State Governance and the Three Powers – Democracy and Good Governance (Senior 6 General and Religious Studies) | Ganzaa

Democracy and Good Governance

Lessons

Senior 6 · General and Religious Studies

Democracy and Good Governance

4 lessons

Lesson 4 of 4

State Governance and the Three Powers

25 min

A warning written in 1748

In 1748 the French judge and philosopher Charles-Louis de Secondat, Baron de Montesquieu, published The Spirit of the Laws. In Book XI he described three kinds of power in every state, the power to make laws, to execute them and to judge, and gave a warning that constitutions around the world still follow:

"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 judiciary power be not separated from the legislative and executive."

(Book XI, chapter 6, in the English translation by Thomas Nugent, 1752.)

Definition

Separation of powers: the division of state power among three separate branches, the legislature, the executive and the judiciary, so that no person or body holds all of it.

Legislature: the branch that makes laws and oversees the executive. In Rwanda, Parliament, made up of the Chamber of Deputies and the Senate (Article 64).

Executive: the branch that implements laws and runs the government. In Rwanda, "Executive Power is vested in the President of the Republic and in Cabinet" (Article 97).

Judiciary: the courts, which interpret the law and settle disputes. In Rwanda it is independent and has financial and administrative autonomy (Article 150).

Checks and balances: the powers each branch has to limit the others. Example: the President may send a bill back to Parliament for a second reading (Article 106).

Promulgation: the formal act by which the head of state signs a law passed by Parliament so that it can be published and take effect.

The three branches in Rwanda

Article 61 of the Constitution names the three branches and says they are "separate and independent from each other but are all complementary". The table summarises them.

Branch	Composition	Main functions
Legislature	Chamber of Deputies: 80 members, of whom 53 are elected by proportional representation, 24 women are elected by specific colleges, 2 are elected by the National Youth Council and 1 by the National Council of Persons with Disabilities (Article 75). Senate: 26 members, elected, appointed or designated (Article 80)	Debates and passes laws and the budget; oversees the Government through oral and written questions, committee hearings, commissions of inquiry and interpellation (Article 128); the Senate approves the appointment of senior officials (Article 86)
Executive	The President of the Republic, elected for five years and re-electable once (Article 101); the Cabinet: the Prime Minister, Ministers, State Ministers and others, all appointed by the President, the other members after consulting the Prime Minister (Articles 115 and 116)	Implements laws; runs ministries and public services; promulgates laws (Article 106); conducts foreign relations; commands the defence forces
Judiciary	Ordinary courts: the Supreme Court, the High Court, intermediate courts and primary courts; specialised courts: commercial and military courts (Article 152). A Court of Appeal, created by later law, sits below the Supreme Court	Interprets laws; tries criminal cases; settles civil disputes; protects rights; ensures that acts respect the Constitution, which is the supreme law (Article 3)

Checks and balances

Figure 4. Checks and balances among the three branches in Rwanda, drawn by Ganzaa from Articles 3, 86, 106, 128, 129, 132, 150 and 153 of the Constitution.

Each arrow in Figure 4 is a power written into the Constitution. Parliament can question ministers and, by a secret ballot with a two-thirds majority, pass a motion of no confidence in the Cabinet or one of its members (Article 129). The President can ask for a second reading of a bill (Article 106) and, after consulting the leaders of the other institutions, may dissolve the Chamber of Deputies once in a term for serious matters of national concern; the Senate can never be dissolved (Article 132). The President appoints the President of the Supreme Court and other top judicial officers, but only after the Senate approves (Articles 86 and 153). And any law, decision or act contrary to the Constitution "is without effect" (Article 3).

Worked example: how a bill becomes law

Figure 5. The legislative process, simplified from Articles 85, 88 and 106 of the Constitution. Step 3 applies only to the kinds of law listed in Article 85. Drawn by Ganzaa.

Suppose the Cabinet wants a new law on road safety. The Minister sends the bill to the Speaker of the Chamber of Deputies (Article 88). A committee studies it and the Chamber votes. Road safety is not one of the subjects listed in Article 85, so the Senate does not vote on it. The President has 30 days to promulgate it. If the President asks for a second reading and the Chamber passes it again by a two-thirds majority, the President must promulgate it. It is then published in the Official Gazette and takes effect.

