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KNOWLEDGE AREA II: BASIC CONSTITUTIONAL

PRINCIPLES

1. SEPARATION OF POWERS

The ‘separation of powers’ is one of the basic doctrines of constitutional law and the principle
of constitutionalism found in most modern constitutions. The need for some separation of
powers within the state is essential both to the maintenance of democracy and for the legal
system, where an independent judiciary is essential if the rule of law is to have any substance.
With the growing recognition of the judicial role in public law, the legal significance of the
separation of powers is more often recognized. This model for the exercise of legislative,
executive, and judicial powers may be seen in the law of taxation: to authorize the levying of
a new tax is a legislative function; to assess and collect the tax payable by individuals is an
executive (or administrative) function; to settle disputes between the tax official and a taxpayer
as to the tax due in a particular case is a judicial function, involving interpretation of the law
and applying it to the facts. So, too, in criminal law: the creation of a new offense is a matter
for legislation, enforcement of the law is an executive function, and the trial of alleged
offenders is a judicial function (Three-sided model).

The Doctrine of the Separation of Powers:

This doctrine of the ‘separation of powers; developed as a political theory to prescribe what
ought to happen to the distribution of powers within a constitution. Essentially, it suggests that
the abuse of power will be limited by distributing different functions - legislative, executive,
and judicial - between governmental institutions to prevent any one of them from
predominating, thus preventing power from being concentrated in a single person or body.
Within a system of government based on law, there are legislative, executive, and judicial
functions to be performed; and the primary organs for discharging these functions are
respectively the legislature, the executive, and the courts. A legal historian has remarked:

“This threefold division of labor, between a legislator, an administrative official, and an

independent judge, is a necessary condition for the rule of law in modern society and therefore
for democratic government itself.”

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Lord Rodger (The State v Khoyratty (Mauritius) Rev 1 2006) has said, ‘It is a hallmark of the
modern idea of a democratic state that there should be a separation of powers between the
legislature and the executive, on the one hand, and the judiciary, on the other’. It is indeed
important that judges are independent both of parliament and government. While there are
reasons why parliament should not be merely a rubber stamp for the cabinet, the parliament-
government relationship is one of mutual dependence, rather than independence. However, it
may be argued that essential values of law, liberty, and democracy are best protected if the
three primary functions of a law-based government are discharged by distinct institutions.

The doctrine of separation of powers includes the following distinct but overlapping aspects;

• Institutional separation of powers: (a tripartite separation of powers) – the need to

have three major institutions or organs in a state i.e. Legislature, Executive, and
Judiciary.
• Functional separation of powers: State power/functions must be vested and exercised
by three separate institutions or organs i.e. law-making, enforcement, and
interpretation.
• Separation of personnel: (each organ with own personnel) No person should be a
member of more than one organ.
• Limitation of appointing powers: State organs should not appoint or elect members for
each other.

Meaning of separation of powers:

The concept of ‘separation’ may mean at least three different things:

a) That the same persons should not form part of more than one of the three branches of
the state, for example, that ministers (being members of the executive) should not sit in
parliament;
b) That one branch of the state should not control or intervene in the work of another, for
example, that the executive should not interfere in judicial decisions;
c) That one branch should not exercise the functions of another, for example, that
ministers should not have judicial powers.

Aristotle and Cicero

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The theory of separation of powers may be traced back to the writings of classical and medieval
thinkers such as Aristotle (384–322 BC). In his book The Politics, Aristotle proclaimed that
“There are three elements in each constitution in respect of which every serious lawgiver must
look for what is advantageous to it; if these are well arranged, the constitution is bound to be
well arranged, and the differences in constitutions are bound to correspond to the differences
between each of these elements. The three are, first, the deliberative, which discusses
everything of common importance; second, the officials; and third, the judicial element.”

Further, Aristotle believed that any single form of government was unstable leading to a
permanent cycle of disasters. In the same vein, Cicero preferred powers to be vested in the
people and authority in the state.

Locke and Montesquieu

In 1690, John Locke identified a danger arising from the possession of more than one power.
In his Second Treatise of Civil Government, Chapter XII, para. 143, Locke stated:

‘It may be too great a temptation to humane frailty apt to grasp at power, for the same persons
who have the power of making laws, to have also in their hands the power to execute them,
whereby they may exempt themselves from obedience to the laws they make, and suit the law,
both in its making and execution, to their own private advantage.’ (Liberty is likely to suffer
when the same human being makes the law and executes them). For this reason, Locke
urged that there should exist a legislature to act in the public good when necessary and a
separate executive with a continuing existence.

The separation of powers has remained an influential idea since it was first proposed in the
eighteenth century, with the concept being most clearly acknowledged in both the post-
revolutionary French and US constitutions drafted over 200 years ago. Montesquieu, based
his exposition on the English constitution of the early 18th century as he understood it. His
division of power did not correspond except in name with the classification which has become
traditional: although he followed the usual meaning of legislative and judicial powers, by
executive power he meant only ‘the power of executing matters falling within the law of
nations’, i.e. making war and peace, sending and receiving ambassadors, establishing order,
and preventing invasion.

This was the somewhat idealized view that did not truly reflect the political reality in England
at the time. In observing the English constitution in the 18th century, Montesquieu saw that
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parliament had achieved legislative dominance over the King through the Bill of Rights and
that the independence of the judiciary had been declared, but that the King still exercised
executive power. By 1800, however, there had been established in Britain the Cabinet system,
under which the King governed only through ministers who were members of parliament and
responsible for it.

