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Part I Overview, 2 An Overview of Separation of Powers under Modern African Constitutions

Charles M. Fombad

From: Separation of Powers in African Constitutionalism

Edited By: Charles M. Fombad

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 11 December 2024

(p. 58) An Overview of Separation of Powers under Modern African Constitutions

1.  Introduction

One of the fundamental preoccupations of constitutionalists right from antiquity to modern times has been the attempt to design institutions that will prevent the risks of arbitrary and tyrannical government. Of the numerous theories of government that have been devised to deal with this evil, the most enduring has been the doctrine of separation of powers. This doctrine is considered so important that all post-1990 African constitutions, probably to display a commitment to constitutionalism, have provisions which expressly or implicitly entrench it.1 It could not have been otherwise, for as long ago as the eighteenth century, French revolutionaries considered the separation of powers so important that they declared in article 16 of their Declaration of the Rights of Man and of the Citizen of 1789, that any society in which the separation of powers is not observed, ‘has no constitution’.

The excessive concentration of powers is arguably one of the greatest impediments to the promotion of constitutionalism, good governance, democracy, and the rule of law in Africa. This is manifested in numerous ways and cuts across many facets of constitutional governance. The question that arises is whether the separation of powers in modern African constitutions will help to check against the abuses of powers that usually go with concentration of powers? It is not an easy question to answer because in spite of its long history and highly respected pedigree, the abundant literature that it has spawned shows that the doctrine of separation of powers is by no means a simple, immediately recognizable and unambiguous set of generally accepted concepts. Many scholars, past and present, are not only unable to agree as to exactly what the doctrine means but also its relevance to contemporary institutional ordering. For example, Geoffrey Marshall, one of its strongest critics, feels that the doctrine is far too imprecise and incoherent to be of any use in the analysis or critique of constitutions.2 Meanwhile the famous British constitutionalist, AV Dicey had referred to it as being ‘the offspring of a double misconception’.3

(p. 59) At the heart of the separation of powers is the division of powers between three branches—the executive, the legislative, and the judiciary—in order to repel the different threats to liberty that come with the concentration of powers. Some critics of the doctrine argue that the classic triad division of powers no longer reflects the political, social, and constitutional changes that have taken place since the doctrine was formulated several centuries ago. Besides this, it is sometimes felt that the checks and balances associated with this traditional approach are no longer effective in combatting abuses of powers. This has led to the introduction of other institutions of a hybrid nature, such as the ombudsman, the Auditor-General, and anti-corruption agencies, which operate between the traditional triad aimed at enhancing accountability, transparency, and integrity in government.

This introductory section aims to provide an overview of the operation of the doctrine of separation of powers under modern African constitutions. Section 2 briefly discusses the origins and nature of the doctrine. Section 3 looks at the main models of separation of powers that have influenced developments in Africa. Section 4 looks at the approach in Anglophone Africa and Section 5 the approach in the civilian jurisdictions in Africa. The emerging new patterns of hybrid institutions which have considerable potential to enhance accountability are briefly discussed in Section 6.4 In the concluding remarks in Section 7, it is argued that whatever the reservations about the doctrine of separation of powers, it remains a critical instrument for limiting governmental arbitrariness. Although constitutions today no longer merely focus on outlining the mechanisms of government but also respond to other broader challenges caused by issues of inclusion and protection of minorities, equitable resource allocation, corruption, and a host of others, the problem of separation of powers is critical to dealing with all these other issues. It is therefore contended that an effective system of separation of powers that limits the possibilities of an excessive concentration of powers and the abuse of powers that go with it provide a solid platform for dealing with other challenges to constitutionalism, rule of law, and good governance in Africa.

2.  Brief Overview of the Origins and Nature of the Doctrine

Early traces of some forms of separation of powers can be found in the works of many writers and thinkers of the medieval period and middle ages, in their search for the secrets of good government. Plato’s ideas of a ‘mixed state’ set forth in The Republic,5 and Aristotle’s early classification of governmental functions into three: the deliberative, the magisterial, and the judicative,6 are sometimes considered as the early ancestors of the doctrine. However, the main debate about the origins of the doctrine is between those who trace it to John Locke and those who see Montesquieu as the originator.

(p. 60) It will suffice for our purposes here to point out that the view that currently enjoys broad support is that whilst the roots of the doctrine can be traced to numerous English writers and philosophers before John Locke, the latter in his famous Second Treatise,7 is the author of the modern doctrine. However, Locke’s twofold division of power between the federative and executive overlooked the importance of the independence of the judicial branch and stopped short of what may be called the ‘pure’ theory of separation of powers.

Credit for putting the doctrine in its modern scientific form goes to Montesquieu in his book, The Spirit of the Laws: Book XI.8 His ideas were later to substantially influence the French and American revolutions.9 Although his claim that the formulation of the doctrine was based on the British constitution at the time has been questioned,10 he can be considered to have made two main contributions to the doctrine. First, he was the first person who categorized governmental functions into the legislative, the executive, and the judicial. Second, in his analysis of the relationship between the separation of powers and the balance of powers he underscored the need for checks and balances. Arguing that those possessing power will grasp for more powers unless checked by other power holders, he maintained that a separation of powers could only be maintained if this was accompanied by a system of checks and balances. Unlike John Locke, Montesquieu appeared to have been advocating for what could be termed a ‘pure’ form of separation of powers, but his theory of checks and balances shows that he was not advocating a rigid separation in which the different organs work in isolation of each other but rather a system in which they were working ‘in concert’ with each other.11 It is the American revolutionaries in drafting the US constitution who provided the high noon in the development of the doctrine of separation of powers.12 They were influenced by writers such as John Adams and the authors of The Federalist, described as ‘the greatest work of American constitutionalism’.13 Although they advocated for the doctrine in its pure form, as the best institutional structure of government,14 disagreements during the drafting of the federal constitution, led to a compromise based on a moderate rather than a ‘pure’ form of separation of powers, tempered by the idea of checks and balances.

(p. 61) In its ‘pure’ and classic form, the doctrine of separation of powers is based on the fundamental idea that there are three separate, distinct, and independent functions of government—the legislative, the executive, and the judicial—which should be discharged by three separate and distinct organs—the legislature, the executive (or government), and the judiciary (or the courts). In this ‘pure’ sense, the doctrine, according to AW Bradley and KD Ewing, means at least three different things.15

First, that the same person should not form part of more than one of the three branches of government. This, for example, implies that ministers should not sit in parliament, nor parliamentarians act as ministers. Second, that one branch of government should not usurp or encroach upon the powers or work of another. This means for example, that the judiciary should be independent of the executive and ministers should not be responsible to parliament. It also means that a person holding office in one branch of government should not owe his tenure to the will or preferences of persons in any of the other organs. Thus, the continuation in office or not, of ministers or members of parliament should depend on the will of the electorate at general elections. Third, that one branch of government should not exercise the functions of another. For example, ministers should not have legislative powers. Although the doctrine has rarely been held or practised in this extreme form, it does represent a sort of ‘bench-mark’ or an ‘ideal-type’ situation from which to appreciate its present application today.

Five main reasons have historically been given for requiring the legislative, executive, and judicial functions not to be exercised by the same people viz, the rule of law, accountability, common interest, balancing of interests, and efficiency.16 These reasons basically summarize the different versions of the doctrine that have emerged over the centuries. The prevention of tyranny has remained the common thread that unites all the five different historical justifications for separating the legislative, executive, and judicial functions of government.

African constitutional engineers providing for a separation of powers in the new constitutional designs were guided by the constitutional traditions that were imposed during the colonial period. In order to better understand the African approaches, it is necessary to have a brief look at the Western models on which they are based.

3.  Models of Separation of Powers that Influenced African Approaches

The models of separation of powers adopted by the two most active colonial powers in Africa, the British and the French, have been the dominant influence on the continent. Two points must be noted though. First, the British approach was very peculiar because it was operating in a country where there is no written constitution. In drafting the constitutions for its colonies, the British and later, African constitutional drafters borrowed from the US approach. The French approach was also peculiar but since it (p. 62) was in many respects similar to the approach adopted in many civilian jurisdictions in Europe, the model was adopted not merely by Francophone but also Hispanophone and Lusophone African countries. The second point to note is that WB Gwyn has abstracted from historical experience a threefold classification into which modern governments that have adopted the doctrine of separation of powers can be classified.17 The first is the American system, the model and prototype of presidential government. This model is generally regarded as having gone farther than any other in embodying the fundamentals of the doctrine of separation of powers. The second type is the British parliamentary or Westminster model. This model appears to contradict the doctrine by fusing or concentrating powers. The third type, which is now more of historical interest than anything else, is the assembly or convention government that can be traced to England during the interregnum and France in the 1870s. There are however hybrids which combine elements of the first two models, the most prominent of which is the French Fifth Republic constitution of 1958 model. It combines elements of a strong and elected president with a parliamentary system. We will now briefly highlight some salient features of the American presidential system, the British parliamentary system, and the French hybrid system as a backdrop against which to understand the African approaches.

As noted earlier, the nature, role, and relevance of the doctrine of separation of powers remains a matter of considerable controversy especially amongst those scholars who consider it as irrelevant and obsolete. The purpose of this section is not to review these doctrinal debates within the different models but rather to capture the essence of how it operates within that system.

3.1  The American presidential system

The US model of the separation of powers comes closest to a ‘pure system’. Unlike in most other countries, the doctrine of separation of powers is clearly expressed in the US constitution of 1787. Article I vests the legislative powers in Congress, consisting of the House of Representative and the Senate, and Article II vests the executive powers in the president, whilst Article III confers judicial powers in the Supreme Court and such other lower courts that may be established by Congress. The president is elected separately from Congress for a fixed term of four years and may therefore be from a different party than that which has a majority in either or both Houses of Congress. He cannot however, use the threat of dissolution to make Congress cooperate with him.

In spite of the apparently emphatic and in some instances, unqualified terms in which the doctrine of separation of powers is expressed in the US constitution, it is clear from even a cursory examination of the relevant provisions that the regime contemplated is far from being one of a rigid separation of powers. This is manifested in several ways with respect to each of the three branches of government.

With respect to the executive, the president as head of the executive, cannot sit or vote in Congress. He has no direct power to initiate bills but he may recommend (p. 63) legislation in his message to Congress but he cannot compel it to carry out his recommendations. He can also exercise some limited control over the legislative function through his right to veto legislation but this can be overridden by a two-thirds vote in both Houses. The vice-president is the only member of the executive who as president of the Senate is empowered to vote when they are equally divided and in this way exercise some limited legislative powers. The president also exercises some control over the judiciary in criminal cases by his power to grant reprieves and pardons for federal offences. The president is not directly responsible to Congress for his conduct of affairs and is normally irremovable. However, he could be removed from office by the process of impeachment by Senate for certain specified crimes which include treason, bribery, and other high crimes.

As regards legislative power, Congress controls the executive in its exercise of the legislative powers to amend or repeal statutes that had authorized particular executive action. Senate controls the executive in its right to approve treaties negotiated by the president as well as its right to approve appointments by the president of ambassadors, judges, and other senior officers. Each House has the right to punish its own members for contempt, thus exercising some form of judicial powers. The Senate is allocated additional judicial powers, with the sole power to try impeachments.

As concerns the judicial power, although the judiciary has not been allocated specific or general supervisory powers over the executive, it is able to use its general equitable jurisdiction to issue mandamus against executive officers to ensure that they perform their constitutional duties. Perhaps the most important judicial check on executive action is the judicial review of executive action to ensure compliance with due process of the law. The judiciary also controls legislative action through its power to declare laws unconstitutional.18

The US constitution therefore, instead of isolating each branch of government from the other two, provides an elaborate system of checks and balances. In the words of James Madison, in The Federalist:

From these facts, by which Montesquieu was guided, it may clearly be inferred that in saying, ‘There can be no liberty where the legislative and executive powers are united in the same person,’ or ‘if the power of judging be not separated from the legislative and executive powers,’ he did not mean that these departments ought to have no partial agency in, or no control over, the acts of each other. His meaning, as his own words import, and still more conclusively as illustrated by the example in his eye, can amount to no more than this; that where the whole power of another department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free government are subverted.19

The US model of separation of powers is constructed around the ‘open recognition that particular functions belong primarily to a given organ whilst at the same time superimposing a power of limited interference by another organ in order to ensure that the former does not exercise its acknowledged functions in an arbitrary and despotic (p. 64) manner’.20 Nevertheless, it is worthwhile noting the views of some, like Bruce Ackerman, an eminent American constitutionalist, who argues that the institutional dynamics of the last half-century have transformed the American presidency into a potential platform for political extremism and lawlessness. He cites events such as Watergate, Iran-Contra, and the War on Terror as symptoms of deeper pathologies that have resulted from presidential power-grabs and the centralization of power in the White House.21 Although views differ widely as to whether the American model is ideal for adoption by other countries,22 there are many features of it that have been adopted in mainly Anglophone Africa.

