Spirit of the laws, montesquieu distinguishes between the legislative power, the executive power and what he calls the power of judging, the judiciary. It is the focus of the research to determine zambias levels of implementation of the. This doctrine was introduced by a french philosopher named baron montesquieu in 1748. Doctrine of separation of power, role of judiciary, independence of judiciary, theory of check and balance, constitution law, administrative law, montesquieu on separation of powers. Indeed, the system of checks and balances acts as a sort of sentry over the separated powers, balancing the authorities of each branch of. The government which comprises of parliament, judiciary and executive is clearly saving the same people and for the same interests.
Although the zambian constitution clearly separates the three branches of government, several articles impend, the genuine practice of separation of powers. The doctrine of separation of powers jaba shadrack. An organizational structure in which responsibilities, authorities, and powers are divided between groups rather than centrally held. Separation of powers, independence of the judiciary and good governance are the key concepts used in this paper and that need to be revisited briefly before assessing their respect and promotion in au member states. Article specifically states that this constitution is the supreme law of zambia and if any other law is inconsistent with this constitution that other law shall, to the extent of the inconsistency, be void. It is lord diplock, one of the commonlaw worlds most significant judges, who in the british case of duport steels ltd v sirs 1980 stated, the british constitution, though largely unwritten, is firmly based on the separation of powers. Parliament makes the law, the executive implements the law while the judiciary interprets the law. Today, the separation of powers is more often suggested as a. Any government whose authority and construction are defined by a constitution.
Sharing power and checking one another the system of separation of powers divides the tasks of the state into three branches. An overview congressional research service 1 introduction congresss role and operation in national politics is fundamentally shaped by the design and structure of the governing institutions in the constitution. In understanding the concept of separation of powers one. Current challenges for the doctrine of the separation of powers. Theres no separation of powers in zambia the mast online. What montesquieu taught us is that there are three functions of government, or three powers. In this analysis, separation of powers as a model of governance for democratic states is discussed. Parliament makes the laws, the judiciary interprets them. The concept of separation of powers is nothing new to the constitutions written in the postcolonial period. Nevertheless, the separation of powers in zambia is a fallacy, and what exists instead is partial fusion of the executive and legislature. The challenge of constitutionalism and separation of. The judiciary also known as the judicial system in the system of court that interprets. In the zambian doctrine of separation of powers, each branch of government has a distinct role to play and no one branch should interfere in the others function. Zambia copied the idea of separation of powers from the united kingdom and other modern countries.
The present paper discusses doctrine of separation of powers. The republic of zambia has a population of just less than million. Sms of the day i know namibia is a peaceful country. The separation of power is a method of removing the amount of power in any groups hands, making it more difficult to abuse. Zambia social science journal volume 2 number 1volume 2, number 1 may 2011 article 3 512011 judicial reform, constitutionalism and the rule of. Power should be given to the people in the region to choose their leaders. It is generally accepted that there are three main categories of governmental functions i the legislative, ii the executive, and iii the judicial. This essay will begin by giving a brief description of the concept separation of powers. Under the doctrine of separation of power it is the one of the three. Pdf on jan 7, 2017, thembani mbadlanyana and others published changing. The doctrine of the separation of powers assumes that power corrupts and separation of powers is essential to liberty and. The challenge of constitutionalism and separation of powers. Former evangelical fellowship of zambia executive director bishop paul mususu says the suspension of the three supreme and high court judges confirms the need for. Separation of powers, independence of the judiciary, and.
Legislative or lawmaking power in zambia vests in parliament which, in terms of article 62 of. Separation of powers and protection of human rights in the. The system of separation of powers divides the tasks of the state into three branches. Under this model, a states government is divided into branches, each with separate, independent powers and responsibilities so that powers of one branch are not in conflict with those of the other branches. Such a separation limits arbitrary excesses by government, since the sanction of all three branches is required for the making, executing, and administering of laws. Advising concourt not to do what the high court in kenya did does not sound like upholding the doctrine of separation of powers. Does the principle of the separation of powers have any meaning over and above. The power to determine whether legislation is inconsistent with the constitution is vested in the courts article 91. Law association of zambia laz president eddie mwitwa speaks at a public discussion forum organized by news diggers. The creation of an independent supreme court and dismantling of the manyfaceted office of lord chancellor have unpicked some aspects of the fusion of powers. Rather it requires a system in which the risks of a concentration of powers, 1 governance relates to decisions that define expectations, grant power or verify performance.