Approaches to understanding Separation of Powers

In understanding the concept of ‘separation of powers’ one has to take on board the following
three approaches; traditional (classical), modern (contemporary), and Marxist-Leninist
approaches.

i. Traditional (Classical) Approach

The traditional views are presented by Montesquieu who vigorously advocated for a “strict or
pure or total or complete or absolute” separation of powers and personnel between three
organs of the state i.e. the Executive, Legislature, and Judiciary. Power is diffused between
three separate bodies exercising separate functions with no overlaps in function or personnel.
In Montesquieu’s days, the monarchy in France had established despotism and the people
enjoyed no freedom. The monarchy was the chief lawgiver, executor, and the adjudicator. The
statement by Louis XIV “I am the state” outlined the character and nature of monarchical
authority. Montesquieu’s strict doctrine (tripartite system) provides that in every government
there are three sorts of power i.e. legislature, executive, and judiciary. The executive makes
peace or war, sends or receives embassies, establishes public security, and provides protection
against invasions. The legislature, prince, and magistrate enact temporary or perpetual laws
and amend or repeal those that have been already enacted. The judiciary punishes criminals or
determines the disputes that arise between individuals.

Montesquieu expressed the view that it was the separation of powers of government that
ensured the liberty of the English. He warned his countrymen about the danger of vesting all
state powers in one person or body of people. He stated the essence of doctrine in De L’Esprit
des Lois, Book XI, Chapter VI (2nd ed, vol. 1, p. 220).

‘When the legislative and executive powers are united in the same person, or in the same body
of magistrates, there can be no liberty… Again, there is no liberty, if the judicial power be not
separated from the legislative and executive. Were it joined with the legislative, the life and
liberty of the subject would be exposed to arbitrary control; for the judge would then be the
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legislator. Were it joined to the executive however, the judge might behave with violence and
oppression. All would be lost if the same man or the same body of principal men, either of
nobles, or of the people, exercised these three powers: that of making the laws, that of executing
public resolutions, and that of judging the crimes or the disputes of individuals.’ This statement
emphasizes that the judicial function should be exercised by a body separate from the
legislature and executive. Montesquieu did not mean that legislature and executive ought to
have no influence or control over the acts of each other, but only that neither should exercise
the whole power of the other.

Montesquieu believed that concentrated power is dangerous and leads to the despotism of
government (tyranny). The legislature should not appoint members of the Executive [i.e.
Parliament should not elect the President or the Prime Minister], and for the same reason, the
Executive should not have a role in electing members of the Legislature. Neither the Executive
nor the Legislature should appoint members of the Judiciary, for if they do the Judiciary will
lose its independence. Again, judges should not appoint members of the Executive. Members
of these organs should be elected by the people. State officials should not form part of or belong
to two or more organs. He argued, that if separate powers of government are placed in different
hands, no individual or group of people can monopolize political powers (i.e. differentiation of
functions). Thus, he was against absolute power residing in one person or body exercising
executive, legislative, and judicial powers.

He based this model on the Constitution of the Roman Republic and the British constitutional
system. Montesquieu took the view that the Roman Republic had powers separated so that no
one could usurp complete power. He believed that the English constitution establishes the
functional separation between the legislature, executive, and judicial powers. In England, the
monarch exercises executive powers, legislative power is shared by hereditary nobility and the
people’s elected representatives, and judging powers are vested in persons drawn from the body
of the people. His ideas were highly influenced by his stay in England between 1729–1731.

ii. Modern (Contemporary) Approach

This approach somehow departs or otherwise tries to refine Montesquieu’s strict doctrine of
separation of powers. Essentially, this approach points out practical difficulties in the
application of Montesquieu’s strict doctrine and thus advocates for a ‘mixed government’ or
‘weak separation of powers’ with ‘checks and balances’ to prevent abuses. Therefore, this
concept insists that the primary functions of the state should be allocated clearly and that there
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should be checks to ensure that no institution encroaches significantly upon the function of the
other. To them, Montesquieu’s strict doctrine presents the following problems (Critiques or
limitations of the pure doctrine of separation of powers);

• A complete separation of the three organs may lead to constitutional deadlock (disunity
of powers). Thus, a complete separation of powers is neither possible nor desirable.
• Partial separation of powers is required to achieve a mixed and balanced constitutional
structure.
• A complete separation of powers would mean that each branch must have its own
capacity to collect finance. However, it is impractical.
• The theory is based on the assumption that all three organs of the government are
equally important, but in reality, it is not so. In most cases, the executive is the more
powerful of the three branches of government.

iii. Marxist-Leninist Approach

Unlike, the other two approaches, the Marxist-Leninist approach refutes the application of the
doctrine by arguing that the doctrine of the separation of powers is “nothing but the profane
industrial division of labor applied for purposes of simplification and control to the mechanism
of the state”. In essence, Marxist-Leninist theory rejects the theory of the separation of powers
because it ignores the class nature of society. The existence of a socialist state of state bodies
with different jurisdictions means that a certain division of functions in exercising state power
is essential while maintaining the unity of state power.

