Introduction

One of the notions that scholars or theorists and practitioners of administrative law have
to get acquainted with is the notion of Separation of Powers. This essay will compare
and contrast the application of the notion of Separation of Powers in two jurisdictions,
namely Zambia and South Africa. The essay will commence by providing the conceptual
definition of the notion of Separation of Powers as espoused by various legal
authorities, then proceed to show with the help of case law the application of the notion
of separation of powers in South Africa and Zambia. It will conclude with an opinion on
how the challenges confronting the application of separation of powers will be resolved.
Conceptual Definitions of the Notion of Separation of Powers
In providing the conceptual definition of the notion of separation of powers,
Montesquieu1, the most profound of the political writers, states that separation of
powers is a doctrine that is often believed to be the bulwark of any democratic nations
constitution. Montesquieu posits that if power is crystallized in a single persons hand or
a group of people, it would then result in a tyrannical form of government. To avoid this
situation with a view to checking the arbitrariness of the government, Montesquieu
suggested that there should be clear cut division of power among the three organs of
the government.2 Montesquieu further adds that:
When the legislative and executive powers are united in the same person, or in
the same body or magistrates, there can be no liberty. Again, there is no liberty if
the judicial power is not separate from the legislative and executive powers.
Where it joined with the legislative power, the life and liberty of the subject would
be exposed to arbitrary control, for the Judge would then be the legislator. Where
it joined with the executive power, the Judge might behave with violence and
oppression. There would be an end of everything, were the same man or same
body, whether of the nobles or of the people, to exercise those three powers, that
1 Charles de Secondat, Baron de, Montesquieu, The Spirit of the Laws, Trans, A M Cohler, B. C. Miller and H. Stone,
Cambridge: Cambridge University Press.

2 Charles de Secondat, Baron de Montesquieu, The Spirit of the Laws (Translated by Franz Newmann) 1966 150

of enacting laws, that of executing the public resolutions, and of trying the
causes of individuals.3
Additionally,

theory of separation of powers entails three formulations of structural

classifications of governmental powers: (a) no one person should form part of more than
one of the three organs of government, to wit, the judiciary, the legislature and the
executive.4 For example he argued that a judge of the Supreme Court should never be
a part of the executive branch of government by holding a ministerial post; (b) one
organ of the government should never control or interfere with the exercise or functions
of the other organs of government. For instance, the judiciary should be independent of
the executive; (c) one organ of government should not exercise the functions of another
organ of government.5 On the flip side, according to Montesquieu, there is no liberty
when there is abuse of power. One organ of the government should be able to check on
the other so as to curb the tendency of becoming tyrannical. 6
Checks and Balances
The system of checks and balances is a constituent of the doctrine of separation of
powers. It is one of the ways in which the doctrine of separation of powers is attained.
Checks and balances are vital measures and mechanisms used to dissuade the
government from getting too powerful in one branch. For example, the Executive
Branch can veto bills from the Legislative Branch but the Legislative Branch can
override the veto.7 With checks and balances, each of the three branches of the
government can limit the powers of the others. This way, no one branch becomes too

3 Montesquieu, The Spirit of the Laws, G Bell & Sons Limited London 1914
4 Montesquieu, The Spirit of the Laws, G Bell & Sons Limited, London, 1914 355
5 Montesquieu, The Spirit of the Laws (Translated by Franz Newmann) 1996 151
6 BO Nwabueze, Presidentialism in Commonwealth Africa, 1974, p 435
7 M Vile, Constitutionalism and the Separation of Powers (1967)

powerful. Each branch checks the power of the other branches to make sure that the
power is balanced among them.
It is an undisputable fact that the Montesquieu model of separation of powers is
theoretically plausible but difficult to implement it in practice without modifications or
adaptations.8 The Montesquieu presentation of the doctrine of separation of powers has
been critiqued, saying that his model was based on a faulty premise. It assumed that
the three arms of government are distinguishable from another which is not the case in
practice. One would cite the enactment of subsidiary legislation as an example, by the
executive or other organs other than parliament. There is a precipitation of tribunals that
have been established by Acts of Parliament to cater for specific areas of dispute
settlements such as housing and land.9
The Relevance of the Doctrine of Separation of Powers in Zambia
The separation of power is honoured more in its breach than in its observance. On
paper, the distribution of political power follows the general principle of making
parliament the sole repository of legislative power and the courts the repository of
judicial power.10 The executive, particularly the presidency, tends to expand and
intensify personal rule, adopt authoritarian tendencies to repress systems of competitive
politics and effective oppositions and restrict free political activity at all levels of
society.11
The constitution typically provides for an executive arm of the government with specific
powers and responsibilities. Yet that provision brings with it its own problems, in
particular the problem of limiting the arbitrariness inherent in government and ensuring

