FUNDAMENTAL PRINCIPLES OF CONSTITUTIONAL LAW

THE DOCTRINE OF SEPARATION OF POWERS AND CHECKS AND BALANCE

INTRODUCTION

In every country there is a constitution be it written or unwritten, the constitution of a country

setup the state and the government in power. It is expected that in every modern constitution that
the constitution of that country will provide or establish three organs of the state or three powers
of the state. These organs are the executive, legislature, and the judiciary. All these three organs
functions in the way to achieve to ach betterment of the citizens or people in the country. In so
doing the functioning of these organs must follow certain principles and one of those principles
is the doctrine of separation of powers and checks and balance.

THE DOCTRINE OF SEPARATION OF POWERS

Separation of powers is the system of dividing powers and duties of the government into
different branches. It is the system established in the constitutional law which gives each organ
of the state different responsibility, functions and keeping one organ away from another organ. It
is the constitutional law principle which distributes and allocates powers of the organs of the
state in different branch and limiting or prohibiting one organ to perform or to call out the
functions of other organs. The logic behind separation of powers is to avoid possibility of one
organ of the state to become too powerful and hence endangers freedom of individuals or rights
of the individuals. Therefore; the doctrine of separation of powers requires that in every country
there is three organs of the state which are the executive, judiciary, and legislature. Then each of
these organs of the state should be separated from each other in terms of their functions. This
means executive should perform executive functions and not legislature and judicial functions,
legislature should carry out legislative functions and not executive functions and judicial
functions. Also, judiciary should perform judicial functions and not legislative or executive
functions.

It is acceptable worldwide that in every state there are those three organs of the state recognized
by the constitution. However there are other countries which their constitutions provide five
organs of the state instead of three organs of the state. The best example is the constitution of
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Costricka of 1949. This constitution establishes five organs of the state in Costaricka and those
organs are; Legislature, Executive, Judiciary, Supreme Election Tribunal, and Controller Audit
General (CAG).

FOUNDATION OF THE DOCTRINE OF SEPARATION OF POWERS

It is populary or generally accepted that the doctrine of separation of powers was firstly
propounded by liberal constitutional philosophers who are John Locke and Charles
Montesquieu. However; in critical review or study of the foundation of the doctrine of
separation of powers shows that the first profounder of the doctrine of separation of powers in
the world was Aristotle in his book titled “Politics Book Four”.

JOHN LOCKE’S FORMULATION OF THE DOCTRINE OF SEPARATION OF

POWERS

In the year 1690 John Locke in his work known as “On Civil Government” and writes as
follows;

“…That a government can only function effectively and justly if the three functions or the three
powers of the government are independent of each other…”

In his book John Locke mention the three functions or powers of the government which must be
independent of each other. The three organs or powers are executive, legislature and judicial
powers. Then John Locke explains functions of each of these organs. In as for the executive John
Locke contends that it has two types namely; the executive powers and the federative powers.

Executive powers is concerned with the execution of municipal laws while federative is
concerned with making of war and peace and controls the external relations of the state. Since
the executive and federative powers are closely linked to each other they should be executed by
one institution i.e. the executive.

CHARLES MONTESQUIEU FORMULATION OF THE DOCTRINE OF SEPARATION

OF POWERS

It is believed that the formulation of the doctrine of separation of powers by Charles

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Montesquieu is the most modern and acceptable one. This doctrine by Charles Montesquieu is
found in his book titled “Esprit Des Lois” which was written in France but in English is
translated to mean “The Spirit of Law Book IX” in his book Charles Montesquieu writes as
follows;

“…In every state there are three kinds of powers that is the legislature power, the power
executing the matter falling within the law of the nations and the powers executing the matters
falling within the civil law…”

He continue to write through the first power, the prince or magistrate makes the law for the time
being or for all time and amends or repeals those previous made. Through the second, the
magistrate makes wars and peace, sends ambassadors, establishes order and prevents inventions.
Through the third power, the magistrate punishes criminals and crimes and judges the disputes of
private individuals. He concluded by saying the first power is called the legislative power, the
second is known as the executive power, and the last is called judicial powers.