Separation of powers in the British Constitution

It is perhaps surprising that the concept of separation of powers has ever been considered to be
significant to the British Constitution, given that the most influential version of it, propagated
by Montesquieu, emerged after the fundamentals of British constitutional arrangements were
set in place in the late seventeenth century. As Loughlin points out (1992, p. 145), this may be
because the separation of powers helped mould Dicey’s belief that parliamentary sovereignty
favors the supremacy of law: ‘The idea here is that Parliament will set the framework of
general rules for society, the executive will govern within those rules and an independent

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judiciary will resolve disputes over the meaning of those rules, and will, in particular, keep the
executive within the boundaries of the law’. Some judicial pronouncements lend support to the
continuing recognition of the doctrine. For instance;

▪ Regina v Her Majesty’s Treasury, ex parte Smedley (1985) 1 All ER 589, where Sir
John Donaldson MR remarked at p. 593 that:
… I think I should say a word about the respective roles of Parliament and the courts.
Although the UK has no written constitution, it is a constitutional convention of the
highest importance that the legislature and the judicature are separate and independent
of one another, subject to certain ultimate rights of parliament over the judicature
which are immaterial for present purposes. It, therefore, behoves the courts to be ever
sensitive to the paramount need to refrain from trespassing upon the province of
parliament or, so far as this can be avoided, even appearing to do so. Although it is not
a matter of me, I would hope and expect that parliament would be similarly sensitive to
the need to refrain from trespassing upon the province of the courts.

▪ R v Home Secretary, ex parte Fire Brigades Union (1995) 2 AC 513, 567. Lord Mustill
has said;
“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 legal 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 law. The courts interpret the laws, and see that they are
obeyed”

Despite such emphasis being placed on the concept at the most senior levels of the judiciary,
there was a long-held skepticism about how far aspects of the role of the UK judiciary truly
complied with a separation of powers. This skepticism was one of the reasons for the
Constitutional Reform Act 2005. For instance, prior to the Act the Lord Chancellor was not
only head of the judiciary and responsible for recommending most judicial appointments; he
was also a cabinet minister with his own executive department, and a prominent member of the
House of Lords. The Lord Chancellor could also sit as a judge, an option that was criticized by
a working party of the law reform group, ‘JUSTICE’, on the grounds that it is ‘inherently
flawed’ and created an appearance of bias. The problem of bias more generally at common law
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and under Art.6 of the ECHR - Constitutional Reform Act 2005 was passed in response to such
criticisms. The Act specifically eliminates the Lord Chancellor’s judicial role, establishes
mechanisms that limit his contribution to the most senior judicial appointments, and the office
holder has relinquished the Speakership of the House of Lords. Moreover, the Act creates a
Supreme Court whose members will not be allowed to participate in the work of the House of
Lords as a parliamentary legislature.

Another problem with the idea of separation of powers in the UK is that the executive branch
itself emanates from within Parliament. Indeed, it is a convention of the constitution that all
ministers must come from either the Commons or the Lords. The prevailing superiority of the
executive over parliament is possible not simply because the executive branch, including the
Prime Minister, cabinet, and all other ministers are members of the legislature, but, above all,
because the survival of the government depends on the maintenance of its parliamentary
majority. MPs supporting the government are made well aware, by the party whips, of the
consequences of taking action that might lead to defeat in the House of Commons. Had such a
defeat been in prospect, would MPs, in the instances given above, really have gone to the
lengths of risking the fall of the government and a general election that would have been fought
under adverse conditions of division and demoralization? In fact, this dominance of Parliament
by the executive has been described by an ex-Lord Chancellor, Lord Hailsham, in a now widely
commended phrase, as ‘elective dictatorship’.

In the absence of a written constitution, there is no formal separation of powers in the United
Kingdom. There is no absolute doctrine of separation of powers in the UK constitution as
overlaps exist both in terms of the functions of the organs of state and the personnel operating
within them. No Act of parliament may be held unconstitutional on the ground that it seeks to
confer powers in breach of the doctrine as Courts cannot review the constitutionality of
legislation – precluded from interfering in the legislature’s function. The functions of
legislature and executive are closely interrelated and ministers are members of both. Yet it is a
feature of the peculiarly British conception of the separation of powers that parliament, the
executive, and the courts each have their distinct and largely exclusive domain.

Montesquieu’s views, however, were particularly influential in the eighteenth century as

a reading of the Constitution of the United States of America reveals. It is in the US
Constitution that his influence can be seen:

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Separation of powers in the US Constitution

By comparison, in the United States, the eighteenth-century ideal of the separation of powers
has come nearer to full realization. A cross-section of constitutional jurists worldwide agrees
in principle that, somehow the framers of the US Constitution adopted and expanded the
doctrine of separation of powers. A system of ‘balanced’ (or limited) government was
conceived as part of a codified constitution which ensured a clear distinction between
legislative, executive, and judicial powers. The framers of the Constitution intended that a
balance of powers should be attained by vesting each primary function in a distinct organ.
Possibly they were imitating the British constitution, but by that time in Britain executive
power was passing from the Crown to the Cabinet. The US Constitution vests legislative
powers in Congress, consisting of a Senate and a House of Representatives (art 1), executive
power in the President (art 2), and judicial power in the Supreme Court and such other federal
courts as might be established by Congress (art 3). The President and his administration
(government) wield enormous power by being vested with a predominantly executive function.
He is the Commander-in-Chief of the armed forces and is responsible for the formation of
foreign policy. The president holds office for a fixed term of four years and is separately
elected: he may therefore be of a different party from that which has a majority in either or
both Houses of Congress. His powers, like those of Congress, are declared by the Constitution.
While the heads of the Chief departments of state are known as the Cabinet, they are
individually responsible to the President and not to Congress.

As part of its ‘oversight function’ of administrative action, Congress assumes a crucial role in
scrutinizing the executive branch through its powerful committee systems. Neither the
President nor members of his cabinet sit or vote in Congress; they have no direct power to
initiate Bills or secure their passage through Congress. The President may recommend
legislation in his messages to Congress, but he cannot compel it to carry out his
recommendations. While he has the power to veto legislation passed by Congress, this veto
may be overridden by a two-thirds vote in each House of Congress. Treaties may be negotiated
by the President but must be approved by a two-thirds majority of the Senate. The President
may nominate to key offices, including the Justices of the Supreme Court, but the Senate must
confirm these appointments and may refuse to do so. The President himself is not directly
responsible to Congress for his conduct of affairs: in normal circumstances he is irremovable,
but the constitution authorizes the President to be removed from office by the process of

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impeachment at the hands of the Senate, ‘for treason, bribery, or other high crimes and
misdemeanors’ (art 2(4)).

