The doctrine of separation of power of courts, police and prosecutors
The institutions involved in the enforcement of the law are the police, prosecutors and courts.
These have responsibilities allocated to them as given below. The police investigate reported
crimes, arrest suspected offenders, gather evidence and conduct prosecution of minor offences.
The prosecutors charges and tries major offences, advise law officers, police and government
departments about criminal law matters. The criminal courts decide if a person has committed a
criminal wrong. The courts decide the legal penalty if a person has committed a wrong. The courts
also rule on matters of law in relation to judicial proceedings. The different responsibilities
allocated to each institution illustrate the separation of powers.
Definition of terms
Separation of power – The doctrine of the separation of powers requires that as a guarantee of
liberty of the individual, political power should not be concentrated on one individual or organ of
government but requires that governmental functions be separated into three different groups and
each be performed by different persons. This is thought to be a way creating checks and balances
(Madhuku, 2010).
Courts – The Collins Dictionary of Law (2006) defines a court as a judicial board established to
administer justice. It is an entity in the government to which the function of the administration of
justice is given.
Police – Police is a body sanctioned to enforce laws and apprehend those who break them (Das
and Arvind, 2000).
Prosecutors – The People's Law Dictionary (1981-2005) defines a prosecutor as a government
lawyer who charges and tries a case against a person accused of a crime.
The doctrine of the separation of powers is enshrined in the constitution. The constitution is the
law that is above other laws in the country. The constitution makes provision for the powers of
government to be divided among the legislature/parliament, judiciary and the executive. Although
these branches cooperate with one another, the separation of powers due to the separation of
functions prevents neither of the three branches from assuming too much power which may result
in a dictatorship. The relationship is one which provides checks and balances which contain and
modify the powers of the other branches of government. The operation of the elaborate system of
safeguards is apparent in the manner that each branch performs its functions. In like manner, the
institutions involved in the enforcement of law are modelled in the same manner. The three
institutions involved in the enforcement of the law are the police, prosecutors and courts. These
institutions have an elaborate system of safeguards that ensure the independence of each arm while
ensuring one does not become too powerful to usurp the functions of other arms.
The importance of the doctrine of separation of powers between the police, courts and prosecutors
is illustrated in the case in which the police compiled a docket of evidence gathered and a decision
was made by the prosecutors not to prosecute but this decision was challenged in a court of law.
The Supreme Court of Appeal (SCA) of South Africa delivered judgment in the matter of National
Director of Public Prosecutions and Others (appellant) v Freedom Under Law (respondent). The
respondent launched an application in the court seeking an order reviewing and setting aside the
following four decisions – the decision made to withdraw charges of fraud and corruption that had
been made against a senior police officer; the decision by the Director of Public Prosecutions to
withdraw the murder and related charges made against the senior police officer; the decision by
the police to terminate the disciplinary proceedings that had been instituted against the senior
police officer; and the decision by the police reinstate the senior police officer following his
suspension.
In addition to the orders setting aside the four challenged decisions, the respondent also sought
mandatory interdicts directing the prosecution authorities to reinstate the criminal charges against
the senior police officer and to ensure that the prosecution of these charges were enrolled and
pursued without delay; and the police to take all steps necessary for the prosecution and finalisation
of the disciplinary charges.
The court concerned cancelled the challenged decisions. In addition it granted the requests sought
by the respondents to continue with the prosecutions of the disciplinary action. In the subsequent
appeal, both the Director of Public Prosecutions and the police argued that these mandatory
interdicts were inappropriate transgressions of the separation of powers doctrine. The SCA agreed
with these contentions, explaining that the doctrine of separation of powers prevents the courts
from assuming the functions that fall under the executive. By directing the police to resume
disciplinary action of the police, the courts had interfered with the functions of the executive. The
Constitution gives power to the Director of Public Prosecutions to prosecute crime, while the
Commissioner of Police has the authority to manage and control the South African Police Services
(National Director of Public Prosecutions and Others v Freedom Under Law (SCA) (unreported
case no 67/14, 17-4-2014)). It was the considered view of the Supreme Court of Appeal that in
order to maintain the separation of powers, the courts would only be allowed to interfere with this
constitutional scheme on rare occasions and for compelling reasons. The setting aside of the
withdrawal of the criminal charges and the disciplinary proceedings have the effect that the charges
and the proceedings are automatically reinstated and it is for the executive authorities to deal with
them. The lower court had therefore gone too far and transgressed the doctrine of separation of
powers.
In the doctrine of the separation of powers, the police are mandated to investigate reported crime.
Police organisation in any society is said to be chief law enforcement agency of criminal justice
administration. Crimes and offences of general nature are therefore registered and investigated by
police stations. The common man whether victim, complaint or informer contacts police stations
in the event of commission of crime. It is expected that the police will immediately take action on
the report received by it and would register the crime for initiating appropriate and adequate action
in matter.
The crimes that can be investigated include crimes such as armed robberies, rape, murder, child
abuse, house breaking, theft among others (Salzberger, 1993). By so doing the police are able to
determine what really transpiring. They then proceed to gather evidence such as finger prints and
samples at the crime scenes. Samples can be weapons used in robberies of tools used in house
breaking or murder. The police can also identify suspects from their investigations so that they can
then make arrests (Weigend, 2001). They therefore register and investigate all offences coming to
their notice through complaints and otherwise duly supplying a copy of the first information report
to the complainant and where appropriate, to apprehend offenders and extend requisite assistance
in the prosecution of offenders.