SIGNIFICANCE OF SEPARATION OF POWERS BY CHARLES MONTESQUIEU

Montesquieu believed that separation of power as he propagated is the most perfect for the
protection of liberty of individuals or the people. In emphasizing this Montesquieu writes as
follows;

“…When the legislative power is united with executive power in the same person or body of
magistrates there is no liberty. This is because it is to be feared that the same monarchy or
senate will make tyrannical laws in order to execute them tyrannically…”

There is no liberty if the judicial power is not separated from the legislative power and from the
executive power. If the judicial power is joined with the legislative power, the power of the life
and liberty of an individual or of the citizen would be arbitrary. This is because the judges would
be the legislators. If they are joined to the executive powers the judges would have the strength
of oppressors. All would be lost if the same man or the same body of chief or citizen or the
nobility or the people exercise these three powers that is making laws, that is of executing public
decisions and that is of judging the claims or the disputed of private persons.

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CRITICISMS ON CHARLES MONTESQUIEU’S SEPARATION OF POWERS

It is accepted that the doctrine of separation of powers by Charles Montesquieu is the most
perfect constitutional doctrine on significance and importance of separation of powers. However
several constitutional philosophers or lawyers have criticized Montesquieu on the way he has
formulated the doctrine of separation of powers. There are three major areas of criticism on the
doctrine of separation of powers formulated by Montesquieu. These are as follows;

a) Failure of Montesquieu to formulate separation of powers with reference to the Constitution

of Britain or England of 18th C. That Montesquieu formulation of the doctrine of separation
of powers are tries to make reference to the constitution of England while in reality there is
no separation of powers according to the British Constitution.

b) Montesquieu made a mistake by failure to appreciate the scope/extent of the powers of the
executive. To Montesquieu the executive organ of the state has power of executing matters
falling within the law of the nation such as making wars and peace, sending and receiving
ambassadors, establishing orders and preventing inventions. In reality executive organs of a
nation has more power than these ones explained by Montesquieu.

c) Failure of Montesquieu to make thorough analysis of the British constitution in relation to the
doctrine of separation of powers.

INTERPRETATION OF THE DOCTRINE OF SEPARATION OF POWERS

Since the publication of the book by Charles Montesquieu on separation of powers, the doctrine
has been a subject of discussion by the lawyers. Through those discussions the doctrine has
undergone several modifications. These modifications have been given out by several lawyers in
the way to interpret and explain the doctrine of separation of powers. Some of those lawyers are
the following:

I. EXPLANATIONS BY WADE

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Wade is one of the renowned English constitutional lawyers who wrote many books on
constitutional law. In one of the books Wade explains the doctrine of separation of powers.
According to him the doctrine of separation of powers means three different things as follows;

a) That one person shouldn’t form part of more than one of the three organs of the state.

Examples:

 The ministers who are the members of executive organ shouldn’t be a member of the
parliament and shouldn’t be judges or members of the judicial personnel.

 Judicial personnel who are members of judicial organ shouldn’t be a member of executive
organ or members of parliament.

b) That one organ of the state shouldn’t control or interfere with the exercise of the functions of
the other.

Examples:

 Ministers shouldn’t be able to control the parliament likewise the members of parliament
shouldn’t be responsible to the executive.

 Judicial personnel shouldn’t be responsible to the executive or legislature.

c) That one organ of the state shouldn’t exercise the functions of another organ of the state.

II. EXPLANATIONS BY MADISON

Madison is an American constitutional lawyer who explains the doctrine of separation of powers
in the following explanations;

“…He says in arguing for separation of powers Montesquieu didn’t mean that those departments
(organs) ought to have no control over the act of each other. The meaning of Montesquieu on
separation of powers is that where the whole power of one department (organ) is exercised by
the same hands which possess the whole power in another department the fundamental
principles of a free constitution are threatened…”

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III. EXPLANATIONS BY GRIFFITH & STREETS

Griffith and Streets are also American constitutional lawyers, according to them separation of
powers means the appeal of dispersal of the state powers among many hands. The essence of
separation of powers is to prevent tyrannical of the organs of the state by conferring enormous
powers into one organ of the state. Therefore doctrine of separation of powers should be
construed to mean proportionate distribution of state powers into three organs of the state which
avoids one organ to become more powerfully than the other.

THE DOCTRINE OF CHECKS AND BALANCE

The doctrine of checks and balance is the system which is imposed by the constitutional law
which allows one organ to look at (to check) and control or limit (balance) the functions of other
organs. The doctrine of checks and balance is an addition of the doctrine of separation of powers
and it was introduced in order to support or nourish the doctrine of separation of powers. Checks
and balance doctrine was firstly introduced by English constitutional lawyer Phillips wade.

THE BASIS FOR CHECKS AND BALANCE

Phillips Wade introduced the doctrine of checks and balance because he realized that a rigid
separation of powers would paralyze the state. Again he says separation of powers doesn’t mean
that organs of the state are disunited rather than they are united. So in order to avoid the state to
paralyze and in order to avoid state organs to be disunited from each other, checks and balance is
necessary.