Three systems compared

System	How the executive is chosen and removed	Example
Presidential	The president is elected separately and cannot normally be removed by a vote of no confidence; cannot dissolve the legislature	United States
Parliamentary	The prime minister comes from the majority in parliament and falls if parliament withdraws its confidence	United Kingdom
Mixed (semi-presidential)	An elected president appoints a prime minister and cabinet; parliament can censure the cabinet	France; Rwanda has an elected President, a Prime Minister appointed by the President, and a Chamber that can vote no confidence in the Cabinet

Important

Case: a court checks a president, South Africa, 2016. South Africa's Public Protector found that public money spent on President Jacob Zuma's private home at Nkandla had included features unrelated to security, and ordered him to repay part of it. He did not. On 31 March 2016 the Constitutional Court ruled unanimously that the President and the National Assembly had failed to uphold the Constitution, and ordered the repayment. The President complied. The case shows the judiciary checking both the executive and the legislature.

Warning

Separate does not mean isolated. Students often write that the three branches "have nothing to do with each other". Article 61 says they are separate but complementary: laws are made by Parliament, promulgated by the President and applied by the courts. Separation prevents concentration of power; cooperation makes the State work.

Tip

Quote the article. For "explain how the executive is checked in Rwanda", one precise check with its article (Article 129, motion of no confidence by a two-thirds secret ballot) earns more than three vague ones.

Important

Discuss. Montesquieu feared the union of powers in one person. In a country rebuilding after conflict, some argue that a strong executive is needed for fast decisions; others that strong checks are needed most of all after abuses of power. Which view do you find more convincing, and why?

Lex Animata (Hesham Elrafei): "Constitutional Law explained: Montesquieu, separation of powers", an animation of under two minutes. Watch how it links the separation of powers to the end of absolute monarchy.

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Practice

Name the three branches of government and the main function of each.
State the composition of Rwanda's Chamber of Deputies under Article 75.
List four methods the Chamber of Deputies uses to oversee the Government (Article 128).
Using Figure 5, explain what happens if the President asks Parliament for a second reading of an ordinary law.
A law on national defence is passed by the Chamber of Deputies. Must the Senate also vote on it? Explain with the correct article.
Explain how the Nkandla judgment of 2016 illustrates checks and balances.
"In Rwanda the executive is stronger than the other two branches." Evaluate this statement using the Constitution.

Show answersHide answers

Legislature: makes laws and oversees the executive. Executive: implements laws and runs the government. Judiciary: interprets laws and settles disputes.
80 Deputies: 53 elected by proportional representation from lists of political organisations or independent candidates; 24 women elected by specific electoral colleges; 2 elected by the National Youth Council; 1 elected by the National Council of Persons with Disabilities.
Oral questions, written questions, hearings before committees, commissions of inquiry, and interpellation.
Parliament reconsiders the law. If it adopts it again by a two-thirds majority, the President must promulgate it within 30 days; if not, the law does not proceed in that form.
Yes. Article 85 lists laws on defence and national security among those on which the Senate votes, together with constitutional amendments, organic laws and certain international treaties.
The Public Protector (an independent body) ordered the President to repay money; when he did not, and the National Assembly did not act, the Constitutional Court ruled that both had failed to uphold the Constitution and ordered repayment. The courts checked the executive and the legislature, and the President complied.
For: the President is directly elected, appoints the Prime Minister and Cabinet, appoints senior judges and some senators, can request second readings and can dissolve the Chamber once. Against: the Chamber can pass a vote of no confidence (Article 129), Parliament can override a second reading, the Senate approves senior appointments, the Senate cannot be dissolved, and the judiciary is independent (Article 150). A balanced answer concludes that the executive has strong powers, but the Constitution sets checks on them; how well they work depends on practice.

1A warning written in 1748

2The three branches in Rwanda

3Checks and balances

Worked example: how a bill becomes law

4Three systems compared

A warning written in 1748

The three branches in Rwanda

Checks and balances

Three systems compared