The Theory of Separation of Power and present day realities in Sierra Leone
I read a bit of politics when I was in secondary school but not during my university days. I know for sure that the concept of separation of power was once promulgated by one time political thinker, John Locke who lived between 1632 and 1704. But it was Baron de Montesquieu another French political philosopher who lived between 1689 and 1755 that popularized the concept as it is today. (Photo: Joh Baimba Sesay)
Baron de Montesquieu argued that the concentration of the functions of the three arms of government in the hands of a single individual would be politically dangerous and could led to authoritarianism and despotism. He therefore advocated the need for these functions to be separated as that would provide a system of political; checks and balance to ensure no one power becomes too strong and absorb the functions of the other two. Â In principle, the term separation of power refers to the division of governmental political powers that exist in any given state into three organs of government, namely the legislature, executive and judiciary.
In this theory of political power, three major issues come into play and they include the need for separation of personnel wherein a different body of persons is to administer each of the organs of government. It also calls for separation of control and lastly separation of functions. This is what an ideal democratic environment expects.
Specifically though, the theory of separation of power could be looked at from two different perspectives; the one in a parliamentary system of government as in the Britain where there is a fusion of powers between the executive and the legislature and also in this system, the executive arm of government tends to have control Â over the legislature.
Another perspective from which separation of power could be viewed from is that of a presidential system as in the US, Sierra Leone et al. Here, there is no function of political power between the executive and legislature and the two organs are in theory separated in terms of functions and control. Here, the executive arm of government does not have full control over the other two arms of government.
Then this system may serve as means of ensuring a complete checks and balance system wherein, in general each of the organs of government should serve as watch dog over the other to avoid misuse of political power. This is theoretically what is expected. But generally it is but a reality that society develops with the passage of time and as such things keep changing as society changes. Â Even the theory of separation of power is evaluated from present day reality, especially in modern day politics; it becomes apparent that the intentions of John Locke and Baron de Montesquieu have not been met.
President Koroma has been accused as not allowing the theory of separation of power to happen in his administration. But can we look at the issue thoroughly by making reference to the constitutional provision and see how is to blame? I am discussing this issue taking Sierra Leone as a case study, with reference to our constitutional provisions, from the viewpoint of whether the executive arm is often than not is to blame for what we have seen as not-too-clear separation of powers
From a realistic perspective, it is clear that the framers of our 1991 multiparty constitution were cognizant of the fact that there should be separation of power in the running of the state but this was not clearly put in practice. I now refer us to certain sections of the 1991 constitution. Â
Now let us begin the debate by looking at the constitutional provision which allows the President to address the House of Parliament. Section 47 of the constitution states that ‘the President shall be entitled to address Parliament in person or to send a message to Parliament to be read by his Vice-President or a Minister on his behalf’.Â We would realize from the above provision that, there is clearly no clear separation of power as far as the aspect of state governance is concerned and this is not just limited to Sierra Leone. Â If the President as stipulated in Section 47 of the constitution is a member of parliament, then, this is indicative that the concept of separation of power is untenable. The very constitution in section 73 also clearly states that ‘There shall be a legislature of Sierra Leone which shall be know as Parliament, and shall consist of the President, the Speaker and Members of Parliament’ (bold and italic, underline are mine). You also realize that section 86 of the constitution makes no provision for separation of power as it provides that the President may summon a meeting of parliament at any time.
In fact we have always seen that when the President is in Parliament he occupies the chair of the Speaker of Parliament as also provided for in Section 88(c) and fairly, these were not laws promulgated by the current President although it was his own party the APC that did the work but that was when we were still trying to come to terms with the dictates of multiparty democracy as opposed to one party rule.
Now let us come to the crux of the matter; the need to separate power between the Judiciary and the Executive arms of government.Â Section 120 of the 1991 multiparty constitution provides for the existence of a judicial power of Sierra Leone which shall be vested in the Judiciary of which the Chief Justice shall be the head. Clearly, this arm of government aught to be independent both theoretically and from a practical perspective, As a matter of fact, Section 120(3) provides that ‘in the exercise of its functions, the Judiciary shall be subject only to this constitution or any other law, and shall not be subject to the control or direction of any other person or authority’.
Fine provision but wait for a second, who appoints the Chief Justice and other Justices of the courts of law? I now draw your attention to Section 135 which says, ‘The President shall, acting on the advice of the Judicial and Legal Service Commission and subject to the approval of Parliament, appoints the Chief Justice by warrant of his hands from among persons qualified to hold office as Chief Justice of the Supreme Court’. Interestingly again, we have been told that the President will appoint, based ‘on the advice of the Judicial and Legal Service Commission Â Â and it is crystal clear that the President is also the one appointing the composition of the Judicial and Legal Service Commission.
Also, even other judges of the Superior Court of judicature are being appointed by the President and when this is the case, then it means there is no separation of power. Â So from the above points, we now see that there is absolutely not going to be a clear and outstanding separation of power when it comes to the administration of the state.
It should be noted that, all those who are appointed to the Judiciary are NOT ELECTED as in the case of the President and as such, they are answerable to the President who has the power to hire and fire them.Â And even when we look at Section 137(8) which provides provision for the removal of the Chief Justice from office, it states that it is ‘the President’ who shall appoint a tribunal to determine whether or not to remove the Chief Justice. And from the perspective of politics, it is difficult for one to bite the finger that puts food into his mouth.Â So in all of the recent happeningsÂ with reference to the issue of separation of power, I have not been able to see any aspect in the constitution that completely Â removes the President from getting involved in the running of the Judiciary and even the Legislature.
What I think we should be advocating for at the moment isÂ that, there was a constitutional review panel that came up years back, right from the days of President Tejan Kabbah. This body is expected to review our laws, including the 1991 multiparty constitution. It is time they look at some of these areas and see what could be done, but as of now, I think these are the provisions and it is but unfair that we have only taken a single aspect to generalize the whole situation under the regime of Ernest as not respecting the constitution.
We have even failed to look at a key aspect in the constitution that allows the Military to ‘…protect this constitution’ as one of their principal functions (Section165 (2)) and so before this time when the military would interfere into the country political game, they would take advantage of this provision that they should protect the constitution if things don’t go the way they should. These are all areas which should be reviewed; How can a soldier protect a constitution remains intriguing to me.Â Â
So inasmuch as I appreciate the fact that we are putting our leaders on their toes we should also be looking at the legal provisions and see how we could serve as advocates in amending or repealing some of these legal previsions, as that will go a long way in determiningÂ our political achievements as a nation
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