APPLICATION OF THE DOCTRINE OF SEPARATION OF POWERS AND CHECKS

AND BALANCE IN THE WORLD

IN THE UNITED KINGDOM (ENGLAND)

The doctrine of separation of powers has not been easily and whole by the English constitution.
This means there is no complete separation of powers in England. The absence of complete
separation of powers in England is contributed by the fact that in England there is unwritten

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constitution therefore as far as general rule all countries with unwritten constitution has no
complete separation of powers.

INDICATORS OF ABSENCE OF SEPARATION OF POWERS IN ENGLAND.

i) The monarchy who is the executive is the head of the legislature. Again the monarchy is part
of the judiciary.

ii) The Prime Minister who is the head of the executive and ministers who are part of the
executive are members of the legislature. These ministers are also vested with powers to
make statutory instruments or laws.

iii) Lord Chancellor of England who is the speaker of the legislature of England is also a cabinet
member of executive. Likewise Lord Chancellor is the most senior judge in the House of
Lords.

iv) Parliament of England makes decisions in parliamentary privileges. (House of Lords are a
part of judiciary and also part and parcel of parliament of England). Recent decision of the
House of Lords was given in the case of Thorne v. Majors and Others (2009) UK, House of
Lords.

CHECKS AND BALANCE IN ENGLAND

There is the doctrine of checks and balances in England, the following are the indicators that
show the presence of checks and balance in England.

i) Parliament can force the Prime Minister and ministers to resign and this happens by passing
of the vote of no confidence against the prime minister or minister.

ii) Judiciary can review the abuse of powers by the executive in making statutory instruments or
judicial decisions.

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iii) The legislature can remove judge from the office for misbehaviour.

iv) The monarchy may refuse to assent the bill passed by the legislature.

SEPARATION OF POWERS IN THE UNITED STATES OF AMERICA.

It is argued and believed that the constitution of the United States of America of 1787 is ideal
example of constitution of the world which adheres to the doctrine of separation of powers. This
constitution expressly and practically provides for the doctrine of separation of powers as well as
checks and balance.

INDICATORS OF THE DOCTRINE OF SEPARATION OF POWERS IN UNITED

STATES OF AMERICA

THE EXECUTIVE

In the U.S.A the executive powers in whole vested on the president of U.S.A being assisted by
his cabinet together with heads of chief departments. Cabinet members and heads of chief
departments are personally responsible to the president for whole of affairs of their departments
and ministries. The president, cabinet and head of chief departments are neither members of the
legislature nor member of the judiciary. Separation of executive from the legislature and
judiciary is provided under Article 1(1) of the Constitution of U.S.A of 1787.

LEGISLATURE

The legislature of U.S.A is of two houses i.e. house of representatives and senate. Both of these
houses of the legislature are known collectively known as the congress. According to U.S.A
constitution the president and the cabinet are not direct members of the congress as per Article
2(1) of the Constitution of U.S.A of 1787.

JUDICIARY

Under the U.S.A constitution the judiciary of U.S.A is a separate and independent from the two
other organs of the state. The constitution setup of U.S.A guarantees full independence of
judiciary and separation of judiciary of U.S.A. from other organs of the state. The judiciary of

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U.S.A is composed of the Supreme Court which is the highest court being assisted by lower
court at federal level and other court in each of the province. Separation and independence of
judiciary of U.S.A is provided under Article 3(1) of the Constitution of U.S.A of 1787.

CHECKS AND BALANCE IN UNITED STATES OF AMERICA

Even if it is argued that the U.S.A constitution adhere to complete doctrine of separation of
powers still there is thin or few areas of interference of one organ over the other by way of

checks and balance.

THE JUDICIARY OVER THE LEGISLATURE AND EXECUTIVE

The judicial organ of U.S.A has power to declare actions of the executive or to declare the law
enacted by the legislature unconstitutional. So the supreme court of U.S.A has power to check
and control or limit the functions of the executive and the legislature as per Article 3(2) of the
Constitution of U.S.A of 1787.

EXECUTIVE AND THE LEGISLATURE

Although the president of the United States of America is the part of the legislative process by
ascertaining the bill to become law, that power of the president is limited by the congress or by
the legislature itself. This means if the congress enacts the bill and the president refused to ascent
(or veto against that bill) the congress can still override that veto of the president. This means it
is possible for the law which has been enacted by the congress but refused by the president still
to become the law of the United States of America. This is provided under Article 1(7) of the
Constitution of U.S.A of 1787. There are two examples of legislations which were enacted by
the congress and which were refused by the president but still they become law in the U.S.A.

i) In July 1832, President Jackson Veto against the bill to modify the Bank of U.S.A, he was
overridden by the congress and the Bill become law.

ii) In 2005, President Bush veto against the Bill passed by the congress. The law was known as
U.S.A farm law of 2005, however President Bush veto was overridden by the Congress and
that Bill became law.

