Separation of Powers in Sub-Saharan Africa

Stakeholders Conference

November 7 Tuesday


November 7 - 11, 2006


Cape Town, South Africa



Conference on Separation of Powers in Sub-Saharan Africa for leading stakeholders from South Africa, Namibia, Malawi, Tanzania, Burundi, Rwanda, Uganda, Kenya and Ethiopia



Dr. Werner Boehler, Konrad Adenauer Foundation (KAF) Country Representative to South Africa, delivered brief welcoming remarks before inviting Hon. Brigitte Mabandla, Minister of Justice and Constitutional Development of the Republic of South Africa, to officially open the conference.

In her remarks, Hon. Mabandla applauded the role that KAF has played in the promotion of the rule of law in Africa and especially in South Africa which is traceable back to the dark days of apartheid.

She told participants that since independence and inauguration of a new constitutional order, South Africa has endeavoured to actualize separation of powers and effective checks and balances among its institutions of governance as a means of enhancing democracy, accountability and transparency, and good governance.

She underscored the importance of regular consultations among key institutions of governance and sensitivity to public opinion as some of the means of ensuring that good governance founded on accountable and transparent principles is achieved.


The Role of the Judiciary in Safeguarding the Principle of Separation of Powers in a Democratic State by Justice Rizine Robert Mzikamanda

Justice Mzikamanda observed that most Sub-Saharan States have in the recent past adopted constitutional democracy where the constitution is regarded as the supreme law of the land and makes all organs of the state subject to the constitution. In this kind of democracy, the principle of the rule of law is also emphasised.

He opined that separation of powers is designed to prevent arbitrary or tyrannical rule and to protect the governed. Therefore separation of powers is necessary if political liberty and progressive well-being of all is to be achieved. He noted that for the judiciary, separation of powers is the foundation for judicial independence, which is one of the most essential characteristics of a free society.

He pointed out that the judiciary has a sensitive and crucial role to play in controlling the exercise of power and upholding the Bill of Rights. For example although Parliament has a wide power to delegate legislative authority to the executive, there are limits to that power and it is the duty of the courts to ensure that the limits to the exercise of public power are not transgressed. He further observed that in order for the judiciary to effectively perform its function it is important that the judiciary be independent and that it be perceived to be independent .Thus, the role of the judiciary in safeguarding the principle of separation of power includes developing the principle itself. Therefore, there are times when the courts must perform the difficult task of reconciling democracy with the operation of the courts themselves. If the judiciary is to function without fear or favour, ill-will or affection, it must be truly independent and outside the control of the other branches.

In constitutional democracy like is the case in most Sub-Saharan states, the judiciary is the guardian of the constitution and rule of law. In carrying out this important duty, Justice Mzikamanda noted that most judiciaries in the region face several challenges which hamper their effectiveness. These include,

 The first limitation is that the role of the Judiciary is generally reactive to situations. Thus, it must wait until matters are brought to it. The difficulty here is that owing to the newness of the democratic culture in most countries in the region, not many will be in a position to take up a test case.

 The second limitation is found in the various constitutional checks on the judiciary to maintain checks and balances especially as relates to appointment and removal of judicial officers which is normally not done by the judiciary itself.

 Lack of adequate resources. These resources are often managed and controlled by the executive.

▪ The power to enforce courts' decisions resides in the executive. These factors too have limiting effect on the role of the judiciary in safeguarding the principle of separation of powers. Again the fact that the grant of pardons and reprieves is outside the judiciary has limiting effects on the exercise of judicial power. Further for the case of Malawi, the power of the legislature to nullify a Supreme Court decision by enacting a law to invalidate a court's decision has limiting effect .

 The judiciary itself can be its own enemy by limiting its exercise of judicial functions through its own restrictive notion of what constitutes the proper role particularly through the doctrine of stare decisis.

 Inadequacies in areas such as lack of training, material and literature.

 Disobedience of court orders especially by the executive arm of government.

Culture of impunity and corruption were also cited as some of the factors that hinder the effectiveness of the judiciary in safeguarding the principle of separation of powers and rule of law in the region.

It was suggested that other than having clear and transparent criteria for appointment and removal of judges, there is dire need of incorporating consultation aspect in the process. As a starting point, it was proposed that Judicial Service Commissions and Councils in the region be strengthened and restructured and their independence guaranteed in the constitution.


a) An Overview of the Competences of the Executive, Legislature and Judiciary in Africa by Monica Mbaru

Ms Mbaru began by stating that most African countries that gained independence in the 1960s had elaborate constitutions that provided for the protection of human rights, separation of powers and an independent judiciary but within a few years of that independence, many of those constitutions were abrogated, nullified, or re-written. This was the genesis of many governance problems that have afflicted Africa for decades. Ever since, power has been concentrated in one arm namely, the executive with devastating consequences.

She observed that one of the greatest problems that face African nations is the lack of clear separation of powers between the executive, the legislature and the judiciary. This has resulted into bad governance, corruption and political instability in various nations. She noted that because of a powerful executive arm of government, the legislature and the judiciary in most African states have been weak and ineffective. She noted that although many immediate and contextual factors may have directly affected the concentration of power in the executive in individual African countries, generally the unresolved problems of political structure and process in Africa have played a major role too. For example,

 On State-society Relations, the primarily administrative and extractive relationship between the colonial state and society, emphasized the elements of coercion and command, leaving large areas of state/society relations undefined. The transfer of the modern state form was both institutionally and culturally selective. The institutional unevenness was evident in the lop-sided development of the state apparatus with representational organs emerging last and often being inserted as a rule, only on the eve of independence.

 Legitimacy of power. There was no instillation of the notion of the legitimate purposes and limits of state action, or acceptable procedures for gaining or maintaining power, and of the rights and place of the individual in the political system.

 Intra-state relations. Ambiguity lies between the various arms of government where there are no distinct separations under the constitution with executive dominance.

 Political and legal dualism. There is the existence of dual systems of laws and political action and the uncertain articulation between traditional African authority system and the formal political system. In many African political systems the constitutional stature of chieftaincy has yet to be settled.

 State decline. The non-performance of state in core functions has reduced competence, credibility and legitimacy.

