The doctrine of separation of powers was touched on in an earlier Constitution Watch. It is one of the essential elements of the rule of law, because without a proper separation of powers the rule of law will be imperilled, but the doctrine has a wider application and this Constitution Watch will examine it in greater detail. It will be seen that although the doctrine represents an ideal which cannot be put into practice absolutely, it does emphasise the need to provide adequate checks and balances within the governmental system.
Doctrine of Separation of Powers
In essence, the doctrine of separation of powers is that for a free and democratic society to exist there must be a clear separation between the three branches of government, namely:
The Executive, which is the branch that executes the business of government. It comprises the President, Vice-Presidents and Ministers, the Public Service, the Defence Forces, the Police Force and other law-enforcement organisations. All the administrative, law-enforcement and coercive organs of the State fall within the Executive Branch, making it potentially the most powerful of the three branches of government unless its powers are subject to limitations.
The Legislature, which is the law-making branch. In Zimbabwe it consists of the Senate and the House of Assembly.
The Judicial Branch, which interprets the law. It comprises judicial officers and the courts over which they preside. In Zimbabwe the courts are divided into superior courts, namely the Supreme Court and the High Court, and the lower courts, which are principally magistrates courts and customary-law courts. There are also specialised courts such as the Administrative Court, the Labour Court and the Fiscal Appeal Court.
If one of these branches encroaches upon the functions of the others, so the doctrine goes, freedom and the rule of law are imperilled. If, for example, the Executive (i.e. the President or a Minister) makes laws and enforces them, then we no longer have the rule of law but rule by a man or woman, and the governmental system will tend towards autocracy and tyranny. In short the doctrine states that, liberty and human rights can flourish only where each branch sticks to its proper role.