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Article 2(4) of the Constitution of U.S.A of 1787 gives power to the congress (legislature) to
impeach the president of U.S.A. If successfully impeachment is concluded the president may be
removed in power. There was attempt of congress to impeach the president Bill Clinton over sex
scandal on his state secretary Monica West. However the attempt failed after the president
addressed the congress to convince them on the matter.

SEPARATION OF POWERS IN TANZANIA

In Tanzania theoretical framework of separation of powers is provided under Article 4 of the

CURT, 1977. This Article establishes three organs of the state in pairs. The organs of the state
are two executive, two legislature and two judiciaries. According to that Article the functions of
the executive is to enforce and implement state laws and policies, the function of the legislature
is to make and unmake laws of the state and the functions of the judiciary is to administer justice
through interpretation of existing laws and policies.

SPECIFIC PROVISIONS ON SEPARATION OF POWERS IN TANZANIA

The CURT, 1977 has number of provisions which specifically enforces the doctrine of separation
of powers in Tanzania. From these provisions these organs of the state are to be separate and
independent from each other as follows;

i) Article 71(b) & (f) of the CURT of 1977, these provisions require members of the parliament
to cease from being a member of parliament if such a person is elected as the president of the
United Republic of Tanzania or appointed to be the vice president of the United Republic of
Tanzania.

ii) Article 112(3) of the CURT of 1977, that a member of parliament cannot be appointed to be
a member of judicial commission.

iii) Article 84(2) of the CURT of 1977, read together with Article 93(c) of the said constitution
provides that the minister or deputy minister shall resign one post if he/she be elected to be
speaker of parliament or deputy speaker of parliament.

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CHECKS AND BALANCE IN TANZANIA

Existence of separation of powers in Tanzania as described by the CURT, 1977 doesn’t mean
there is a complete or rigid separation of powers between and among the three organs of the
state. This is because the three organs of the state functions in connection to one another and not
in isolation to each other. Therefore, from the CURT, 1977 there are elaborative constitutional
provisions which provide the existence of the doctrine of checks and balance. The doctrine of
checks and balance is introduced in the constitution to enable to control or limit of the function
of one organ by the other. The purpose is to avoid possibility of one organ to act or function
arbitrary to the extent of jeopardizing freedom of individuals. So constitutional framework in
Tanzania gives power to each of the organs to act as a watch dog to the functioning of other
organs.

HOW THE LEGISLATURE CHECKS THE ACTIONS OF THE EXECUTIVE

a) Article 63(3) of the CURT of 1977 gives power to the legislature to control or to check the
functions or actions of the executive. In checking the functions of the executive, the
legislature may do the following;

i) Put any question to the minister concerning any public affairs which are within power of the
minister or ministry.

ii) Debate performance of each ministry during the annual budget sessions of the parliament.

iii) Enact legislations to restrict or control performance or implementation of any matter or

public affairs.

b) Article 51(2) read together with Article 53A (1) of the CURT of 1977. These Articles gives
power to the legislature to check the executive as follows;

i) To confirm the appointment of the prime minister by a vote of majority.

ii) To pass a vote of no confidence against the prime minister if the legislature thinks that the
government is underperforms its responsibilities. If the vote of no confidence to the prime

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 minister is done then the prime minister shall resign and if resign the whole cabinet of
ministers collapse.

iii) To impeach the president of the United Republic of Tanzania who is the head of the
executive organ. This is happens or done where there is poor performance of the functions of
the government by the president. That is done under Article 46A of the CURT of 1977 which
provides for procedures and grounds for impeachment of the president.