3.2  The British parliamentary system

Like the United States, the three branches of government exist in Britain. However, the extensive fusion and overlapping between the authorities in which the powers are vested has led many to question whether the doctrine of separation of powers is really a feature of the British constitutional system. In fact, due to the fusion or concentration of legislative and executive powers, there is no strict separation of powers in Britain on the scale provided for in the US constitution. The 2005 constitutional reforms did no more than reduce the mixture of powers, especially between the legislature and the judiciary. The extent of the separation of powers on the British constitutional system can be seen from three perspectives.

First, is the relationship between the legislature and the executive. The Queen, who is nominally the head of the executive, is an integral part of parliament. The prime minister (who is the head of government) and ministers who are all part of the executive must by convention be members of one or the other House of Parliament.23 Parliament controls the executive in that it can oust a government by withdrawing support for it. Other forms of parliamentary control over the executive include question time, select committees, adjournment of debates, and opposition days. The executive sometimes exercises considerable legislative functions through the making of statutory instruments based on powers vested in it by Acts of Parliament. Such extensive fusion negates the distinction between the two. It has been strongly argued that ‘Government and Parliament, however closely intertwined and harmonized, are still separate and independent entities, fulfilling the two distinct functions of leadership, direction and command on the one hand, and of critical discussion and examination on the other’.24 Nevertheless, this system, especially where there is a (p. 65) government with a strong parliamentary majority, considerably weakens executive accountability to parliament.

From the perspective of the relationship between the executive and the judiciary, the extent of separation between the two has improved since the coming into force of the Constitutional Reform Act 2005. The Lord Chancellor has lost his judicial role but as Secretary of State for Justice, remains a member of cabinet.25 The executive exercises some control over the judiciary through the appointment of its members. However, the independence of judges of the superior courts is protected since the Act of Settlement of 1700 which provides that judges hold office during good behaviour and not at the pleasure of the executive. On the other hand, the courts exercise considerable control over the executive by protecting citizens against unlawful acts of government agencies and officials and if proper application is made by an aggrieved citizen, review executive acts for conformity with the law.26

Finally, the relationship between the judiciary and the legislature has changed considerably since the Constitutional Reforms Act 2005, which ended the right of Law Lords to receive life peerages and thus sit in the House of Lords. Although parliament may control the judiciary by way of legislation affecting the judiciary, the fact that judicial salaries are permanently authorized deprives parliament of an important opportunity of annually reviewing and possibly criticizing judges. Parliament may remove superior court judges after an address by the Crown to both Houses. Although the judiciary and the legislature do not generally exercise each other’s functions, and the doctrine of legislative supremacy denies courts the power to review the validity of legislation, judges do exercise some law-making function in the process of interpreting and applying the law. But the effect of any court decision may be altered by parliament both prospectively, and if necessary, retrospectively. Furthermore, because of the common law doctrine of judicial precedent, the judicial function of declaring and applying the law has a quasi-legislative effect. As a result of British membership of the European Union, the courts may ‘disapply’ an Act of Parliament which clashes with rights in Community law. Under the Human Rights Act 1998, the courts may also declare an Act of Parliament to be inconsistent with the European Convention on Human Rights (ECHR) but have no powers to refuse to apply it.

In the final analysis, the absence of a written constitution setting this out means that there is no formal separation of powers in Britain. The close relationship between the legislative and the executive also means that there is no strict or effective separation of powers between the two. Nevertheless, there remains a clear distinction between the legislative and executive function. There is also an effective separation of the judiciary from the other two. Professor Wade has argued that the doctrine of separation of powers in Britain means nothing more than an independent judiciary.27 The crux of (p. 66) the British conception of the doctrine of separation of powers is that parliament, the executive, and the judiciary each have their distinct and largely exclusive domain and the circumstances where one exercises the functions of the other are the exception and are dictated by practical necessity.28

3.3  The French hybrid

French practice of the doctrine of separation of powers is in many respects a shadow of what was formulated by Montesquieu and embraced with such relish by French revolutionaries and captured in the famous article 16 of the 1789 Declaration of the Rights of Man and of the Citizen. In fact, the French approach enshrined in the present 1958 constitution of the Fifth French Republic is markedly different from both the US and British models. In spite of constitutional reforms in 2008 that tried to improve many aspects of the system, it remains essentially a parliamentary system that provides for close ‘collaboration’ between the executive and the legislature rather than a strict separation of powers. The elements of parliamentarism include a two-headed executive, the collective political responsibility of government to parliament, and the right of government to dissolve the lower chamber of parliament. However, the President of the Republic plays a role that is hardly typical of a parliamentary regime. We will limit this discussion to noting a few peculiarities of this system of separation of powers.

The most distinctive feature of the French system is the position of the judiciary. This has a long and strong historical foundation. The reputation of royal courts or Parlements before the French revolution was so bad that one of the first steps taken by the revolutionaries was to weaken the powers of these Parlements. This was done by the famous Law of 16–24 August 1790, partly inspired by Montesquieu’s concepts of the separation of powers. This law precludes ordinary courts from interfering with the work of government, and means that an ordinary citizen aggrieved by some government action can only seek a remedy before the administrative courts, which to some extent exercise not only judicial but sometimes administrative and legislative functions. The most serious effect of the somewhat obsessive French distrust of judges was that until the 2008 constitutional reforms, the rather limited control of the constitutionality of laws was exercised, not by a judicial but rather by a quasi-administrative body, the Constitutional Council.29

The most distinctive aspect of the French doctrine is the dominance of the executive over the other two branches of government. An example of this is that instead of (p. 67) defining the areas in which the executive is empowered to promulgate regulations on its own initiative, it defines the field of legislative competence of parliament. Outside the field of parliament’s competence as defined in article 34 of the constitution, the executive enjoys, by virtue of article 37, the competence to legislate on all other matters. The effect of this is that residuary legislative power lies not with parliament, as is the case in the United States and Britain, but rather with the executive.

Another dimension of this executive dominance is underscored by article 64 of the constitution. It states that the ‘President of the Republic shall be the guarantor of the independence of the judicial authority. He shall be assisted by the High Council of the Judiciary [Conseil Supérieur de la Magistrature or CSM]’. This clearly suggests that the courts are not on the same par as the executive, which the President of the Republic is part of, but rather below. This is reinforced by article 65, which makes the President of the Republic head of the CSM, and his Minister of Justice, deputy head of the body that is responsible for recommending judicial appointments as well as enforcing judicial discipline. The subordination of the judiciary is completed by stating that the CSM only ‘assists’ the president. This French deviation has been explained by the suggestion that the 1958 constitution did not envisage the French president as an executive officer but rather as a person outside the classic tripartite division of legislative, executive, and judiciary.30 Although the 2008 revision of article 65 now excludes the president and his Minister of Justice from the High Council of the Judiciary, executive dominance of the judiciary, even if only indirectly, remains a prominent feature of the separation of powers under the French Gaullist constitution.

An important feature of the French system is that any executive position is incompatible with a seat in parliament and vice versa.31 Nevertheless, with the judiciary largely subordinated to the executive, and with extensive law-making powers given to the executive, the doctrine of separation of powers in France means little more than the distinction between the legislative and executive branches of government. As a form of parliamentary democracy, this system basically provides for such close cooperation between the executive and legislative branches that renders any meaningful checks and balances between them ineffectual.

3.4  Some critical aspects of the doctrine of separation of powers and the impact of the diverse influences on Africa

Three important issues arise from the preceding discussion. The first is whether one can infer a general understanding of what separation of powers actually means. And the second is the way in which these Western influences have affected trends and developments in Africa.

On the first question, it bears repeating that there remains no generally accepted meaning of the doctrine of separation of powers. Nevertheless there are certain aspects (p. 68) of it that are widely accepted even if there is no unanimity in how to achieve this. First, the overriding goal of preventing tyrannical and arbitrary government appears to be generally accepted. All the models try to do this by preventing a concentration of powers. But the history of modern constitutionalism, particularly the experiences of France between the Fourth and Fifth Republics shows how difficult it is in constitutional design to achieve a balance which ensures that each of the three branches has no more powers than it needs to function properly and effectively.32

Second, it is clear that separation of powers does not mean a rigid compartmentalization of powers within the different branches of government. In fact, if this were to happen, it could very well paralyze government and lead to anarchy. The three models we have examined approach the matter in different ways. The American approach is premised on the recognition that certain core functions must be exercised primarily by a particular branch of government but with the other two branches allowed to interfere in a limited manner to prevent that branch exercising its acknowledged functions in an abusive and arbitrary manner. It has been largely shaped by the American colonial experience, the war of independence, and the desire by the founding fathers of the constitution to prevent some of what they perceived as the excesses of the British system. By contrast, the British system is premised on a mutual dependence rather than independence between the executive and the legislature backed by a strong and independent judiciary. The French model, which has elements of both the British and the US model, is marked by a strong and dominant executive branch that overshadows the other two branches. The French approach has also been largely shaped by its history; the Gallic fear of ‘government by judges’ and the bitter lessons of the Fourth Republic constitution that provided a recipe for governmental instability. The common denominator amongst the three approaches is the desire, not to prevent interference but rather such interference that would serve as a means of promoting accountability, transparency, and good governance. In other words, each branch should control and check the other in the exercise of their respective powers on the principle that le pouvoir arrête le pouvoir.

A third point to note is that the French easily transplanted their model to Africa and it was widely adopted with few changes. By contrast, the British had to adjust and adapt the model which they transplanted to Africa to the realities of a written constitution. As a result of this, many features of the American model were incorporated into the British model that was copied in Africa, and thus what operates in Anglophone Africa can more appropriately be referred to as an Anglo-American model. In spite of the extensive constitutional reforms carried out in the post-1990 period, the manner in which the doctrine of separation of powers was adopted has largely remained within the inherited colonial models. We could therefore talk of an Anglo-American model in Anglophone Africa and the French model in Francophone Africa with many civilian aspects of this model adopted in Hispanophone and Lusophone Africa. We shall not turn to see how these were adopted and in doing so, three critical issues which, (p. 69) arguably reflect the three ways in which separation of powers is generally understood, will form the basis of the analysis, viz:

  1. i)  The extent to which there is a fusion or admixture of power;

  2. ii)  The extent to which one branch intervenes and controls the work of the other; and

  3. iii)  The extent to which one branch performs the functions of the other.33

4.  The Anglo-American Influence in Anglophone Africa

This section will look at the incorporation of separation of powers in the present constitutions of Anglophone African states. This will be done from three perspectives viz, the relationship between the executive and the legislature, followed by the relationship between the executive and the judiciary, and ending with the relationship between the judiciary and the legislature. In each case, the three issues raised above will be examined, that is, whether there is a fusion of power, the nature and extent of control which each branch exercises over the other, and the extent to which each branch performs the functions of the other. Having noted that the goal of separating the branches is to enable limited interference by each in the other’s functions in order to ensure accountability and transparency, the purpose of this section is to see to what extent this has been made possible.

To put this overview in its proper perspective, two preliminary points need to be made. The first point relates to the focus; one cannot pretend to cover all the countries, hence the focus will be on the constitutions of five Anglophone countries which have been carefully selected for several reasons. Botswana, with its 1966 independence constitution still in force, is selected because it shows a typical example of a post-independence Westminster-crafted constitution. Ghana’s 1992 constitution is selected as an example of the first post-1990 new era constitutions, whilst South Africa’s 1996 constitution is chosen because it is still in many respects one of the most modern and liberal constitutions on the continent. Kenya’s 2010 and Zimbabwe’s 2013 constitutions have also been selected as examples of the latest constitutional designs. These two constitutions, unlike most other post-1990 constitutions, and very much like the South African constitution, try to make a dramatic break with the past.34 The second point to note is that the purpose of this overview is to indicate general trends. Inevitably, there are differences in details which are often dictated not only by the peculiarities of history and experience but also the political system and type of government (for instance whether it is a federal or centralized system, and whether it is a presidential, semi-presidential, or parliamentary system). There is no intention to minimize or underestimate the possible significance of these differences but as will be shown later, there are many overriding common features which justify them being considered as displaying peculiar features of a model of separation of powers.

