It is wrong to say doctrine of separation of powers is dead

One of the cherished principles in our Constitution, namely the doctrine of separation of powers, has suddenly become controversial as a result of a hiccup between Parliament and the Judiciary.

In a recent newspaper article, one commentator went as far as declaring the doctrine as dead.
He wrote :“Certainly, the era of the doctrine of separation of powers is long lost in the night of time. It has no place in the modern day democracies.”

Earlier Members of Parliament were enraged when a court of law declared a resolution which they had passed giving themselves Shs20m each to help in the fight against the Covid-19 pandemic in their constituencies. One official declared that Parliament was under attack from the Judiciary.

James Madison, who was the creator of the doctrine of separation of powers in the American Constitution, understood that separating powers of government among three branches of government was not sufficient unless each branch was given the power to check the other in order to prevent encroachment into its own power.

For this reason, a system of checks and balances was incorporated into the Constitution giving each branch the power to approve, disprove or alter what the other branches do.

Madison explained: “If angels were to govern men, neither external no internal controls would be necessary. In framing a government which is to be administered by men over men the great difficult lies in this: You must first enable the government to control the governed; and in the next place oblige it to control itself.”

Although under the American Constitution the president nominates ambassadors, cabinet officials and justices, the Senate can reject those choices. Congress (Parliament) passes laws but the President can veto them although Congress can then override the president by with a two thirds majority in both houses.

Under the American system, the judiciary has the power to interpret the laws or use the power of judicial review to judge the constitutionality of the actions of other branches. The judiciary itself is checked by the president’s prerogative of nominating justices with the consent of the Senate.

Our 1995 Constitution is an amalgam of the British and American systems. In America, cabinet secretaries do not sit in Congress but in Britain being a Member of Parliament is one of the qualifications for being appointed a cabinet minister.

America cabinet secretaries have to be approved by Congress which is not the case in Britain where supreme courts of law have the power to interpret the laws passed by parliament.

In our Constitution, we borrowed the American idea of making the people, rather than Parliament, supreme. Article 1(1) of the Constitution provides “All power belongs to the people who shall exercise their sovereignty in accordance with the Constitution.”

Like in the American system, the Constitution provides for both the doctrine of separation of powers and checks and balances. For example, the President appoints ministers but they have to be approved by Parliament. Likewise the President appoints judges but with the approval of Parliament.

Under Article 137, the Court of Appeal sitting as a Constitutional Court can declare a law passed by Parliament unconstitutional and under article 50 the courts can enforce rights and freedoms against members of the Judiciary.

All in all, it is wrong to claim that the doctrine of separation of powers is dead when it is part of a living Constitution. Secondly, separation of powers cannot be considered separately from the principle of checks and balances.

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