Separation of Powers:

Understanding the concept:

The longstanding recognition that absolute power corrupts, has led most modern states to adopt the doctrine of separation of powers. Separation of power refers to the division of government responsibilities into distinct organs and assigning each organ to a group of independent government actors. Each organ has its scope of authority and cannot exercise the functions assigned to other organs. An analogy for this is the human body where distinct organs play distinct roles, which collectively keep the human alive and well functioning. In terms of governance, the organs are traditionally the executive, the legislature, and the judiciary. Beyond these traditional and core bodies, some powers of government are vested in independent constitutional bodies or buffer institutions such as the electoral commission, national media commission, inter-alia.

The doctrine of separation of powers contrasts with the concept of absolute power, usually associated with monarchies and totalitarian regimes. For instance, King Louis XIV of France is notorious for having had absolute control and power over the governance of France. According to Britannica, “He wanted to control everything from court etiquette to troop movements, from road building to theological disputes.”

Montesquieu and the Concept of Separation of Powers:

The term separation of powers is often attributed to Baron de Montesquieu. Montesquieu believed that the attainment of liberty for the governed was dependent on the separation of governmental power into three branches. Montesquieu in the Spirit of Laws asserted that every government has three sorts of powers. Legislative, executive, and judiciary.

The Legislative Power: This includes the power to make original enactment, amend existing enactment, or repeal (abrogate) existing enactment. In Britain, this was held by the two houses of parliament. In Ghana, this legislative power is entrusted to the parliament of Ghana.

The Executive Power : The executive power included powers that could be exercised at the international scene, and those at the domestic scene. Executive powers at the international scene included the power to make decisions about defence and foreign relations. Executive powers at the domestic level entailed the powers to punish criminals and resolve disputes, and policy implementation among others.

Judicial powers : In Ghana, 125(3) of the 1992 constitution vests judicial power in the judiciary and explicitly provides that “neither the President nor Parliament nor any organ or agency of the President or Parliament shall have or be given final judicial power.”

Inherent Assumptions of the Doctrine of Separation of Powers:

An examination of the concept of separation of powers reveals four core assumptions.

1. No organ can unilaterally determine the extent of its power: Traditionally, the organs of government have their distinct powers specifically stated by the constitution, and no power can determine the extent of its power. This assumption prevents an organ from usurping the powers of other organs. For instance, the executive arm of government cannot unilaterally decide to add judicial functions to the powers of the executive.

2. There are substantive limitations on each organ: Each organ of government only exercises some part of governmental power. The executive only exercises executive functions such as negotiating treaties and policy implementation; the legislature performs legislative functions such as formulating laws; the judiciary performs judicial functions such as judicial review, and the interpretation of laws inter alia.

3. Independence of the Organs: The division of governmental power into distinct organs only checks abuse of power if the distinct organs have some independence. If the executive for instance could instruct the courts to decide a case in its favour, the courts cannot check and declare abuses of power by the executive unconstitutional, leading to the abuse of executive powers. The 1992 Constitution of Ghana specifically provides in article 125 “justice emanates from the people and shall be administered in the name of the Republic by the Judiciary which shall be independent and subject only to this Constitution.” Critical constitutional bodies such as the Electoral Commission, are also granted explicit independence (see article 46 of the 1992 Constitution of Ghana and the case of Abu Ramadan & Evans Nimako v The Electoral Commission & The Attorney General ) .

4. The (special) power of the judiciary: The judiciary has the power to determine if an act by any other organ or body is contrary to the constitution. For instance, article 2 of the Ghanaian constitution gives powers to the Supreme Court to declare acts by any authority null and void if those acts contravene the constitution. In the case of United States v Nixon, the Supreme Court unanimously held that “neither the doctrine of separation of powers nor the generalized need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances”

The Rationale for Separation of Powers:

There are two main reasons or advantages for the separation of powers.