(p. 70) 4.1  The executive and legislative branches

The executive is the most important and most powerful of the three branches of government and operates more or less as the engine of the state. In all systems of government, it is usually given primary responsibility for executing and carrying out state functions. Because of the enormous powers that it wields there is need to ensure that these powers are not abused. Constitutional governance in Africa had been systematically undermined since independence by the ability of executives, especially presidents, to abuse their powers with little regard to the weak constitutional constraints that were contained in the independence constitutions. Generally, the legislative and judicial branches on the continent were relatively too weak to check against regular executive lawlessness.35

In Anglophone Africa, the post-1990 constitutional reformers in designing constitutions that entrenched constitutionalism paid particular attention to the issue of separation of powers. To reduce the risks of the dictatorships of the past, provisions were introduced which tried to define and limit the powers of the executive and also ensure that they operate within the bounds of these limitations. This required a careful balance in the division of powers to enable the executive to have enough powers to discharge their mandate without too many inhibitive and paralyzing restrictions whilst avoiding their having too much powers which could be abused to the detriment of the citizens. This delicate balancing act meant mixing of executive and legislative functions as part of the process of providing checks and balances. Although this has resulted in the same persons sometimes forming part of the executive and legislative branches, this was counterbalanced by various possibilities provided for each of the two branches to control and thus check each other. The manner in which this has been done will now be examined.

One of the typical aspects of the British model which was copied by Anglophone Africa is the fusion of executive and legislative functions. For example, under section 86(1) of the South African constitution of 1996, it is stated that ‘at its first sitting after election, and whenever necessary to fill a vacancy, the National Assembly must elect a woman or man from among its members to be the President’.36 According to section 91(3), the president, in constituting his cabinet, must select the deputy president and any number of ministers from amongst members of the National Assembly but as in Britain, the provision provides that the president ‘may select no more than two Ministers from outside the Assembly’. This approach has been followed by most Anglophone countries,37 but recently Kenya in its 2010 constitution departed from this. In fact, article 152(3) expressly states that, ‘a Cabinet Secretary [that is, Minister] shall not be a Member of Parliament’.38

(p. 71) The second issue is the extent to which each of these two branches control and check each other. There are a number of ways in which parliament may intervene to check any abuses of power by the executive in Anglophone Africa. In this regard, most constitutions give parliament the power to initiate the process for impeaching the president, the deputy president, and ministers,39 for reviewing and approving the declaration of war,40 for approving the appointment of ministers and other senior government officials,41 and for holding ministers individually and collectively responsible in a process that could lead to their resignation or dismissal.42 The ability of parliament to hold government accountable is one of the most important ways of preventing arbitrary government and dictatorships. The mechanisms provided in Anglophone constitutions are weak for two main reasons. First, as a practical reality which is reflected as well in advanced democracies, once a government has a majority in parliament, members of the ruling party will be very reluctant to openly criticize the government or vote against it.43 This is particularly so when the ruling party is a dominant party. A recent study has shown that as many as twenty-nine (54 per cent) of the countries on the continent are ruled by dominant parties, an overwhelming majority of which correspond with the hegemonic party pattern.44 Second, a problem peculiar to this mixed system is the potential for disruption which mixing legislative and executive positions can cause. For example, in Botswana, the 1966 constitution provides for forty-four45 members of parliament.46 With a total of twenty-two ministers and assistant ministers,47 it therefore means that the executive effectively controls half the number of members of parliament and the principle of collective responsibility guarantees that every motion moved by the government, regardless of the views of either the opposition or the backbench, will be approved. There is no statutory limit to the number of ministers who should come from parliament, as there is in Britain. As a result of this, parliament has had to be adjourned on a number of occasions because (p. 72) there was no quorum due to the absence of ministers who were away on official engagements.48 The negative impact of ministerial absence on parliamentary work has also occurred in countries with large parliaments such as South Africa.49 On the other hand, the executive is also able to exercise control over parliament in Anglophone Africa in at least two main ways. Under all constitutions, a bill adopted in parliament only becomes law after it has received presidential assent.50 Although where the government holds a majority in parliament, presidential assent is almost automatic, it can however be refused. Under section 87 of the 1966 Botswana constitution, in the unlikely event that the president withholds his assent, the bill will be returned to Parliament who must resubmit it within six months. When returned to the president, he must assent within twenty-one days or dissolve parliament. A second form of control is by way of dissolution. Besides occurring when, as in the case of Botswana, the president refuses to assent to a bill or there is disagreement between the president and parliament over a bill, parliament may also in certain circumstances pass a resolution to dissolve.51

Finally, there is the question of the extent to which these two branches exercise each other’s functions. This is where the powerful position of the executive vis-à-vis the other branches is manifest. Most Anglophone constitutions usually confer law-making powers on the legislature. It is often worded in language that gives it discretion to delegate these powers. For example, article 94(1) of the 2010 constitution of Kenya, after declaring that the legislative authority is vested in parliament, adds in paragraph 4 that ‘no person or body, other than Parliament, has the power to make provision having the force of law in Kenya except under the authority conferred by this Constitution or by legislation’.52 The most extensive manner in which the executive performs the functions of the legislature is in the making of secondary legislation when directly or indirectly authorized to do so by the legislature. In fact, the bulk of legislation in Anglophone jurisdictions is in the form of subsidiary legislation and far exceeds the laws enacted by parliament in the form of Acts of Parliament. Subsidiary legislation may take diverse forms such as, proclamations, regulations, rules, rules of court, orders, bye-laws, or any other instrument made directly or indirectly under any enactment and having legislative effect. For a number of reasons, delegated legislation has become an inevitable feature of modern governments. First, the complex and protracted nature of the law-making process and the pressure upon parliamentary time, risks causing the legislative machinery to break down if parliament attempted to enact absolutely every piece of legislation by itself. Second, legislation on certain technical topics necessitates prior consultations with experts and stakeholders; an (p. 73) exercise which is best done by members of the executive. Third, parliament cannot foresee every administrative or other difficulty that may arise when it enacts legislation. It therefore makes sense to allow the executive to intervene and make changes when necessary. It will be far faster than the complicated processes of amending an Act to achieve the same purpose. The challenge however is to reconcile the whole concept of delegated legislation with the normal process of democratic consultations, scrutiny, and control to which a normal bill is subjected before it becomes law. Some parliamentary control is usually required. In many jurisdictions, it is required that all delegated legislation should be laid down before parliament. Such parliamentary supervision is hardly ever effective because either the legislation is not laid down before parliament or if it is done, the members are too busy with other matters to critically scrutinize this. One other important point to note is that although law-making remains the principal function of parliament, the reality is that the whole process and in fact, the most decisive stage of initiating bills is usually completely controlled and driven by the executive. It is clear from this that the executive not only exercises the functions of, but also effectively controls parliament. We shall now see how the executive relates to the judiciary.

4.2  The executive and judicial branches

Guided by the same three considerations, we shall look at the relationship between the executive and the judicial branches in Anglophone Africa. The first issue is whether the same persons form part of the two branches. The only possible instance of this, is the role played by the Director of Public Prosecutions (DPP) or the Attorney-General (AG), in those jurisdictions where the latter plays the role of the DPP or acts as the hierarchical superior of the AG.53 Under most Anglophone constitutions the AG is a member of cabinet, which is an executive position but also either plays the role of DPP or directly supervises and controls the DPP, who as the person responsible for enforcing the criminal law plays a quasi-judicial role. The anomalous position of the AG and DPP as part of the executive and the judiciary has frequently raised questions in most jurisdictions of the independence of the prosecuting authorities from political interference and manipulation.

It is the possible control which both the executive and the judiciary exercise over each other that is perhaps one of the fundamental aspects of the doctrine of separation of powers. As regards the control which the executive exercises, the ability of the executive to intervene, especially in judicial appointments under the constitutions of most Anglophone African countries, has often been structured in a manner that will protect the independence of the judiciary. Judicial appointments of superior court judges are usually made by the president as head of the executive based on the recommendations made by the Judicial Service Commission (JSC).54 Some of these (p. 74) constitutions, especially the most recent ones, contain principles protecting the judiciary from political interference. The most elaborate example of this is contained in section 164 of the 2013 constitution of Zimbabwe which states:

  1. (1)  The courts are independent and are subject only to this Constitution and the law, which they must apply impartially, expeditiously and without fear, favour or prejudice.

  2. (2)  The independence, impartiality and effectiveness of the courts are central to the rule of law and democratic governance, and therefore—

    1. (a)  neither the State nor any institution or agency of the government at any level, and no other person, may interfere with the functioning of the courts;

    2. (b)  the State, through legislative and other measures, must assist and protect the courts to ensure their independence, impartiality, dignity, accessibility and effectiveness and to ensure that they comply with the principles set out in section 165.

  3. (3)  An order or decision of a court binds the State and all persons and governmental institutions and agencies to which it applies, and must be obeyed by them.55

Other measures designed to enhance judicial independence include the payment of judicial salaries from the Consolidated Fund and elaborate and transparent procedures for the removal of judges. There is however still some scope for political interference due to a number of factors. First, under some constitutions, such as that of Botswana and South Africa, the president inexplicably has far wider discretion in the appointment of the heads of the highest courts than he has in appointing ordinary judges.56 Second, the ability of the JSC to operate as an independent and impartial body that recommends or otherwise takes its decisions based on the merits and ability of particular persons to discharge their responsibility independently and competently often depends on the number of members of this body that are appointed directly or indirectly by the executive. Where the majority are appointed directly or indirectly by the executive, this provides considerable scope for executive interference with the process.57 On the other hand, judicial control over the executive has become one of the most crucial features of any modern constitutional democracy. This judicial control over executive action is regularly exercised in order to protect citizens against any unlawful acts of government officials, government departments, or other public (p. 75) authorities and ensures that these bodies perform their statutory duties in conformity with the law. This often brings the judiciary into conflict with the executive especially when the latter feel that the judiciary has intervened in a non-justiciable policy matter or so-called political issue which the courts are ill equipped to deal with or breached the doctrine of separation of powers.58

Finally, there are certain areas where the executive and the judiciary exercise each other’s powers. In the case of executive exercise of judicial powers, this occurs in two main instances under Anglophone African constitutions. The first instance of this occurs during the exercise of presidential prerogative of mercy.59 These powers enable the president to:

  1. i)  grant to any person convicted of any offence a pardon, either free or subject to lawful conditions:

  2. ii)  grant to any person a respite, either indefinite or for a specified period, of the execution of any punishment imposed on that person for any offence;

  3. iii)  substitute a less severe form of punishment for any punishment imposed on any person for any offence; and

  4. iv)  remit the whole or part of any punishment imposed on any person for any offence or of any penalty or forfeiture otherwise due to the government on account of any offence.60

Generally, in exercising these powers the president may sometimes consult his cabinet or at his discretion consult an Advisory Committee on the Prerogative of Mercy. The exercise of the prerogative of mercy amounts to a very serious interference with the judicial process and in principle should only be exercised in very exceptional and unusual circumstances where there is good cause, for example, where some new evidence may have emerged which cast doubts on the decision in a case.