The Supreme Court as the highest court of appeal, has an important formal role in adjudicating
controversial constitutional issues, such as in;

▪ Brown v Board of Education of Topeka (1954) 347 US 483. This was a landmark
decision of the U.S. Supreme Court in which the Court ruled that U.S. state laws
establishing racial segregation in public schools are unconstitutional, even if the
segregated schools are otherwise equal in quality.

However, it is important to note that the Supreme Court is often viewed as an intensely political
and activist institution. It is moreover wrong to suppose that the United States constitution
succeeds entirely in eliminating the overlap and duplication of functions. For example, the
President is responsible for the appointment of judges to the Supreme Court, subject only to
the approval of Congress. On the other hand, once appointed, the judges of the Supreme Court
are independent both of Congress and the President, although they too may be removed by
impeachment.

▪ Early in its history, the Supreme Court assumed the power, expressed in the historic
judgment of Chief Justice Marshall in William Marbury v James Madison, Secretary of
State of the United States, to declare acts of the legislature and the President to be
unconstitutional should they conflict with the constitution. This was a landmark U.S
Supreme Court case that established the principle of judicial review in the United
States, meaning that American courts have the power to strike down laws, statutes, and
some government actions that they find to violate the Constitution of the United States.
(On the contrary; In the United Kingdom courts have refused to adjudicate upon
the validity of Acts of Parliament, but they have developed the doctrine of judicial
review by which the exercise of power by other authorities may be reviewed in the
courts.)

Even in the US Constitution, there is not a complete separation of powers between the
executive, legislative, and judicial functions, if this means that each power can be exercised in
isolation from the others. Having established the threefold allocation of functions as a basis,
the Constitution constructed an elaborate system of checks and balances to enable control and
influence to be exercised by each branch upon the others. The Watergate affair showed not

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only the strong position of a President elected into office by popular vote: it also showed how
a combination of powers exercised by Congress and the Supreme Court, as well as such forces
as public opinion and the press, could combine to remove even the President from office.

▪ President Nixon’s resignation in 1974 following his complicity in the Watergate affairs
(Obstruction of justice, abuse of power, and Contempt of Congress).
▪ 25 years later, President Clinton successfully defended the impeachment proceedings
that were brought against him (Perjury to a grand jury and obstruction of justice).
▪ Former President Donald Trump became the first President in American history to be
impeached twice. He was first impeached by the House of Representatives of the 116th
United States Congress in December 2019 (Abuse of Power and Obstruction of
Congress). In January 2021 one week before his term expired (Incitement of
insurrection).

Separation of powers in the United Republic of Tanzania

The constitution of the United Republic of Tanzania of 1977 represents a contemporary

approach to constitutionalizing the doctrine of separation of powers. Essentially, there is no
strict separation of powers under the URT constitution, both in principle and practice. In the
URT constitution, the doctrine of separation of power is enshrined under Article 4 which, inter
alia, provides that;

4 (1) All state authority in the United Republic shall be exercised and controlled by two organs
vested with executive powers, two organs vested with judicial powers and two organs with
legislative and supervisory powers over the conduct of public affairs.

(2) The organs vested with executive powers shall be the Government of the United Republic
and the Revolutionary Government of Zanzibar; the organs vested with judicial powers shall
be the Judiciary of the United Republic and the Judiciary of the Revolutionary Government of
Zanzibar; and the organs vested with legislative and supervisory powers over public affairs
shall be the Parliament of the United Republic and the House of Representatives.

In principle, therefore, Article 4 of the constitution establishes three organs of the state i.e.
executive, legislature, and judiciary. In practice though, there is no strict separation of powers
(but rather a mixed government with checks and balances) in terms of functions of each organ
and personnel conferred with state powers as exemplified below:
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➢ It is the President (executive) who appoints Judges and Justices of Appeal (Judiciary)
under Articles 109 and 118.
➢ The President (executive) is also allowed to appoint a certain number of members of
the National Assembly (legislature) under Article 66(1)
➢ The executive does adjudicate in certain cases under ‘administrative tribunals. E.g.
Military Tribunal (Court Martial), The Tax Revenue Appeals Board, The Fair
Competition Tribunal, and the District Land and Housing Tribunal.
➢ Judges, in practice, do make laws.
➢ The Chief Justice is allowed to make rules, e.g. Court of Appeal rules (2009) made
under the Appellate Jurisdiction Act (RE: 2002, Cap. 141).
➢ The Court can nullify Acts of Parliament under Article 64(5).
➢ Members of the executive such as the President, Ministers, and Directors are allowed
to make subsidiary legislation as per Article 97(5).
➢ The President is part of the Parliament (but not a member of the National Assembly) as
per Article 62(2).
➢ Ministers (executive) initiate Bills and the President assent to Bills into law or may veto
the same (Article 97(1)(2).
➢ Ministers (Cabinet members) are also part of the National Assembly (see Article 55(4).
➢ The Attorney General (part of the executive) is also a member of the National Assembly
under Article 66(1)(d).
➢ President has the power to dissolve the National Assembly (Article 97(4)), likewise,
the National Assembly can impeach the President, Vice President and Prime Minister
(Article 38(2)(d), 46A, 50(3) and 53A).
➢ Some members of the National Assembly may also hold posts in the executive such as
District and Regional Commissioners (see Article 66(3).
➢ A judge can also be appointed as an Attorney General (the Case of Judge Werema)

