An appraisal of the principle of separation of powers in Cameroon

Project Details

Department
LAW
Project ID
L02
Price
5000XAF
International: $20
No of pages
50
Instruments/method
STATUTES/ARTICLES
Reference
APA
Analytical tool
CONTENT ANALYSIS
Format
 MS word & PDF
Chapters
1-5

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OR

CHAPTER ONE

GENERAL INTRODUCTION

1.1     BACKGROUND TO THE STUDY

This study looks at the principle of separation of power in Cameroon. From antiquity, Aristotle first mentioned the idea of mixed government or hybrid government in his work, The Politics, in his identification of the elements of the constitution. He proclaimed ‘there are three elements in each constitution which every serious lawyer must look for what is advantageous to it; if they are well arranged then the constitution is bound to be well arranged and the difference in the constitution corresponds to the difference between each of this element.

The three are first the deliberative which discusses everything of common importance second is the official and the third the judicial element’. He drew upon many of the constitutional forms of societies states of Ancient Greece. same examples were shown on the Roman Republic, Roman council,  senates  and Assemblies  which sheared an example of mixed government according to Polybius

In the early modern bipartite system came John Calvin who favoured a system of government that divided power between democracy and aristocracy (mixed government). Calvin goes on to appreciate democracy saying it was the best gift from God to mankind for God haven gave the man an opportunity to choose their rulers either government and magistrates. Calvin goes ahead to set up checks and balance holding that it was the best means by which injustices and abuse of the law could be checked by allowing each department to be able to control and compliment the others.

Parliamentary sovereignty alongside separation of powers runs like a thread throughout the constitution of the united state. The concept of separation of powers has played a major role in many constitutions which is aside from the legal efficacy that it introduces which is the independence and freedom between different organs.

Every nation needs separation of powers and in any state, there are three bodies the executive, judiciary and legislative. The doctrine called on the strict demarcation between the different arms and called on the implementation of a checks and balance system to enable each organ to be able to control and check the other arms.

The doctrine of separation of powers is typically associated with the French commentator Montesquieu writings in the 18th century. He was preoccupied with making sure that there was no iota of concentration of powers and that powers must be limited. Pure separation of powers would mean that the three organs of the government be completely and constitutionally isolated from each other.

Therefore, the three organs of the state should live in isolation from one another with no iota of cooperation. This, therefore, prohibits a judge from seating in parliament as this will represent an overlap in terms of personnel. The three organs should be separated in terms of their function so that each organ performs it constitutional duties and thus makes it impossible for an organ to perform the role of another.

In summary, the works of the legislature is to make legislations and carry out legislative functions and so shall it be and nothing otherwise as the legislation is prevented from intervening in the courts adjudicative and interpretative function.

Hilaire Barnett quoting the famous commentator Montesquieu in de’ L’espris de lois. It has been held that the contemporary Montesquieu view and ideas in England at the time he wrote where inadequate and more of an idealistic England than the one we have today but it should not be felt that his separation of power concept and ideas were controversial. Sir Ivo Jennings interpreted Montesquieu’s work to mean not the legislature and the executive to have no influence but rather as neither should exercise powers over the other.

Blackstone believed and supported Montesquieu’s view by holding that when powers are not separated it may only lead to tyranny. But a more modern interpretation of separation of powers criticizes the over strict and high call for complete independence between the different organs. \

It holds that if there be a strict separation of power this may lead to deadlock rather than a pure separation of powers and that if the executive were to pass bills to be either voted into law or reject it and it is voted, it is only through the judiciary that this can be upheld.

Montesquieu stressed the importance of the independence of the judiciary in de Lespris de loix when he said I quote ‘when the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty .

Again, there is no liberty if the power of judging is not separated from the legislative and executive. If it were joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be the legislator. If it were joined to the executive power, the judge might behave with violence and oppression.

There would be an end to everything, if the same man, or the same body, whether of the nobles or the people, were to exercise those three powers, that of enacting laws, that of executing public affairs, and that of trying crimes or individual cases;.

The term tripartite system is ascribed to French Enlightenment political philosopher Baron de Montesquieu. In the Spirit of Laws (1748), Montesquieu described the separation of political power among a legislature, an executive, and a judiciary.

Montesquieu approach was to present and defend a form of government that was not excessively centralized in all its powers to a single monarch or similar ruler. He based this model on the Constitution of the Roman Republic and the British constitutional system.

Montesquieu took the view that the Roman Republic had powers separated so that no one could usurp complete power. In the British constitutional system, Montesquieu discerned a separation of powers among the monarch, Parliament, and the courts of law. Montesquieu did actually specify that “the independence of the judiciary has to be real and not apparent merely”. “The judiciary was generally seen as the most important of powers, independent and unchecked”, and also was considered dangerous.

Not to forget the works of John Locke. In his writings, ‘Locke recognized that in order to prevent government tyranny, those who make the laws must not also be the ones to execute these laws.

Thus, he argued that, because it may be too great a temptation to human frailty apt to grasp at Power, for the same Persons who have the Power of making Laws, to have also in their hands the power to execute them, whereby they may exempt themselves from Obedience to the Laws they make, and suit the Law, both in its making and execution, to their own private advantage, and thereby come to have distinct interest from the rest of the community, contrary to the end of society and  government.’

He deduced from the study of the English constitution importance of dividing political powers between legislative constituting of (house of lords and house of commons) executive and federative which was meant to protect the community and prerogatives of the monarch. The kingdom of England had no written constitution.

1.2 STATEMENT OF PROBLEM

This research shall first, provide a brief overview of the doctrine of the separation of powers generally and argue that the doctrine has become a general constitutional principle fully embraced by many modern political systems. Cameroon being our case study as there is a major problem with the application of the doctrine that is a matter of theory and not practice.

Second, the research will then examine governance in Cameroon to determine the extent to which the doctrine operates within the country’s three branches of government executive, legislative, and judicial. Additionally, the research will seek to determine if the doctrine of separation of powers as practised in Cameroon, has strengthened or weakened constitutionalism and good governance in the country.

1.3 RESEARCH QUESTIONS

 From the above-mentioned statement of the problem, one will be forced to ask the following questions:

  1. What is the separation of power and how does the Cameroon government embrace this doctrine?
  2. To what extent does the principle of separation of powers operate within the countries arms of government?
  3. Has the operation of this doctrine strengthened or weakened constitutionalism and good governance?
  4. How can the present situation be ameliorated to enhance a good practice of the doctrine thereby ensuring the security of the vulnerable in the country?

1.4 OBJECTIVES OF THE STUDY

As a general objective, we will like to examine the doctrine of separation of powers in Cameroon and its operation. More specifically, we wish to:

Main objectives:

To study and examine the doctrine of separation of powers, its evolvement and application, revealing its strength and lapses and how our nation Cameroon treats it.

Specific objectives:

  1. Examine how this doctrine is applied in Cameroon and examine if the three branches of government namely: the judiciary, Legislative and the executive are all independent of interference from each other
  2. Examine if the operation of the doctrine is constitutional or anti-constitutional and to see if there is hope for the future or how the present condition can be ameliorated for a better application for the doctrine.
  3. Identify the challenges of separation of powers in Cameroon.

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