(p. 76) The second area in which the executive has exercised some judicial functions is in the common practice of creating administrative tribunals and other disciplinary bodies and conferring on them the right to determine matters that traditionally come within the jurisdiction of courts of law. Many of the disputes that arise within the public service today are not decided by litigation in the ordinary courts but rather by administrative bodies that operate within the executive. The number and powers of these commissions have increased over the years as more efforts are made to render the executive more transparent and accountable. The most common example of these are the myriad of administrative tribunals which have the powers to undertake disciplinary proceedings and impose sanctions against public servants. Numerous commissions have been provided for under the 2010 constitution of Kenya and the 2013 constitution of Zimbabwe. A distinction however has to be made between those which have a purely administrative function,61 others such as the Public Service Commissions which play a quasi-judicial role62and a third category of commissions, or more accurately, independent institutions, such as the Independent Electoral Commissions and Human Rights Commissions which we will discuss later.63 In spite of this, it is a well-established common law principle that the courts of law have the powers to review the proceedings and decisions taken by these administrative bodies and tribunals to ensure that they do not exceed the powers that have been conferred and have acted in accordance with the ordinary rules of natural justice.64 But in doing so, the courts would not exercise a discretion that has been exclusively reserved for these administrative bodies.65

Now turning to the judiciary exercising executive functions, this often occurs when judges and other members of the judiciary are appointed to discharge non-judicial functions that fall within the executive domain. This may take a permanent form or be of a temporary nature. A permanent form of this is the role usually conferred on judges, usually the Chief Justice, to act as a returning officer for purposes of the elections to the office of president. For example, under section 38(1) of the 1966 Botswana constitution, the Chief Justice is the returning officer for purposes of elections to the office of president.66 He not only determines whether the constitution or any law relating to the election of the president under sections 32 and 35 has been complied with but also whether any person has been validly elected as president. Although it states that his (p. 77) ‘decision shall not be questioned in any court’, this does not deprive the High Court of its inherent powers to review and quash any decision arrived at, if there were procedural irregularities or the Chief Justice acted ultra vires. Other examples are where the Chief Justice is made as permanent chair of the JSC.67 The most common and frequent use of judges to exercise executive functions is when they are appointed to preside over ad hoc commissions of inquiry or over bodies or groups required to investigate and submit reports on policy issues that will enable the executive to take important decisions. For example, article 278(3) of the 1992 constitution of Ghana specifically stipulates that the person appointed as sole commissioner or chair of the commission of inquiry must be a justice of a superior court or a person who has held such an office. Although it also mentions the possibility of a person who possesses special qualifications or knowledge in respect of the matter being investigated, it is however clear that there is a preference for judicial officers. Article 279 further underscores the quasi-judicial nature of the process by stating that the commission of inquiry shall have the powers, rights, and privileges of the High Court in matters such as enforcing attendance by witnesses and compelling the production of documents. Although the Ghanaian constitution goes further to expressly state that the findings of the commission are without prejudice to any appeal against or judicial review of the finding, this is however an inherent right to any party to the proceedings.68

The frequent use of judges, especially senior judges such as the Chief Justice, to perform some of these executive functions reflects an instinctive desire to seek persons whose independence and impartiality in handling matters of public concern is widely recognized and accepted. There is nevertheless, a danger, especially where this relates to tasks of an investigatory or controversial policy nature that may put the reputation and prestige of the judiciary in jeopardy.69 Judges risk becoming publicly identified with the policies of the group or body concerned in the investigation or they may be put in a position of being seen as either critics or supporters of the government. There is also a risk that some judges’ performance of these duties may be influenced by the expectation of some reward in the form of elevation to a higher judicial office. It could result in some confusion between the judicial and executive functions. For example, it is one thing for the constitution to say that the Chief Justice shall be the returning officer for presidential elections, and quite another to say that he alone has the authority to determine the validity of the president’s election. Will this determination be based on his judgment as a returning officer, an administrative position or his judgment as a Chief Justice, a judicial position? One cannot lightly ignore the fact that in the two jurisdictions where this happens, Botswana and South Africa, the Chief Justice is appointed largely at the discretion of the president. Generally, commission of inquiry reports often have a tendency to produce and provoke dissension or criticism, which may undermine the prestige and respect of the judges involved or even the judiciary as a whole. Perhaps the most serious problem is that there is also a risk that a judge who is (p. 78) appointed to chair or participate in a commission, may upon the resumption of his regular duties adopt a position that will justify or defend the position he took when acting in the commission, especially if the matter were to come before the courts on judicial review. We will now turn to issues that arise from the relationship between the judiciary and the legislature.

4.3  The judicial and legislative branches

No person is allowed under any of the constitutions examined here to belong to both the legislative and judicial branches. It is however, the ability of each of these two branches to control each other and to exercise the functions of the other that raises interesting issues.

Generally, the legislature controls the judiciary in the sense that it makes the laws that regulate the judiciary. Under some Anglophone constitutions, the legislature also plays a role in the management of the judiciary through its membership of the JSC70 but in some other situations, such control is even more direct by the requirement that judicial appointments, especially those of the Chief Justice and his deputy must be approved by parliament.71 It would seem that if members of the legislature have a substantial presence on the JSC and are thus able to influence its recommendations, then there is no need for further parliamentary approval. Whilst recognizing the importance of legislative control, the issue of judicial independence appears to be an important preoccupation with Anglophone constitutional engineers. Thus, unlike other public servants, the fact that the salaries of judges are charged to the Consolidated Fund denies parliament an annual opportunity to discuss and criticize the activities of judges.72 Although some of these constitutions go further to state that the salaries, allowances, and other benefits of judges shall not be reduced,73 this does not mean that judicial salaries cannot be reviewed. The purpose of this principle is not so much to guard against reductions in salaries but rather to provide a predictable framework for ensuring that the salaries of judges are only adjusted where necessary to keep pace with that of other public servants in a manner that is not discriminatory against judges. This principle that tries to protect them from parliamentary pressure has been reinforced by the convention that protects judges from disparaging criticism in parliament. This does not prevent members of parliament, like ordinary citizens, from criticizing judges but rather to ensure that such criticisms must be fair and reasonable, and are not be made in a malicious manner that could bring the courts into disrepute.74

(p. 79) Insofar as the control of the judiciary over the legislature is concerned, the practice in Anglophone Africa is closer to that of the United States rather than that of Britain. As a result of its unwritten constitution, Britain is still subject, in many areas of the law, to the doctrine of legislative supremacy which denies the courts the power to review the validity of legislation. Anglophone constitutions in most cases expressly75 or sometimes, implicitly76 declare the constitution to be the supreme law of the land which is binding on every person, natural or juristic. These provisions usually go further to state that any law, whatever the form, which is inconsistent with or violates the constitution, is null and void to the extent of the invalidity. As a result, it is an exercise of ordinary judicial functions as well as a means of controlling the legislature for the courts to declare any law or secondary piece of legislation which violates the constitution as being therefore invalid and of no effect.77 This however does not give the courts the powers to tamper with and nullify any part of the constitution.

Now looking at the extent to which the two branches exercise each other’s powers, there are two main ways in which the judiciary in Anglophone Africa sometimes exercises the powers conferred on the legislature. The first, and probably the main way, is through the doctrine of binding precedent, which was received in Anglophone Africa, as part of the general reception of English law during the colonial era.78 The judicial function of interpreting and applying the law has a quasi-legislative effect in that it creates precedents that must be followed in subsequent cases with similar facts. This process of ‘judicial legislation’ in both the common law and statutory interpretation contributes to the progressive development of the law.79 As a result of its inherent flexibility, the doctrine of binding precedent has enabled the courts, through the process of judicial legislation to intervene in areas where the government has been unwilling to ask parliament to legislate or has been too slow to propose new measures.80 The second instance when the judiciary has performed legislative functions has (p. 80) arisen where the legislature has expressly authorized the judiciary to legislate on certain matters. The common instance of this is where the constitution authorizes the courts or the Chief Justice to make rules with respect to the practice and procedure of the different courts.81 This judicial intervention into the legislative domain has some advantages. It enables judges who are better placed, as legal experts to know the specific procedural problems to be solved and the various ways of solving them. It also enables these rules to be expeditiously amended as and when the need arises without having to go through the complex and protracted legislative process of amending legislation. Perhaps the most significant advantage of judicial rule-making here is that it helps to reinforce the independence of the judiciary. Nevertheless, these rules of court, like all other forms of subsidiary legislation, even though made by judges, must be made within the powers conferred on them by the constitution and any other enabling legislation.82

On the other hand, the instances of legislative intervention in the judicial domain are quite limited. One must assume that this must be out of a desire by the legislature to respect and preserve the prestige and independence of the judiciary. However, there are many ways and circumstances when parliament can intervene and itself, directly or indirectly, perform judicial functions. The most obvious and frequent instance of this is where there is some legal uncertainly or controversy over an issue. Parliament may intervene through an enactment that may be declaratory or expository of the law. Such a declaratory statute is usually designed to end any doubts as to what the law is and declare what the law is or is supposed to be. These declaratory statutes are generally prospective in nature but may also have a retrospective effect. However, most constitutions prohibit parliament from enacting penal legislation which has a retrospective effect.83 As a general principle, a curative Act of Parliament, for example, legislation that is designed to change the decision in a particular case or confirm judicial proceedings that are otherwise void for lack of jurisdiction, would be an unwarranted (p. 81) encroachment on what is essentially the judicial domain and will be declared void by the courts.84 For similar reasons, parliament cannot by statute declare what the intention of a former Act was or prescribe that a former Act should or should not be construed in a certain manner. The courts retain the full right to interpret the law. Parliament, in spite of its ability to exercise some judicial powers, cannot by a statutory enactment declare an Act to be either constitutional or void, though it may repeal or refuse to enact any law because it deems it unconstitutional, irrespective of whether or not the courts have declared it constitutional. On the whole, the almost unfettered right of parliament to do anything except change a man into a woman and vice versa, is tempered by a strong desire not to be seen to be usurping judicial functions in a manner that threatens to undermine the independence of the judiciary. An extreme example of the abuse of legislative power is the bill of attainder which is a legislative act declaring one or more persons guilty of a serious crime, particularly treason, without the benefit of a judicial trial.85 To avoid some of these abuses, article 107 of the 1992 constitution of Ghana expressly declares that parliament shall have no power to pass any law to alter the decision or judgment of any court as between the parties or pass a law which operates retrospectively to impose limitations or adversely affect the personal rights and liberties of any person. It is a worthwhile precaution because before the 2013 constitution, many of the nineteen amendments that had been made to the 1980 constitution of Zimbabwe had deliberately been introduced to alter or nullify court decisions.86 Thus, without entrenched constitutional limitations such as those contained in the Ghanaian constitution, it is easy for legislatures to misuse their law-making powers in a manner that will undermine any effective checks that the judiciary may exercise over them.

(p. 82) 5.  The French Influence in Francophone and Other Civilian Jurisdictions in Africa

As in the preceding discussion, the analysis of the French approach in Francophone Africa (used in a broad sense to cover civilian-based systems whether French-speaking like Benin, Congo DR, Burundi, and Rwanda or Lusophone, like Angola and Mozambique or Hispanophone like Equatorial Guinea) will focus on a number of selected countries. Angola has been selected as a Lusophone country with a fairly recent constitution (2010), and Benin, Cameroon, Gabon, and Senegal as examples of Francophone countries. While Benin’s 1990 constitution is one of the most modern and liberal of the French Gaullist model on the continent, the Cameroon constitution of 1996 (supposedly a revision of the 1972 constitution) is a typical example of this Gaullist model in its more or less original 1958 form. The 1991 constitution of Gabon and 2001 constitution of Senegal are selected as examples of the modified Gaullist model, the former having been adopted at the early stages of the post-1990 constitutional reforms fever and the latter being a more recent example.87 The 2006 constitution of Congo DR will also be referred to as another civilian-based approach although not directly linked to the Gaullist model. Occasional references will be made to the constitutions of other countries such as the Burundi constitution of 2005 and Rwanda’s 2003 constitution which have been influenced by the civilian approach.

In assessing the approach adopted in entrenching the separation of powers, the discussion will start by looking at the relations between the executive and the legislature, followed by that between the executive and the judiciary and ending with that between the judiciary and the legislature.