CASES:

❖ DPP v. Daudi Pete (1993) TLR 22 (CA), a case which was concerned with restrictions
imposed by section 148 (5) (e) of the Criminal Procedure Act, 1985 (on bail), Nyalali
CJ refuted arguments made by Mwalusanya J (High Court), thus laid down

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circumstances under which the doctrine of separation of powers can be said to have
been violated as follows;
“In our view, the Doctrine of separation of powers can be said to be infringed when
either the Executive or the Legislature takes over the function of the Judicature
involving the interpretation of the laws and the adjudication of rights and duties in
disputes either between individual persons or between the state and individual
persons.”.
❖ Attorney General v. Lohay Akonaay and Joseph Lohay (1995) TLR 80 (CA), Nyalali
CJ (as he then was) reiterated his position in Daudi Pete’s case and noted as follows
(concerning the encroachment of the Judiciary’s power by the executive);
“It is the basic structure of a democratic constitution that state power is divided and
distributed between three state pillars. These are the Executives, vested with executive
power; the Legislature vested with legislative power, and the Judicature vested with
judicial powers. This is clearly so stated under Article 4 of the Constitution. This
basic structure is essential to any democratic constitution and cannot be changed or
abridged while retaining the democratic nature of the constitution. It follows
therefore that wherever the constitution established or permits the establishment of
any other institution or body with executive or legislative or judicial power, such
institution or body is meant to function not in lieu of or in derogation of these three
central pillars of the state, but only in aid of and subordinate to those pillars. It
follows therefore that since our constitution is democratic, any purported ouster of
jurisdiction of the ordinary courts to deal with any justiciable dispute is
unconstitutional.” (pp. 92).
❖ Mwalimu Paul John Mhozya v. Attorney General (No. 1) 1996 TLR 130 (HC), the issue
was whether the President may be removed or suspended from office by the Court.
Samatta JK (as he then was) in relation to the doctrine of separation of powers held
that;
“The principle that the functions of one branch of government should not encroach on
the functions of another branch is very important, one of the principles which ensure
that the task of governing a State is executed smoothly and peacefully. It seems to me
to be an incontrovertible proposition of law, having regard to the use of the words ‘in
accordance with the provisions of this constitution’ in Article 42(3)(d) of the
constitution, that removal or suspension from office of the President of the United

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Republic is the legislature’s exclusive prerogative. Since Article 46A of the

Constitution lays down the procedure to be used in removing or suspending the
President, the attempt to remove or suspend him by a procedure other than that would
not be legal.” (pp. 137-8)
❖ Attorney General v. Rev. Christopher Mtikila (Civil Appeal No. 45 of 2009) reaffirmed
the doctrine (though not so expressly) by restricting the role of the Court to that of
adjudicating (and not legislating). The Court (under Ramadhani, CJ) argued;
“…... the issue of independent candidates has to be settled by Parliament which has
the jurisdiction to amend the Constitution and not the Courts which, as we have
found, do not have that jurisdiction.”

Despite criticisms directed and registered toward the doctrine of separation of powers, the
doctrine still retains considerable value as follows;

✓ It emphasizes the need for a State to have strong independent institutions in order to
check arbitrary rules by the Executive.
✓ It provides a yardstick against which constitutional proposals can be assessed in order
to determine whether or not there will be adequate checks and balances within the
governmental system to ensure that individual rights are protected.
✓ The functions of the government are vast and varied. It is therefore necessary to entrust
these functions to specific organs, so that the responsibility for performing these
functions may be effectively fixed.
✓ Constitutions that completely ignore the doctrine are usually bad ones, one of the
branches of government will be found to overshadow the others or liable to do so.
✓ Separation of powers according to Montesquieu is the best guarantee of the liberty of
the people.
✓ Separation of powers prevents absolutism (as in monarchies or dictatorships where all
branches are concentrated in a single authority) or corruption arising from the
opportunities that unchecked power offers.
✓ It is considered as one of the pillars of the democratic government.

Generally;

Many other constitutions have been influenced by the separation of powers. Written
constitutions often contain distinct chapters dealing with legislative, judicial, and executive
powers, but display no uniformity in the extent to which these functions are separate. While
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the classification of the powers of the state into legislative, executive, and judicial powers
involves some conceptual difficulties, in a system of government based on law it remains
important to distinguish in constitutional structure between the primary functions of law-
making, law-executing, and law-adjudicating. If these distinctions are abandoned, the concept
of law itself can scarcely survive. As the contrast between the United States, the United
Kingdom and the United Republic of Tanzania shows, the doctrine of separation of powers has
a variety of meanings, and the complete separation of powers is possible neither in theory nor
in practice. Montesquieu’s version of the doctrine of separation of powers is impossible to
achieve because there’s no country where there is a complete division among the powers.
Therefore, the best system would be the one where there was an overlap and balance between
the three powers and where they worked together to achieve a fully functional democratic
system.

2. PARLIAMENTARY SUPREMACY

Parliamentary supremacy or Parliamentary Sovereignty is a legal principle that holds that a law
made by the parliament is supreme and valid such that no other body can question its validity.
Albert Venn Dicey explains ‘The principle of Parliamentary supremacy means neither more
nor less than this, namely that parliament thus defined has, under the English constitution, the
right to make or unmake any law whatever; and, further, that no person or body is recognized
by the law of England as having a right to override or set aside the legislation of parliament –
law of parliament’ (Dicey, 1915). From the quote, four basic principles of parliamentary
supremacy can be extracted. These are;

i. The parliament is the supreme law-making body.

ii. A parliament cannot bind a future parliament. A legislative body cannot pass a law that
cannot be repealed or amended by a future parliament in accordance with the Latin
maxim “Lex posterior derogate legi priori” – A later law takes precedence over an
earlier one.
iii. The powers of the parliament to make laws are not restricted. A parliament can make
law on anything at any time. The legislature has unlimited authority to enact, amend,
and repeal laws concerning any matter within the territory of the said parliament.

