INTRODUCTION TO PUBLIC

ADMINISTRATION
PUB 124
• It is a separation of three main
spheres of government,
Legislative
Executive
TOPIC 4: DOCTRINE OF SEPARATION OF POWERS
and Judiciary.

Doctrine of Separation of Powers 6/9/2020

TOPIC 4: DOCTRINE OF SEPARATION

OF POWERS

By

Dr. Shillingi, Venance(PhD) Legislative authority – Is the

BPA-PSM; MBA-CM; PhD BA-SM power to make, amend and repeal
School of Public Admin. & Mgt (SOPAM)
law.
Mzumbe University
E-mail: sshtzone@gmail.com or Executive authority – Is the power
vshillingi@Mzumbe.ac.tz
Mobile: 0715885676/0787885676 to execute and enforce law.

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INTRODUCTION

The doctrine means that Judicial authority – Is the power;

specific functions, duties and
responsibilities are allocated to
distinctive institutions with a
defined means of competence
and jurisdiction.
Doctrine of Separation of Powers
if there is a dispute, to determine
what the law is and how it should be
applied in the disputes.
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The doctrine of separation of powers
means ordinarily that if one of the three
spheres of government is responsible for
the enactment of law, that body shall
not also be charged with their
execution or with judicial decision
about them.
Doctrine of Separation of Powers
Executive authority, it is not
supposed to enact law or to administer
justice
Judicial authority should not enact
or execute laws.
However, case laws (precedent) is an
exception for the judiciary
Doctrine of Separation of Powers
The origin of the doctrine of
separation of powers
oThe modern design of the doctrine of
separation of powers is to be found in
the constitutional theory of John
Locke (1632-1704).
oHe wrote in his second treaties of
Civil Government as follows:
Doctrine of Separation of Powers
"It may be too great a temptation for
the humane frailty, apt to grasp at
powers, for the same persons who have
power of making laws, to have also
in their hands the power to execute
them, whereby they may exempt
themselves from the law, both in its
making and execution to their own
private advantage”
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It is clear that he was
advocating the division of
government functions into
legislative, executive and
judicial.
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However it is the French philosopher
(jurist) Montesquieu (1689–1755)
who is usually credited with the first
formulation of the doctrine of
separation of powers.
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 • Montesquieu recognized the three
basic pillars of state authority,
which includes the executive,
legislature and the judicial
functions;
• These functions ought to vest in
three distinct governmental organs
with, in each instance, different
office bearers.
Doctrine of Separation of Powers
He supported his argument by saying:
‘All would be in vain if the same person,
or the same body of officials, be it the
nobility or the people, were to exercise
these three powers: that of making
laws, that of executing the public
resolutions, and that of judging
crimes or disputes of individuals’.
Doctrine of Separation of Powers
Montesquieu four basic principles:
i. The principle of trias politica,
which simply requires a formal
distinction to be made between the
legislative, executive and
judiciary components of the state
authority.
Doctrine of Separation of Powers
ii. The principle of separation of
personnel,
which requires that the power of legislation,
administration and adjudication be vested in
three distinct organs of state authority;
 and that each one of those organs be staffed
with different officials and employees,
that is to say, a person serving in the one
organ of state authority is disqualified from
serving in any of the others.
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iii.The principle of the separation of
functions which demands that:
• every organ of state authority be entrusted
with its appropriate functions only,
the legislature ought to legislate,
the executive to confine its activities to
administering the affairs of the state,
the judiciary to restrict itself to the function
of adjudication.
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iv. The principle of checks and balance,
requires that;
each organ of state authority be entrusted
with special powers designed to keep a
check on the exercise of functions by the
others in order that the equilibrium in the
distribution of powers may be upheld.
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The main objectives of the doctrine of separation of
powers
The main objective of the doctrine is
to prevent the abuse of power
within different spheres of
government.
In our constitutional democracy,
public power is subject to
constitutional control.
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Different spheres of government
should act within their boundaries.
The courts are the ultimate guardian of our
constitution, they are duty bound to
protect it whenever it is violated.
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• Montesquieu said in this regard:
If legislative and executive powers are
united in the same person, or in the
same body of magistrates there can be
no liberty; because apprehensions
may arise, lest the same monarch or
parliament should enact tyrannical
laws, to execute them in a tyrannical
manner.
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There is no liberty if the judicial power be
not separated from the legislative and
executive.
If Judiciary is joined with the legislative,
the life and liberty of the subject would be
exposed to arbitrary control; for the judge
would be then the legislator.
If Judiciary is joined to the executive
power, the judge might behave with
violence and oppression.
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Checks and balances on the doctrine of
separation of powers
The purpose of checks and balances is
to ensure that different branches of
government control each other
internally (checks) and serve as
counter weights to the power possessed
by the other branches (balances).
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Simply put, the aim of separation of
functions and personnel is to limit
the power;
the purpose of checks and balances is
to make the branches of government
accountable to each other.
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The most conspious example of a
check is the power of the judiciary to
review executive conduct and
ordinary laws for the compliance
with the Constitution and the Bill of
Rights.
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Relationship between the legislature and executive
The doctrine of separation of powers
dictates that the same person should
not be a member of both the
legislature and the executive.
The executive should not make laws
and the legislature should not execute
laws, through the same person
operating in both spheres.
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In Tanzania context, there is no
separation of personnel between the
legislature and the executive.
For instance, Ministers are also member
of Parliament.
Also, Parliament is made-up of the
President and National Assembly.
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Part of the reason is to enable the
legislative assembly to call on the
Ministers, as members of the assembly, to
explain and account directly for the way
in which a statute is executed and other
executive functions performed.
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Checks and balances: legislature over executive
The Executive derives its power from
the legislation and the Constitution.
The courts may declare invalid any
exercise of power by the executive that
is not authorized by law.
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Legislation is passed by the legislature
and may be amended or repealed by the
legislature.
The Constitution may also be amended by
Parliament.
In practice the power of the executive are
determined and may be circumscribed by
the legislature.
• Authorization of budget,
• scrutiny of Government expenditure;
• and questioning the Government in Parliament to account
for its actions.
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 Checks and balances: executive over
legislature
The executive is ultimately
responsible for the execution and
administration of all the legislation.
The President must assent to and sign
Bills before they become law.
Doctrine of Separation of Powers
Relationship between the executive and the
judiciary
In principle, the executive should not
resolve legal disputes between
individuals and the judiciary should
not execute laws or their own orders.
In many instances the doctrine of
separation of powers is the fountain of
the independence of the judiciary.
Doctrine of Separation of Powers
Independence requires that, the
judges should be impartial in the
sense that requires absence of
interference at an institutional level
and at the level of decision-making
by each judge.
Doctrine of Separation of Powers
Judicial functions performed by
the executive
In order to provide greater access to
justice, judicial functions are increasingly
entrusted to other tribunals, such as the
Conciliation, Mediation and Arbitration
(CMA) established in terms of the
Employment and Labour Relations Act
Other tribunals such as land tribunals
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Checks and balances: executive over
judiciary
The executive is mandated to execute
court orders, since the judiciary does
not have the power or personnel to do
so (courts & police).
Executive in fact appoints judges but
cannot remove them.
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Checks and balances: the judiciary over the
executive
The judiciary may review the conduct
of the executive either in terms of the
common law or statutory law.
The judiciary also swears in members
of the executive when they assume
office.
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The Judiciary stands between the
citizens and the state as a balance
against executive excesses or abuse of
power, transgression of constitutional or
legal limitations by the Executive as well
as the Legislature.
Doctrine of Separation of Powers
Relationship between the
legislature and the judiciary
No one should be a member of a
legislature and the judiciary.
Legislature should not fulfil
judicial functions and the judiciary
should not make laws
Doctrine of Separation of Powers
Judiciary law-making
The foundational principle is that
courts apply the law and do not make
it.
It has been stated, however, and it is
generally accepted, that courts in
fact do make law.
Doctrine of Separation of Powers
The legal principle or rules are applied to
facts in order to resolve disputes,
precedents are created and, in effect,
new rules are formulated.
This are called case laws
However, courts do not and should not
make law in any other situation.
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Checks and balances: legislative
over judiciary
If a court declares a statute invalid, in
theory, parliament may amend the
constitution to undo the court’s decision.
However, the legislation should not itself
be invalid for unconstitutionality.
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The courts, in order to function
properly, need sufficient funds which
are awarded as part of the budget by
the National Assembly.
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 Checks and balances: judicial
over legislative
Depending on their jurisdiction, may declare any
law which is inconsistent with the Constitution
invalid.
All Acts and decisions of Parliament are subject
to the Constitution and therefore to the review
power of the courts.
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This is why the Judiciary as the custodian of
the constitution is empowered to declare an
Act of Parliament as unconstitutional and
therefore null and void.
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Independence of the Judiciary
Independence of the judiciary is taken as one of
the indicators that a country is democratic.
It is the existence of courts of law commanding
the confidence of the people by their expeditious,
efficient, firm and impartial dispensation of
justice is desirable, if the laws passed by the
legislature are to be applied and upheld.
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Independence of the judiciary mainly consists of
the following important elements:
i. Security of judges tenure;
ii. Security of their emoluments
iii. None interference by the executive in the affairs
of the court; and
iv. Immunity of judges and magistrates from
prosecution and litigation.
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This is the reason why judges hold office not at
the pleasure of the executive.
 They cannot be removed except on grounds of
misconduct.
Also, only by special procedure laid down by the
constitution for removal of judges from office.
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Parliamentary Supremacy or
sovereignty
• Laws that had been enacted by the
Parliament cannot be questioned.
This is not possible in countries with written
constitutions incorporating a bill of rights.
In such constitutions a law passed by Parliament
is subject to the constitution.
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 Concluding remarks