5.1  The executive and legislative branches

Using the same three conceptualizations of separation of powers that formed the basis of the analysis of the situation in Anglophone Africa, the starting point is to see whether the same person could form part of the executive and the legislative branch. All the constitutions examined expressly state that the holding of any position in the executive is incompatible with being a member of the legislature.88 This doesn’t preclude a member from either branch taking up a position in the other but what it clearly means is that such a person must resign from his previous position. The constitution of Congo DR of 2006 adopts a fairly different and rather contradictory approach. First, articles 96 and 97 expressly state that the exercise of the position of president and member of government is incompatible with membership of parliament. (p. 83) It then apparently contradicts this position. First, it says that the president appoints the prime minister from the party with a majority in parliament. One must assume that if such a prime minister is a member of parliament, then he must resign his parliamentary position. The second problem is that the same articles expressly state that the mandate of the president and that of a member of government is incompatible with ‘responsibility within a political party’. It is difficult to understand why a president elected on a certain political platform, probably as leader, should abandon this platform. It is an anomaly which is inherent in the Gaullist system which is constructed around the fallacious assumption that the executive will always have the majority party in parliament. Apparently, some African constitutional drafters have not sufficiently learnt the lessons from the three periods in the 1980s and 1990s in France, when this assumption was exploded, leading to uncomfortable ‘cohabitation’ of a president from one party and a prime minister from a different party that won the majority seats in parliament.89

The Francophone constitutions allow for control and intervention of one branch into the domain of the other. With respect to executive control or intervention in the legislative domain, this occurs in at least two main ways. One is through the promulgation of bills adopted by parliament before they become law.90 It is an important means of controlling parliament which puts pressure on parliament to compromise because no bill will ever become law until the president promulgates it. The powerful position of the president in this system contrasts with the position in Anglophone Africa which provides that should there be a stalemate between the president and parliament, then parliament must be dissolved and fresh elections held. In Anglophone Africa, it puts pressure on both branches to reach a compromise. In most of the Francophone constitutions, the president is given discretionary powers to dissolve parliament. Often, all he needs to do is to consult the presidents of the two chambers of parliament. The only restriction is that the right can be exercised at most twice during a mandate and not earlier than a year after the last parliamentary elections.91 It is only under the 2006 constitution of Congo DR that some restrictions are imposed on the president’s powers to dissolve parliament. He is only required to act when there is persistent crisis between the government and parliament but is however not allowed to do so during a state of emergency, siege, or war.92 Legislative control over the executive, like under Anglophone African constitutions, operates in two main ways; through impeachment and parliamentary processes of control. Unlike under the Anglophone constitutions, the provisions regulating these are often very detailed. As regards impeachment, the crimes covered and the procedures to be followed differ depending (p. 84) on whether it concerns the president or other members of the executive such as the prime minister and other members of cabinet. Presidents are usually charged with serious crimes such as treason and espionage. Generally, the crimes that could lead to impeachment also include grave abuse of office, corruption, violation of the constitution and of the law, and other so-called heinous and violent crimes. Although the proceedings often end up before either a special High Court of Justice or the Constitutional Court, the process is very political with parliament playing a leading role in initiating the process and sometimes appointing some of its members to sit in the High Court of Justice.93 It is with respect to the control through parliamentary processes that the provisions are very detailed. This control is exercised through an impressive array of measures such as vote of no confidence (which is usually limited only to the prime minister and his cabinet but not the president), motions of censure, questions (both written and oral), commissions of inquiry, and other forms of parliamentary committees.94 As conceived, these look like perfect mechanisms to hold governments accountable. Unfortunately, because of the prevalence of dominant parties, the chances of obtaining a two-thirds majority that is usually needed to impeach a president are slim. Similarly, the same dominant parties will often use their majorities to block any genuine attempts to hold the government accountable. The executive is therefore hardly ever under any serious pressure to account in these countries. Another thing that reinforces the view that all these measures enable parliaments in Francophone Africa to sometimes bark but hardly ever bite is the fact that the measures to control the executive and even sanction it only apply to the prime minister and his ministers. Yet, these latter all serve at the pleasure of the president and often do no more than implement the policies laid down by the president. Thus, the person who actually determines policies in these countries can hardly be made to account for any failures of these policies before the people’s representative.95

Now turning to the extent to which these branches exercise each other’s functions, the balance is again in favour of the executive. Unlike under Anglophone constitutions where executive law-making is the exception, at least in principle, under the civilian separation of powers model, executive-law making is expressly provided for under the constitutions. This is marked by two features. First, the constitutions of the countries examined in this section usually state that both the executive as well as parliament have (p. 85) the right to initiate bills.96 As in the Anglophone system, most of the bills are in fact initiated by the executive. Second, the law-making function is split into three distinct parts dealing with different areas. There are matters that are exclusively reserved for legislative enactments (the exclusive legislative domain); matters falling outside these areas are reserved for the executive (the exclusive regulatory domain) and then these constitutions provide that parliament may, either with respect to certain matters or in some cases, all matters falling within its exclusive legislative domain, authorize the executive to make laws usually in the form of decree-laws or ordinances for certain purposes and for specified periods subject to subsequent parliamentary ratification.97 Two points are worth noting here. The first point is that although in practice, most modern laws in Anglophone Africa are initiated by the executive, which also has wide powers to make secondary legislation, the scope for executive law-making is far more extensive in Francophone Africa and in fact most governmental matters are regulated by presidential decrees, ordinances, and regulations as well as ministerial decrees and orders. The second point to note is that until the post-1990 extension in some of these countries of a form of judicial review, the executive laws were completely outside the scope of judicial review for conformity to the constitution, which was then essentially limited to abstract review of bills before their promulgation into law. Be that as it may, it is clear from this that the executive effectively dominates and controls the legislative domain. We shall now look at its position vis-à-vis the judiciary.

5.2  The executive and judicial branches

The relationship of the executive and judicial branches will also be analysed based on the same three questions. Starting with the question whether there are any persons who form part of both branches, the only person who seems to belong to both branches of government under most of the constitutions examined is, as in Anglophone Africa, the public prosecutor. From the elaborate description of the functions of the public prosecutor given in articles 185 to 187 of the 2010 constitution of Angola, it is clear that the incumbent exercises both judicial and executive functions. This can be inferred from the wording of the provisions dealing with this office in the typical Gaullist constitutions which cover public prosecutors under the section dealing with the judiciary but exclude certain provisions, especially those dealing with judicial independence, from applying to them.98

(p. 86) With respect to the extent to which each of these branches control each other there is again clear evidence of executive dominance. Although it is expressly stated in these constitutions that judicial power is independent of legislative and executive powers, this is quickly contradicted by several other constitutional provisions. The exact extent of this varies slightly from one constitution to another but the effect is usually the same. For example, there is the typical and original Gaullist formulation that the president shall guarantee the independence of judicial power.99 As noted earlier, if all three branches are on a par, there will be no need for one to guarantee the independence of the other. This is a matter that could more appropriately be taken care of by an effective system of checks and balances. Under most of these constitutions, the president plays a decisive role in the appointment of judges of the ordinary courts. Although he is supposed to be ‘assisted’ by or act on the ‘opinion’ of the CSM, this hardly makes sense. In most cases, the president is not only the chair of the CSM and his Minister of Justice, the deputy chair, but it is also he who convenes the meetings of the CSM and draws up its agenda.100 He is therefore presiding over a body that is supposed to make recommendations to him. The net effect of this is that certain fundamental safeguards of judicial independence which the CSM deals with, such as issues of judicial discipline, transfers, and promotions are virtually controlled by the executive. On the other hand, the traditional form of judicial control over executive action is by way of judicial review of the conformity of such action to the law, especially the constitution. Before the 1990s, most Francophone countries had merely copied the largely ineffective Constitutional Council method for reviewing the constitutionality of laws that was established under the 1958 French constitution. Apart from Cameroon which in 1996 went back to this defective system,101 most other countries, the best example being Benin, have now substantially departed from the Constitutional Council model. Although the system of review of the constitutionality of laws remains centralized, unlike in the past, it now allows not only for both abstract and concrete review of constitutionality but locus standi have been expanded for the first time to give individuals the right to directly or indirectly challenge unconstitutional laws and other forms of unlawful executive action.102

(p. 87) Finally, as regards those situations in which these two branches exercise each other’s functions, it is obviously undesirable and a serious threat to judicial independence if the other branches, especially the executive were allowed to exercise the functions of the judiciary. In fact, the 2006 Constitution of Congo DR expressly forbids this in article 151 which states:

The executive power may neither give orders to a judge in the exercise of his jurisdiction, nor decide on disputes, nor obstruct the course of justice, nor oppose the execution of a decision of justice.

The legislative power may not decide on jurisdictional disputes, or modify a decision of justice, nor oppose its execution.

Any law of which the subject is manifestly to provide a solution to a juridical process in course is void and of no effect.

Nevertheless, these constitutions, like those in Anglophone Africa, allow the executive to intervene in the judicial domain only with respect to the exercise of the right of pardon through which the president may remit, commute, or reduce sentences passed by the courts.103

5.3  The judicial and legislative branches

Finally, the relationship between the judiciary and the legislature will now be considered. The first question relates to whether the same persons can exercise both judicial and legislative functions simultaneously. Some of these constitutions expressly prohibit this.104 In most of these countries however, the prohibition of one person exercising both functions is usually done in secondary legislation but even if this was not done, it is difficult to see how as a practical fact, one person could do both at the same time.

With regards to the scope for controlling each other, the main method of control exercised by the judiciary over the legislature is by way of judicial review of legislative acts for conformity to the constitution. Whilst post-1990 Anglophone African constitutions are beginning to recognize the need for abstract review, this has always been the main form of control exercised by Francophone constitutional courts. With perhaps the exception of Cameroon, almost all modern Francophone constitutions now allow (p. 88) their constitutional courts to go beyond the traditional abstract review and also undertake concrete review of legislation. This has considerably enhanced the ability of the judiciary to check against laws which violate the constitution. The effect of judicial review of legislative as well as executive actions may however be reversed by new legislation which usually has a prospective effect but may also have a retrospective effect. As we noted earlier, the 2006 constitution of Congo DR specifically bars the legislature from enacting legislation specifically aimed at neutralizing the effect of a court decision.105

As regards the judiciary and legislature exercising each other’s functions, the scope for this is, unlike under Anglophone constitutions, fairly limited. Because the doctrine of binding precedent is not a feature of the civil law tradition, the scope for judicial law-making via judicial precedents is very limited. Inferior courts are not obliged to follow the rule of law laid down by superior courts in a similar case but may do so merely to forestall their decision being reversed on appeal and not out of any legal obligation to do so. On the other hand, and as we noted earlier, the legislature or some members of it exercise judicial functions when they initiate and participate in the trial of the president and other members of the executive for treason and other offences. Because of the wide-ranging powers of the executive and its control over the legislature, the possibility of the legislature initiating impeachment proceedings against the president or even any member of the executive is very slim. This is true not only under Francophone but also under Anglophone constitutions. As we will now see, it is no surprise that there have been serious efforts by constitutional designers to expand the scope of constitutional checks and balances beyond the well-established three branches of government.

6.  The Emergence of Hybrid Institutions Beyond the Traditional Triad

When John Locke and Montesquieu developed their theories of separation of powers, many of the institutions that have now become commonplace in constitutional design such as political parties, the media, ombudsmen, human rights commissions, and anti-corruption agencies were not in existence. The number of these institutions and their powers have progressively expanded since the 1990s to such an extent that one can talk of a hybrid category of institutions that do not fit into the classic traditional triad but share with it, the goal of trying to check against abuses of powers.

Although some of these hybrid institutions, such as the ombudsman and the human rights commission had appeared in several constitutions in one form or another both prior to and after the 1990s, it can be argued that it is the South African 1996 constitution that firmly established a new pattern beyond the tripartite paradigm of separation of powers by creating what it refers to as ‘state institutions supporting constitutional democracy’ in chapter 9. The potential impact of these institutions is explored in Chapter 14 of this volume.

(p. 89) 7.  Conclusion

What is clear from this overview is that the doctrine of separation of powers is still very much a feature of modern African constitutions and not just some abstract theoretical and philosophical construct developed centuries ago. Its main goal, the prevention of tyranny, is as potent today as it was many centuries ago when Lord Acton made his famous warning that ‘power tends to corrupt, and absolute power corrupts absolutely’.106 The doctrine, whether viewed from the American, British, or French perspective has never contemplated a rigid separation of the different branches of government into watertight compartments but rather such separation as will forestall the dangers that are inherent in the concentration of powers.

As a doctrine designed to promote constitutionalism, good governance, and respect for the rule of law, our analysis shows not only that it remains one of the core elements of modern constitutionalism but also that its continuous application cannot ignore dramatic changes in the structuring of modern societies and the need to craft new and better means to deal with the challenges that they pose. What has clearly emerged is that in spite of the separation of powers, the executive has become dominant and overbearing. It is a phenomenon that is much more acute in the countries that inherited and maintained the civilian legal tradition in Africa than those of the common law.107 Nevertheless, it is a problem that has limited the practical effectiveness of the entrenchment of separation of powers in modern African constitutions. The emergence of hybrid institutions of accountability such as the ombudsman, anti-corruption agencies, and human rights commissions are an indication that the traditional checks and balances associated with the three branches of government are no longer sufficient. These hybrid institutions not only complement the traditional accountability measures but also reflect the political, social, and constitutional changes that are taking place. They underscore the ability of the doctrine to adjust to modern realities as well as reflect the peculiar needs and governance deficits and risks. It can be argued that the traditional triad have encouraged false complacency about the existence of adequate checks and balances within the different branches, which is clearly not true. The progressive constitutionalization of hybrid institutions of accountability is particularly important because of the capture and control of the three branches of government by powerful executives whose position is reinforced by dominant ruling parties thus increasing the risks of democratic reversal in Africa’s fledgling democratic transitions. What makes these institutions distinctive and potentially critical to Africa’s democratic project is their independence from the other branches, their ability to be both reactive and proactive, and their accessibility to the most vulnerable in society. In many respects they will act as the intermediary institutions between ordinary citizens (p. 90) and the three branches of government, and give the former an opportunity to directly seek solutions to their problems. The increasing popularity of these institutions is not testimony to the failure of the doctrine of separation of powers but rather strong evidence of its durability, viability, and adaptability. For, as Bruce Ackerman rightly points out, ‘the separation of powers is a good idea’, and ‘there is no reason to suppose that the classical writers have exhausted its goodness’.108

In a modern age that lays stress on realism and political pragmatism rather than strict dogma, the doctrine of separation of powers now emphasizes unity, cohesion, and harmony within a system of checks and balances. It also allows space for other intermediary institutions to fill in the gaps. It is therefore contended that an effective system of separation of powers that limits the possibilities of an excessive concentration of powers and the abuse of powers that go with it, reinforced by well-designed hybrid institutions that can promote transparency and accountability, will certainly provide a solid platform for dealing with the numerous contemporary challenges to constitutionalism, rule of law, and good governance in Africa.

