Separation of Powers

SEPARATION OF POWERS

 

The Constitution of South Africa has three main functions:

 

  • It sets out the system of government and says how the country must be run
  • It protects the rights of citizens
  • It protects democratic principles

 

The Constitution of South Africa ensures that our country has a constitutional democracy where the state is made up of three separate arms that work independently of each other to ensure the well-being of the people of the province. Each of these arms has their own responsibilities, but function in such a way that they complement each other so that effective governance is possible. This principle is known as the "Separation of Powers" between:

 

  • The Legislature
  • The Executive
  • The Judiciary

 

Separation of Powers ensures 'checks and balances' to safeguard the freedom and rights of citizens and ensures that no arm of the state misuses its power.

 

THE THREE POWERS THAT GOVERN

 

THE LEGISLATURE

 

The Legislature is the arm of government that discusses Bills introduced by the Executive Council, writes new laws, changes any laws that need to be changed, scraps old laws that are no longer needed and discusses national laws that affect the province and debates on matters of public importance.

 

The Legislature is therefore the highest law-making body in the province. The Legislature has a constitutional obligation to check on the work of the Executive (oversight role) and to provide a forum to facilitate public participation in the legislative processes of the Legislature. The Legislature also determines the budget for the province by scrutinizing and debating budgets allocated to departments.

Members of the Provincial Legislature (MPLs) are elected through a system called proportional representation. This means that, before an election, each party draws up a list of candidates in order of preference. People on the list become accountable to the public as public representatives.

 

Members of the Legislature in proportion to the number of votes the party wins in the election. For example, if the party wins half the votes, it will hold half the seats in the Legislature. MPLs are directly accountable to the public as public representatives.

 

The responsibility of the Provincial Legislature is to discuss Bills that are introduced by the Executive Council. The Legislature must consult the public about the Bills, and has the power to make amendments to the Bills. The Legislature only pass the Bills if they believe that it is in the interests of the public. The Legislature must also check on the work of the Executive Council and make sure that the laws that they pass are carried out.

 

Members of the Provincial Legislature (MPLs) may also submit Bills of their own (Private Members' Bill). Standing Committees may also submit Bills in the Provincial Legislature. MPLs are representatives of the people of the province, therefore people must hold them accountable. Although Parliament and the Provincial Legislatures make laws, it is the courts that must punish those who break them. This limits the power of the Legislature.

 

THE EXECUTIVE

 

The Executive Council puts the laws written by the Legislature into action by implementing these and further develops policies for the province.

 

The Legislature elects a Premier after elections. The Premier has the prerogative to appoint Members of the Executive Council (MECs) to head provincial departments such as Health, Social Development, Provincial Safety and Liaison, Transport, Economic Affairs, Environment and Tourism, Public Works, Agriculture and Land Affairs, Sport, Arts and Culture, Education, Housing (Human Settlements) and Local Government. The Premier and the MECs are known as the Executive Council.

 

If the Executive Council wants a law to be passed, it must introduce a Bill (draft law) to the Legislature and ask the Legislature to pass the law. The Legislature has a duty to oversee the work of the Executive. It can call on MECs to explain their actions at any time. This helps to limit the powers of the Executive Council.

 

The Executive has to account to the Legislature for the manner in which it runs the province and can be called by the Legislature to explain their actions at any time. This serves to monitor the effectiveness and efficiency of the Executive Council's delivery of services to the people of the province, and it also ensures that money paid in taxes is spent wisely. If ever you have a problem with any of the departments, you can ask the Legislature to look into the matter on your behalf.

 

THE JUDICIARY

 

The Judiciary is not elected. Judges are appointed by the Judicial Services Commission and magistrates are appointed by the Magistrates Commission; both are independent bodies. The Judiciary has the responsibility of interpreting laws and has to ensure that the laws are followed by everyone. No government or any other institution or person can interfere in the work of the courts. The courts are responsible for hearing the cases of people who are charged with committing offences.

 

The Constitution is the highest law in our country. The Legislature, Executive and Judiciary must act in accordance with the Constitution.  The Constitutional Court has a special responsibility; it has the final say regarding deciding whether anybody is acting against the Constitution. It can even stop the President from acting against the Constitution, or stop Parliament and the Provincial Legislatures from making laws that are unconstitutional.