Constitutional law utilizes the principle of separation of powers and in its classical sense,

this principle of separation of powers requires that, as a guarantee for the liberty of the
individual, political power should not be concentrated in one individual or organ of
government. Although Zimbabwe has adopted the principle of separation of powers, it
has not fully embraced the strict separation of functions of government into different
organs and individuals hence it is difficult to achieve the ideal of separation of power
and that is what the writer is going to discuss below.

Montesquieu (1966) defines Separation of powers as the division of

responsibilities into distinct branches to limit any one branch from exercising the core
functions of another.

The principle of separation of powers says that they ought to be three organs of state
namely the Legislature which is the organ that makes law, the Executive organ for
the implementation of law and the Judiciary organ which interprets it1. The three
organs of the state namely the executive, the legislature and judiciary are
enshrined in terms of sections 88,116 and 162 of the Constitution of Zimbabwe
Amendment [No 20] Act 2013 hereinafter referred to as the Constitution of
Zimbabwe.

According to section 3(2)(e) of the Constitution of Zimbabwe, the principles of good

governance binds the state and all institutions and agencies of government at every
level include observance of the principle of separation of power. 2 Despite of this
principle being observed in Zimbabwe, it is not being fully embraced in its strict sense;
state organs are found encroaching into the functions of the other contrary to the
concept thus making it difficult to achieve the demands of this principle.

To buttress further, the composition and the functions of the Executive which are
enshrined in Chapter [5] of the Constitution of Zimbabwe Amendment [No 20] put the
arm on the helm. The Executive arm of government is composed of the President and
his Ministers who control the Defence Forces, the Police and the civil administration,
1
L. Madhuku (2010) An introduction to law in Zimbabwe: Frerdrich Ebert Stifung, Weaver Press page 44
2
Section 3 (2)(e) of the Constitution of Zimbabwe Amendment (No 20) Act 2013

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they also represent the country in its dealings with foreign governments and generally
they are responsible for running the day-to-day affairs of the country. The ultimate
authority of the executive functions of the state is vested in the President, who
exercises most of his functions through the Cabinet 3.

The writer submits that it is difficult to achieve separation of power since the executive
branch wields more power than other arms of government given that the president is
the most visible leader for the nation.  Furthermore, the president has sole power to
appoint Vice Presidents and Ministers. 4 Also the President has influence in the
appointment of ambassadors, to enter into international treaties, to proclaim martial
law and to declare war5.

It is also difficult to achieve the ideal of separation of power since the Executive has
influence in the Judiciary as evidenced by the appointments to the Judiciary services of
the Chief Justice, the Deputy Chief Justice of the High Court and all other Judges by the
President.6 Also the President appoints the Attorney General as provided in the
Constitution of Zimbabwe.7 The independence of the judiciary from the other two arms
of the state is the cornerstone of the theory of separation of power nevertheless, the
usurpation of power by executive arm upsets the principle of separation of power.

The President has powers to appoint members of the Executive, namely Cabinet
Ministers and administrative officers such as public servants 8. The President has also
powers over the security forces, namely the Defence Forces and the Police. Also the
fact that president’s exercise of his discretion to ‘deliberate judgement’ in performing
tasks permitted by the Constitution cannot be questioned in a court of law. According
to PF ZAPU v. Minister of Justice9 there are certain prerogatives exercisable by the
President that are beyond the jurisdiction of the courts. These are very few for example
3
Ibid see section 88 (2)
4
Ibid see section 92 & 194
5
Ibid see section 110 & 111
6
Ibid see section 180
7
Ibid see Section 114
8
Section 104 of the Constitution of Zimbabwe Amendment (No 20) Act 2013
9
ZAPU v. Minister of Justice 1985 (2) ZLR 313
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his choice of a minister, a policy decision to make secret certain issues. In that case
Dumbutchena CJ classified the exercise of power by the President into two categories,
namely prerogatives which are not subject to review and prerogatives which are subject
to judicial review on the usual grounds. It is a clear that practically the separation of
power is difficult to achieve since the Executive has more power than the other arms of
government.

According to our supreme law in Zimbabwe, the executive arm has the responsibility to
initiate policy and in that regard it is empowered to propose laws for consideration by
Parliament. On the other hand the President has extensive legislative powers
conferred on them by various Acts of Parliament like the Presidential Powers
(Temporary Measures) Act, which allows the him to make regulations on virtually any
subject, if he thinks urgent action is needed in the general public interest. This is a
clear indication that the Executive branch has power to influence other arms of
government thereby making it difficult to achieve the separation of power.