Bibliography

  • Ackerman B, ‘The New Separation of Powers’ (2000) 113 Harvard Law Review 633
  • Ackerman B, The Decline and Fall of the American Republic (Harvard University Press 2010)
  • Adjolohoun H, Droit de l’Homme et Justice Constitutionne en Afrique: Le Modèle Béninois. À la Lumière de l’Homme et des Peuples (L’Harmattan 2011)
  • Balde S, ‘Juge Constitutionnel et Transition Démocratique: Etude de Cas en Afrique Subsaharieene Francophone’ <http://www.juridicas.unam.mx/wccl/ponencias/16/279.pdf> accessed April 2015
  • Barendt E, ‘The Separation of Powers and Constitutional Government’ (1995) Public Law 599‒616
  • Baxter L, Administrative Law (Juta & Co 1984)
  • Blessley J, Constitutional Law: Textbook (HLT Publications 1990)
  • Bondy W, The Separation of Governmental Powers (Columbia College 1896)
  • Bradley AW and Ewing KD, Constitutional and Administrative Law (15th edn, Pearson Education Ltd 2011)
  • Cabanis A and Martin ML, Le Constitutionnalisme de la Troisième Vague en Afrique Francophone (Bruylant-Academia SA 2010)
  • Cane P, ‘Judicial Review and Merits Review: Comparing Administrative Adjudication by Courts and Tribunals’ in Rose-Ackerman S and Lindseth PL (eds), Comparative Administrative Law (Edward Elgar Publishing 2010) 426
  • Caspar G, ‘An Essay in Separation of Powers: Some Early Versions and Practices’ (1989) 30 William and Mary LR 211
  • Corder H, ‘Judicial Activism of a Special Type: South Africa’s Top Courts since 1994’ in Dickson B (ed), Judicial Activism in Common Law Supreme Courts (Oxford University Press 2007) 323
  • Crawford JR, ‘The History and Nature of the Judicial System of Botswana, Lesotho and Swaziland—Introduction and the Superior Courts’ (1969) 86 South African Law Journal 476 & (1970) 87 South African Law Journal 76
  • Davis M, ‘The Law/Politics Distinction, the French Conseil Constitutionnel, and the US Supreme Court’ (1986) 34 American Journal of Comparative Law 45
  • Diarra A, ‘La Protection Constitutionnelle des Droits et Libertés en Afrique Noire Francophone depuis 1990. Les Cas du Mali et Benin’ <http://afrilex.u-bordeaux4.fr/la-protection-constitutionnelle.html> accessed April 2015
  • (p. 91) Dicey AV, The Law of the Constitution (Allison JWF ed, Oxford University Press 2013)
  • Finer SE, Bogdanor V, and Rudden B, Comparing Constitutions (Clarendon Press 1995)
  • Fombad CM, ‘The New Cameroonian Constitutional Council in a Comparative Perspective: Progress or Retrogression?’ (1998) 42 Journal of African Law 172
  • Fombad CM, ‘The Separation of Powers and Constitutionalism in Africa: The Case of Botswana’ (2005) 25 Boston College Third World Law Journal 301
  • Fombad CM, ‘Appointment of Constitutional Adjudicators in Africa: Some Perspectives on How Different Systems Yield Similar Outcomes’ (2014) 46 Journal of Legal Pluralism and Unofficial Law 249
  • Fombad CM, ‘Conceptualising a Framework for Inclusive, Fair and Robust Multiparty Democracy in Africa: The Constitutionalisation of the Rights of Political Parties’ (2015) 48 Verfassung in Recht und Übersee 3
  • Fombad CM and Nwauche E, ‘Africa’s Imperial Presidents: Immunity, Impunity and Accountability’ (2012) 5 African Journal of Legal Studies 91
  • Gwyn WB, The Meaning of Separation of Powers (Tulane University 1965)
  • Gwyn WB, ‘The Separation of Powers and Modern Forms of Democratic Government’ in Goldwin RA and Kaufman A (eds), Separation of Powers—Does it still Work? (American Enterprise Institute for Public Policy Research 1986) 100–28
  • Hoffman P, ‘Hawks or Eagles: What does South Africa deserve?’ (Notes for an address to the Cape Town Press Club on 15 May 2012) <http://accountabilitynow.org.za/hawks-eagles-south-africa-deserve/> accessed October 2015
  • Kante B, ‘Models of Constitutional Jurisdiction in Francophone West Africa’ (2008) 3 JCL 168
  • Kpodar A, ‘Bilan sur en Demi-Siècle de Constitutionannalisme en Afrique Noire Francophone’ 8‒10 <http://afrilex.u-bordeaux4.fr/sites/afrilex/IMG/pdf/BILAN_SUR_UN_DEMI-SIECLE_DE_CONSTITUTIONNALISME_EN_AFRIQUE_NOIRE_FRANCOPHONE.pdf> assessed 26 October 2015
  • Luchaire F, ‘Le Conseil Constitutionnel est-il une Juridiction?’ (1979) Revue de Droit Public 30‒43
  • Lumumba PLO and Franceschi L, The Constitution of Kenya, 2010: An Introductory Commentary (Strathmore University Press 2014)
  • Marshall G, Constitutional Theory (Clarendon Press 1971)
  • Matyszak D, ‘Creating a Compliant Judiciary in Zimbabwe’ in Malleson K and Russell P (eds), Appointing Judges in an Age of Judicial Power: Critical Perspectives from Around the World (University of Toronto Press 2006) 331
  • Montesquieu, The Spirit of the Law, Book XI (JV Pritchard ed, Thomas Nugent tr, Littleton, Rothman & Co 1991)
  • Morgan DG, The Separation of Powers in the Irish Constitution (Round Hall, Sweet & Maxwell 1997)
  • Nwauche E, ‘Is the End Near for the Political Question Doctrine in Nigeria?’ in Fombad C and Murray C (eds), Fostering Constitutionalism in Africa (PULP 2010) 31–60
  • Onselen GV, ‘Blaming Apartheid is No Longer a Credible Excuse’ (Sunday Times 30 March 2014)
  • Pain JH, ‘The Reception of English and Roman-Dutch Law in Africa with Reference to Botswana, Lesotho and Swaziland’ (1978) 11 CILSA 137–67
  • Park AEW, The Sources of Nigerian Law (Sweet & Maxwell 1972)
  • Parker R, ‘Historic Basis of Administrative Law: Separation of Powers and Judicial Supremacy’ (1958) 12 Rutgers Law Review 449–81
  • Posner E, ‘Eric Posner Reviews Ackerman’s “Decline and Fall of the American Republic”’ <http://www.law.uchicago.edu/news/eric-posner-reviews-ackermans-decline-and-fall-american-republic> accessed April 2015
  • Poulard J, ‘The French Double Executive and the Experience of Cohabitation’ (1990) 105 Political Science Quarterly 243
  • Rohr J, Founding Republics in France and America: A Study in Constitutional Governance (University Press of Kansas 1995)
  • (p. 92) Rotman A, ‘Benin’s Constitutional Court: An Institutional Model for Guaranteeing Human Rights?’ (2004) 17 Harvard Human Rights Journal 280
  • Sabine GH, A History of Political Theory (Henry Hold & Co 1950)
  • Sanders AJGM, ‘The Characteristic Features of Southern African Law’ (1981) 14 CILSA 328
  • Sharp M, ‘The Classical American Doctrine of Separation of Powers’ (1935) 2 University of Chicago LR 385
  • Vanderbilt AT, The Doctrine of the Separation of Powers and its Present-day Significance (University of Nebraska Press 1963)
  • Vile MJC, Constitutionalism and the Separation of Powers (Clarendon Press 1967)

Footnotes:

1  The chapter draws from my earlier paper, Charles Manga Fombad, ‘The Separation of Powers and Constitutionalism in Africa: The Case of Botswana’ (2005) 25 Boston College Third World Law Journal 301.

2  In fact, he concludes in his book, Geoffrey Marshall, Constitutional Theory (Clarendon Press 1971) 124, that the doctrine is ‘infected with so much imprecision and inconsistency that it may be counted little more than a jumbled portmanteau of arguments for policies which ought to be supported or rejected on other grounds’.

3  Albert Dicey in his book John Allison (ed), The Law of the Constitution (Oxford University Press 2013) 338.

4  These are fully discussed in Ch 14.

5  See George H Sabine, A History of Political Theory (Henry Hold & Co 1950) 79.

6  This has led some writers to suggest that he is the originator of the doctrine. See, for example, William Bondy, The Separation of Governmental Powers (Columbia College 1896) 12 and others cited by Arthur T Vanderbilt, The Doctrine of the Separation of Powers and its Present-day Significance (University of Nebraska Press 1963) 39 fn 119.

7  For a discussion of this see William Gwyn, The Meaning of Separation of Powers (Tulane University 1965) ch 5; and MJC Vile, Constitutionalism and the Separation of Powers (Clarendon Press 1967) 58‒67.

8  See Baron de Montesquieu, The Spirit of the Law: Book XI (JV Pritchard ed, Thomas Nugent tr, Littleton, Rothman & Co 1991); and also WB Gwyn, ‘The Separation of Powers and Modern Forms of Democratic Government’ in Robert A Goldwin and Art Kaufman (eds), Separation of Powers—Does it still Work? (American Enterprise Institute for Public Policy Research 1986) 100‒28; and Vile (n 7) 76‒97.

9  For fuller discussion of this, see Gwyn (n 7) ch 7 and Vile (n 7) ch 4.

10  This claim is now regarded as flawed because the eighteenth-century English constitution did not observe the separation of powers in the form that he propounded. See Eric Barendt, ‘The Separation of Powers and Constitutional Government’ (1995) Public Law 600. This is why, as was pointed out earlier, Dicey (n 3) argued that the doctrine was the ‘offspring of a double misconception’.

11  Quoted by Sharp, and cited by Gwyn (n 7) 110.

12  See David G Morgan, The Separation of Powers in the Irish Constitution (Round Hall Sweet & Maxwell 1997) 5.

13  See Gwyn (n 7) 66.

14  See generally Malcolm Sharp, ‘The Classical American Doctrine of Separation of Powers’ (1935) 2 University of Chicago LR 385; Gerhard Caspar, ‘An Essay in Separation of Powers: Some Early Versions and Practices’ (1989) 30 William and Mary LR 211; Vile (n 7) ch 6 and Gwyn (n 7) 116‒28.

15  Anthony Wilfred Bradley and Keith D Ewing, Constitutional and Administrative Law (15th edn, Pearson Education Ltd 2011) 83.

16  For a full discussion of this, see the two works of Gwyn (nn 7 and 8).

17  Gwyn (n 8) 2.

18  See the famous judgment of Chief Justice Marshall in Marbury v Madison 1 Cranch 5 (US) 137 (1803).

19  No 47, 323‒8.

20  See Jane Blessley, Constitutional Law Textbook (HLT Publications 1990) 18.

21  See Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press 2010), but see also Eric Posner, ‘Eric Posner Reviews Ackerman’s “Decline and Fall of the American Republic”’ (The New Republic 20 October 2010) <http://www.law.uchicago.edu/news/eric-posner-reviews-ackermans-decline-and-fall-american-republic> accessed 22 April 2015, who argues, quite plausibly that Ackerman’s case against a system of executive primacy in the United States is exaggerated.