In order to reverse this trend, Ms Mbaru emphasized the need to develop a culture of constitutionalism and democracy in Africa. The need and demand for the values, ideals and aspirations of people to be reflected in the constitutional dispensations of their states is paramount. Further, the values of the constitution as an important instrument of good governance must be accepted and strengthened. It is also time to destroy the Great Man syndrome in Africa.

b) Presidential System of Government versus Separation of Powers: The Malawi Experience, by Mr. Mabvuto Hara

He pointed out that a presidential system is one where the President is the head of state and chief executive authority. Here, the central principle is that the legislative and executive branches of government should be separate and the President is elected to office for a fixed term of office and only removable in extreme cases for gross misconduct by impeachment and dismissal. Further, the President usually has special privileges in the enactment of legislation namely, the power to veto legislation of bills. As for the case of Malawi, it is not purely a presidential system, neither is it parliamentary system because it combines both features. This means it can safely pass for a hybrid system of government.

At independence in 1964, the Malawi Constitution provided for three organs of the state, namely, the executive, the legislature and the judiciary, where the Head of State remained the Queen of England but the executive organ was headed by the Prime Minister. This constitution also contained a comprehensive Bill of Rights which guaranteed not only human rights and fundamental freedoms for all the people of Malawi, but also ensured a form of limited exercise of governmental authority on the part of the executive organ.

On 6th July, 1966, a new Republican Constitution came into force which retained the three organs of the state – the executive, the legislature and the judiciary. However, the main theme that ran throughout this constitution was that of a strong executive authority that was vested in the President on the one hand and the monopoly of political control by the Malawi Congress Party on the other. The first president was specifically mentioned in the constitution and his tenure of office was also specifically provided for as lifetime.

Another feature of this Constitution which was of significant consequence, was the relationship it created between the President and the Judiciary. Under the terms of S.63 (1), the President had exclusive authority to appoint the Chief Justice. All other judges were appointed by the President after consultation with the judicial Service Commission. This meant, in effect, that the President had constitutional powers to influence the composition of the courts of justice in Malawi.

More importantly, S. 64(3) gave the President power to remove a judge from office, “where the President considers it desirable in the public interest to remove him from such office,” apart from misbehaviour or incompetence.

A new constitution was adopted in 1994 to try and remedy the aforementioned tragedy. This Constitution clearly establishes three separate branches of government, namely, the executive, the legislature and the judiciary, with clear separate functions. However, it does not create a framework of absolute separation of the branches of the State. It recognises that in the discharge of their respective functions interaction of the branches is inevitable. The Constitution provides many examples of checks and balances. The President who is both a member of the Executive and Parliament must assent to all Bills for them to become law. The dates for Parliamentary sessions are determined after consultation between the Speaker and the President. Though Parliament can initiate legislation through private members’ Bills, legislation is in general initiated and presented to Parliament by members of the Cabinet. The Attorney General, a member of the Executive, is a principal legal adviser to “Government”, not just the Executive. On its part, the National Assembly exercises oversight over policies and decisions made by the Executive. The National Assembly can also, in the process of enacting legislation, change Bills as drafted by the Executive. Appointments for diplomatic service, the Inspector General of Police, the Director of Public Prosecutions, and other key functionaries are within the powers of the President, but the National Assembly must ratify such appointments. The National Assembly can also impeach judges and the President. The impeachment of judges has to be approved by the President. The judiciary may declare any Act of Parliament invalid if it is inconsistent with the Constitution; the judiciary has unlimited jurisdiction to review the legality or constitutionality of the Executive’s and Parliament’s decisions and actions, if questioned in Court.

The Executive and the Legislature

One of the issues the Constitution does not explicitly say is whether the President can appoint ministers from the National Assembly. The first President under the current Constitution assumed that he could, and he did. A Supreme Court decision on the matter resulted into Constitution (Amendment) (No.3) Act, 2001. The significance of this position is that it gives the President who has many Ministers from the National Assembly, and commands a majority in the National Assembly, power to control the National Assembly although the President is directly elected. The experience has been that the first President sworn under this Constitution in 1994, because he did not have an overwhelming majority, entered into a coalition with another party with the purpose of gaining numbers. Eventually, the party acquired more and more numbers until there was no meaningful opposition. The result was that the Government became less and less accountable as the President almost always succeeded in passing bills in the National Assembly. Allegations of corruption also became so widespread that before the expiration of his second term of office international donors had to withdraw aid. The evil of this Constitutional arrangement is that it allows a situation where collusion between the Executive and the National Assembly easily occurs to do things that clearly will not “serve and protect the interests of the people of Malawi” in terms of the Constitution. A clear example occurred in the year 2002 when a bill was brought into the National Assembly to amend the Constitution to remove the Presidential term limit and create an open term; when that failed another bill was brought that attempted to create a third term. This has caused some to call for a total separation between the Executive and the Legislature so that Cabinet Ministers may not be appointed from the National Assembly .

The Legislature and the Judiciary

It may be safely said that there has been no conflict between the Legislature and the judiciary over their separate roles. However, there have from time to time, been incidents of conflict arising from the checks and balances.

As noted earlier, the National Assembly is involved in the process of the removal of judges from office. A motion praying for removal of a judge has to be debated in the National Assembly and passed by a majority of votes of all the members of the Assembly, and then submitted to the President as a petition for the removal of the judge . This power to remove a judge has on occasion been blatantly abused by the National Assembly, like was the case in November, 2001 when a motion was moved, debated and passed by the National Assembly, to remove three judges. The allegations against the judges did not satisfy the constitutional requirements of incompetence or misbehaviour as grounds for removing judges and revealed the weakness of the system of removing judges through the National Assembly. For example, where any party holds more than 50 percent of seats, there is a real danger of politically motivated steps actually being successful. In this particular case, the Judges were only saved by local and international pressure.

Another area of checks and balances that has caused tension between the legislature and the judiciary is the determination of the remuneration of judges. Under the Constitution it is the National Assembly that determines the remuneration. In the 2006/2007 Budget Session of Parliament when a revised remuneration package for judicial officers, which had been approved by the Public Appointments Committee of the House, was brought before the whole House, some members said they would only approve the proposed remuneration if their own remuneration was revised to equal that of judges.

The judiciary has risen to the challenge of its responsibility to determine matters before the courts, even if they affect the National Assembly. For instance, following the adoption of impeachment procedures by the National Assembly, an injunction was granted pending the review of the procedures by the High Court on a Presidential Referral to determine whether the procedures complied with the rules of natural justice. The Court has determined that the rules do not comply with the principles of natural justice. Parliament seems to have received the judgment with grace and the Legal Affairs Committee of the House has undertaken to revise the rules.

