The Evolution of the Separation of Powers
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The Evolution of the Separation of Powers

Between the Global North and the Global South

Edited by David Bilchitz and David Landau

To what extent should the doctrine of the separation of powers evolve in light of recent shifts in constitutional design and practice? Constitutions now often include newer forms of rights – such as socioeconomic and environmental rights – and are written with an explicitly transformative purpose. They also often reflect include new independent bodies such as human rights commissions and electoral tribunals whose position and function within the traditional structure is novel. The practice of the separation of powers has also changed, as the executive has tended to gain power and deliberative bodies like legislatures have often been thrown into a state of crisis. The chapters in this edited volume grapple with these shifts and the ways in which the doctrine of the separation of powers might respond to them. It also asks whether the shifts that are taking place are mostly a product of the constitutional systems of the global south, or instead reflect changes that run across most liberal democratic constitutional systems around the world.
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Chapter 8: Separation of powers and the accountability role of NHRIs: the Malawi Human Rights Commission through the courts

Redson Edward Kapindu

Abstract

National Human Rights Institutions (NHRIs) play an important role in ensuring that Governments are held to account in respect of their human rights obligations. These NHRIs are variously established. Some are established under the Constitution, others are established through ordinary legislation, whilst others are established by executive decrees. This chapter first explores whether NHRIs may always fit into the tripartite separation of powers model of the executive, the legislature and the judiciary (the trias politica). It argues that they may not always fit well into this model and that there are instances where NHRIs should simply be treated as organs of the state sui generis, falling outside this tripartite model. The chapter then examines the specific instance of the Malawi Human Rights Commission (MHRC), and concludes that the MHRC is one of those NHRIs that do not sit well within the trias politica. The chapter winds up by examining how the MHRC has sought to ensure checks and balances with the other organs of the state, especially the executive, through participation in litigation; and also the contribution that the MHRC has made in developing human rights and constitutional law jurisprudence.

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