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iv. No person or organ can question the validity of the law that has been enacted by the
parliament, the court included. The court can question specific provisions but not the
validity of an act of parliament.

From the above principles, it is worth noticing that parliamentary supremacy directly
contravenes the principles of separation of powers as advocated by prominent scholars like
Baron de Montesquieu, John Locke, and others, which essentially advocates the equality
of the organs of state and the system of checks and balances.

Origin

The idea of parliamentary supremacy first emerged in Britain in the 17th century, after the
glorious revolution of 1688 which saw the overthrow of King James II of England replaced by
a union of parliamentarians who passed the Bill of Rights of 1689 that effectively abolished
absolute monarchy and introduced the concept of parliamentary supremacy. Before 1689, the
English political system was characterized by the absolute monarchy where the Crown had
absolute power over the other organs of the government (Judiciary and the executive). The
King was said to be subject to law, but the law was mainly unwritten custom and since he was
the source of all temporal jurisdiction and judgment, he could not be legally compelled to
observe it. The only available method of restraining a lawless King was political rather than
legal. The King was obligated to seek the advice and consent of his magnates in matters
affecting their interests, but common law offered them no remedy when the King failed to obey
the law. Moreover, the Crown had the power to abolish the parliament whenever he wished.

The revolution of 1688 brought reforms in the distribution of powers among the three organs
of the government. After the revolution, the monarchy became accountable to parliament, and
that marked the beginning of parliamentary supremacy in Britain. The ministers also became
responsible to the parliament, and the army was also subjected to the parliamentary through
the passage of the Annual Mutiny Act. The judges alone were independent of parliament,
though they could be removed after a joint petition of the two houses (White and Hussey,
1961). In the second half of the century almost all politicians, lawyers, and political theorists
agreed that Parliament possessed a legally unlimited legislative authority within Britain. For
example, in 1871 Justice Willes denied that the courts had any authority to act as agents over
what is done by parliament. Until recently it was almost unthinkable that the courts would ever
refuse to apply an Act of Parliament. Thus, in Britain, the most senior legal officials including

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judges have for a long time recognized as legally valid whatever statutes parliament has enacted
and have often said that they are bound to do so.

Parliamentary Supremacy in Tanzania

The evolution of the doctrine of parliamentary supremacy in Tanzania is going parallel with
the development of the Constitution. Historically, the practice of parliamentary supremacy in
Tanzania can be categorized into four phases;

a. The Westminster Phase (1961 – 1962)

Tanzania adopted the doctrine of parliamentary supremacy with the independence constitution
of 1961. The first Tanzania Constitution was referred to as the Independence Constitution of
1961, promulgated in England by the United Kingdom Parliament and directly imposed on
Tanzania. It was characterized by a Westminster model with a sovereign parliamentary,
multiparty democracy, a prime minister and the Governor being the head of state representing
Her Majesty the Queen of England. During this period the parliament was supreme or sovereign
in a matter concerning government decisions as it was in England. The parliament was
supreme over other organs of the state, exercising direct control over the executive. The
Prime Minister and his entire cabinet were collectively responsible to the parliament for
everything done under their authority. The parliament had the power to remove the government
by a vote of no confidence. The parliament had unlimited freedom to criticize the government
on many issues and programs. i.e. criticizing the government for being slow in implementing
its Africanization policy.

b. The Republican Phase (1962 – 1964)

The change balance of powers between the Parliament and the executive started in 1962, with
the introduction of the Republican constitution. The republican constitution established a
strong presidential system. The new President was granted the prerogatives of both former
roles, Governor General and First Minister, serving as the head of State as well as Commander
in Chief of the Armed Forces. He was granted the right to designate the Vice President and
Ministers, and the right to dismiss the parliament under certain circumstances. The parliament
therefore lost its supreme status as it lost the power to hold the executive accountable.

c. The Single-party Phase (1965 – 1992)

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The introduction of the single-party system further undermined parliamentary supremacy. In

1964, Tanganyika and Zanzibar merged to form the United Republic of Tanzania, followed by
the Union Constitution of 1964. In 1965, Tanzania was declared a de-facto one-party state
subsequently with the Interim Constitution. During this time, matters discussed in the
parliament were to be questioned outside the parliament by the executive hence there was a
low degree of supreme of its decision. Moreover, the executive made major decisions without
the approval and review by the parliament. i.e. in 1967, the NEC of the party adopted the
Arusha declaration consisted of the major Nationalization policy without review by the
parliament. Also, an amendment in 1975 established that all the government institutions,
including the Parliament, were subordinate to the party’s executive committee. After the
merger of TANU and ASP to form CCM, Tanzania became a de jure one-party state, where
during this time the parliament was subordinated to the National Electoral Commission (NEC)
of the party. The status of parliament was lowered to that of a mere rubber stamp, approving
policies of state/party with little debate. The parliament could no longer freely supervise or
debate government decisions without a harsh response from the President or NEC of the Party.
i.e. in 1968, the NEC of TANU expelled seven MPs from the parliament for having ‘grossly
violated the Party creed both in their actions and attitude’, and for showing ‘a very clear
opposition to the Party and its policies’. Mr. Chogga was among the seven expelled MPs for
suggesting that ‘It is Parliament that is supreme’.