An injunction was also granted more than a year ago restraining the Speaker from ruling on a motion to declare the seats of some members vacant pending the interpretation of the Constitutional provision that deals with “crossing the floor.”

The Executive and the Judiciary

As observed in reference to the other relationships, tensions tend to arise from the checks and balances contained in the Constitution. The Chief Justice is appointed by the President and confirmed by the National Assembly. All other judges are appointed by the President on the recommendation of the Judicial Service Commission. However, this has not always been the case.

With respect to removal, the President can only remove judges upon being presented with a petition by the National Assembly. Although the Constitution does guarantee the independence of the judiciary, there have been moments of tension between the Executive and the Judiciary. One of the most shameless attacks on the independence of the judiciary was the attempted impeachment of the three judges referred to earlier. Although it was dressed up to appear as if it was the initiative of the National Assembly, it was plainly a collusion of the Executive with the National Assembly which the Executive largely controlled, because the ambitions that the judges were viewed to thwart were those of the incumbent President.

Another issue that has brought a great deal of tension between the Executive and the judiciary is the Executive control of resources. Although in terms of the Constitution, it is the National Assembly that determines the remuneration and conditions of service for judges in reality it is the Executive, through the Minister of Finance, that will make resources available to the judiciary. Many times the Executive will not make available resources to the judiciary, notwithstanding that in terms of the Constitution, salaries and other benefits of judges are included in the Protected Expenditure Fund. Another area of tension has been the conduct of the Executive in relation to inconvenient court rulings and judgments. There have been incidents of the Executive not complying with court judgments and rulings

The Judiciary on its part has been generally bold in ruling on highly politically sensitive matters and asserting constitutional rights of citizens. The Courts have ruled boldly even where decisions of the President are concerned. Because of the political bickering between the Executive and the estranged National Assembly, the courts have had to rule on many constitutional conundrums, to the extent that some have felt that the power balance in the State has shifted to the Judiciary.

Mr. Hara submitted that a robust, bold and independent judiciary is what the nation needs in the face of political bickering of the National Assembly and the Executive. The Judiciary offers the least threat to the citizen’s rights.

He concluded that the Malawi experience also shows that most of the tensions between the branches of government do not necessarily arise from inherent weaknesses of the Constitution; the tensions arise from the pursuit of personal and partisan interests by those in the political organs of the State: the legislature and the executive. If all the organs of the State exercised their Constitutional authority solely “to serve and protect the interests of the people of Malawi”, there should be little, if any, tension.

c) The Doctrine of Separation of Powers under the Ethiopian Constitution By Hon. Hashim Tewfik, State Minister of Justice, Federal Republic of Ethiopia

Hon Twefik began by stating that the Ethiopian Constitution establishes a federal political system along with a Westminster style of parliamentary democracy. It divides state power not only between the federal government and nine component regional governments, but also among the three branches of government at both federal and regional levels. He pointed out that although the structure of the constitution provides for separate arms of government, the application of the doctrine of separation of powers, at both federal and regional levels is not total because the executive branch of government is drawn from the legislative branch of government. However, the separation of the judicial power from both legislative and executive branches of government is more distinct.

The constitution establishes an independent judiciary, vests judicial power in courts and prohibits the establishment of special or ad hoc courts which take judicial powers away from the regular courts or institutions which are legally empowered to exercise judicial functions. Courts can check executive actions on case by case basis whenever complaints of human rights violations are brought before them. However, courts cannot review the constitutionality of the actions of the executive nor that of the legislative branch of government; the power to check the constitutionality of laws passed by parliament and executive actions is bestowed to the House of Federation along with its quasi-judicial organ, the Council of Constitutional Inquiry.

The Ethiopian constitution establishes a federal political system. Accordingly, it divides state power between the federal and member states. Within their respective competences, both the federal and member states are accountable to the people and exercise ultimate authority. While exhaustively enumerating the matters allocated under the jurisdiction of the federal state, the Ethiopian constitution reserves the residual power to the component states.

The federal government has two different assemblies, the House of Peoples’ Representatives and the House of Federation. Each differs from the other in their respective powers and functions except in those constitutionally specified matters falling under their concurrent competence. For instance, both the Houses are required in a joint session to take “appropriate measures when state authorities are unable to arrest violations of human rights within their jurisdiction“.

The House of Peoples Representatives is constituted by representatives elected by people for a term of five years on the basis of universal suffrage and by direct, free and fair elections through secret ballot. The maximum number of seats for elected representatives in the House of Peoples' Representatives is 550 and of which at least twenty seats are required to be reserved for minority nationalities and peoples. By contrast, in the case of the House of Federation, each nation, nationality and people is represented by at least one member, and by one additional member for each one million of its population. Moreover, the members of the House of the Federation are elected for a term of five years by the State Councils, which may either themselves elect their representatives or organize elections in their respective state territories to have the representatives directly elected by peoples.

On the other hand, the House of Peoples Representatives is the highest authority of the federal state. It is vested with the power of legislation in all matters expressly provided under the jurisdiction of the federal state as exhaustively enumerated in Article 51 of the constitution.

The House is also vested with the power to call and question the Prime Minister and other federal officials. It can also investigate the conduct of the Executive. With the request of one-third of its members it can also discuss any matter pertaining to the powers of the Executive and take measures it deems necessary. Moreover, on its own initiative, the House of Peoples Representatives may request a joint session with the House of Federation when state authorities are unable to stop violations of human rights within their jurisdiction, and it shall give directives, on the basis of the decisions of the joint session, to the concerned state authorities.

The competences of the House of Federation are interlinked with the need to maintain and promote the constitutional compact among the various ethnic groups of Ethiopia. The latter are not only the authors of the constitution but they are also its guardians who have bound themselves in mutual commitment to its fulfillment. The House of Federation, which is the House of the nations, nationalities and peoples, was created to maintain and develop their consensual relationships on the basis of equality and respect for their respective diversity while realizing their commitment to uphold the constitution. In order to fulfil these objectives, the House of Federation is entrusted with important and limited powers and functions. The most important function of the House of Federation is the power to interpret the constitution. Unlike many other federal systems, the umpiring of constitutional issues in Ethiopia is not vested in either a Constitutional Court or a Federal Supreme Court. In carrying out this mandate, the House of Federation is usually supported by a Council of Constitutional Inquiry, which is established by the Constitution with the power to investigate constitutional disputes.

