1.0.

Introduction
Separation of powers is one concept that theorists and practitioners of Administrative law have
had to grapple with. The purpose of this paper is to explore the meaning of the doctrine of
separation of powers and will do so by providing the conceptual definition of separation of
powers as espoused by various legal authorities, then proceed to show with the help of case law
why it is important and how Act No. 2 of 2016 has enhanced the doctrine of separation of powers
between the judiciary and the other arms of government. The paper concludes with an opinion on
how the challenges confronting the application of separation of powers can be resolved.
2.0. Conceptual Definition of the Doctrine of Separation of Powers
In providing the conceptual definition of the doctrine of Separation of Powers, Locke 1 predicated
the conception of separation of powers on the proposition that the functions of government are
classifiable into executive, legislative and judicial, and that no branch should exercise the
functions of the other. Locke stressed the need for division of powers of government into various
branches when he postulated that:
The three organs of the state must not get into one hand as it may be too great a
temptation to human power seeking frailty for the same people who have the power to
make laws also to have in their hands the power to enforce them; for if they did, they
might come to exempt themselves from obedience to the laws they had made, and to
adapt the law, both in making and in enforcing it, to their own private advantage.

Montesquieu2 enunciates that one person or body of persons should not exercise all the three
powers of the Government; legislative, executive and judiciary. Each organ should restrict itself
to its own sphere and restrain from transgressing the province of the other. In the view of
Montesquieu:
When the legislative and executive powers are united in the same person, or in the same
body or Magistrate, there can be no liberty. Again, there is no liberty if the judicial power
is not separated from the Legislative and Executive power. Where it joined with the
legislative power, the life and liberty of the subject would be exposed to arbitrary control,
for the judge would then be the legislator. Where it joined with the executive power, the
judge might behave with violence and oppression. There would be an end of every thing
were the same man or the same body to exercise these three powers.
1
2

P. Laslett, Introduction to Locke, J., two treatises of government, 1960, New York; New American Library.
Montesquieu, The Spirit of the Laws, G Bell & Sons Limited, London, 1914.

According to Wade and Phillips,3 the doctrine of separation of powers implies:

(i)

The same person should not form more than one organ of the
Government.

(ii)

One organ of the Government should not exercise the function of

the other organs of the Government.

(iii)

One organ of the Government should not encroach with the

function of the other two organs of the Government.

Drawing from the above, it is understood that the doctrine of the separation of powers entails
institutional separation which means that, the same person must not form part of more than one
of the three wings of government and that none of the wings performs any of the work assigned
to the other wings of the government. Therefore, the personnel and tasks of the three different
wings of the government ought to be kept entirely distinct.
3.0. The Importance of the Concept of Separation of Powers
Montesquieu4 the French jurist, explains that in order to prevent abuse of powers, the power of
the government should not be left entirely to one body or person. Instead it should be separated
or fragmented in some way. Thus the doctrine of separation of powers ensures that there is no
abuse of powers and that none of the three wings of government is able to interfere with the
other. A case in point here is that of Fred Mmembe and Bright Mwape v The Speaker of the
National Assembly and the Commissioner of Prisons and the Attorney General 5 in which one
branch of the government (Parliament) encroached on the other branchs jurisdiction (Judiciary)
by committing two of the Post Newspapers journalists, Fred Mmembe and Bright Mwape, to
prison for an indefinite period for publishing articles which Parliament considered contemptuous.
The journalists were freed by the High Court, which held that Parliament had breached the rules
of natural justice. It also prevents tyranny between the functions and provided the ability for each
branch to check and balance on the other so that if one branch of government overreaches its
power or infringes on the rights of citizens, the other branches can intervene. In 1995 the
judiciary was called upon to intervene in a case in which the executive branch of government
arbitrarily arrested and charged the then UNIP president Kaunda and six others with addressing
3

Wade and Phillips, Constitutional & Administrative Law

Montesquieu, The Spirit of the Laws, Thomas Nugent (trans.), New York: Macmillan, 1949.
5
1996/HCJ/X, unreported
4

an illegal assembly. The Supreme Court struck down some provisions of the Public Order Act
which required that the conveners get a police permit for public assemblies and demonstrations
as unconstitutional, as they violated the constitutionally guaranteed freedoms of expression,
assembly and association. This was in a case of Christine Mulundika & 7 Others v The People.6
All the accused were consequently acquitted. Montesquieu stressed that splitting judicial,
executive and legislative powers would augment freedom of the governed and in the process
prevent oppression, tyranny and violence. In agreeing with Montesquieus idea, Madison 7
observed that:
The accumulation of all powers, legislative, executive and judicial, in the same hands
whether of one, a few or many and whether hereditary, self appointed or elective, may
justly be pronounced the very definition of tyranny.

