TALKING POINT : Principle of separation of powers still a joke in Africa

I accepted an invitation earlier this week to speak on separation of powers in theory and practice on a television programme. As part of my preparations, I had the opportunity to review various sources of literature, documented cases and provisions of various constitutions.

Although the concept is noble, separation of powers in Africa still leaves a lot to be desired. Recent events in Africa, including the ongoing wrangle among some government officials over the arbitrary arrest of MPs in Tanzania, are a case in point. I wish to make it clear from the outset that the principle of separation of powers has never been practiced to perfection anywhere in the world.

In Africa, the Democratic Republic of Congo, whose names have changed several times from Congo Free State to Belgian Congo, Leopordville and Zaire, is in an extreme case as far as lack of respect for the principle is concerned. The DRC, which has had three republics and constitutions since the time of Patrice Emery Lumumba at independence in 1960, has excelled in not observing the principle of separation of powers.

Looking at the manner of change of names, the country’s executive has had all this done without any meaningful involvement of the other pillars of state, namely the judiciary and legislature. For instance, while the name Congo Free State was a colonial government’s creation, the independence rulers coined the names Belgian Congo and Leopordville for the biggest country in sub-Saharan Africa.

Later presidents of what is now known as the DRC came up with new names for the natural resource-rich country, with Mobutu Sese Seko (pictured)renaming the nation Zaire in 1971, six years after seizing power in a coup d’etat.

For his part, Laurent Desire Kabila, who also came to power through means other than elections in 1997, saw it fit to rename the country, dropping the name Zaire in favour of the Democratic Republic of Congo.

One overriding feature in all governments Congo has had since independence has been its low level of implementation of the principle itself and the constitution. It is worth noting that the DRC constitution has since 1964 provided for provincial decentralisation, which requires that up to 40 per cent of government revenue go to the 26 provinces. This has, however, never been implemented. As a result, local governments in the DRC are heavily dependent on the central government in Kinshasa nearly 60 years after independence.

Back home, the situation is not any better. The Constitution of the United Republic of Tanzania provides for the functional mandates of all the main pillars of state but still leaves a lot of room for manoeuvre. For instance, the presidency, which heads the Executive branch, is vested with perceived powers over both the Judiciary, whose head is an appointee of the Head of State, and the Legislature, whose speaker is elected from among members of the majority party in Parliament.

This puts the independence of both the Legislature (articles 62-101) and Judiciary (articles 108-124) into question. Furthermore, the Constitutional Court (articles 125-128), which was to have an appellate function on relations between and among the pillars of State, has proved virtually impossible to constitute, let alone execute its functions.

In a nutshell, the Executive still wields immense powers over the Legislature and Judiciary. This is an undeniable fact. To add insult to injury, the President is part and parcel of the Legislature.

In terms of operational problems of the principle of separation of powers, a lot has been witnessed. For instance, although the military is partly within the executive arm, this, to some extent, has been disregarded.

Take the habit of having retired senior military personnel run for political office or the recent tendency to appoint both retired and serving army officers as regional and district commissioners and administrative secretaries or party operatives.

This is in direct contravention of Article 147 (3) of the Constitution of Tanzania, which prohibits members of defence and security forces from joining political parties. The nation has witnessed retired senior military officers offer themselves as candidates for political office. My take is that senior members of defence and security forces must refrain from party politics during and after military service.

The principle of separation of powers, as promoted by its proponents, envisages independent existence of the pillars of State. Short of this, nations run the risk of being mired in confusion to the detriment of democracy.