The House of Federation is also the ultimate defender of the constitutional compact of the peoples of Ethiopia. It is, for this purpose, empowered to order federal intervention if, in violation of the Constitution, a member state endangers the constitutional order.

The House of Federation has other specific functions as well. It is duty bound to “promote the equality of peoples’ of Ethiopia enshrined in the constitution and promote and consolidate their unity based on their mutual consent”. It is also empowered to decide, in accordance with the constitution, on issues relating to the rights of nations, nationalities and peoples to self-determination, including the right to secession.

Further, it is mandated to determine the division of revenues from the joint Federal and State tax sources and the amount of federal subsidies to be provided to member states.

The Federal Executive

Pursuant to the Ethiopian Constitution, a political party or a coalition of political parties that has the greatest number of seats in the House of Peoples’ Representatives form(s) and lead(s) the Executive and assumes the power of the federal state. This direct linkage makes the executive not only subservient to the House of Peoples’ Representatives but also its conduit through which the political programs of the majority party or a coalition of parties are implemented.

The executive is made up of the Prime Minister and the Council of Ministers. They exercise the highest executive powers of the Federal State. While the Prime Minister is elected from among members of the House of Peoples’ Representatives, the members of the Council of Ministers are selected by the Prime Minister and appointed by the House of Peoples’ Representatives. Both are responsible to the House of Peoples’ Representatives. The Council of Ministers is also responsible to the Prime Minister.

With regard to its executive competence, the Council of Ministers is, first, charged with the power to implement laws and decisions adopted by the House of Peoples Representatives. Secondly, it ensures the observance of law and order. Thirdly, it has the power to declare a state of emergency. Fourthly, it ensures the proper execution of financial and monetary policies of the country. Fifthly, it draws up the annual federal budget and implements it upon its approval by the House of Peoples Representatives. Sixthly, it formulates and implements policies and strategies on economic, social and development areas as well as on matters of foreign affairs.

The position of Ethiopia's constitution in regard to the separation of Legislative and Executive power

At both federal and state levels, the executive branch is drawn from, and dependent upon, the direct support of the legislative branch and hence, there is no clear-cut separation of powers between the executive and legislative branches. However, there is functional as well as institutional separation of powers between the legislative and executive branches of government. Moreover, the legislative branches of the federal and regional governments, through their respective committees and executive-report hearing mechanisms, can hold their respective executive branches accountable for their actions and monitor the expenditure of public money.

The Federal Judiciary

The Ethiopian judiciary is composed of two parallel systems of federal and state courts, between which judicial authority is distributed. Federal judicial power lies in federal courts whereas state judicial power is given to state courts. The organization of both court systems envisages three-layered hierarchical structures and corresponding divisions of jurisdictions. At the federal level, the Constitution establishes only the Federal Supreme Court, leaving the establishment of Federal High Courts and First Instance Courts to the House of Peoples Representatives, which may decide by a two-thirds majority vote to set up such courts nation wide or in some parts of the country when it deems it necessary. In the absence of such decision, the jurisdictions of the Federal High Court and the First Instance Courts are allocated respectively to State Supreme Courts and State High Courts.

The Federal Supreme Court is vested with supreme federal judicial authority. It has the highest and final judicial power over federal matters. Similarly, State Supreme Courts have the highest and final judicial power over state matters. This implies that each of the court systems have parallel jurisdictions. But since the Constitution has delegated the exercise of the jurisdictions of the Federal High Court and the Federal First Instance Courts to the State Supreme Courts and the State High Courts, appeals can be lodged from the decision of the State Supreme Courts over federal matters to the Federal Supreme Court.

The Federal Supreme Court has power of cassation over any final court decision containing a fundamental error of law. Likewise, each State Supreme Court is vested with the power of cassation over final decisions of their respective regional courts when such decisions contain fundamental error of law.

The Constitution explicitly places judicial power in Federal and State courts, and prohibits the establishment of special or ad hoc courts that take away from the regular courts or institutions legally empowered to exercise judicial functions and that does not follow legally prescribed procedures. This proscription is aimed at reinforcing the independence of Judiciary not least because it forestalls the erosion of judicial authority by legislatures. In addition to this, the constitution guarantees judicial independence in four ways. First, it entrenches the freedom of courts of any level from any interference or influence of any governmental body, governmental official or from any other source. Secondly, it provides for the exercise of judicial functions to be in full independence and in accordance with the law. And thirdly, it ensures judicial tenure by stipulating that no judge can be removed from his duties before reaching his retirement age except under conditions prescribed by the Constitution. Fourthly, it empowers the Federal Supreme Court not only to draw up and submit the budget of federal courts for the approval of the House of Peoples’ Representatives but also to administer it upon approval.

The appointment of judges at the federal level always requires the approval of the House of Peoples Representatives. While it is the Prime Minister that nominates the President and the Vice President of the Federal Supreme Court, the Federal Judicial Administration Council selects other federal court judges. At the State level, it is the State Council that appoints all State Court judges. The Presidents and Vice Presidents of State Supreme Courts are appointed upon the recommendation of their respective Chief Executive of the State whereas the appointment of other State Court judges requires the recommendation of the State judicial Administration Council. But due to the fact that the jurisdictions of the Federal High Court and First Instance Court are delegated to State Supreme Courts and State High Courts respectively, the Constitution requires State Judicial Administration Councils to solicit and obtain the views of the Federal Judicial Administration Council on nominees and to forward those views, together with their recommendations to their corresponding State Councils. If the Federal Judicial Administration Council fails to submit its views within three months as required, the State Council appoints the nominees recommended by State Judicial Administration Council.

The constitution guarantees judicial independence and ensures financial autonomy of the courts. The judiciary is separated institutionally and functionally from the legislature and the executive. The judiciary has distinct personnel and judges are not allowed to assume executive or legislative responsibility. Hence, in Ethiopia, there is separation of judicial power from legislative and executive powers.