The value of the doctrine of separation of powers is not inherent in its rigid application but in the
checks and balances. Checks and balances entail that each branch of government shares in the
powers of the other, exercising a certain level of control over each others actions in order to
prevent the abuse of power and enhancing the doctrine of separation of powers.8
According to Jefferson9, the concentrating of legislative, executive and judicial power in the
same hands is precisely the definition of despotic government. The doctrine of the separation of
powers is fundamentally concerned with the maintenance of the ancient ideal of the rule of law
and the distinction it implied between the functions of legislating and governing, furnishing
mechanisms for meaningful democracy as well as providing a modern tripartite separation and
the system of checks and balances.
4.0. How Act Number 2 of 2016 Enhances the Doctrine of Separation of Powers between
the Judiciary and Other Arms of the Government
Separation of power is a sacred maxim both intrinsically valuable and essential to the
preservation of liberty. It is essential to the preservation of liberty that the judiciary be
independent of the executive and the legislature. The Amendment Act Number 2 of 2016 of the
Constitution of Zambia establishes various specialized courts and among them is the
6

1995/SCZ/25
Madison, Federalist No. 51, at 322-23.
8
Ibid.
9
T. Jefferson, Summary View of the Rights of British America, Williamsburg, Va., 1774.
7

Constitutional Court as established by article 127. 10 The establishment of this court will
consolidate the concept of separation of powers in that it will put down totalitarianism and
uphold the tenets of democracy. There has been a gross violation of constitutional provisions and
values perpetrated by the executive and legislative power as seen above. The Constitutional
Court has been established with the aim of ensuring democratic constitutional stability and of
preventing the erosion and suppression of democratic values via sheer scheming. It should not be
concluded that a constitution and Constitutional Court are needed only by those in power in
order to settle matters of their mutual relations and activities. Of course, it is one of its functions
as is seen from article 128 (1) (b) 11 which states that the Constitutional Court has original and
final jurisdiction to hear a matter relating to a violation or contravention of this Constitution.
Citizens, one and all are at liberty to use and rely on this court whenever they are aggrieved.
5.0. Conclusion
Separation of powers does not mean that the three arms of government will have to work in
isolation. It actually requires the arms of government to work together for the good of the
country and its citizens. To work together in functional constitutional democracy, the three arms
of government must be committed to cooperation. The separation of powers rests on the
assumption that the individual branches of government will cooperate in good faith to
accomplish their constitutional duties. For instance, the legislature must cooperate with the
judiciary in making laws that will facilitate for the smooth operations of the various courts and
provide facilities suitable for judicial decorum by providing this branch of the government with
sufficient funds.

10

The Constitution of Zambia Act, Chapter 1 of the Laws of Zambia, as amended by the Constitution of Zambia (Amendment)
Act No. 2 of 2016.
11

Ibid.

Statutes
The Constitution of Zambia Act, Chapter 1 of the Laws of Zambia, as amended by the
(Amendment) Act No. 2 of 2016.

Case Law
1995/SCZ/25
1996/HCJ/X, unreported

Bibliography
Jefferson, T., Summary View of the Rights of British America, Williamsburg, Va., 1774.
Laslett, P., Introduction to Locke, J., two treatises of government, 1960, New York; New
American Library.
Madison, Federalist No. 51, at 322-23.
Montesquieu, The Spirit of the Laws, G Bell & Sons Limited, London, 1914.
Montesquieu, The Spirit of the Laws, Thomas Nugent (trans.), New York: Macmillan, 1949.
Wade and Phillips, Constitutional & Administrative Law