The doctrine of separation of powers has come under fresh scrutiny with legal scholars and political analysts questioning its practical operation in terms of relations between political parties, the Executive and Parliament.
During a Political Science Association of Malawi webinar on separation of powers and checks and balances in democratic Malawi last Thursday, University of Malawi professor of law Garton Kamchedzera and political science scholar Nandini Patel queried how constitutional checks and balances are exercised in practice.
The webinar was held amid tension between the Executive and the Legislature after Speaker of Parliament Sameer Suleman announced establishment of joint parliamentary committees to investigate alleged maladministration and governance concerns.
The Executive and the governing Democratic Progressive Party (DPP), of which Suleman is a member and serves as national organising secretary, accused the Speaker of pushing Parliament beyond its constitutional oversight mandate.
The reactions came days after the High Court of Malawi granted concerned citizen Austin Mkoka an order to proceed with judicial review.
In her contribution, Patel said since 1994, the Executive has weakened Parliament or interfered in its effective functioning.
She said Parliament’s central role was to hold the Executive to account, exercise its legislative functions, scrutinise public expenditure and represent the interests of citizens.
However, Patel said the effectiveness of these functions depends not only on the formal powers granted to Parliament by the Constitution, but also on how those powers are exercised in practice and respected by the other arms of government.
She said institutional developments and political practices over time have weakened Parliament and affected the balance of power.
Patel said while sections 7, 8 and 9 of the Constitution clearly establish separate functions for the Executive, Legislature and Judiciary, the courts have increasingly intervened in matters that, in her view, should have been resolved by the political institutions themselves.
She said: “The Judiciary should be commended for standing up to uphold the Constitution many times, when one arm of government is overused and drawn into issues that the other organs should sort out themselves, it overburdens the Judiciary.”
Taking his turn, Kamchedzera said Malawi has experienced a “transition without transformation”, arguing that although the country has adopted the principle of separation of powers, it has not fully translated into how power is exercised in practice.
He observed that the problem goes beyond the formal separation of the Executive, Legislature and Judiciary, arguing that political networks can influence access to State resources and contribute to what he described as “chiefly ownership” of State power.
Said Kamchedzera: “In Malawi, you have some networks that use the political party as an instrument to access State resources easily. This is the bias that I have and so what you end up having is the chiefly ownership of State powers, but the President especially is regarded as a chief and the doctrine of separation of powers will be complied with if it advances the interest of the leading family or the chief.”
He also faulted the reaction of the DPP to the Speaker’s decision, asking whether political parties were exerting influence over institutions that were constitutionally expected to operate independently.
But in a written response, DPP secretary general Peter Mukhito justified the party’s reaction, saying much as the party recognised Parliament as an independent arm of government and respected its constitutional authority to oversee public institutions, its independence did not place its decisions or processes beyond constitutional scrutiny.
In an interview, United Democratic Front secretary general Genarino Lemani said the party has lessons to draw from its period in government on the importance of respecting separation of powers.
UDF was in power from 1994 to 2004 under president Bakili Muluzi.
During Muluzi’s final years in office, then Speaker of Parliament Sam Mpasu presided over the controversial open and third term Bills. He was later moved from the position of Speaker to Minister of Commerce and Industry in a Cabinet reshuffle in April 2003.
Malawi Congress Party secretary general Richard Chimwendo Banda said the MCP administration strengthened Parliament by making the Parliamentary Service Commission a constitutional body and by recognising representation and oversight as constitutional responsibilities alongside legislation.
He said the changes were intended to give Parliament greater independence in exercising its oversight role.
In an interview, lawyer-cum-activist Benedicto Kondowe cautioned that when checks and balances fail, the result is concentration of power and institutional weakening.
