The Separation of Powers in African Constitutionalism

Author(s):  
Charles Manga Fombad

One reason why dictatorships flourished in Africa until the 1990s was that constitutions concentrated excessive powers in presidents. The democratic revival of the 1990s led to the introduction of new or substantially revised constitutions in a number of countries that for the first time sought to promote constitutionalism, good governance, and respect for the rule of law. A key innovation was the introduction of provisions providing for separation of powers. However, in many cases the reintroduction of multipartyism did not lead to thorough constitutional reform, setting the scene for a subsequent struggle between opposition parties, civil society, and the government, over the rule of law. This reflects the complex politics of constitutionalism in Africa over the last 60 years. In this context, it is important to note that most of the constitutions introduced at independence had provided for some degree of separation of powers, but the provisions relating to this were often vaguely worded and quickly undermined. Despite this, the doctrine of separation of powers has a long history, and the abundant literature on it shows that there is no general agreement on what it means or what its contemporary relevance is. Of the three main models of separation of powers, the American one, which comes closest to a “pure” system of separation of powers, and the British, which involves an extensive fusion of powers, have influenced developments in anglophone Africa. The French model, which combines elements of the British and American models but in which the executive predominates over the other two branches, has influenced developments in all civilian jurisdictions in Africa, particularly those in francophone Africa. The common denominator among the models is the desire to prevent tyrannical and arbitrary government by separating powers but doing so in a manner that allows for limited interference through checks and balances on the principle that le pouvoir arrête le pouvoir. The combined Anglo-American (common law) and French (civil law) models received during the colonial period remain applicable today, but despite its adoption in the 1990s, the effectiveness of the doctrine of separation of powers in limiting governmental abuse has been curtailed by the excessive powers African presidents still enjoy and the control they exercise over dominant parties in legislatures. South Africa in its 1996 Constitution, followed by Kenya in 2010 and Zimbabwe in 2013, entrenched a number of hybrid institutions of accountability that have the potential not only to complement the checks and balances provided by the traditional triad but also to act where it is unable or unwilling to do so. The advent of these institutions has given the doctrine of separation of powers renewed potency and relevance in advancing Africa’s faltering constitutionalism project.

2020 ◽  
Vol 14 (1) ◽  
pp. 73-104
Author(s):  
Rustam Magun Pikahulan

Abstract: The Plato's conception of the rule of law states that good governance is based on good law. The organization also spreads to the world of Supreme Court justices, the election caused a decadence to the institutional status of the House of Representatives as a people's representative in the government whose implementation was not in line with the decision of the Constitutional Court. Based on the decision of the Constitutional Court No.27/PUU-XI/2013 explains that the House of Representatives no longer has the authority to conduct due diligence and suitability (elect) to prospective Supreme Judges proposed by the Judicial Commission. The House of Representatives can only approve or disapprove candidates for Supreme Court Justices that have been submitted by the Judicial Commission. In addition, the proportion of proposed Supreme Court Justices from the judicial commission to the House of Representatives (DPR) has changed, whereas previously the Judicial Commission had to propose 3 (three) of each vacancy for the Justices, now it is only one of each vacant for Supreme Court Judges. by the Supreme Court. The House of Representatives no longer has the authority to conduct due diligence and suitability (elect) to prospective Supreme Judges proposed by the Judicial Commission. The House of Representatives can only "approve" or "disagree" the Supreme Judge candidates nominated by the Judicial Commission.


2020 ◽  
Vol 1 (2) ◽  
pp. 61-69
Author(s):  
Aksah Kasim ◽  
Andi Heridah

The factors of the region governance review of Barru regency to actualize good governance and clean government are the region the government have not applied the equity properly and optimally, uphold the rule of law, worked effectively, effectiveness, and accountability, and formulated and implemented the strategic vision. This study is expected to explain, find, and describe the regional governance review in Barru Regency to actualize for good governance and clean government in the implementation of regional autonomy.


2018 ◽  
Author(s):  
Peter M. Shane

The George W. Bush administration's use of signing statements embodied a disturbingly thin and formalist view of the rule of law that goes hand-in-hand with its vision of the separation of powers. Its signing statement practice was notable both for the extremity of the constitutional vision that these statements typically asserted—especially with regard to the so-called "unitary executive”—and with regard to their sheer volume, unmatched in the entire history of the executive. To understand the latter phenomenon, the Bush signing statements need to be understood not just as an expression of a constitutional philosophy, but also as an effort to institutionalize through faux law a highly presidential ethos as a fundamental element of the spirit with which the government conducts business.


