence of judiciary includes protection of incompetent judicial personnel by a Superior Judicial Officer in the judiciary or the government (“Godfather” as named by the Chris Maina), marginalization of Judicial Officers through poor or insufficient remunerations and exposing them to economic hardship and lastly Corruption such that accepting or asking for bribe in order for the court to rule in favour of the party giving bribe.
External factors undermining the Independence of the judiciary includes; the supremacy of the Government over the Judiciary such that through appointment of the chief justice and judges of high Court by the president, appointment of courts Assessors in primary courts and High Court and the tendency of the government to induce the courts to rule in their favour without paying regard to the law and rules of natural justice.
Also under External Factors, there is an issue of harassment judicial personnel which is mostly done by the Executive arm of the Government as in the cases of Ally Juuyawatu vs. Loseria Mollel and Republic vs. John Kasella Bantu , where the subjected to harassments through being interfered in exercising their judicial functions or by being detained as it was in the case of Kasella Bantu. Other factors includes; Contempt of Court by the Government by not enforcing the court orders. That in several instances, the executive arm of the Government has been failing or refusing to carry out court orders.
Few notable instances include those in Sheikh Mohamed Nassor Abdulla v. The RPC Dar es Salaam and 2 others in which the Government refused to carry out the court order by deporting the Sheikh Mohamed despite the court rejecting the same.
Also in the case of Lesinoi Ndeinai and Another v. Regional Prisons Officer and Another where the courts order requiring the police and prisons officials to release immediately the applicants as they were illegally detained was disobeyed.
Apart from those factors which tend to undermine the doctrine of independence of judiciary in Tanzania, the other aspect that results into the undermining or violation of the doctrine in the practical application in the administration of justice is the narrow interpretation of the doctrine of independence of judiciary.
This at a large extent is caused by the provision of the constitution being too general and not providing the scope of its interpretation. Hence, the controversy that exists in the interpretation which in most cases is the narrow interpretation leads to great injustice to the citizens of Tanzania.
Lastly, the use of ouster clauses in legislation is another way in which the independence of judiciary is violated or denied by the Government.
Several legislations some of which are still in operation, tends to exclude the courts from exercising the power of administering justice.
To name a few, the provisions of the Constitution and the Zanzibar Constitution respectively have denied the courts of law the jurisdiction to determine any dispute arising from the results of the presidential elections from both the United Republic and the Revolutionary Government of Zanzibar. A thing which violates the independence of the judiciary in the administration of justice as the authority with final decision in the exercise of dispensing justice as stipulated by the Constitution .
4. BILL OF RIGHTS
Bill of rights as constitutional principle is another factor for expansion and development of the doctrine of rule of law, as it appears it makes distinction between democratic and authoritarian government. Such doctrine manifest in democratic goverment as the tool of protecting human rights.
Since human rights flows directly from the constitutional principle of the rule of law, the sovereignty of the parliament and the independence of judiciary and it does much to determine the balance of power between the state and the citizen, that is to say for the existance of basic human rights courts of justice are vital engine for the existance of rule of law, so the preverence of human rights as provided under constitution intends to expand and develop the doctrine of rule of law under the shadow of judiciary.
As it was stated in the case of Rev. C. Mtikila v. The Editor of Business Times and Agustino Lyatonga Mrema where it was held that there is no legislation which expressly or by necessary implication takes away rights of a citizen or other person enjoying the protection of the law of this country to sue a government’s servant or agent who in the course of his official duties, has allegedlly commited a tort against him.
Also in the case Rev. C. Mtikila v. A.G , it was held that if there is existance of a law, the oparation of which is likely to contravine the basic right is against Article 30(3) so saying the candidate has no locus standi is to infringe his right. On the other hand, under authoritarian government, there is minimum or no observation at all of human rights. This further means, there is little or no freedom of speech, and no freedom of assembly,that is, inability to hold meetings without the approval of the government.
5. PARLIAMENTARY SUPREMACY
Parliamentary supremacy, it is also an important factor for prosperity of the doctrine of rule of law; supremacy means that the parliament is the only organ which has power to make and unmake laws, and that it can not be interfeared by any external force.
However due to the development of administrative law, now there are other organs which can make, unmake and challenge the laws made by the parliament, though the supreme body is still the parliament.
This doctrine means more because through its power, the parliament may make or unmake laws. If the unjust law is enacted then there is no way out rule of law can exist in any state, this simply means parliament must make laws which are not against the constitution which is the only tool declaring superiority of any organ and the source of all other principles.
So up to that juncture it should be bear in mind that the parliamentary Acts are subjected to be declared unconstutional by the judiciary if are contrary to constitution as it was provided in the case of Chumchua Marwa v Officer Incharge Of Musoma Prison and A.G where the Deportation Ordinance was declared unconstitutional..........the court went further by explaining what the rule of law means, as per Mwalusanya, J. (as he was then) ..observed that “the rule of law means more than acting in accordance with the law. The rule of law must also means fairness of the government. The rule of law should extend to the examination of idea; and that the law does not give the government too much power. The rule of law is opposed to arbitrary power. The rule of law reqiures that, the government should be subject to the law rather than the law subject to the government. If the law is enough to justify dictatorship there is no rule of law.