22  See, for example, Bruce Ackerman, ‘The New Separation of Powers’ (2000) 113 Harvard Law Review 633‒725.

23  The House of Commons Disqualification Act 1975 limits the number of ministers who may sit in the House of Commons to ninety-five, which is about 15% of the total number of members of parliament.

24  Cited in Bradley and Ewing (n 15) 84.

25  In fact, prior to the 2005 constitutional reforms, the Lord Chancellor belonged to each of the three branches of government.

26  See Bradley and Ewing (n 15) 84‒8.

27  See Blessley (n 20) 18. In fact, Reginald Parker, ‘Historic Basis of Administrative Law: Separation of Powers and Judicial Supremacy’ (1958) 12 Rutgers Law Review 450, has argued that effective separation of powers in England dates from the passage of a statute making judges removable from office only by impeachment by parliament for misconduct.

28  See Lord Mustill, in R v Home Secretary, ex parte Fire Brigades Union [1995] 2 AC 567 put is thus: ‘It is a feature of the peculiarly British conception of the separation of powers that Parliament, the executive and the courts have each their distinct and largely exclusive domain. Parliament has a legally unchallengeable right to make whatever laws it thinks right. The executive carries on the administration of the country in accordance with the powers conferred on it by laws. The courts interpret the laws, and see that they are obeyed.’

29  See generally Francois Luchaire, ‘Le Conseil Constitutionnel est-il une Juridiction?’ (1979) Revue de Droit Public (1979) 30; Michael Davis, ‘The Law/Politics Distinction, the French Conseil Constitutionnel, and the US Supreme Court’ (1986) 34 American Journal of Comparative Law 45‒92; and for an African perspective, Charles Manga Fombad, ‘The New Cameroonian Constitutional Council in a Comparative Perspective: Progress or Retrogression?’ (1998) 42 Journal of African Law 172.

30  See John Rohr, Founding Republics in France and America: A Study in Constitutional Governance (University Press of Kansas 1995) 89‒93.

31  It must however be pointed out that until fairly recently, this so-called cumul des mandats principle was allowed in France if it related to a local administrative or executive position.

32  For the travails of the French during this period, see Samuel E Finer, Vernon Bogdanor, and Bernard Rudden, Comparing Constitutions (Clarendon Press 1995) 8‒9.

33  See Bradley and Ewing (n 15) 83.

34  It is worth noting that some other Anglophone countries like Malawi and Zambia which adopted new constitutions in the 1990s are back at it again.

35  See further, Charles Manga Fombad and Enyinna Nwauche, ‘Africa’s Imperial Presidents: Immunity, Impunity and Accountability’ (2012) 5 African Journal of Legal Studies 91.

36  But once elected, according to s 87 of the constitution, the president ceases to be a member of the National Assembly.

37  See, for example, ss 39, 42, and 43 of the Botswana constitution of 1966; arts 78(1) and 79(2) of the constitution of Ghana of 1992; and s 104(3) of the Zimbabwe constitution of 2013.

38  Patrick Lumumba and Luis Franceschi, The Constitution of Kenya, 2010: An Introductory Commentary (Strathmore University Press 2014) 457 explain the reasons for this change thus: ‘The fact that Cabinet Secretaries … are not appointed from among members of Parliament enhances separation of powers and gives the President the chance to appoint expert managers who may help him discharge the executive functions more efficiently. According to the CKRC this change is meant to ensure the Ministers … are qualified for the portfolios assigned to them, and that they are not being burdened with constituency business or suffer conflict between national and constituency interests. Thus, they would be able to devote all their time and energies to their ministries.’

39  See, for example, arts 95(5) and 144‒50 of the 2010 constitution of Kenya; s 89 of the constitution of the Republic of South Africa, 1996; and s 97 of the 2013 constitution of Zimbabwe.

40  See art 95(6) of the 2010 constitution of Kenya and s 111 of the 2013 constitution of Zimbabwe.

41  See art 132(2) of the 2010 constitution of Kenya.

42  See art 152 of the 2010 constitution of Kenya; ss 92(2) and 101‒2 of the constitution of the Republic of South Africa, 1996; s 109 of the 2013 constitution of Zimbabwe.

43  See Bradley and Ewing (n 15) 84.

44  See further, Charles Manga Fombad, ‘Conceptualising a Framework for Inclusive, Fair and Robust Multiparty Democracy in Africa: The Constitutionalisation of the Rights of Political Parties’ (2015) 48 Verfassung in Recht und Übersee 3.

45  Section 58 of the constitution was amended by the Constitution (Amendment) Act, 2002, which now provides for a total of sixty-one members of parliament, consisting of fifty-seven elected members and four specially appointed members.

46  This excludes the Attorney-General who is an ex officio member of parliament, but has no vote. See s 58 of the constitution.

47  There are sixteen ministers and six assistant ministers.

48  See ‘Live parliamentary proceedings on TV will be costly’ Daily News (Durban, 5 November 2003) 2.

49  See Linda Ensor, ‘Divisive Bill Stymied by Lack of MP’s Quorum’ (Business Day 21 June 2013) <http://www.bdlive.co.za/national/labour/2013/06/21/divisive-bill-stymied-by-lack-of-mps-quorum> accessed 22 April 2015.

50  See, for example, art 106 of the constitution of Ghana of 1992; and s 79 of the constitution of the Republic of South Africa, 1996.

51  See, for example, s 50 of the constitution of the Republic of South Africa, 1889; and s 143 of the 2013 constitution of Zimbabwe.

52  See also s 86 of the 1966 constitution of Botswana; art 93(2) of the 1992 constitution of Ghana; and s 43 of the constitution of the Republic of South Africa, 1996.

53  See, for example, ss 51 and 51A of the Botswana constitution of 1966; art 88 of the 1992 constitution of Ghana; art 156 of the Kenyan constitution of 2010; s 179(5) of the constitution of the Republic of South Africa, 1996; and s 114 of the constitution of Zimbabwe of 2013.

54  See, for example, ss 103–4 of the 1966 constitution of Botswana, arts 144‒53 of the 1992 constitution of Ghana; art 166 of the 2010 constitution of Kenya; s 174 of the constitution of the Republic of South Africa, 1996; and s 180 of the 2013 constitution of Zimbabwe.

55  Also see art 127(2) of the 1992 constitution of Ghana and s 165 of the constitution of the Republic of South Africa, 1996.

56  Thus, under ss 96(1) and 100(1) of the 1966 constitution of Botswana, the president alone appoints the Chief Justice of the High Court and the Judge President of the Court of Appeal without consulting or obtaining the advice of the JSC as he does in the case of ordinary judges. Similarly, s 174(3) of the constitution of the Republic of South Africa, 1996, empowers the president to appoint the Chief Justice and the Deputy Chief Justice of the Constitutional Court. All he needs to do before making these appointments is to consult the JSC and the leaders of the parties represented in the National Assembly. He is not bound by any views or advice that they may give.

57  Some of these issues are discussed in Charles Manga Fombad, ‘Appointment of Constitutional Adjudicators in Africa: Some Perspectives on How Different Systems Yield Similar Outcomes’ (2014) Journal of Legal Pluralism and Unofficial Law 249.

58  In South Africa, there have been many cases in which the executive has claimed that the courts have violated the principles of separation of powers. See, for example, in Minister of Health v Treatment Action Group (TAC) (No 2) 2002 (5) SA 721 (CC), where the Constitutional Court of South Africa was faced with a highly sensitive political case in which the applicants contested the state’s policy of selecting test sites for the provision of anti-retroviral drugs to HIV-positive mothers and their newborn children and sought the right to these services for every child. The minister resisted the application, questioning the constitutional obligation of government to provide an ‘effective, comprehensive and progressive programme’ such as that argued for by TAC. The Court, whilst acknowledging that ‘courts are ill-suited to adjudicate upon issues where court orders could have multiple social and economic consequences’, refused to be swayed by the state’s argument that it should confine itself to a declaratory judgment. It decided that it was under a duty to grant effective remedies in all cases which included in this case an order for mandamus and the exercise of supervisory jurisdiction. Similar arguments that judicial intervention would breach the separation of powers was also dismissed by the South African Constitutional Court in Mohamed v President of the Republic of South Africa 2001 (3) SA 893 (CC); and Doctors for Life International v Speaker of the National Assembly 2006 (6) SA 416 (CC). Also see Enyinna Nwauche, ‘Is the End Near for the Political Question Doctrine in Nigeria?’ in Charles Fombad and Christina Murray (eds), Fostering Constitutionalism in Africa (PULP 2010) 31‒60.

59  See, for example, ss 53‒5 of the 1966 constitution of Botswana; art 72(1) of the 1992 constitution of Ghana; art 133(1) of the 2010 constitution of Kenya; s 84(j) of the constitution of the Republic of South Africa, 1996; and s 112 of the 2013 constitution of Zimbabwe.

60  Section 53 of the constitution of Botswana.

61  Examples of these include the Police Service Commission, the Defense Forces Commission, and the Prisons and Correctional Service Commission provided for in ss 211‒31 of the 2013 Zimbabwe constitution.

62  See, for example, ss 110 and 111 of the 1966 Botswana constitution and ss 24‒32 of the Public Service Act, 1998 of Botswana.

63  See Section 6.

64  For an excellent discussion of this see Peter Cane, ‘Judicial Review and Merits Review: Comparing Administrative Adjudication by Courts and Tribunals’ in Susan Rose-Ackerman and Peter L Lindseth (eds), Comparative Administrative Law (Edward Elgar Publishing 2010) 426‒48; and also Lawrence Baxter, Administrative Law (Juta & Co 1984) 250‒2.

65  See, for example, the Botswana cases of Gogannekgosi v Commissioner for Workmen’s Compensation and Others [1993] BLR 360; The Attorney-General and Another v Kgalagadi Resources Development Company (Pty) Ltd [1995] BLR 234.

66  Also see s 86(2) of the constitution of the Republic of South Africa, 1996 which confers similar functions on the Chief Justice.

67  See, for example, s 178(1)(b) of the constitution of the Republic of South Africa, 1996; and s 189(2) of the 2013 constitution of Zimbabwe.

68  See art 94(4) of the constitution of Ghana of 1992.

69  See generally Vanderbilt (n 6) 118‒19.

70  See, for example, art 171(2)(h) of the 2010 constitution of Kenya; and s 178(1)(h) of the constitution of the Republic of South Africa, 1996.

71  See, for example, art 144(1) and (2) of the 1992 constitution of Ghana; art 166(1)(a) of the 2010 constitution of Kenya. Under s 174(3) of the 1996 South African constitution, the president need only consult the leaders of parties represented in the National Assembly when appointing the Chief Justice and his deputy.

72  As Alexander Hamilton explained in The Federalist, No 79, ‘In the general course of human nature, a power over a man’s subsistence amounts to a power over his will’. Examples of such provisions are art 127(4) of the 1992 constitution of Ghana; and s 188(3) of the 2013 Zimbabwe constitution.

73  See art 127(5) of the 1992 constitution of Ghana; and s 188(4) of the 2013 constitution of Zimbabwe.

74  See Horwirtz Ag J in Re Editors of Botswana Gazette and Another [1990] BLR 655, 657.

75  See, for example, art 1(2) of the 1992 constitution of Ghana, art 2(1), (3), and (4) of the 2010 constitution of Kenya, s 2 of the constitution of the Republic of South Africa, 1996 and s 2 of the 2013 constitution of Zimbabwe.

76  See generally the 1966 constitution of Botswana. In affirming its supremacy, Maisels JP said in the Botswana case of Desai & Another v State [1984] BLR 14: ‘The National Assembly is supreme only in the exercise of its legislative powers and these powers cannot override the rights and freedom of its citizens or other persons … which are entrenched in the Constitution.’

77  See, for example, the Botswana case of Petrus & Another v State [1984] BLR14, where the Court of Appeal declared s 301(3) of the Criminal Procedure and Evidence Act, which provided for corporal punishment to be administered in a traditional manner using traditional instruments, void on the grounds that it infringed s 7 of the constitution, which prohibited torture, and inhuman or degrading punishment.

78  See generally JH Pain, ‘The Reception of English and Roman-Dutch Law in Africa with Reference to Botswana, Lesotho and Swaziland’ (1978) 11 CILSA 137‒67; Andrew Edward Wilson Park, The Sources of Nigerian Law (Sweet & Maxwell 1972); AJGM Sanders, ‘The Characteristic Features of Southern African Law’ (1981) 14 CILSA 328; James Richard Crawford, ‘The History and Nature of the Judicial System of Botswana, Lesotho and Swaziland: Introduction and the Superior Courts’ (1969) 86 South African Law Journal 476, 485 and (1970) 87 South African Law Journal 76.