HOW THE EXECUTIVE CHECKS THE FUNCTIONS OF THE LEGISLATURE

There are several provisions of the constitution which gives power to the executive to check and
control/limit the functions of the legislature as follows;

i) Article 97(1) of the CURT of 1977 gives powers the president who is the head of the
executive to assent bill enacted by the legislature before it becomes law. This means the
president of the United Republic of Tanzania has power to control the legislative process or
power of the legislature by not assenting the bill of the legislature.

ii) Article 66(1) of the CURT of 1977 gives power to the president of the United Republic of
Tanzania to appoint up to ten (10) members of the parliament. It is argued that these
members of the parliament appointed by the president will always be representing the
president ( or are there for the purpose of frustrating stubborn and active members of the
parliament for the interest of the executive).

iii) Article 90(2) of the CURT of 1977 gives powers to the president to dissolve the
parliament. In 1973 the government of Tanzania by that time proposed a tax bill which
was to be Tax Bill Act of 1973, but this bill was not good when come to the parliament
for discussion, the parliament resists against the bill hence cause conflicts between the
parliament and the executive. Therefore the president i.e. Mwr. Julius Kambarage
Nyerere by that time threatened to dissolve the parliament hence the bill was returned to
the parliament and subjected to the discussion.

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However the power of the president to dissolve the parliament has not been controlled or reduced
and it is possible to dissolve parliament but under five circumstances only as follows;

a) Where the life time of the legislature expired (life time of legislature is five (5) years). On 5 th
year ever since they was elected the president has power to dissolve the parliament.

b) Where the legislature refuses to approve the budget proposed by the government as provide
under Article 90(2) of the CURT of 1977.

c) Where the legislature refuses to endorse bill which the president of the Unite Republic of
Tanzania favours or where the legislature insisting on the endorsing bill which the president
doesn’t favour.

d) Where the legislature refused to pass a motion considered by the president to be a

fundamental importance for developing government policies.

e) Where the legislature refuses to approval the appointment of the prime minister and the
president is on the opinion that no one else to take the position.

HOW THE EXECUTIVE CHECKS THE JUDICIARY

a) The executive checks or control the judiciary through appointment of judicial personnel.
According to the CURT of 1977 the president of the United Republic of Tanzania has power
to appoint the following judicial personnel;

i) Chief justice and other justice of appeal.

ii) Principle judges (JK) and other judges of the high court.

iii) Registrars and deputy registrars of the court of appeal and high court.

iv) Three among the members of the judicial commission which is responsible for disciplinary
actions against judicial personnel.

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NOTE; the president may appoint someone who is incompetent to the government so as to give
favour to the government. Refer the case of Rev Christopher Mtikira v. Attorney General, Civil
Appeal No. 45 of 2009, Court of Appeal of Tanzania at Dar es salaam, 2011(Unreported).

b) Through promulgation of the bills which later become laws. Some of the bills proposed by
the government (executive) may have ouster clause i.e. limiting jurisdiction of the judiciary
to inquire into a certain matter. The bill or act may limit power of the judiciary to inquire into
some matter which the executive doesn’t want the judiciary to exercise power on them.

The best example is section 17(3) of the Commission for Human Rights and Good Governance
Act [CAP 391 R.E. 2002] prohibits the judiciary to inquiry into the performance for good
governance of the commission. The section expressly and clearly provides as follows;

“…No inquiry, proceeding or process of the Commission shall be invalid on the grounds only of
any error or irregularity of form and, except on the ground of lack of jurisdiction, no inquiry,
proceeding, process or report of the Commission shall be liable to be challenged, reviewed,
quashed or called in question in any court…”

NOTE; they can be serious violation of Human Rights but no court has powers to inquire into
the failure of the commission to implement the functions of it.

Another example of ouster clause is Article 74(12) of the CURT of 1977, this Article limit the
judiciary to inquiry into anything done by the National Electoral Commission as far as
presidential post is concerned.

“…No court shall have power to inquire into anything done by the Electoral Commission in the
discharge of its functions in accordance with the provisions of the Constitution of the United
Republic of Tanzania of 1977…”

HOW THE JUDICIARY CHECKS OTHER ORGANS OF THE STATE (EXECUTIVE

AND PARLIAMENT)
The judiciary has power to check the legislature and the executive, this is from the fact that
judiciary is supposed to be independent organ of the state. By being independent organ of the

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state, the judiciary has power to check and control the functions of both the legislature and the
executive. The only way the judiciary checks the executive or legislature is by declaring the
actions of the executive and the laws enacted by the parliament to be invalid because they are
unconstitutional, they offend natural justice, they are against natural law, they are arbitrary or
they are utra-vires i.e. beyond limits. It is very important to note that the judiciary may declare
even the Acts of the president invalid through judicial pronouncement.

Although the judiciary has power to control or to check the functions of the legislature and
executive but this organ has one weakness that is the judiciary cannot check the executive or
legislature unless there is a case filed before the court either through judicial review or
constitutional petition or other case. Judicial is not independent and also some of the judges are
not independent therefore it is not easy to give stubborn decisions against the government.

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