The courts are empowered to declare laws Montesquieu’s thinking has served as
unconstitutional where they infringe the sound and brilliant practical
Bill of Rights. guidelines for the prevention of
Therefore in that context what is supreme concentration of power;
is the Constitution and the talk is on the  and its almost inevitable abuse in the
supremacy of the Constitution and not the hands of one individual or institution.
Parliament.
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The principle of sovereignty of Parliament

which is what actually predominant now
means that:
i. The Parliament can legislate on However, it is inherently impossible
anything and its powers are unlimited to achieve an absolute separation.
except by the Constitution; and
This is where space exists for
ii. Once the Parliament has legislated legitimate variation in accordance
nobody can question that law unless it
with peculiar circumstances of each
is against the Constitution.
case.
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The Organs of the state outlined in

the constitution.
Hence, there is no clear-cut
The constitution of Republic of Tanzania, 1977 recognize
the three arms of the state.
demarcation between exercise of
The 1977 Constitution has been amended several times. legislative and executive authority.
The most significant one are the Fifth Amendment,
which incorporated the Bill of Rights in the constitution.
 The overlap, like in many other
The incorporation of the Bill of Rights removed the jurisdictions, is often justified on the
concept of parliamentary supremacy as the courts were basis of the need for effective checks
now enjoined and empowered to declare an Act of
Parliament or part of it as unconstitutional and therefore and balances.
null and void.

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This marks the end of our
presentation!!

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