Since the Ethiopian Constitution provides for the vertical and horizontal division of state power, it creates multiple centres of power hence preventing the concentration of power in one arm or individual thereby forestalling the opportunity for tyranny and arbitrary rule.

d) Separation of Powers in South Africa: 12 Years of Constitutionalism by Prof. Christina Murray

She began by stating that South Africa has one of the few parliamentary systems in Africa. This means, its model of separation of powers does not follow the classic exposition of Montesquieu. The President – much like a Prime Minister - is not separately elected but is chosen by the National Assembly. He or she must then draw all but two of the members of Cabinet from the National Assembly. Cabinet, including the President, remains dependent on Parliament to govern and can be dismissed by a vote of no confidence. The Constitution spells out the Westminster convention that Cabinet and individual ministers are accountable to Parliament and spells out Parliament’s role in holding the executive to account.

The system deviates from the classic parliamentary model in a number of minor ways. The first I have already mentioned: up to two Cabinet members may be chosen from outside the National Assembly. Secondly, on election, the President leaves Parliament and takes up a dual role – as head of the executive (in fact as a Prime Minister) and as head of State. Thirdly, Parliament may not be dissolved for three years following an election. In other words, the traditional power that a Prime Minister has to call an early election to avoid a vote of no confidence is withheld for three years.

Parliament’s right to dismiss the government is intended to provide a check on the executive and balance its power. As is customary in parliamentary systems, the executive has control over the budget – in effect exercising a check on parliament. The most important ‘check’ on executive power in the South African system is the right of the judiciary to review all exercises of public power in terms of the Constitution.

Overall, under the South African Constitution, the separation of powers is part of a broad commitment to accountable and limited government. But the commitment to limited government in the South African Constitution needs to be understood in its full constitutional context. If accountability is one pillar of South Africa’s new constitutional order, social justice is the other. The constitutional commitment to social justice is most clearly articulated through the protection of social and economic rights. It is possibly in connection with these rights that the most difficult questions concerning the separation of powers have arisen in South Africa.

As in other jurisdictions, courts bear the burden of protecting the system of limited government and separation of powers.

Judicial control of executive action

Under apartheid, despite a handful of brave decisions, courts were generally unsuccessful in controlling the executive. Instead they capitulated readily to ouster clauses and claims of broad executive discretion. Thus, one of the most urgent challenges facing our courts, and particularly the Constitutional Court after the 1994 elections was to define the parameters of the judicial review of executive action. The Constitution made it clear that executive powers were to be exercised in terms of the Constitution and that the courts were the guardians of the Constitution – but the line between legitimate control by courts and impermissible intrusion into the realm of the executive needed to be drawn.

The courts in South Africa have made substantial progress in defining administrative action. The Constitutional Court has emphasised that action is not to be classified as “administrative action” simply because it is carried out by the executive. It is the function, not the functionary that is important. So a judge may exercise an administrative function, say in issuing a warrant. Parliament exercises an administrative function when it disciplines a member. The implementation of legislation is an administrative function.

One of the consequences of recognising the importance of promoting efficient administration, at least where discretionary decision-making powers are conferred on functionaries, is that the Constitutional Court has asserted that the role of the courts is to guide rather than to fetter the administration’s exercise of its powers. Where empowering legislation directs a decision-maker to take a range of considerations into account, the task of a review court is limited to ensuring that all these considerations are taken into account. Were courts to interfere with administrative decisions wherever it was believed that an administrator had not paid sufficient weight to certain considerations, the efficiency of administration would be significantly undercut.

In summary, once the exercise executive power is characterised as administrative action, a relatively high level of scrutiny mandated by the Constitution applies to it. However, courts are at pains to point out that they are alert to the needs of effective government in scrutinising such action.

The Constitutional Court has also decided that the courts can scrutinise executive actions that are not administrative actions even though the level of scrutiny to which courts will subject such action is not particularly high. The law that has crystallised is that executive action that is not administrative action must pass four tests: The person who carries out the action (i) must act within his or her powers; (ii) must act in good faith; (iii) must not misconstrue his or her powers and (iv) must not act arbitrarily.

The significance of this assertion of judicial control should not be underestimated as illustrated by various court decisions. For instance, the Constitutional Court has reviewed an exercise of the President’s power to pardon prisoners. This decision and others, illustrate Court’s assertion that every exercise of public power is subject to constitutional control.

As regards judicial checks on parliament, the most obvious check on the legislature in the South African system is the power of the judiciary to declare legislation unconstitutional for the infringement of substantial provisions of the constitution although there have been various decisions in which courts have exercised control over Parliament in other ways too.

In a bid to maintain the independence of the judiciary, the South African Constitution moves away from the appointment of judges by the executive and instead gives a judicial service commission which is comprised of members of Parliament, judges and lawyers and the Minister of Justice, the task of selecting judges in addition to asserting firmly that the judiciary is to be independent.

A constitutional amendment bill circulated for public comment in 2005 and a number of related draft bills concerning the courts caused a public outcry in South Africa. They were believed by many to threaten the independence of the judiciary. They covered a range of issues, many of which simply related to bringing the court system into line with the new constitutional framework.

However, there were some provisions that troubled the judiciary. Three issues particularly concerned judges.

First, was a provision that would amend the Constitution ostensibly to clarify the respective roles of the courts and the executive or, more precisely, the Chief Justice and the Minister of Justice. Under the proposed amendment, two new provisions were to be added to the section in the Constitution that protects the independence of the judiciary. The proposed provisions stipulated that the Chief Justice was to be “the head of the judicial authority and to exercise…responsibility over the establishment and monitoring of norms and standards for the exercise of the judicial functions of all courts…”. The Minister of Justice was to “exercise… authority over the administration and budget of all courts”.

The second concern related to a change in appointment procedure for the presidents and deputy presidents of our High Courts. These positions are currently filled by the Judicial Service Commission. Under the new provisions they would be filled by the Minister of Justice.

Thirdly, one of the Bills was to place responsibility for judicial education in a college run under the auspices of the Department of Justice.

The concerns centred on the view that the Bills gave too much power to the executive over the judiciary. Critics argued that to entrench a ministerial power to administer the judiciary in the Constitution allowed the executive far too much scope to interfere with the way that judges do their jobs. Critics also objected to the reassertion of executive control of appointments of heads of court. And, they said, it is quite inappropriate to have the executive in control of judicial training – that must be an endeavour that is independent of the executive.

