WORKSHOP G - SEPARATION OF POWERS
Delegates at the Workshop
treatise is more about how power is being wielded instead of who is wielding it. As the Legislature is the only arm of government which the people directly choose, it has to be constitutionally supreme or democratic government will not exist. He also advised Parliamentarians to view the Civil Servant as their friend, recognize their skills and treat them with respect.
Distinguishing between the judicial function being essentially retrospective, formative and specific, he contrasted this with the legislative function which is prospective, prescriptive and general, based on an analysis from New Zealand MP, Dean Wells. He was of the view that what needs to be appreciated is that the doctrine was ideally a theory of government, the major objective of which is the facilitation of good governance by appropriate specialization. Mr Carrington stressed Parliamentarians need to put the doctrine into its proper context as an ideal of good government and to use it as a basis for the adoption of structures, processes and controls which protect liberty now and in the future.
He stated that the positives of the
doctrine far outweigh the negatives. Some of the positives include:
• Convention of the independence of the Judiciary; and • Presence of conventions which govern what is a matter for Cabinet and what is a matter for Parliament. • Some of the negatives of the ap- plication of the doctrine include: • Centralization of too much power in the hands of the Prime Minister; and • The spectre of the separation of functions but not of personnel.
What is of critical importance is that, irrespective of whatever system is being utilized, it should be fair within the context of the system of government. He concluded on a rhetorical note asking participants “generally speaking, although more needs to be done, the doctrine has ensured such fairness to date – or has it?”
Justice Charles Mkandawire focused his presentation on the Commonwealth (Latimer House) principles which were adopted by Commonwealth Heads of Government in Abuja, Nigeria in December 2003. He stated that at
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this juncture we should be reminded as to what has become of these principles in our respective sub- regions and countries. He was of the opinion that the purpose of good governance is the progressive well- being of the people (development) and the prevention of concentration of power in one Branch of government. The ultimate focus should be on how best to serve the people. He stated that the antiquated doctrine of separation of powers has never been a correct reflection of politics and there is more cooperation than separation amongst the three branches of government. It is in this context that the Latimer House Principles use the term “relationship between the three branches.” It is however clear that most States have entrenched constitutional democracy where all state organs is subject to constitutional imperatives. This has led to what constitutional experts call the doctrine of constitutional supremacy. The principles specify that:
• Each institution must exercise responsibility and restraint in the exer- cise of power within its constitutional sphere so as not to encroach on the
legitimate power vested constitution- ally on other institutions.
He focused on the independence of the Judiciary and its responsibility to interpret and apply national constitutions and legislation to secure the following aims:
• Judicial appointments should adhere to clearly declared criteria and be transparent; • Provisions for the security of tenure and remuneration; • Adequate resources should be provided; • Judicial officers should be subject to suspension or removal only for reasons of incapacity or misbehav- iour; and • Court proceedings should be in public, unless the law or overriding public interest otherwise dictates.
In the oversight of government, the promotion of zero tolerance for corruption is vital to good governance. Steps that can be taken to encourage this include the establishment of scrutiny bodies such as Public Account Committees and the Ombudsperson. The promotion of government’s transparency and
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