Diescho’s Dictum – the Necessity of Separation of Powers in Government

IN the month of July 2011, Ambassador Eddy Shimwetheleni Amkongo, the current Chairman of the Public Service Commission in the Republic of Namibia, offered his opinion on what is described as the paradox of the separation of power in Namibia and the principle of checks and balances. Ambassador Amkongo opined that he was not convinced that it was in the best interest of our democratic system to have members of the executive branch (cabinet ministers) as members of the National Assembly (MPs) andor National Council. His thought-provoking voice was reverberated on 21 March 2013 (Windhoek Observer). One is humbled to have in our midst distinguished thoughtful leaders like Ambassador Amkongo who to all intents and purposes put the academics and so-called intellectuals to shame by his forthright challenge to all of us to be forward-looking in order to improve the foundations upon which our Republic will stand and pass the test of time as a real democracy servicing the people of Namibia efficiently and effectively.

Even now there are no convincing arguments to justify the current state of affairs insofar as the lack of distinction between the legislative and executive branches of our government is concerned, except to say that this is how we have it as a system. Cumbersome it is indeed and one hopes that the day will dawn where there will be sufficient restlessness in the body politic to want to change the system such that there will be a true separation of powers between our legislature, the executive and the judiciary, to allow for better stability, responsiveness, transparency and accountability in the manner in which the affairs of the nation are administered.

The doctrine of separation of powers, or the trias politica principle is the story of the evolution of democratic governance, and is a model that prescribes that for a system of a government of the people, for the people and by the people to be sustainable, it has to have a delineation of powers that must be exercised by one of the three branches of government with the least interference by the other.

In a simplistic way it is about a division of labour between the three organs of the state – the legislature, the executive, and the judiciary. The legislative branch is to be preoccupied with the business of making laws that govern the country the executive with the execution and implementation of the laws that are made by the legislature and the judiciary with the interpretation of the laws such that those who enforce them do so by remaining as close as possible to the original purposes for which the laws were made. These branches are to function with autonomy from one another, save to say that they feed into one another as they serve the common good and safeguard the wellbeing of the greatest number of people in the country over which the government has jurisdiction.

Historically, the model of governance that gave rise to the thesis of separation of powers first evolved in ancient Greece and Rome where the city state was crafted as a way of government that was more responsive to the citizens than the earlier feudal systems and fiefdoms.

Etymologically, the term separation of powers originated with Montesquieu, (Charles-Louis de Secondat, Baron de La Bregravede et de Montesquieu: 1689-1755),a French enlightenment writer who saw dangers of abuse of power if left unchecked. However, the framers of the American Constitution sort of perfected the conceptualization of separation of powers when they decided to base their future governance precepts upon this ideal so much so that they wished to establish a system of government characterized by checks and balances between the three separate branches: the legislature, executive, and the judiciary. The checks and balances were meant to guarantee that no one branch gained absolute power or abuses power over others.

The three branches are not independent as such but are given by the Constitution separate and autonomous powers and areas of responsibility so that the powers of one branch are not in conflict with the powers associated with the other branches. There is therefore a measure of complementarity in the functioning of the branches as the effectiveness of one feeds into the effectiveness of the others and the smoothness of the collective functioning of government as a whole.

These checks and balances also allow for a truly representative – an incorrupt – functioning of networks of roles that bear respect for one another without the unfettered power of one over the other. The theory of separation of powers presupposes mainly the notion that the powers of government consist largely in making laws, executing laws, and applying these laws to particular cases through the courts of law by adhering at the same time to the rule of law.

Philosophically, the assumption is that in human nature every ‘man’, and by extension every institution, will act for own interest, and when left unchecked, self-interests will loom larger than the collective or the common good. Therefore it is necessary to put mechanisms in place to safeguard against ‘continual heartburning’ between the lawmaker, the law enforcer and the law interpreter.

Furthermore, the necessity of checks and balances had its history in the systems of kingdoms and empires where the rulers were the laws unto themselves and where the execution and interpretation of the law were subject to the ruler’s happiness and approval. With the aent of the Republic as a system of governance based upon the consent between the ruler and the ruled, and where no one is, and is seen to be above the law, the understanding is that the representatives’ interests are interwoven with the interests of the people so much so that in acting when leaders act for themselves, they also act for the common interests of all.

Many scholars agree that to have a government system based upon separation of powers is necessary not only for the smooth and predictable functioning of the system, but to heed Montesquieu who warned that ‘men’s minds cannot be at rest if two or three of the kinds of governmental power are held in the same hands’.

The Philadelphia Convention that led to the creation of the American system of government which is today the closest to the ideal of a separation of powers, though riddled with arguments for and against Montesquieu’s precepts, succeeded in bequeathing unto us an admonition that ‘leaders ought to cease worrying about the dangers of yesteryear, and be preoccupied with a sense to guard instead against the dangers of today and tomorrow’. This is the essence of a Republic – to make the future better for all based upon a social contract which among others, prescribes that power derives only from the consent of the governed.

Namibia as a nation is based upon the republican principle of governance. Namibia is not a monarchy or by extension a system which derives its legitimacy and authority from hereditary principles or practices. As we move further down the road of democracy and nation building, it is incumbent upon us to revisit the tenets upon which the relationships between the branches of government were founded. As our esteemed leaders in the current National Assembly are debating amendments to some of the parts of the Constitution that can be amended, it is about time that we commence quiet conversations about improving the efficiency and effectiveness of our three branches of state governance – the legislature, the executive and the judiciary.

At the moment, there is no cause for concern over the functioning of our judicial branch as it is intact and getting better all the time. The political order has acquitted itself in an exemplary fashion in its treatment of the judiciary in that there has been no or very little interference to warrant concern about the independence of this important arm of state.

The consternation, however, is about the relationship between the legislature and the executive. Thus far the manner in which our system has evolved is that the legislature has been relegated below the executive whereas it ought to be the other way around. This cumbersomeness has been caused by the business model of our governance system in that habits, practices and attitudes evolved in the last 24 years that caused the executive to assume that parliamentary and executive functions are interchangeable. It is because the executive members are at the moment members of the legislature first.

It is therefore important to begin to think about removing the executive from the legislature and in so ‘unburden’ the executive from legislative responsibility so that cabinet ministers can focus on executing the laws made by the legislature – not by themselves. The executive members ought to account to the legislature who account to the people who elect them. At the moment, those who are supposed to execute the laws are ineffective as they have to account to themselves. No wonder that it has been hard for the National Assembly to enjoy the quorum it deserves because cabinet ministers are busy in the field implementing the laws. It is not fair to expect ministers to be in parliament and be in the field at the same time! Reducing the quorum as is currently the debate will not solve the problem but will make legislation qualitatively poorer.

Decoupling the executive from the legislature will not only enhance efficiency and effectiveness of the two branches, but legitimise both for their respective roles and free up more space for better representation of women in both these branches. Parliament will not have to worry about calling ministers back from their work to constitute a quorum and ministers will not have an excuse not to be doing their work on the ground and deliver better services to the electorate. Similarly, parliament will have more right and power to call upon ministers to account for what they are doing and how they are spending taxpayers’ hard earned monies. For the general citizenry it will be easier to demand attention and better services from the right quarters at the right time for the right reasons – not to mention that lines of accountability and communication will be less truncated and in the end the country will have a more seamless system in terms of making laws more responsively and thoughtfully, executing them more effectively, and interpreting them timeously for the good of all citizens.

Source : New Era