She concluded that the relationship between the judiciary and the executive is very much “unfinished business” as far as the separation of powers in South Africa goes. Some current practices clearly infringe the principle. For instance, South African judges can get permission to engage in what one may term “private work” from the Minister of Justice. This covers lecturing tours but can extend to membership of boards of companies. The power of the minister to grant or withhold such permission gives him or her a significant hold over judges wishing to do such work. At a more mundane level, disputes over the management of courts continue with concerns on both sides about resources, the management of court rolls and budgets. Clearly a range of very difficult issues concerning the independence of the judiciary and thus also the separation of powers in South Africa remains to be settled.


Challenges and Solutions to Attaining Effective Checks and Balances of Power in Africa by Hon. Martha Karua EGH, MP, Minister for Justice and Constitutional Affairs, Kenya

Hon. Karua noted that many Sub-Saharan African countries have emerged from a system of political tyranny to liberal democracies. Therefore, it follows that the principal of checks and balances needs to be nurtured and enhanced. This nurturing can only take place in part, through enlargement of political space, strengthening of democratic institutions and vibrant, informed public debates on policies and governance issues. This is the challenge that Africa must rise up to and one which it must embrace.

It is worth noting that this system of checks and balances only works where the members of the three branches of government cooperate and work harmoniously. She pointed out the following as some of the key challenges to attaining effective checks and balances in Africa:

Political interference - This is a historical problem in emerging democracies. Africa in particular, arising from its history of single party dictatorship, this meant that there was almost no separation between the state and party politics. Institutions of government were personalized and the political class interfered with government institutions thus leading to poor governance and retrogression. This kind of interference, whether through political parties or the political class, remains the biggest stumbling block to the ongoing democratization process in Sub-Saharan Africa.

This challenge can be overcome by the creation and strengthening of effective and accountable political parties and other governance institutions. It can also be overcome by citizen empowerment, the strengthening of institutions of governance and also the demystification of government. The net effect of this process is that governments are a lot closer and more real to the needs and aspirations of its citizenry.

Lack of facilitative legal and statutory frame work - Checks and balances can only be nurtured and enhanced where there is the requisite facilitative legal and statutory framework. However for many countries in Sub-Saharan Africa, this framework does not exist and this then impacts negatively on governance and specifically, on the development of the culture of the rule of law. Governments should show their commitment to the development of the culture of the rule of law by the establishment of the relevant institutions and policies which will enable this legal and statutory framework to be entrenched.

Programmatic and functional disorganization - State institutions in many Sub-Saharan African countries suffer from lack of clear policies and programmes that are enabling for the checks and balances. This problem is compounded by lack of professionalism and a result based management approach to decision making. In the absence of these, state institutions continue to be managed through non-merit considerations. Professionalism remains a commitment that countries must embrace if effective checks and balances are to be realised.

Endemic corruption - For many countries emerging from years of dictatorship, their political economy continues to be characterized by corruption, political violence and electoral malpractices. Yet it is endemic corruption that stands out like a malignant cancer to the democratic aspirations of such countries. The cancer of corruption knows no boundaries, no class, no race, no creed, no religion and no ideology. Many countries have now committed to anti-corruption policies by substantially creating the infrastructure for a sustained war against this vice. This includes the enactment of anti-corruption legislation and the creation of new institutions like anti-corruption bodies to underpin the various governments’ efforts against corruption. In addition, a number of countries in Sub-Saharan Africa have realized that the war against corruption cannot be won without effective institutions to conduct investigations, undertake prosecutions and determine cases. To achieve effective institutions, the existing institutions including the Police, the office of the Attorney-General and the Judiciary should be strengthened to enable them effectively play their roles. Where feasible, special anti-corruption courts should be established to expedite the determination of corruption cases.

Weak Institutions - Some of the institutions have not grown to their full capacity. They had a good start but entered a period of retrogression and near collapse. Many countries in Sub-Saharan Africa are now in the democratization phase. There is therefore the challenge of rebuilding the institutions and claiming back the space. There is need for coordination, not competition and a deeper understanding of the role of each institution.

Lack of focus and commitment collectively and individually - Apparent power struggle occurs where those in the institutions see power as an end not as a means of helping the state and its citizens to move forward. The failure to appreciate that independent institutions need mutual dependence in order to be effective. Each institution must safeguard its role and space in government by ensuring mechanisms of internal checks and balances that ensure and maintain confidence in the institutions by the public.

Hon. Karua stated that the greatest challenge is not the law but the practice and attitudes. She underscored the opportunity that various initiatives such as the New Partnership for Africa's Development (NEPAD) present in rejuvenating the continent of Africa. She particularly lauded the NEPAD African Peer Review Mechanism which seeks to encourage African countries to improve political, economic and corporate governance through periodic reviews of their performance on various governance issues.


a) Separation of Powers: The German Experience by Prof. Dr. Peter Schiwy, Lawyer, Berlin and Honorary Professor at the University of Speyer, Germany

Prof. Schiwy noted that different democratic states in the world had adopted different systems of ensuring that power is separated. For instance, the Americans, have adopted a presidential system whereas continental Europe including Germany has adopted a parliamentary system with different peculiarities. Here the power is focused on the dominating parliamentary party or parties. The President is the head of state but the chancellor is the head of government. Like all other parliamentary systems, there is a fusion of power between the executive and the legislature.

Power in Germany is limited and checked by a strong and independent judiciary as well as through devolution/federalism and a strong and independent media.

b) Separation of Powers in Constitutional Governments: Key Institutions and their Roles in Ensuring Effective ‘Checks and Balances’ in a Democratic State: Namibian Perspective by Hon. Hafeni Ndemula, MP, National Council – Parliament of Namibia

Hon. Ndemula noted that in order to ensure that constitutional governments remain true to the aspirations of the people, various mechanisms have been put in place to limit and check the power of state organs. In Namibia, the constitution has clearly separated power between the legislative and executive branches and granted judicial independence. Civil Society, churches and the media have also been key in checking the power of the governors. Other important institutions (as currently exists in Namibia) are,

The Ombudsman - The Ombudsman has the duty to investigate complaints concerning alleged or apparent instances of violations of fundamental rights and freedoms, abuse of power, unfair, harsh, and insensitive or discourteous treatment of an inhabitant of Namibia by an official in the employ of any organ of government (whether central or local) manifest injustice or corruption or conduct by such official which would properly be regarded as unlawful, oppressive or unfair in a democratic society. Constitutionally, no member of the Cabinet or the legislature or any other person shall interfere with the Ombudsman in the exercise of his or her functions and all organs of the state shall accord such assistance as may be needed for the protection of the independence, dignity and effectiveness of the Ombudsman.

