The painful, dark side of separation of powers

SHARE   |   Friday, 23 June 2017   |   By Adam Phetlhe
The painful, dark side of separation of powers

Separation of Powers is a principle recognised and embraced by constitutional democracies the world over to principally stop encroachment of arms of government into each other’s sphere of operation. These arms of government are the legislature, the executive and the judiciary. As it is known, the legislature makes laws which are implemented by the executive and interpreted by the judiciary. All these meant to ensure that power doesn’t corrupt as it currently does. It would arise from the principle of Separation of Powers that whatever law is broken by the very legislature and the executive would be interpreted by the judiciary through a straightforward and telling manner. But this is abundantly not so if past and present trends are anything to go by. It is against the immediate preceding two judgements that this article seeks to debate the limitations and frailties of this principle with emphasis on its inability to direct the legislature where and when it appears to be violating its constitutional mandate. In doing so, I will rely on the judgement of the South African Constitutional Court delivered in April 2016 in which it pronounced that President Zuma had breached his oath of office. I am only using Zuma as an example relevant to this conversation. This indictment on Zuma one shudders to think, could be akin to treason whereupon decisive action was expected, desirable and pertinent. 

In the Constitutional Court judgement and correctly cognisant of the principle of Separation of Powers, the legislature was indirectly advised by the court to take action. It appears the judiciary cannot call politicians to order when they are in the legislature but can do so when they wear the executive hat on a stand-alone basis-that is, when acting as Ministers.  If Zuma was found by the court to have been in breach of his oath of office, it would be expected to have found him guilty and sentenced him in the ordinary course of court processes which unfortunately was not the case in this instance. In this instance however, and presumably in the minds and expectations of creators of constitutions, the legislature and to which Zuma is accountable, should have taken action against him. But it didn’t and appears not to be even interested to do so yet it has a constitutional power to do so. This is precisely my argument that Separation of Powers is found wanting in some respects – probably at the most crucial and critical stages of governance. Thomas Paine said in his influential pamphlet called ‘Common Sense’ that “For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other”. This brings my argument to how failure of Separation of Powers inevitably impacts another world acclaimed principle – The Rule of Law. The moment Separation of Powers grows cold feet to take action against Zuma for breaching his oath of office because that duty resides in the legislature which it (legislature) refuses to exercise, Zuma goes scot free because the legislature protects him. And this notwithstanding the fact that the court has made a finding on Zuma’s ‘intransigence behaviour’. The same thing applies to his colleagues in similar circumstances.  

Politicians in the form of MPs in Botswana and elsewhere have refused to hold the executive to account on a wide range of issues because they know that they are ‘protected’ by the principle of ‘Separation of Powers. They know that the judiciary cannot under constitutional democracy instruct them to tell us why Morupule B for example, which was financed by tax payers’ money and now being sold for a song, came to this point. In the interim, tax payers run the risk of being supplied with unreliable electricity supply probably at high tariff; corruption and abuse of office may have ensued in the process. These are issues which MPs should be dealing with. But again they are not yet aware that some wrongdoing has occurred under their watch. So as mwananchi (Swahili for ordinary persons) we are stuck with people who in all likelihood have committed criminal over and above constitutional offences which because they are members of the legislature, are untouchable due to Separation of Powers. In instances where the judiciary has given clear cut directions to the legislature on a particular matter before it, like when the South African legislature was expected to take action against Zuma over the oath issue, the ANC caucus like in other countries, congregated to specifically plot how to frustrate such a decision. That is why Zuma is still at his desk at the Union Buildings. There is nothing more the judiciary can do as of now. The EFF has approached the Constitutional Court complaining that the legislature has refused to take action against Zuma while the ANC is saying Zuma has apologised whereupon that should be enough and the end of the story. We will be watching the outcome. What could be done?

As the application of Separation of Powers stands as of now, politicians will continue to go away with murder. Like someone said the other day, “Power and control, it seems, are too tempting to resist”. With this power and control comes abuse of power and corruption between and amongst politicians let alone those close to them. The sophistication of engaging in corruption has become extremely rewarding, such that perpetrators will for as long as it takes, hang in there. This being the case, Separation of Powers should be viciously reformed to the point where the law could empower courts to direct the legislature to, like in Zuma’s case, remove him from office. Without any reforms, Separation of Powers and by extension the Rule of Law shall continue to be selective and discriminatory. Political parties use their majorities in the legislatures to promote and perpetuate a culture of non-accountability, protection of corrupt leaders at citizens’ expense. Surely, this state of affairs cannot be left unattended. Politics these days is no longer a voluntary service to citizens. It is a highway to defraud countries and this is why our leaders are obscenely hyper rich, not that they have worked very hard but because nothing stops them from looting. It may fairly be argued that some do face the law but most don’t.  And while the principle of Separation of Powers was conceptualised to address and deal with this conduct, it is increasingly becoming clear that it is overtaken by events. A substitute or a revamped principle is imperative more than ever before.

No principle will ever be ideal to save humanity but where shortcomings become as clear as day light, men and women who embrace the principles of Separation of Powers and The Rule of Law should stand and be counted. FIFA has reformed football with so many initiatives like goal line technology to make the game even more fairer. The High Court has come up with case management system to speed up justice delivery and stop forum shopping. Surely, politicians should be stopped in their tracks from abusing the noble principles for political expediency. Thomas Jefferson said “The time to guard against corruption and tyranny, is before they shall have gotten hold on us. It is better to keep the wolf out of the fold, than to trust to drawing his teeth and falons after he shall have entered”. With the current set up of Separation of Powers, it is difficult if not impossible to keep the wolf out of the fold and guard against corruption and tyranny. The above is the painful, dark side of Separation of Powers which somewhat renders to some extent the Rule of Law, inconsequential. Judge for Yourself!

*On a sad note, condolences to the Masire family and Batswana at large on the passing on of Sir Ketumile Masire. May His Soul Rest in Eternal Peace.