The emergence of the doctrine can be located within the western political tradition. One of the key principles of the constitution is separation of powers. It was held that the major institutions should be divided and dependent upon each other so that one power would not be able to exceed that of the other two. Esprit des lois spirit of laws published in 1748, for the first time enunciated the. Powers of government are divided among three branches of government. Indeed, the recognition that a political system that is based on representation, on the decentralization of power from a single individual, is usually the first element in.
The spirit of the laws, the separation of powers is intended to guard against tyranny and preserve liberty. The constitution of zambia makes provision for constitutional supremacy. Separation of powers, independence of the judiciary, and good governance in african union member states. His publication, spirit of the laws, is considered one of the great works in the history of political theory and jurisprudence, and it inspired the declaration of the rights of man and. Are the current zambian constitutional provisions sufficient in.
What is the doctrine of separation of powers in zambia. Awolich summary the republic of south sudan, although fairly nascent as an independent state, aspires to become a democracy that embraces constitutionalism. Each function of government must not exercise the power of another. However, it has to be concluded that, montesquieu put down his theory of the separation of powers in the british constitution. But political interference in the duties of the three organs of the state, has become a serious impediment to the actualization of the principle of rule of law and separation of power. Separation of powers has been the desire of all democratic countries, even though is a desire to have separation of powers, it is often seen on paper rather than in practical sense. The doctrine focuses on nurturing the values of good governance.
With this in mind, and mindful of the context of zambias current reform debate, i would like to address several interrelated issues. The doctrine of separation of powers is at the centre of modern democratic principles of governance. The challenge of constitutionalism and separation of powers doctrine in south sudan abraham a. The doctrine of separation of powers in uganda is a form of government that is similar to the us government model.
Supreme court its apparent that in zambia we a have no separation of powers, we just have manipulation of powers. However, this academic writing endeavours to discuss article 93, 76, 44 clause 5. In the zambian doctrine of separation of powers, each branch of government has a distinct role to play and no one branch should interfere in. The zimbabwean experience does not always live up to this standard, however. There in fact have been gross violations of this doctrine. Pdf changing deployments of the separation of powers principle. Separation of powers independence of the judiciary, and good governance revisited. Separation of powers and the new zimbabwean constitution. What is the origin of separation of powers in zambia answers. Separation of powers an indian perspective by khushi. The doctrine of separation of powers meant that the power of government should be divided up into legislative, executive and judicial.
In the last decade the concept of a separation of powers has evident in a number of policy initiatives. Judicial reform, constitutionalism and the rule of law in. In partnership with the open society initiative for southern africa osisa at southern sun hotel on september 11, 2018 picture by tenson mkhala. And they are doing it not with undereducated people but using learned. The official language is english and there are over 70 local languages and dialects.
The principles of separation of power and rule of law are quite cardinal in a democratic state like zambia. Separation of powers was developed to guard against abuses of power and the danger of tyrannical government. The essence of the separation of powers is that the responsibilities for the three main functions of government should be divided between separate but dependant institutions so that no one of these can dominate or function effectively. The separation of judicial power became prominent in montesquieus 1748 account on the separation of powers. Zambias initial constitution was abandoned in august 1973 when it became a oneparty state. Specifically, the system of checks and balances is intended to make sure that no branch or department of the federal government is allowed to exceed its bounds, guard against fraud, and allow for the timely correction of errors or omissions.
This principle is a bedrock of zambias constitutional order. The separation of powers in a democracy is to prevent abuse of power and to safeguard freedom for all. Separation of powers, division of the legislative, executive, and judicial functions of government among separate and independent bodies. The doctrine is aimed at preventing arbitrary power and ensuring political liberty. Literacy rates are approximately 61% for women and 82% for men. The zambian constitution in article 1 provides that this constitution is the supreme law of zambia and if any other law is inconsistent with this constitution, that law shall to the extent of the inconsistency, be void. The constitution of the second republic provided for a oneparty participatory democracy, with the united national independence party unip the only legal political party.
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