4. Separation of powers

The theory

Montesquieu: In The Spirit of the Laws (1748) Montesquieu said there are three kinds of power: legislative power to make general laws, executive power to carry them out and conduct policy and foreign affairs, and judicial power to settle disputes under the law. If any two fall into the same hands there is a risk of tyranny. A body that both makes and enforces the law could pass oppressive laws and then apply them for its own ends.

Three senses: The doctrine can mean that the same people should not sit in more than one organ (personnel); that one organ should not control another (control); and that one organ should not do the work of another (functions).

Checks and balances: A softer version accepts some overlap, but gives each branch ways to check the others. Courts interpret statutes and can review executive action as ultra vires. The Legislature controls money and can remove officials. In X Ltd v Morgan-Grampian Lord Bridge described the rule of law as resting on a twin foundation: Parliament makes the law and the courts interpret and apply it.

Judges must not legislate: In Duport Steels v Sirs the House of Lords stressed that it is for Parliament, not judges, to make the law. Judges must apply a clear statute even if they dislike the result.

Courts protecting Parliament: In R (Miller) v Prime Minister (2019) the United Kingdom Supreme Court held that advice to prorogue Parliament for five weeks was unlawful, because it stopped Parliament doing its work without reasonable justification.

The three organs under the 1991 Constitution

Legislature: Section 73 creates Parliament and vests the legislative power of Sierra Leone in it.

Executive: Section 53(1) vests executive power in the President, to be exercised directly or through the Vice President, Ministers or public officers.

Judiciary: Section 120(1) vests judicial power in the Judiciary, headed by the Chief Justice.

Personnel

President and Parliament: The President is part of Parliament under section 73 and may address it, but is not a Member of Parliament.

Ministers outside Parliament: Section 56(1) says no Member of Parliament may be appointed a Minister or Deputy Minister. Section 76(1) disqualifies the President, Vice President, Ministers and Deputy Ministers from election to Parliament. This is a sharper separation than in the United Kingdom.

Public officers: Public officers, including judges, are disqualified from election to Parliament.

Checks and balances

Courts over Parliament: Section 124(1)(b) gives the Supreme Court exclusive original jurisdiction to decide whether an enactment was made in excess of power.

Parliament over the Executive: Parliament must approve ministerial nominations (section 56(2)). The Cabinet is collectively responsible to Parliament (section 60). Parliament can remove the President for misconduct under section 51.

Judicial appointments and tenure: Superior court judges are appointed by the President on the advice of the Judicial and Legal Service Commission and subject to the approval of Parliament (section 135). They can be removed only for inability or stated misconduct after a tribunal and a two-thirds vote of Parliament (section 137).