d. The Multiparty Phase (1992 – to date)

The permanent Constitution was approved in 1977 after the birth of CCM, which essentially
confirmed the main principles of the Republic and Interim Constitutions, especially strong
presidentialism, double government structure, and single-party state. The introduction of the
multiparty system in 1992, effectively resorted supremacy status of the parliament. The Ninth
Amendment introduced the possibility of impeachment by the Parliament as per article 46A
(1) under which the National Assembly may pass a resolution to remove the president from
office if a motion to impeach the president is moved and passed in accordance with the
provisions of the article. Also, the parliament gained the power to remove the Prime Minister
with a vote of no confidence. Sections that undermined the power of the parliament were
removed. i.e. articles that made parliament the committee of the party and Tanzania a single
party were removed.

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Relevance of Parliamentary Supremacy in Tanzania

The parliamentary supremacy in Tanzania can be applicable in various situations when the
parliament exercises its powers as explained herein below;

• Legislative supremacy; article 64 (1) vests legislative power in the hands of the
parliament. The parliament makes laws through a law proposal called a bill which
becomes a law after assented by the president.
• Power to pass international laws; the National Assembly discusses and ratifies
International Conventions signed by the President before they become full and binding
legislation because under the constitutional structure international instruments are not
self-executing.
• The impeachment power; the parliament has the power to remove from power the
President of the United Republic of Tanzania by due process as provided under Article
42(3)(d) and 46A (10). The procedure to remove the President from his office was
elaborated in the case of Mwalimu John Paul Muhozya v. Attorney General (the
complainant was claiming that President Ally Hassan Mwinyi violated the constitution
thus he asked the court to suspend the President from performing his duties. The court
held that no provision of the constitution or any other law authorizes the High Court to
remove the President from power).
• The power to disapprove the Prime Minister; the parliament possesses the power to
disapprove the prime minister appointed by the President through the ‘vote of no
confidence’ (Article 53A)
• The power to alter provision of the constitution; article 98 (1) stipulates the power of
the parliament to enact laws for altering any provision of the constitution in accordance
with the specified principles.

Limitation of the Parliamentary Supremacy in Tanzania

• The constitutional supremacy; the constitution itself is one of the limitations of

parliamentary supremacy.
• The supremacy of the parliament is limited since the court has been given power to
declare unconstitutional (null and void) any Act of the parliament which is contrary to
any provision of the constitution.

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• In the legislation procedures, the Executive has been given the power to initiate the bill.
So, the executive determines what the parliament can or can’t act through bill initiation.
This hinders the doctrine of parliamentary supremacy (Article 97)
• The lower degree of separation of powers among the government organs where the
President is considered part of the parliament as highlighted in article 62(1) and shall
exercise all the executive functions vested in him/her by the Constitution.
• The mode of acquiring membership in the parliament becomes a challenge to
parliamentary supremacy. This qualification (Article 67(1) (b) inter alia requires one to
belong to a certain political party to be a member of the parliament which in turn leads
to the lack of absolute freedom in the parliament.

Case study

Case No. 1 2019 Independent Lawyer Hassan Kijogoo v Chief Judge Zanzibar

Independent Lawyer Kijogoo had filed a case in the High Court of Zanzibar claiming that
there’s a breach of the Constitution in Criminal Proceeding Act No. 7 2018 under section 151
subsection 4 which gives all powers to bail to the Chief Judge alone. This was in contrast to
the former amended Criminal Proceeding Act No. 7 2004 which directed that bail could be
given by any judge of the High Court of Zanzibar. Lawyer Kijogoo held that is against the
Constitution of Zanzibar 1984 as amended. The judges of the High Court of Zanzibar ruled out
that the Act was unconstitutional as it conflicted with the constitution. Thus, the House of
Representatives in Zanzibar was required to alter the aforesaid Act by omitting the section that
conflicts with the constitution and adding a section that will return power to bail to all judges
of the High Court of Zanzibar. In doing so, it is obvious that the court has made limitations on
what the parliament can enact hence putting the concept of parliamentary supremacy in
question.

Generally;

Parliamentary supremacy has been one of the important constitutional principles in relation to
UK politics. It has also been imitated and practiced by various countries including those that
were once under the British colony, Tanzania in particular. However, recently this principle
seems to have lost ground as many countries have embraced the notion of separation of powers
and the check and balance among the conventional three organs of the state namely the
Executive, Legislature, and Judiciary.

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3. MINISTERIAL RESPONSIBILITY

Responsibility means being answerable to someone. It also entails idea of being accountable
for decisions, actions, commission and omission (failure to do something that was supposed to
be done). It means if something goes wrong, you’ve to answer. Responsibility has different
forms and levels;

• Lower level – to come out and just explain.

• Somehow High level – duty to give a reason as to why a decision was taken or what’s
going on. Also, the duty to admit that something wrong has been done and apologize.
• Highest level – Resignation from office/position.

Ministerial responsibility is a constitutional principle found mostly in governments using the

Westminster parliamentary system in which the cabinet or individual ministers are responsible
for the actions of their ministries or departments. Being responsible means being accountable
or answerable (Phillips, O. 1987). Ministerial responsibility is central to the parliamentary
system, as it ensures the accountability of the government to the legislature and the people. A
responsible government is one that is accountable to the people who put that government into
power (Article 8 of the URT constitution). Ministers are legally responsible in their capacities
for acts that they order or authorize to be done or in which they actively participate. In England,
the concept of Ministerial responsibility has evolved with the Westminster system of
government. i.e. Lord Buckingham, who was a Minister during the reign of Charles I was
impeached by the parliament for implementing the policies of the King rather than that of the
parliament. Gradually, the concept of Ministerial responsibility developed into one where a
Minister in the Westminster system became answerable to parliament rather than to the
Monarch.