Also to buttress this notion is the fact that for a law to be said to be a law made by the
legislature in Zimbabwe, it must be passed by the requisite majority in both houses of
Parliament and should be assented to by the president before it becomes law. 10 This
stage of the Presidential assent in the law making process in Zimbabwe makes the
president very much part of the legislature. This therefore denotes that the president
has great influence in the legislature, against the doctrine of separation of powers
thereby making it difficult to achieve the ideal separation of power.

Furthermore the Constitution of Zimbabwe gives the Executive more powers than the
other arms of the government through Presidential Immunity in which the President
while in office is not liable to civil or criminal proceedings in any court for things done or
omitted to be done in his or her personal capacity. 11 Also in Zimbabwe we have seen
the Executive shielding its members such as Cabinet Ministers, Security Commanders
10
Ibid see section 131 (2)
11
Ibid see Section 98
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from being prosecuted. This is a clear indication that separation of power is really
difficult to achieve.

According to Jonathan Macey (2006), the executive branch possesses significant

power to affect policy unilaterally both in the implementation of laws and in the
preemption of legislative activity through the use of executive orders, proclamations,
and memoranda. President also acts entrepreneurially as well as unilaterally and can
preempt legislative action by acting first. Recent Presidents in the world have acted
entrepreneurially to affect the law in a range of policy areas. For example, United States
of America former President Bill Clinton issued executive orders to bar federal contracts
with companies that permanently replace striking workers and to prohibit the federal
government from discrimination against workers on the basis of sexual orientation. This
clearly shows that the ideal of separation of power is very difficult to achieve not only in
Zimbabwe but globally.

In the case of Commercial Farmers Union v Minister of Land12, after the

court had interpreted that land reform was not in line with the Constitution but
the Executive went on to overturn the decision by the Courts by enacting a law
legalizing land reform. This shows that the Executive overrides decisions which
are made by others arms of government thus making it difficult to achieve the
ideal notion of separation of power.

Although on the other hand, the branch of Legislative has powers since they can make
the laws of the land and powers to amend the Constitution 13. The legislature also have
powers to summon the Executive members such as Cabinet Ministers to appear in
Parliament for example of Minister of Home Affairs Obert Mpofu appeared before a
Parliamentary portfolio chaired by Hon Temba Mliswa. Furthermore, the legislature has
power to remove the President or Vice President for serious misconduct, failure to obey
or defend this constitution or willful violation of the constitution. 14 Also when the
12
Commercial Farmers Union v Minister of Land ZLR (1) 2002
13
Ibid see section 117 (a)(b)
14
Ibid see Section 97
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President resigns, he tender his resignation letter to the Speaker of Parliament as was
the case with the former President of Zimbabwe, Robert Gabriel Mugabe when he
resigned from office last year. However, this is not enough to say that separation of
powers can be achieved because the executive wields more power to an extent that the
President is the dominant figure in all arms of the government.

The same with the Judiciary arm of government which has powers to interpret the law,
something that the Executive and Legislature cannot do. An Act of Parliament which
contravenes the Constitution can be declared unlawful by the Supreme Court. S v
Ncube Ors “Corporal punishment was declared unlawful because it contravened
Section 51 of the Constitution of Zimbabwe , which protects human dignity.” 15

This power of the Supreme Court puts Judiciary branch in a secure position to exert
checks and balances on the powers of the Executive and the Legislature. Also the fact
that the President and his Vice Presidents take the oaths of office before the Chief
Justice means Judiciary has certain powers. 16 However, this is also not enough to say
that separation of power can be achieved because the President who is the member of
the Executive is the one who make appointments in the Judiciary system.

In conclusion, the writer submits that this ideal or notion of the separation of power is
difficult to achieve since the order of the Constitution of Zimbabwe gives more powers
to the Executive arm of government. Constitutional provisions are evident to show that
the executive wields more powers than the other arms in the government. The
surfacing of the Executive as the pivot of power within the government upsets the
traditional balance of powers among the three branches of government.

References

Books

L. Madhuku (2010) An introduction to law in Zimbabwe: Frerdrich Ebert Stifung, Weaver

Press
15
S v Ncube Ors 1987 (2) ZLR
16
Ibid see Section 94
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Macey, Jonathan R. (2006), "Executive Branch Usurpation of Power: Corporations and
Capital Markets, Faculty Scholarship Series.

Baron de Montesquieu -The spirit of the laws (Translated by Franz Newman) 1966

Acts

Constitution of Zimbabwe Amendment (No 20) ACT 2013

Case laws

Commercial Farmers Union v Minister of Land ZLR (1) 2002

S v Ncube Ors 1987 (2) ZLR
ZAPU v. Minister of Justice 1985 (2) ZLR 313

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