Posted by / Friday 16 December 2016 / No comments

The demerits of the doctrine of Separation of Powers

The meaning of the doctrine
The concept of Separation of Powers was propounded by Baron de Montesquieu. It states that the three arms of government – the Legislature, Executive and the judiciary - must be separate and independent in terms of personnel, functions and powers. In other words, the personnel in the legislative arm of government must not be the same as those in the executive or the judicial arm of government. Also the members of the legislature must not have the same functions and powers as those in both the executive and the judiciary.

Not completely workable in practice
One of the demerits of the concept is that it is not fully workable in practice. The principle states that the organs of government must be independent of each other but in countries where the ruling government has majority in parliament, the executive arm is able to control the legislature through its members in parliament. Also in some modern presidential systems, most bills emanate from the executive and the legislature has only been reduced to a rubber stamp.

May create friction among the organs of government
Another disadvantage of the concept of Separation of Powers is that if it is strictly applied, it can lead to frictions among the various arms of government. This is true because where there is the need for co-ordination, the arms of government may stick to their role and refuse to co-operate. This may lead to a deadlock in governance.

Not enough to guarantee the liberty of citizens
It may be true that Separation of Powers can protect the liberty of the individual; however, this may not be effective if it operates in isolation. There must be in existence some other ingredients like, a free press, active pressure groups, an Ombudsman, etc.

Not compatible with a parliamentary system of government
In a parliamentary system of government, the three arms of government are fused. The members of the Executive are at the same time the members of the Legislature. Until recently, the final court of the land was at the same the Legislature. Therefore, the concept cannot work in this type of government.

1. a. What is Separation of Powers? [3 marks]
b. Highlight four advantages of Separation of Powers. [12 marks]

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