Accountability, separation of powers and the Latimer House Principles: Ten years on Commonwealth Governance Handbook 2013/14 19 The Universal Declaration on Democracy adopted by the Universal Parliamentary Union defines democracy as ‘a universally recognised ideal as well as a goal, which is based on common values shared by peoples throughout the world community irrespective of cultural, political, social and economic differences … It is thus a basic right of citizenship to be exercised under conditions of freedom, equality, transparency and responsibility, with due respect for the plurality of views, and in the interest of the polity’. Article 9 of the declaration states: ‘Democracy is based on the existence of well-structured and well-functioning institutions, as well as on a body of standards and rules and on the will of society as a whole, fully conversant with its rights and responsibilities.’1 The first Declaration of Commonwealth Principles issued by Heads of Government in Singapore in 1971 affirmed the ‘inalienable right of all citizens to participate by means of free and democratic political processes in framing the society in which they live’. In the Harare Declaration of 1991, Heads of Government committed themselves to the protection and promotion of the fundamental political values of the Commonwealth, including democracy, democratic processes and institutions which reflect national circumstances, the rule of law, judicial independence, and just and honest government. In the words of Deputy Chief Justice of South Africa, Justice Moseneke: ‘The principles of the rule of law, the separation of powers and judicial independence, underscored by international law, are indispensable cornerstones of our constitutional democracy.’2 Parliament is expected to make the laws, government to enforce them and the judiciary to adjudicate on conflicts that arise when the law is unclear or deemed to have been broken. The due exercise of each authority should not be hindered by the agencies responsible for the other two. The relations between the different organs of state are more complex in a Commonwealth where different legal systems and constitutional orders coexist side by side. An independent judiciary, however, is universally recognised as the most important aspect of the separation of powers. In 1996, Commonwealth Law Ministers recognised the importance of the role played by an independent and impartial judiciary in ‘healthy democracy’ as did Heads of Government from 18 Commonwealth African countries who met to evaluate the state of democracy in Africa in 1997. It was against this background that in 1998, a group of eminent members of four Commonwealth Associations – the Commonwealth Lawyers’ Association (CLA), Commonwealth Legal Education Association (CLEA), Commonwealth Magistrates’ and Judges’ Association (CMJA) and the Commonwealth Parliamentary Association (CPA) – met at Latimer House to promote a dialogue and draft guidelines on good governance and best practice in the enhancement of good relations between the executive, parliament and judiciary in the context of the Harare Declaration of 1991 and Millbrook Programme of Action (1995). The Latimer House Guidelines on Parliamentary Supremacy and Judicial Independence, which resulted from their deliberations, were, in the true spirit of the Commonwealth, a consensus document. The group recognised that it was impossible to draft a document of this kind which would meet the unconditional endorsement of all stakeholders, be they governments, judicial officers, lawyers, parliamentarians or non-governmental organisations. However, the document produced commanded broad acceptance in all sectors and was referred to with approval throughout the Commonwealth. Commonwealth Law Ministers considered the guidelines in 1999. In 2002, a working group composed of Law Ministers and representatives of the four associations met to draw up a set of ten principles based on the guidelines. This was the first time that ministers and Commonwealth accredited associations had participated together in an exercise of this kind. Its outcome: The Commonwealth (Latimer House) Principles on the Accountability and Relationship Between the Three Branches of Government. These principles were approved by Law Ministers in 2003 and endorsed by the Commonwealth Heads of Government Meeting (CHOGM) in 2003. The principles provide Commonwealth countries with a set of minimum standards and a roadmap for democracy and good governance by outlining practical ways of implementing the fundamental values of the Commonwealth and enhancing mutual respect between the executive, legislature and judiciary. Article 1 provides that each institution is ‘the guarantor in their respective spheres of the rule of law, the promotion and protection of human rights and the entrenchment of good governance based on the highest standards of honesty, probity and Karen Brewer
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