The method of holding a Minister accountable to parliament was that of impeachment, that in
turn gave rise to the expectation that a Minister who had failed his or her duty to parliament
would resign. Constitutional lawyers such as Wade and Bradley argue that ministerial
responsibility is a constitutional doctrine. In addition, in Carltona Ltd v Commissioner of
Works, the court stated that the ministers are responsible for the acts of their subordinates. The

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rule is that the minister is not allowed to challenge the government in the parliament even if
the minister has a problem with his constituent. They only have to defend the government.

Categories of Ministerial responsibility

There are two categories of ministerial responsibility which are Individual ministerial
responsibility and collective ministerial responsibility.

I. Individual Ministerial Responsibility

This is in a sense that the minister in charge is alone answerable to the parliament and the
president for the exercise of the powers of his ministry or department. This means that if
misuse, corruption, or any other misbehavior is found to have occurred within a ministry, the
minister is responsible even if the minister had no knowledge of the actions. A minister is
ultimately responsible for all actions of a ministry. A minister must accept responsibility for
the actions of the civil servants in his department, and he is expected to defend them from
public criticism. In the UK, Individual ministerial responsibility was stipulated in the Crichel
Down affair in 1954 where Secretary of State for Agriculture, Thomas Dugdale resigned
despite an inquiry suggesting that all mistakes were made within his department without his
knowledge, and in some cases due to deliberate deceit by civil servants. One rule coming from
this principle is that each cabinet member answers for their own ministry in Question
Time/Question Period.

The reverse of individual ministerial responsibility is that civil servants are not supposed to
take credit for the successes of their department, allowing the government to claim them. In
case of any wrongdoing or mistake, the minister can be called on to take action to correct the
situation, apologize, and even in some cases resign from a cabinet position. It has been argued
that an examination of ministerial resignations in the past century shows that the doctrine of
individual responsibility in practice has no punitive effect because either;

• The erring minister who resigns is appointed to another post,

• A timely reshuffle of ministerial posts renders resignation unnecessary,
• A minister who is unpopular with the opposition is protected by the solidarity of his
colleagues.

Examples of cases depicting individual ministerial responsibility;

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➢ In 1982, Lord Carrington the British Foreign Secretary had to resign because they (he
and his two principal assistants/junior officers) failed to predict Argentina's seizure of
the Falkland Islands.
➢ In 2012, Andrew Mitchel who served as Secretary of State for International
Development resigned after swearing at a police officer and calling him ‘plebs’ (a
Roman word indicating a person from a lower social class). He admitted and
apologized.

II. Collective Ministerial Responsibility

This entails that, all members of the cabinet must publicly support all government decisions
made in the cabinet, even if they do not privately agree with them. This support includes voting
for the government in the legislature. In the UK, the doctrine applies to all members of the
government, from members of the cabinet down to parliamentary private secretaries. Collective
responsibility implies that ministers are bound by the decisions of the cabinet, even when they
have no part in their discussion or decision. This includes even if the Minister was not aware
at the time of a decision made, but to which he subsequently gave his unspoken approval by
continuing in office. If a vote of no confidence is passed in parliament, the government is
responsible collectively, and thus the entire government resigns. The consequence will be that
a new government will be formed, or parliament will dissolve and a general election will be
called. This principle of ministerial responsibility ensures that the government acts as one entity
and that this entity is answerable and accountable to the parliament.

According to Marshall G (1987), collective ministerial responsibility is classified into three

branches;

i. Confidence – the government must have the confidence of the parliament. If loses the
confidence, it must either resign or advise dissolution.
ii. Confidentiality – ministers are bound to respect the confidentiality of cabinet
proceedings. They should not disclose what happened in the cabinet.
iii. Unanimity – members of government are allowed to engage in frank debates and
disagreements in private, before the cabinet’s decision. They have to present a united
front after a decision has been reached (cabinet solidarity).

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The Doctrine of Ministerial Responsibility in Tanzania:

Ministerial responsibility has been established in article 53(2) which stipulates that all
Ministers under the leadership of the Prime Minister shall be collectively responsible in the
National Assembly for the execution of the affairs of the Government of the United Republic.
Moreover, it has been well described in the Philosophy of the late Mwalimu J.K. Nyerere, the
founder of the nation in his book, ‘Freedom and Socialism’ (1969). While addressing the
parliament, Nyerere said, “Most important of all, members (of the Parliament) must not under
any circumstance attack a member of the civil office in this House. If they believe a civil servant
is acting wrongly and that injustice is being done, it is the minister who members must call to
account...”.

Some of the instances of ministerial responsibility include;

➢ Alhaji Ally Hassan Mwinyi resigned from his post as the Minister of Home Affairs
following the Shinyanga Massacre in 1976.
➢ Mr. Lyatonga Mrema was against the members of the cabinet over the Chavda graft
scandal and so he resigned from the cabinet in 1995.
➢ Prof. Mbilinyi resigned in 1997 as a Minister of Finance for a tax exemption scandal
involving the exportation of fish fillets.
➢ Iddi Simba resigned in 2001 due to a scandal involving a sugar importation license.
➢ In 2007, then-Prime Minister Edward Lowassa resigned with other two ministers Dr.
Ibrahim Msabaha and Nazir Karamagi due to the Richmond scandal.

The doctrine of ministerial responsibility is essential as it motivate ministers to closely

scrutinize the activities within their departments before making decisions.

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