8 SA De Smith, The New Commonwealth and Its Constitutions, London, Stevens & Sons 1964 p 106
9 MP Jain and JS Jain, Principles of Administrative Law (3rd edn, Bombay 1974)
10 The Constitution of the Republic of Zambia Act, No 18 of 1999, Cap 1 of the Laws of Zambia, Art 91 (3)
11 BO Nwabueze, Presidentialism in Commonwealth Africa, 1974 p 344

that its powers are used for the good of society.12 The most striking feature of the
presidency in Zambia is colossal power and consequent dominance of the political
system. Typically, the President is involved in deciding when Parliament meets and in
the appointment of judges13, senior civil servants and most officers of public
corporations14. This crystallization of power on one individual could be controlled by
stipulating in the constitution the manner in which presidential power may be exercised.
A case in point is the South African Constitution. It attempts to circumscribe the power of
the president by providing meaningful checks and balances in the exercise of
presidential power.15 It delineates that:
The President exercises the executive authority, together with the other
members of the cabinet, by a) implementing national legislation except
where the Constitution or an Act of Parliament provides otherwise; b)
developing and implementing national policy; c) coordinating the functions
of state departments and administrations; d) preparing and initiating
legislation; and e) performing any other executive function provided for in
the Constitution or in national legislation.16
The tenets of separation of powers essentially defines the boundaries within
which the powers of the state are to be exercised and entails that no single
person or body of persons should have ultimate authority. 17 To illustrate, in its
execution of duties, the Judiciary checks on the powers of the legislature. The
Supreme Court of Zambia in the momentous decision in the case of Christine
12 BO Nwabueze, Presidentialism in Commonwealth Africa, 1974
13 Article 93 (1) (2), of the Constitution of Zambia
14 Article 60 (1) (3), of the Constitution of Zambia
15 Article 84, of the Constitution of South Africa
16 Article 85, (2) (a) (e), of the Constitution of South Africa
17 JC Johari, Principles of Modern Political Science, p 358

Mulundika and Seven Others V The People 18 had occasion to determine

whether certain provisions of an Act enacted by Parliament, the Public Order Act,
contravened the Constitution. In the decision, the Court struck down sections 4
and 5 of the Public Order Act for being in contravention of Articles 20 and 21 of
the Constitution.
The Extent to Which the Doctrine of Separation of Powers has Been
Realised in Zambia
Although the doctrine of separation of powers is not embedded in black and
white in the republican constitution, there is however a provision in the
constitution that guarantees the independence of the Judiciary from the
Executive and the Legislature.19 The independence of the Judiciary though can
be compromised by the fact that the President wields so much power 20 in
appointing the tribunal in order to determine whether a Judge should be removed
or not for conducting themselves in an unbecoming manner. If it so happens that
the President does not like a certain Judge, he might appoint serving or former
judicial officers who he may be able to manipulate so that he removes that
particular Judge he does not like at all cost. Independence of the Judiciary is
taken to be one of the barometers that a country is democratic. 21 Among the
functions of Parliament is to check the executive. 22 The Judiciary has to check
the executive too. This is illustrated in the case of Mwamba and Mbuzi vs The
Attorney General23 in which the Appellants challenged the executive, alleging
18 SCZ Appeal No 5 of 1995
19 Article 91 of the Constitution of Zambia
20 Article 98 (3) (a) (b), of the Constitution of Zambia
21 JK Nyerere, Freedom and Unity / Uhuru na Umoja, Dar es Salaam, Oxford Univerity Press 1967
22 SA De Smith, Constitutional and Administrative Law London, Steven and Sons
23 SCZ/10/1993

that the President had acted unconstitutionally by appointing self-implicated drug

dealers as Minister and Deputy Minister respectively. Even though it was
adjudged that the President was not in violation of the Constitution, it did show
that the Judiciary does perform its function in ensuring that the executive act
within their jurisdiction.
Conclusion
From the foregoing, what is important in Zambia today is not so much about the
application of the doctrine of separation of powers but checks and balances.
Having seen that the executive (Presidency) tends to wield so much power in
relation to the other two arms of the government, a piece of legislation should be
embedded in the Constitution to define clearly how far the executive can go in
extending their tentacles of power without actually flouting the law themselves.
Furthermore, most of the appointments that are made by the President should
instead be done by an independent body with no strings attached to any one arm
of the government.

Bibliography
Books
De Smith S A, Constitutional and Administrative Law (London, Steven & Sons)
De Smith S A, The New Commonwealth and Its Constitutions, (London, Stevens
& Sons 1964)
Jain M P & Jain J S, Principles of Aministrative Law (3rd edn, Bombay 1974)
Johari J C, Principles of Modern Political Science, Sterling Publishers Ltd, New
Delhi 1989
Montesquieu, The Spirit of the Laws (G Bell & Sons Limited London 1914)
Montesquieu, The Spirit of the Laws (Translated by Franz Newmann 1996)
Nwabueze B O, Presidentialism in Commonwealth Africa, 1974
Nyerere J K, Freedom and Unity / Uhuru na Umoja, Dar es Salaam (Oxford
University Press 1967)
Vile M, Constitutionalism and the Separation of Powers (1967)
Case Law
Christine Mulundika and Seven Others v The Attorney General SCZ J. 25 1995
Mwamba and Mbuzi v The Attorney General 1993/SCZ/10
Legislation
The Constitution of the Republic of South Africa
The Constitution of the Republic of Zambia, 1996