The Doctrine Of Separation Of Powers

Introduction

The essay seeks to explain on the doctrine of separation of powers under the Zambian constitution from the three limbs. It also espouses the functions of each of the three organs of the government in Zambia.

Separation of Powers

The principle of separation of powers finds its roots from the ancient world, where the concepts of governmental functions, and the theories of mixed and balanced government, were evolved .

The Oxford Dictionary of Law defines separation of powers as the doctrine that the liberty of the individual is secure only if the three primary functions of the state (legislative, executive, and judicial) are exercised by distinct and independent organs. According to the Black’s Law Dictionary, Separation of powers is the division of governmental authority into three branches of government… each with specified duties on which neither of the other branches can encroach; the constitutional doctrine of checks and balances which the people are protected against tyranny. All These definitions sum up to one point which simply means that the three organs of the government can work accordingly without disturbing each other. Besa, a renowned author, states that it entails a system where each of the three institutions work independently of one another so as to foster democracy and accountability in the course of governance.

The doctrine of Separation of powers can be traced to medieval and ancient theories of mixed government, which argued that the processes of government should involve the different types of elements in society such as aristocratic, democratic interests, and monarchic. The first modern formulation of the doctrine was brought about by a French writer, Baron de Montesquieu, in one of his writings, ‘De l’esprit des lois (1748)’, although John Locke, an English philosopher, had earlier made an argument that legislative powers should be divided between Parliament and the Crown.

This principle is very fundamental in the course of having an organized state. It has separate and independent powers and areas of responsibility among the organs of the government. This is simply because they do not have to interfere with each other. It prescribes the appropriate allocation of powers and limits those powers, to differing organs. In other words, it removes the amount of power in any institution’s hands, so that it makes it difficult for them to abuse it.

The doctrine of separation of powers was conceptualized as early as 384-322 BC in early Greece by philosophers like Aristotle, who identified the elements through which governance took place. In one of his writings, ‘The politics’, he stated that:

“There are three elements in each constitution in respect of which every serious law giver must look for what is advantageous to it; if these are well arranged, the constitution is bound to correspond to the differences between each of these elements. The three are, the deliberative, which discusses everything of common importance; second, the officials; and third, the judicial element” .

The three elements Aristotle refers to are the three organs of the government (Executive, Legislature and Judiciary).

Bibliography

Books

1. Besa M. (2015). Constitution, Governance and Democracy. Ndola: Mission Press p.137
2. Martin, A.E. and Law, J. (Eds.). (2006), Oxford Dictionary of Law (5th Ed.). Oxford. Oxford University Press
3. M.J.C. Vile, (1967), Constitutionalism and the Separation of Powers, Indianapolis: Liberty fund,

Internet Sources

1. Teacher, Law. (November 2013). Separation of Powers. Retrieved from https://www.lawteacher.net/free-law-essays/judicial-law/separation-of-powers.php?vref=1