Analysis of separation of powers in Tanzania by Johnson Yesaya

 SEPARATION OF POWERS

The doctrine of separation of powers was formulated by Montesquieu during the middle of 18th century. It has been argued that in making this formulation, Montesquieu was concerned to combat tyranny despotism of which King Louis XIV has established in France. Montesquieu was the French philosopher; he was impressed with the British politician Locke’s views. Montesquieu strongly supported in his theory that there should be separation of powers where state organs will work separately. 

Montesquieu described a doctrine of separation of powers in his book “ De l’esprit des lois” of 1758 translated as “The Spirit of Law” stated that: “when the Legislature and Executive powers are united in the same person or in the same body or magistrate, there can be no liberty. Again there is no liberty if the judicial power is not separated from the legislature, and executive powers were it is joined with the legislative powers: the life and liberty of the subject would be exposed to an arbitrary control, for the Judge would then be the legislature. Where it is joined with the executive power, the Judge might behave with violence and oppression. There would be an end of everything where the same man (body) exercises these three powers”. It is all about separation of power in organs and people who exercised the power. 

Article 4 of the Constitution of United Republic of Tanzania  is a specific Article which provide for the doctrine of separation of powers. Article 4 provides that, there will be three organs of the state namely Judiciary, Executive and Parliament. Judiciary is vested with powers of interpreting laws and administration of justice, Parliament is vested with legislative powers (making and un-making of laws) and Executive with powers to enforce laws. The principle of separation of powers requires, each organ to dis-charge its own functions without interference from the other organs, no organ should control the functions of another organ and one person should not form part of more than one organ.

The applicability of the doctrine of separation of powers vary from one jurisdiction to another, United States of America has tried to come up with complete separation of powers though it has proved failure. USA Constitution contains the best formulated Articles on separation of powers, that is Article I which impose legislative powers to the congress, Article II which vests executive powers to the president, and Article III which vests judicial powers to the supreme Court and inferior courts. Despite the three clear articles, there still weakness. It is under the same constitution the president has the power to assent the bill, which means the president has power in making laws. This means the president control legislature. 

On the other, the legislature controls the executive since the Senate is approved by the legislature, also president and vice president may be impeached by the legislature. All these circumstances proves that, there is no total separation of powers due to checks and balances.

CHECKS AND BALANCES

Checks and balances are various procedures set in place to reduce mistakes, prevent improper behavior, or decrease the risk of centralization of power. Checks and balances usually ensure that no one person or department has absolute control over decisions, clearly define the assigned duties, and force cooperation in completing tasks. The term is most commonly used in the context of government. 

In Tanzania, the principle of checks and balances can be proved by the following practices. Ministers who are members of executive organ are also members of parliament, in this view, executive and parliament controls each other. Chief justice is empowered to make laws, he makes subsidiary legislation i.e The court of appeal rules, this intends to reduce mistakes that may be done by parliament in enacting laws without knowing exactly what is happening in court houses. The judges makes laws in the process of interpreting the law (precedents), this means judiciary controls parliament. 

The making of subsidiary legislation by president and local government authorities is another proof of checks and balances. The assent of bills by president also proves that, president controls parliament.

COURTS INVALIDATIONS OF ACTS OF PARLIAMENT IN TANZANIA

There has been a discussion and various comments on the practice of courts in invalidation of Acts of parliament in Tanzania. Some legal professionals believes that, the practice of invalidation of Acts of parliament by court violates the doctrine of separation of powers and others think it is a right thing. To my view, the invalidation of Acts of parliament by court is a right thing especially when those statutes contravenes Articles of constitution, they are ultra-vires, un-reasonable, and if they interfere human rights.

Court of law is empowered under Article 4 of the Constitution to interpret laws and to dispense justice. In interpreting laws, a court can quash any provision if the provision is not proper. These powers are granted to High Court of Tanzania by Basic Rights and Duties Enforcement Act, where High Court is entitled rights and all powers to quash any law which interferes Articles of constitution. In this situation, invalidation of invalid provisions cannot be said to violate doctrine of separation of powers because at that point of invalidating statutes, the court is exercising powers stated in our laws.

CONCLUSION

A doctrine of separation of powers cannot be applied in total, there must be checks and balances to reduce mistakes, prevent improper behavior, or decrease the risk of centralization of power among organs of the state. The doctrine of separation of powers is also an important principle which prevent arbitrariness to executive part and which divide different duties to organs of the state. Both separation of powers and check and balances are important in operation of the state, check and balances should only be within allowed scope to avoid interfering core functions of a particular organ.

REFERENCE

STATUTE:

The Basic Rights and Duties Enforcement Act, Cap 3 R:E 2002

The Law Reform [Fatal Accident and Misc. Provision] Act of 2002

The Constitution of United Republic of Tanzania Cap 2 of 1977 as amended

BOOKS:.

NchallaB.M  LLB- IUCO, LLM –PRETORIA, LLM CAMBRIDGE: written by  FABIOLA.H. ODIRA

Thakker, C.K (1995), Lectures on Administrative Law, Eastern Book Company, Lucknow.

Peter, L and G. Anthony (2005), Administrative Law, 5th Ed, Oxford University Press Inc, New York.

CASES:

Rev. Christopher Mtikila v. A.G [1995] TLR 31 2009

Mwl Paul John Mhozya v. A.G (No 1.)1996 TLR 130 H.C