1. Prevention of abuse of power: When different organs or actors exercise the powers of government, no single actor has absolute power, and the excesses of one power can be checked by other powers. Usually, each organ has procedural, institutional and substantive limitations placed on it through the separation of powers. For instance, whilst the executive is usually responsible for concluding and withdrawing from treaties, such actions may require legislative approval. In the case of Regina (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] for instance, the court held that government ministers cannot give formal notice of withdrawal from the European Union without prior statutory authorization. Essentially, the court’s holding in Regina v Secretary of State (supra) reiterated that the executive must follow a procedure to give formal notice of withdrawal from the European Union, the executive as an institution does not have the power to give formal notice without statutory authorization (which is a substantive and institutional limitation). Similarly, in the case of Youngstown Sheet & Tube Co v Sawyer, Harry Truman as president of the United States ordered the seizure of the country’s steel mills to avert a nationwide crisis. Upon a suit challenging the president’s power to issue such an order, the court held that the president did not have the power to seize private property and that such power lay with congress.

2. Efficiency of Government: Beyond preventing the abuse of power, the concept of separation of powers ensures efficiency in governmental functioning. Given the massive number of people governments cater for, and given the complexity of certain governmental activities such as law-making, it is often deemed necessary to “divide the labour” of governmental work and have people focus solely on various divisions.

Use of the Concept:

Separation of powers can be understood in two ways. In a strict sense, and a flexible sense.

1. Strict separation of powers : This represents a clear of the functions of government such that no organ ever performs the functions of the other. Government officials can only belong to one institution at a time. This is often criticised for being inflexible and ignorant of the need for interdependence amongst the organs of government. It is also believed that strict separation can lead to tensions and rivalries amongst organs of government that are strictly separated.

2. Flexible separation of powers : This is the prevalent form of separation of powers where, although the various functions of government are separate, there is a recognition that roles may shift and fluctuate at some point, there may be two or more organs with concurrent authority to act in some situations, inter alia. The ratio of Justice Jackson in Youngstown Sheet & Tube Co v Sawyer captures separation of powers as a flexible concept:

Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress…When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate…When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.

Similarly, and in discussing the flexibility of the doctrine of separation of powers, Kludze JSC in the case of Asare v Attorney-General (Swearing-in case) [2003-2004] said:

In particular, it is clear from our past and present constitutional history that this country has never considered the doctrine of separation of powers as an inflexible rule… We must not convert the salutary principle of the separation of powers into an impenetrable steel wall which can only hinder and impede the smooth running of our Constitution and frustrate the inter-relationship of the organs of state power, when the Constitution does not command us so to do. Even in the Constitution of the United States, in which the doctrines of separation of powers was the underlying philosophy, there is no such rigid separation of powers.

Also, in the case of Asare v The Attorney-General (Constitution Review Commission case) Wood CJ asserted that “in today’s modern and complex world, it is generally believed that the strictly rigid and absolute application of the separation of powers doctrine is impracticable.”

Particularly on the idea that different organs of government may have concurrent authority in a particular sphere, the Supreme Court of Ghana in the case of Asare v The Attorney-General (Constitution Review Commission case), held that the authority to engage in pre-legislative or frontend activities such as initiating proposals for the amendment of the constitution, setting up a constitutional review commission inter-alia, is not exclusive to the legislature and can be exercised by the executive.

Finally, the concept of “judicial law-making” as espoused by Lawrence Claus, depicts that the judiciary does not just apply laws, but is also a lawmaker through judicial precedence, especially in common law countries.

Checks and Balances:

In simple terms, checks and balances is the idea that power should be a check on power. For instance, the legislative power of parliament is checked by the executive through the power of veto, the legislature usually checks the executive by controlling the public purse. For the judiciary, power is vested in the hands of the other arms to appoint and remove judicial officers such as the justices of the supreme court. Whilst it is often believed that there are still few checks on judicial power, some argue that such a state is justifiable. Hamilton for instance argued that with regards to the judiciary, “'the general liberty of the people can never be endangered from that quarter, I mean so long as the judiciary remains truly distinct from both the legislature and the Executive’” (Claus, 2005). The judiciary is thought to be less threatening to liberty because the extent of their power is limited to the powers they exercise during a case between two or more parties.

References

Claus, L. (2005). Montesquieu's Mistakes and the True Meaning of Separation. Oxford Journal of Legal Studies, 419-451