2019 ◽  
pp. 75-90
Author(s):  
Henk Addink

The concept of the rule of law has different—common law and continental—historical roots and traditional perspectives. The common law tradition is more focused on limiting the powers of the state, whereas the continental tradition focuses on not just to limit but also to empower the government. But both systems have a focus on the rule of law. The rule of law in the classical liberal tradition is based on four elements: legality, division and balance of powers, independent judicial control, and protection of fundamental rights. The differences between rule of law and rechtsstaat are: different concepts of the state, mixed legal systems and different approaches of a constitution, and different perspectives on human rights. There are two levels of development: a model in which law is a way of structuring and restricting the power of the state, the second level is more subjective and has important individual positions. The concept of good governance related to these developments makes clear the need to broaden the concept of the rule of law.


2019 ◽  
pp. 15-24
Author(s):  
Henk Addink

Good governance is needed because of legislative gaps, prevention of corruption, maladministration, and mismanagement, and fragmentation of administrative law norms. The concept of good governance has been developed in addition to aspects which can already be found in the rule of law and democracy concepts but are also related to the institutional framework of the government. The term ‘government’ is used for all the powers in the state; the administration is only one of these powers. These powers must fulfil certain norms, principles which sometimes are unwritten and developed by the judiciary or the ombudsman but more and more codified in the frame of the general (administrative) legislation. All the institutions of the government are involved in the development of these principles of good governance. There is not only a separation between the powers of the state, but more and more there are interactions between these powers in the development of principles of good governance and, hence, there is a balance between these principles. Therefore, there are different producers and sources of good governance.


Author(s):  
Glosemeyer Iris ◽  
Shamiri Najib Abdul-Rehman ◽  
Würth Anna

This chapter examines constitutional developments in Yemen. It covers Yemeni constitutional history before unification, the fate of the 1991 Constitution, and the Constitution of 2001. It argues that despite the relative political continuity (in the sense that there have not been successful military coups or significant elite changes in decades), constitutionalism in the country may be characterized as being two-fold. First, numerous constitutional articles are ambiguous and amenable to adverse interpretations because they leave too much of the constitutional rights to be defined by laws, thereby undermining the effectiveness of the said articles. The same applies to ordinary parliamentary laws, for they refer many important details to executive regulations, by-laws, ministerial resolutions, or Islamic jurisprudence. Second, while there has been a tradition of constitutionalist thinking at least since the 1940s, central elements of constitutionalism are missing. Checks and balances are weak, and the rule of law is far from being reality. Separation of powers is not even constitutionally fully guaranteed, much less applied in practice.


2020 ◽  
Vol 6 (6) ◽  
pp. 244-251 ◽  
Author(s):  
G. Berdimuratova

This work is devoted to the consideration of the constitutional directions of interaction and interdependence of the judiciary of the Republic of Uzbekistan and the Republic of Karakalpakstan. As a result of studying the issues under consideration, the author concludes that the importance and significance of the role and place of the judicial branch of the government in the mechanism of separation of powers is precisely in ensuring the rule of law, avoiding violations of the principle of legality and the rule of law based on it.


Author(s):  
Cristina E. Parau

This chapter analyses Network Community discourses in order to better expose the causal role of its hegemonic norms. Key assumptions held by the Community about the qualities of their agenda are brought to light. Classical Anglo-Saxon conceptions of the separation of powers, checks and balances, judicial independence, and the rule of law, the utility of which has stood the test of time, are compared to the theory and practice of the Network Community’s Judiciary institutional design Template. The Network conceives of the separation of powers, checks and balances, judicial independence, and the rule of law as emanating from the autonomy and supremacy of a Judiciary so empowered as invariably to subordinate all other contestants in case of conflict with itself over constitutional meaning. The chapter ends with a systematic catalogue and critical examination of those few acts of state which the Network Community conceive as legitimate checks and balances on their Judiciary design.


2021 ◽  
Vol 7 (3) ◽  
pp. 317-334
Author(s):  
Isaac O. C. Igwe

The synthesis of rule of law enthrones democracy, justice and goes with such characteristics as liberty, freedom, and the restoration of the dignity of man. The rule of law is predicated upon absolute autonomy being accorded to the judicial arms of the government of any society, state, or country. Thus, the application and interpretation of the law must be under the control of impartial courts adjudicating within the ambit of fair judicial procedures. The dialectics of power and the guiding principles of governance are anchored in the constitution which enshrines the provisions of enforceable laws. The law is the cardinal power of a nation, a direction for due process, and a guiding principle for good governance. The age of enlightenment and the middle ages have a special place for the rule of law as opposed to tyranny otherwise, life could have been chaos. The role of law cannot be left in isolation of democracy as both are interlaced as core universal principles of the civilised world. This paper will explore the rule of law as a paramount factor in constitutionalism, idealism, and realistic principles of the law of any given society. The treatise will in general terms discuss the principles of rule of law and articulate it with the hitherto Nigerian democracy. It will conclude with the argument that complete independence of the judiciary in Nigeria is paramount to ensure proper implementation of rule of law for a better Nigeria. Keywords: Rule of Law; Constitutionalism; Independent Judiciary; Tyranny; Nigerian Democracy. Rule of Law;


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