THE MONTESQUIEU DOCTRINE OF SEPARATION OF POWERS

It was during the middle of 18th century that Montesquieu gave the doctrine of separation of

power its modern famous formulation; it has been argued that in making this formulation.

Montesquieu was concerned to combat despotism of which King Louis XIV has established in

France.

Montesquieu was the French Philosopher. He writes the spirit of laws in 1748. In fact, he was

impressed with the British Politician Locke’s views. Montesquieu strongly supported in his

theory that there should be separation of powers.

It is essential to the successful working of the Government that the person entrusted with power

in any of the three organs, Executive, Judiciary and Legislature, shall not be permitted to

encroach upon the powers in any one of the three organs that is Executive, Judiciary and

Legislature, shall not be permitted to encroach upon the powers confided to the others.

Concentration of power in one person or a group of persons result in tyranny. Therefore, the

governmental power should be divided and vested in three different organs. Each of these organs

should be independent of the others. No organ should perform functions belonging to the others.

The Montesquieu doctrine of separation of power had some criticism that there is no pure

separation of power. Apart from this criticism the Montesquieu theory had tremendous impact on

development of administrative law throughout the world.

Example for the doctrine of separation of powers, United States of America is the best example.

This doctrine has been developed in America in highest mark. The Congress has legislative

powers, President has executive power and the Supreme Court and its subordinate courts have
the judicial powers. There is coordination between these three most important organs of the stat.

In fact, the rule of law in England hampered the recognition and growth of administrative law,

whereas the separation of powers in America has given an intimate impact on the growth of

administrative law1 Although they have clearly maintained separation of power in the American

Constitution these powers are not complete. This doctrine succeeded in separating the executive

from legislature and yet enabled the Supreme Court to declare invalid act of the legislature2

The Supreme Court of America, in Satinger vs. Philippine3. It was held that “It may be stated

..., as a general rule inherent in the American Constitutional system, that, unless otherwise

expressly provided or incidental to the powers conferred, the legislature cannot exercise either

executive or judicial power, the executive cannot exercise either legislative or judicial power, the

judiciary cannot exercise either executive or legislature power. Nixon’s Water Gate Case4 is

another example of separation of powers in America. In this world famous case, Nixon, then

American President was found guilty by the Supreme Court of America.

Separation of power in Tanzania

1
Alder, Supra, note 6,145.
2
U.P.D.Kessari, Administrative Law, Central Law Agency, Allahabad 1985 7, 13.
3
Satinger vs Philippine, 1986.
4
Nixon’s Water Gate Case.
The separation of power in Tanzania implies the following that the state power is vested and

exercised by the three separate institutions the personnel in these organs are different and the

functions of these institutions are different.

The Constitution of the United Republic of Tanzania, it is clearly stated under article 4(1)5that

All state authority in the United Republic shall be exercised and

controlled by two organs vested with executive powers, two organs

vested with judicial power and two organs vested with legislative and

supervisory powers over the conduct of public affairs.

The judiciary and separation of power. The judges and judiciary occupy a special position in any

democratic society. They are part and parcel of the state within the doctrine of separation of

power. Under this doctrine, the legislature is supposed to make the laws, the judiciary to interpret

and administer them and the executive to enforce them6.For the judiciary to be able to undertake

its function fairly and impartially, it requires being independent of the other two organs and

independent from political pressure7.

The judicial personnel as appointee of the president of the United Republic of Tanzania. The

president has to consult the judicial commission and the chief justice before appointing judges of

the High Court and judges of the court of appeal respectively; but there is no obligation to act

according to any advice given to him. The issue is whether the power of the president to appoint

judges infringes the independence of the judiciary. It is clear that when judges being appointees

5
The Constitution of the United Republic of Tanzania of 1977(as amended time to time).
6
P.C.Maina, Human Rights in Tanzania Selected Cases and Materials, Koln: koppe 1997.
7
Ibid
of the president are free in most cases but sometimes they are discharging their duties while their

mind-set about the interference by the executive arm of the state and they are likely to pay

royalty to the executive whereby the president is the head of it.

Recommendation

Our Constitution mentions the clear provision of separation of powers. Yet, by pursual of article

and their arrangement, one could easily understand that the framers of our Constitution too

inclined toward the doctrine of separation of powers. But in practise the separation of power is

not well maintained in Tanzania compared to other states. For instance the American

Constitution, all the executive powers have been vested in President. All the legislative powers

have been vested in Parliament. All the judicial powers have been vested in Supreme Court. The

Constitution clearly demarcates spheres for each of the organs of the Government namely

judiciary, legislature and executive. As mentioned, each of the organs does not encroach the

other organ in essential elements, but each of the organs may encroach the other organs in the

matters of incidental elements.

In Tanzanian President has given too much power and there is no clear separation of power,

compared to the other states. For instance the judiciary is interfered by the executive as the fact

that the president is the appointee of the judges of the Court of appeal and High Court. It is clear

that when judges being appointees of the president are free in most cases but sometimes they are

discharging their duties while their mind-set about the interference by the executive arm of the
state and they are likely to pay royalty to the executive whereby the president is the head of it.

These indicate that there is no clear independent of judiciary so far as the separation of power is

concerned.

The Role of the Judiciary in Safeguarding the Principle of Separation of Powers in Tanzania

should be well maintained, since the constitution is regarded as the supreme law of the land and

makes all organs of the state subject to the constitution. In this kind of democracy, the principle

of the rule of law is also emphasised. Therefore separation of powers is necessary if political

liberty and progressive well-being of all is to be achieved. For the judiciary, separation of powers

is the foundation for judicial independence, which is one of the most essential characteristics of a

free society.

The judiciary has a sensitive and crucial role to play in controlling the exercise of power and

upholding the Bill of Rights. For example although Parliament has a wide power to delegate

legislative authority to the executive, there are limits to that power and it is the duty of the courts

to ensure that the limits to the exercise of public power are not transgressed

in order for the judiciary to effectively perform its function. It is important that the judiciary be

independent and that it be perceived to be independent .Thus, the role of the judiciary in

safeguarding the principle of separation of power includes developing the principle itself.

Therefore, there are times when the courts must perform the difficult task of reconciling

democracy with the operation of the courts themselves. If the judiciary is to function without fear

or favour, ill-will or affection, it must be truly independent and outside the control of the other

branches.
Acordinding to the doctrine of separation of power in Tanzania is not well maintained because

the Judiciary face several challenges which hinder their effectiveness. These include the

limitation which is found in the various constitutional checks on the judiciary to maintain checks

and balances especially as relates to appointment and removal of judicial officers which is

normally not done by the judiciary itself.

Article 98 of the Constitution which gives power to the government to enact law for altering any

provision of the constitution, is the offensive provision which normally have block the separation

of powers between the three state’s organs of the government as it is bring usually the conflict

between the judiciary and the legislature as far as the separation of power is concerned. The

conflict evidenced in the case of Christopher Mtikila vs. Attorney General8whereby the

Attorney General sent the bill to the parliament to amend Article 39 and 67 of the constitution,

while there was pending trial in the court concerning the above articles on which the amendment

of article 39 and 67 was contrary to article 21 of the constitution. Therefore Tanzania should

maintain separation of powers so that to influence the growth of administrative law.

8
High Court of Tanzania at Dar es- Salaam, Miscellaneous Civil Cause No. 10 of 2005.