Police also collect intelligence relating to matters affecting public peace and all kind of crimes
including social offences, terrorism and other matters relating to national security and disseminate
all the same to all concerned agencies, besides acting appropriately on it themselves.
The arrests can be for major crimes such as murder or for minor crimes such failing to wear a mask
during the Covid-19. Minor arrests can also be for touting or even loitering. Some of these minor
crimes only require the payment of fines instead of going to court. The police can also make minor
prosecutions in the courts of law.
The prosecutor’s responsibility in the doctrine of the separation of powers is to charge and try
cases. In most countries prosecuting institutions are regarded as part of the executive branch of
government. This implies that they are part of a hierarchical organization of the executive. They
have the true independence of prosecutors vis-à-vis the handling of files of public figures. The
prosecutors advise law officers, police and government departments about criminal law matters
Office of the Director of Public Prosecutions (1990). For example they advise government on the
legality of destroying illegal structures and on the due process of relevant written and published
notices that should be given before such drastic action as destruction of structures is undertaken.
This is important so that in the event of the aggrieved parties taking the matter to court to appeal
against the destruction and to seek restitution for damage to property, the government will not be
found to have been operating outside the law. Prosecutors will sometimes be consulted by various
oversight bodies such as appearing before parliamentary or senate committees to address specific
concerns of legislators. Others that have been utilized by the prosecution services of various States
are stand-alone oversight units such as office audit companies and legal risk management
professionals in a variety of companies. Prosecutors should ensure that the police or other
investigators respect legal principles and fundamental human rights when they are conducting their
investigations. The prosecutors perform this role during the investigative phase of a criminal case
if they are consulted on aspects of evidence gathering pertinent to the case concerned. In such
instances, the prosecutor has control over the whole investigation and directs the police in what
course of action they should take in their investigation and what charges will be brought against
an accused (Kyprianou, 2010).
During the conduct of their duties, when prosecutors come into possession of evidence against
suspects that they know or believe on rational grounds was obtained through unlawful methods,
which constitute a serious violation of the suspect’s human rights, especially involving torture or
cruel, inhuman or degrading treatment or punishment, or other abuses of human rights, they shall
refuse to use such evidence against anyone other than those who used such methods, or inform the
Court accordingly, and shall take all necessary steps to ensure that those responsible for using such
methods are brought to justice (International Association of Prosecutors 2008). Courts are created
by the government through constitutional provisions for the purpose of enforcing the law for the
public good. They are impartial forums for the resolution of controversies between parties who
seek redress from a violation of a legal right. Both civil and criminal matters may be heard in the
same court with different court rules and procedures for each.
The public has a right to attend judicial proceedings. This right ensures that the proceedings will
be conducted in a fair and unbiased manner. Anyone who wants may attend trials as a spectator
unless a judge has closed a courtroom for particular proceedings in order to maintain order, to
assure due process of law, or to protect a witness's identity. Courts are divided into either those
that hear criminal or civil matters. The courts are organized in a multi-level manner from lower
courts to higher courts beginning with magistrate’s courts, followed by the high court, supreme
courts, then the highest court is the constitutional court. There are other specialist courts such as
the children’s court, labour court, Administrative court, Administrative court such as the water
court, special courts for income tax appeals, local courts on customary law and small claims courts.
Higher courts such as the high court, supreme court and constitutional court can set precedent
rulings which can be used as reference points in the determination of similar matters.
In a nutshell, the doctrine of separation of power is enshrined in the responsibilities of the police,
prosecutors and courts. The police investigate reported crimes, arrest suspected offenders, gather
evidence and conduct prosecution of minor offences. The prosecutors charges and tries major
offences, advise law officers, police and government departments about criminal law matters. The
criminal courts decide if a person has committed a criminal wrong. The courts decide the legal
penalty if a person has committed a wrong. The courts also rule on matters of law in relation to
judicial proceedings.
References
1. Collins Dictionary of Law. (2006). https://legal-dictionary.thefreedictionary.com/courts,
Retrieved June 27 2021.
2. Das, D.K. and Arvind, V. (2000). Police Mission: Challenges and Responses. Lanham,
Md.: Scarecrow Press.
3. International Association of Prosecutors (2008) Commission on Crime Prevention and
Criminal Justice: Resolution 17/2 seventeenth session, Vienna.
4. Kyprianou, D. (2010). “Comparative analysis of prosecution systems (Part II): the role of
prosecution services in investigation and prosecution principles and policies” The Role of
Cyprus Attorney General’s Office in Prosecutions: Rhetoric, Ideology and Practice. Berlin.
5. Madhuku, L. (2010). An Introduction to Zimbabwean Law. Harare: Weaver Press.
6. National Director of Public Prosecutions and Others v Freedom Under Law (SCA)
(unreported case no 67/14, 17-4-2014).
7. Office of the Director of Public Prosecutions (1990). Prosecution Policy of the
Commonwealth: guidelines for the making of decisions in the prosecution process,
Canberra.
8. Salzberger, E.M. (1993). A Positive Analysis of the Doctrine of Separation of Powers, or:
Why Do We Have an Independent Judiciary? International Review of Law and Economics.
13: 349-79.
9. The
People's
Law
Dictionary.
(1981-2005).
https://legal-
dictionary.thefreedictionary.com/prosecution. Retrieved June 27 2021.
10. Weigend, T. (2001); Prosecution – Comparative Aspects, in: Joshua Dressler (ed.);
Encyclopedia of Crime and Justice, New York 2001, 2nd. Edition.