Anti Corruption Commission – it has powers to investigate and with the assistance of law enforcement detain suspected corrupt officials. The Commission has a mandate to investigate any member of parliament or Cabinet or even the Office of the President and members of the public if corruption is suspected. This body operates independently and without interference from any branch of government. The Protection of Whistle-blowers has been legislated to ensure public confidence in the confidentiality of reporting corruption.

Media and Public Opinion - Article 21 of the Namibian Constitution guarantees freedom of the press and other media. As a medium that sets the agenda of the public, the media has had access to government generated information and had access to interpretations. This has promoted openness and helped to shape public opinion.


I. There is need to allocate more time for discussion. It was therefore proposed that KAF incorporates group work in future conference programs.

II. In order to encourage participation, it was proposed that there is need for a well-balanced panel of resource persons. For instance, resource persons should not come from one region and at no circumstance should there be two resource persons from one country in the same conference.

III. Equal slots should be allocated to all participating sectors/institutions. It was suggested that the executive, judiciary and legislature should be given equal opportunity to make their presentation at all future conferences.

IV. Judicial independence should be emphasised owing to the central role that the judiciary plays in guaranteeing and safeguarding separation of powers.

V. There is need for all constitutions in the region to incorporate the principle of separation of powers. However, it is up to individual country to determine the extent to which it will share power among the three arms of government as well as the system of government it desires, whether parliamentary or presidential as long as effective checks and balances are put in place.

VI. There is need to start cultivating ‘constitutional and democratic culture’ at all levels in the region.


Hon. Martha Karua, Minister of Justice & Constitutional Affairs, Republic of Kenya, P.O. Box 56057, Nairobi 00100, KENYA, Telephone +254 20 224055; 224125; 342787; Fax +254 20 316321

Justice Emmanuel O’Kubasu, Appellate Judge, Court of Appeal, P.O. Box 30041, Nairobi, KENYA, Telephone +254 20 221221; Fax +254 20 318172

Lady Justice Joyce Aluoch, Judge, High Court, P.O. Box 30041, Nairobi, KENYA, Telephone +254 20 221221; Fax +254 20 318172, E-Mail:

Justice J.K. Sergon, Judge, Mombasa High Court, P.O. Box 90410, Mombasa, KENYA, Telephone (Mobile) +254 722 654600, E-Mail:

Justice Matthew Emukule, Judge, High Court, P.O. Box 30041, Nairobi, KENYA, Telephone +254 20 221221; Fax +254 20 318172

Hon. Peter Oloo Aringo, MP, Vice Chair, Parliamentary Service Committee, P. O. Box 72006, 00200-Nairobi, KENYA, Telephone: +254-20-2848192; +254-734-868510; Fax: +254-20-315958, E-mail: c/o

Hon. Paul Muite, MP, Chair, Legal & Administration of Justice Committee, Telephone +254 20 2730630, E-mail: c/o

Ms Mercy Muthuuri, Minister’s PA, P.O. Box 56057, Nairobi 00100, KENYA, Telephone +254 20 224055; 224125; 342787; Fax +254 20 316321, E-Mail:

Mr. Otiende Amollo, Council Member, Law Society of Kenya, P.O. Box 55645, Nairobi 00200, KENYA, Telephone + 254 722 526221; +254 20 247818, E-mail:

Ms Monica Mbaru, Executive Director, ICJ Kenya, P.O. Box 59743, Nairobi 00200, Kenya, Telephone + 254 20 3875980; 6752614, E-Mail: or

Justice J.W.N. Tsekooko, Judge Supreme Court, P.O. Box 10196, KAMPALA, UGANDA, Telephone +256 41 270961; Fax 273122/259680, E-mail:

Lady Justice C.N.B. Kitumba, Judge Court of Appeal, P.O. Box 7085, Kampala, Uganda, Telephone: +256 041 258410; Fax: +256 041 259680, E-Mail:

Justice A.F. Rugadya Atwoki, Judge High Court, P.O Box 48, Fort Portal, UGANDA, Telephone +256 48 322047; Mobile +256 772 465062, Fax +256 48 322624

Mr. Paul Mwebesa, Member, Uganda Law Society, P.O. Box 566, Kampala, Uganda, Telephone: +256 772 829296; Fax: +256 41 347857, E-Mail:

Lady Justice Mary Harriet Longway, Land Division, High Court of Tanzania, P.O. Box 38214, Dar-es-Salaam, Telephone Office direct +255-22-2136863, Cell Phone +255-754-314-309; Fax +255-22-2136862, E-mail:

Lady Justice Katherine K. Oriyo, Judge, High Court, P.O. Box 12807, Dar es Salaam, Tanzania, Telephone Office: +255-22 2111136; Mobile: +255 784 782571, E-Mail:

Ms Joaquine De Mello, Vice President Tanganyika Law Society & Executive Director, P.O. Box 76026, Dar es Salaam, Tanzania, Tele/Fax:+255-22 2111780; Mobile: +255 784 7672 09, E-Mail:

Ms Stella Mutuku, East African Court of Justice, P.O Box 1096, Arusha, TANZANIA, Telephone +255-27-2506093, Mobile +255-787-273637, Fax +255-27-250609394, E-mail:

Justice Haile Abraha, President, Tigray Regional Supreme Court, Telephone +251 344 406043

Justice Desalegn Berhe, President, Federal First Instance Court, P.O. Box 6166, Addis Ababa, ETHIOPIA, Telephone +251 112 768594 (office), +251 911206656(cellphone), Fax +251 111116241, E-mail:- c/o

Hon. Hashim Mohammed Tewfik, State Minister of Justice, Ministry of Justice, Telephone +251 9 508197, E-Mail

Justice Louis-Marie Mugenzi, Judge, Supreme Court, B.P. 4316, Kigali, Telephone +250 08301027, Fax +250 578295, E-mail:

Lady Justice Angeline Rutazana, Judge, High Court, P.O. Box 2197, Kigali, RWANDA, Telephone (Mobile) +250 8 304496, E-Mail:

Hon. Jean-Marie Rugira, President of the Senate, Postal address: BP 814, Bujumbura, BURUNDI, Telephone +257 5113; +257 749 249; Fax +257 24 5114, E-mail:

Grégoire Nkeshimana, Vice Président de la Cour Suprême du BURUNDI, P.O. Box 1460, Bujumbura, BURUNDI, Téléphone +257/226101; Fax +257/213544, E-mail:

Mr. Jean Pierre Kisamare, Information Secretary, Iteka League, Bujumbura, Burundi, E-mail:

Justice Thirese Ntijinama, Judge of High Court, B.P. 1460, BUJUMBURA, Burundi, Telephone +257 220788 Office; +257 930132 Mobile, Fax: +257 225437, E-mail:

Mr. Francois Nyamoya, Secretary, Burundi Bar Association, P.O. Box 1017, Bujumbura, Burundi, Telephone private +257 228845; Office +257 222096, Mobile +257 931379; Fax: +257 221341, E-mail: or

Justice A K Tembo, Judge, Supreme Court, P.O. Box 30244, Chichiri, Blantyre 3, MALAWI, Telephone +265 1 870255/265, 9 510606; Fax +265 1 870213/870677,

Justice J.B. Kalaile, Judge of the Supreme Court, P.O. Box 30244, Chichiri, Blantyre 3, MALAWI, Telephone +265 1 870255/265 1 824784; Fax +265 1 870213/870677, E-Mail:

Justice R R Mzikamanda, Judge, High Court, Mzuzu, Malawi, E-mail:

Hon. Bazuka Mhango, MP, Minister of Justice & Constitutional Affairs, Ministry of Justice, Private Bag 333, Lilongwe, MALAWI, E-Mail:

Hon. Louis Joseph Chimango, MP, Speaker of the National Assembly, Private Bag B 362, Lilongwe, MALAWI, Telephone +265 9 330098

Hon. Atupele Muluzi, MP, Chairperson Legal Affairs Committee of Parliament, National Assembly, Private Bag B 362, Lilongwe, MALAWI, Telephone +265 9 330098, E-mail:

Mr. Mabvuto Hara, President Law Society, P.O. Box E 464, Post Dot Net, Blantyre, Malawi, Telephone +265 1 873 866/265; +265 8 839 699; Fax +265 1 873 866, E-Mail:

Mr. Kenyatta Nyirenda, Assistant Chief Parliamentary Draftsperson, Telephone +265 1 788411, E-mail:

Mr. Justice, J.D.G. Maritz, Supreme Court, P.O. Box 1901, WINDHOEK, Namibia, Telephone +264 811291011(cell); +264 61 279929 (w), Fax +264 61 224979 (w), E-mail:

Hon. Hafeni Ndemula, MP, Chairperson, Committee on Constitutional and Legal Affairs, National Council, Private Bag 13371, Windhoek, NAMIBIA, Telephone +264 61 2028147, Fax +264 61 2028146

Ms Auguste Shali, Parliament Official, Private Bag 13371, Windhoek, NAMIBIA, Telephone +264 61 2028147; Fax +264 61 2028146, E-mail:

Hon. Brigitte Mabandla, Minister of Justice, Ministry of Justice, Pretoria, SOUTH AFRICA

Mr. Zolile Ngayi, Minister’s PA, Ministry of Justice, Pretoria, SOUTH AFRICA

Justice Dlodlo, Judge, High Court, Cape Town Provincial Division, Telephone +27 21 480 2411, E-mail:

Justice Beckley, Judge, High Court, Free State Provincial Division, Telephone +27 51 447 8837, E-mail:

Justice Musi, Judge, Free State Provincial Division, High Court Bloemfontein, P.O. Box 13891, Noordstad, SOUTH AFRICA, Telephone +27 51 447 8837

Justice Tlaletsi, Judge, High Court, Northern Cape Provincial Division, Telephone +27 53 831 1617/780, E-mail:

Justice F.D. Kgomo, Judge, High Court, Northern Cape Provincial Division, Telephone +27 53 831 1617

Justice R.D. Hendricks, Judge, Bophuthatswana Provincial Division, Mafikeng High Court, Private Bag X2010, Mmabatho 2735, SOUTH AFRICA, Telephone +27 18 387 5374; Fax +27 18 392 1908, E-Mail:

Prof. Christina Murray, Head of Public Law Department, University of Cape Town, Cape Town, South Africa, E-mail:

Hon. Inka Mars, Member of Parliament, IFP, P.O. Box 15, Cape Town 8000 or 427 Currie Rd, Durban 4001, Telephone +27 21 403 3016; (mobile) +27 83 303 6037; +27 31 2093614 (home); Fax: +27 21 461 1440; +27 31 2072678, E-mail:

R. Schoemann, ANC Head Office, E-mail:

Dr. Werner Boehler, KAF Country Representative, Johannesburg, South Africa, E-mail:

Mr. Paul Hoffman, Centre for Constitutional Rights, Cape Town, South Africa, E-mail:

Mr. Jan Hofmeyr, Political Analyst, Institute for Justice and Reconciliation, 2A Berkley Street, Oranjezicht, Cape Town 8001, South Africa, Telephone +27 21 462 7462; +27 83 504 9668, Fax +27 21 763 7138, E-mail:

Katja Schramm, DDP, Cape Town, South Africa, E-mail:

Ms Christina Teichman, KAF, Cape Town, South Africa, E-mail:

Prof. Dr. Peter Schiwy, Attorney, Berlin, Germany, E-mail:

Mr. Reagan Kyalo Mwanza, Interpreter, P.O. Box 9038, Nairobi 00200, KENYA, Telephone +254 721 251348; 721 818735, E-mail:

Dr. Michael Nzunga, Interpreter, P.O. Box 9038, Nairobi 00200, KENYA, Telephone +254 721 251348; 721 818735, E-mail:

Mr. Omar Hiribae, Technician, P.O. Box 9038, Nairobi 00200, KENYA, Telephone +254 721 251348; 721 818735, E-mail:

Mr. Gerd Bossen, Director Rule of Law Program for Sub-Saharan Africa, P.O. Box 66471, Nairobi 00800, KENYA, Telephone +254 20 2725957; 2718035; 2718971, Fax +254 20 2724902, E-mail:

Mr. Peter Wendoh, Program Officer, Rule of Law Program for Sub-Saharan Africa, P.O. Box 66471, Nairobi 00800, KENYA, Telephone +254 20 2725957; 2718035; 2718971, Fax +254 20 2724902, E-mail:

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