Posted by / Sunday 18 December 2016 / No comments

How Separation of Powers operates in a Presidential system of government

The president or the executive
In a presidential system of government, the president is directly elected by the people in a general election. The constitution does not allow the president to appoint his ministers from parliament but rather from outside.  All executive powers are vested in the president and he performs both the ceremonial duties and the governmental functions.

The legislature
The legislature is also elected directly by the people or in places where the second chamber operates, by use of other means. The members cannot ever become members of the executive. The constitution does not allow that. The legislature is responsible for the making of laws for the state.

The judiciary
The members of the judiciary are appointed by the president but this is based on the recommendations of the Judicial Service Council of the state. The main function of the judiciary is to interpret the laws of the land and to settle disputes that arise between one person and the other or between the state and an individual.

Application of theory is only in personnel
The closest to the application of the theory of Separation of Powers is the presidential system of government but even then, it is only applicable in terms of separation of personnel. The members of the Executive are distinct from the members of the legislature and the judiciary. In terms of independence and functions, the separation is not absolute.

Inbuilt checks and balances
In practice, the organs of government serve as checks on each other. The executive appoints ministers but the ministers must be vetted and approved by the legislature before the executive can appoint them. The legislature makes laws but the bills must first be accented to by the executive before it can become law. Where the legislature and the executive violate the constitution, the judiciary can declare their actions null and void. Such checks serve as a limitation to the full implementation of the concept of separation of powers.

May run governance to a halt
If the operation of the concept is cast in an iron, it may run the government to a halt. This is because the various arms of government will operate completely oblivious of the existence of the other. Meanwhile most constitutions are designed a way that would make the arms of government operate in tandem with each other.

Independence is unreal
The concept denotes that the three arms of government must be independent of each other, but in practice, they are not really independent. The executive needs the legislature to get its budget proposal passed. The legislature needs the executive to get its allowances and emoluments through. The judiciary needs the executive to get it appointed. The executive and the legislature need the judiciary to be able to keep with the dictates of the constitution. In the real sense of the word therefore the organs of government are not completely independent of each other.

1. a. How does the concept of separation of powers operate in a presidential system of government? [3 marks]
      b. Highlight four ways in which the operation of separation of powers can be hampered in a presidential system of government. [12 marks]

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