79  As Lord Wilberforce put it in British Railways Board v Herrington [1972] AC 877, 921, ‘the Common law is a developing entity as the judges develop it, and so long as we follow the well tried method of moving forward in accordance with principle as fresh facts emerge and changes in society occur, we are surely doing what Parliament intends we should do’.

80  See, for example, the decision of the South African Constitutional Court in S v Makwanyane 1995 (3) SA 391 (CC). This case dealt with the highly sensitive issue of the death penalty which the apartheid regime had used extensively in its attempts to destroy the resistance to its inhumane system. The sensitivity of the matter was compounded by the fact that although the African National Congress (ANC) had long adopted an abolitionist stance on the matter, during the discussions leading to the new constitution in 1993, the delegates had been unable to agree on a common position. The Court, after reviewing the legislative history of the drafting of the constitution and relying primarily on the prohibition of cruel, inhuman, and degrading treatment and punishment as well as on the rights to human dignity and equality, concluded that the death penalty did not have a place in the legal system of a democratic South Africa. Hugh Corder, ‘Judicial Activism of a Special Type: South Africa’s Top Courts since 1994’ in Brice Dickson (ed), Judicial Activism in Common Law Supreme Courts (Oxford University Press 2007) 332‒3, after noting the public outcry against this judgment concludes that it ‘represents a brave and principled staking of a claim for the authority of the judiciary in general and the Constitutional Court in particular to pronounce on matters of great social controversy, and even on occasion to go against the likely social consensus in giving expression to the words of the constitution.’ Also see the British cases of Conway v Rimmer [1968] AC 910; and R v Home Secretary, ex parte Brind [1991] 1 AC 696.

81  See, for example, s 95(6) of the 1966 constitution of Botswana; arts 22(3) and 163(8) of the 2010 constitution of Kenya; and ss 167(4), 169(3), and 171(2) of the 2013 constitution of Zimbabwe.

82  For example, in the Botswana case of Ngope v O’Brien Quinn [1987] BLR 348, the Court of Appeal declared a rule made by the Chief Justice, acting under the powers conferred by the constitution and s 28 of the High Court Act, as ultra vires and therefore invalid.

83  See, for example, s 87(6) of the 1966 constitution of Botswana; art 50(2)(n) of the 2010 constitution of Kenya; and s 70(1)(k) of the 2013 constitution of Zimbabwe.

84  See further Bondy (n 6) 89.

85  In some countries, such as the United States, the bills of attainder are expressly prohibited both by the federal constitution (see art 1, s 9, para 3) and the state constitutions.

86  Zimbabwe is perhaps one of the extreme cases of government resort to legislative overrides of court decisions. In S v A Juvenile 1989 (2) ZLR 61 (SC), the Supreme Court ruled that corporal punishment of juveniles in terms of the Criminal Procedure and Evidence Act was unconstitutional. The executive immediately reacted by passing through parliament Constitutional Amendment No 11 which legalized juvenile whipping in the case of boys. In Catholic Commission for Justice and Peace and Others v Attorney- General of Zimbabwe and Others 1993 (1) ZLR 242, the Supreme Court ruled that inordinate delay in carrying out the death sentence rendered its carrying out unconstitutional on the grounds of inconsistency with the prohibition against inhuman or degrading treatment in terms of s 15(1) of the constitution. The government disagreed and reacted by effecting Constitutional Amendment No 13 which provided expressly that the delay in carrying out the death sentence did not render its carrying out unconstitutional. The conflict between the judiciary and the legislature (in actual fact, the executive) reached its apogee in CFU v Minister of Justice, Legal and Parliamentary Affairs and Another SC 16/06 when the Supreme Court ruled that land grabs were unconstitutional. The government responded by amending the constitution through Constitutional Amendment No 17 which ousted the jurisdiction of the courts to deal with land reform disputes. Other cases where the constitution was amended to nullify the effect of court decisions include: Rattigan and Others v Chief Immigration Officer of Zimbabwe Unreported judgment S-64-1994; Patriotic Front-ZAPU v Minister of Justice, Legal and Parliamentary Affairs 1986 (1) SA 532 (ZS); Catholic Commission for Justice and Peace v Attorney General and Others 1993 (4) SA 239; and Salem v Chief Immigration Officer, Zimbabwe and Another 1995 (4) SA 280 (ZS). See further Derek Matyszak, ‘Creating a Compliant Judiciary in Zimbabwe’ in Kate Malleson and Peter Russell (eds), Appointing Judges in an Age of Judicial Power, Critical Perspectives from Around the world (University of Toronto Press 2006) 331‒54.

87  Other more recent examples like the 2010 constitution of Chad and the 2013 constitution of Central African Republic have been left out because both countries are in the throes of civil strife the outcome of which is unpredictable.

88  See art 139(1) of the 2010 constitution of Angola; arts 54 and 92 of the 1990 constitution of Benin; arts 137, 152, and 155 of the 2005 constitution of Burundi; art 13 of the 1996 constitution of Cameroon; arts 14(b) and 32 of the 1990 constitution of Gabon; and arts 38 and 54 of the 2001 constitution of Senegal.

89  The three periods started with the Socialist President Mitterand sharing power with Conservative Prime Minister Chirac (1986‒88) and Balladur (1993‒95). Conservative President Chirac shared power with Socialist Prime Minister Lionel Jospin (1997‒2002). See further Jean Poulard, ‘The French Double Executive and the Experience of Cohabitation’ (1990) 105 Political Science Quarterly 243‒67.

90  See art 124 of the 2010 constitution of Angola; art 57 of the 1990 constitution of Benin; art 197 of the 2005 constitution of Burundi; art 31 of the 1996 constitution of Cameroon; art 17 of the 1990 constitution of Gabon; and art 72 of the 2001 constitution of Senegal.

91  See, for example, art 8(12) of the 1996 Cameroon constitution; art 19 of the 1990 constitution of Gabon; and art 87 of the 2001 constitution of Senegal.

92  In arts 148 and 197.

93  See generally art 129 of the 2010 constitution of Angola; arts 135‒6 of the 1990 constitution of Benin; arts 116‒17 of the 2005 constitution of Burundi; art 53 of the 1996 constitution of Cameroon; arts 164‒7 of the 2006 constitution of Congo DR; art 78 of the 1990 constitution of Gabon; and art 101 of the 2001 constitution of Senegal.

94  See generally art 113 of the 1990 constitution of Benin; arts 187, 202‒4 of the 2005 constitution of Burundi; arts 34‒5 of the 1996 constitution of Cameroon; art 137 of the 2006 of the constitution of Congo DR; arts 61‒4 of the 1990 constitution of Gabon; and arts 85‒6 of the 2001 constitution of Senegal. It should be noted however that Angola, under art 162 of its 2010 constitution, provides very limited powers of legislative control over the executive.

95  Art 11 of the Cameroon constitution of 1996 states: ‘The Government shall implement the policy of the nation as defined by the President of the Republic.’ Such is the position under art 54 of the 1990 constitution of Benin; and art 42 of the 2001 constitution of Senegal. The situation is more nuanced under art 131 of the 2005 constitution of Burundi and under art 91 of the 2006 constitution of Congo DR which state that the policy is determined by the president in consultation with the cabinet.

96  See art 167(1) of the 2010 constitution of Angola; art 105 of the 1990 constitution of Benin; art 192 of the 2005 constitution of Burundi; art 25 of the 1996 constitution of Cameroon; art 130 of the 2006 constitution of Congo DR; art 53 of the 1990 constitution of Gabon; and art 80 of the 2001 constitution of Senegal.

97  For all these three divisions of law-making in these constitutions, see arts 164‒72 of the 2010 constitution of Angola; arts 98, 100, and 102 of the 1990 constitution of Benin; arts 158‒60 and 195 of the 2005 constitution of Burundi; arts 26‒8 of the 1996 constitution of Cameroon; arts 122‒4 and 128‒9 of the 2006 Constitution of Congo DR; arts 47‒52 of the 1990 constitution of Gabon; and arts 67‒8 and 76‒8 of the 2001 constitution of Senegal.

98  See, for example, art 126 of the 1990 constitution of Benin; and art 37(2) of the Cameroon constitution of 1996 which restricts the application of the principle that judicial officers in discharging their duties are bound only by the law and their conscience to judges. Art 90 of the constitution of Senegal of 2001, in addition to this, restricts the principle of irremovability only to judges.

99  See, for example, art 127 of the Benin constitution of 1990; art 131 of the Burkina Faso constitution of 1991; art 209 of the Burundi constitution of 2005; art 37(3) of the Cameroon constitution of 1996; and art 68 of the Gabon constitution of 1990.

100  See, for example, art 219 of the Burundi constitution of 2005; and art 70 of the 1990 constitution of Gabon. Even under those constitutions where the functioning of the CSM is left to be determined by subsequent legislation, such legislation has often left control of the CSM in the hands of the president and his Minister of Justice, as the case in Cameroon. By contrast, arts 151 and 152 of the 2006 constitution of Congo DR goes to considerable extent to reduce the possible control the executive could have over the judiciary especially with respect to the composition of the CSM.

101  See arts 46‒52 of the 1996 constitution; and for a fuller discussion of this, see Charles Manga Fombad, ‘The New Cameroonian Constitutional Council in a Comparative Perspective: Progress or Retrogression?’ (1998) 42 Journal of African Law 172.

102  See, for example, arts 226‒32 of the 2010 constitution of Angola; arts 114‒24 of the Benin constitution of 1990; arts 225‒32 of the Burundi constitution of 2005; arts 157‒69 of the Congo DR constitution of 2006; arts 83‒93 of the constitution of Gabon of 1990; and arts 89‒93 of the constitution of Senegal of 2001. For a discussion of the Benin Constitutional Court, see Horace Adjolohoun, Droit de l’Homme et Justice Constitutionne en Afrique: Le Modèle Béninois. À la Lumière de l’Homme et des Peuples (L’Harmattan 2011); Babacar Kante, ‘Models of Constitutional Jurisdiction in Francophone West Africa’ (2008) 3 JCL 158, 168‒73; Sory Balde, ‘Juge Constitutionnel et Transition Démocratique : Etude de Cas en Afrique Subsaharieene Francophone’ <http://www.juridicas.unam.mx/wccl/ponencias/16/279.pdf> accessed 22 April 2015; and Abdoulaye Diarra, ‘La Protection Constitutionnelle des Droits et Libertés en Afrique Noire Francophone depuis 1990: Les Cas du Mali et Benin’ <http://www.afrilex.u-bordeaux4.fr/sites/afrilex/IMG/pdf/2doc8diarra.pdf> accessed April 2015; and Anna Rotman, ‘Benin’s Constitutional Court: An Institutional Model for Guaranteeing Human Rights?’ (2004) 17 Harvard Human Rights Journal 280.

103  See, for example, art 119(0) of the 2010 constitution of Angola; art 130 of the 1990 constitution of Benin; art 113 of the 2005 constitution of Burundi; art 8(7) of the 1996 constitution of Cameroon; art 87 of the 2006 constitution of Congo DR; art 23 of the 1990 constitution of Gabon; and art 47 of the 2001 constitution of Senegal.

104  See, for example, art 145(1)(a) of the 2010 constitution of Angola; art 152 of the 2005 constitution of Burundi; and art 108 of the 2006 constitution of Congo DR.

105  See art 151 of this constitution.

106  In Essays on Freedom and Power cited in Vanderbilt (n 6) 37.

107  For recent studies pointing to the failure of the constitutional reforms to reduce the ‘imperial powers’ of presidents under the Gaullist African constitutions, see Adama Kpodar, ‘Bilan sur en Demi-Siècle de Constitutionannalisme en Afrique Noire Francophone’ 8–10 < http://afrilex.u-bordeaux4.fr/sites/afrilex/IMG/pdf/BILAN_SUR_UN_DEMI-SIECLE_DE_CONSTITUTIONNALISME_EN_AFRIQUE_NOIRE_FRANCOPHONE.pdf > accessed 26 October 2015; André Cabanis and Michel Louis Martin, Le Constitutionnalisme de la Troisième Vague en Afrique Francophone (Bruylant-Academia SA 2010) 59‒90.

108  In Ackerman (n 21) 723.