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The illusion of separation powers doctrine in Kenya

The term separation of powers otherwise referred to in French as “trias politica” was coined by Charles-Louis de Secondat, baron de La Brède et de Montesquieu, an 18th century French social and political philosopher.[1] Montesquieu was of the considered view that when the legislative and executive powers are united in the same person, or in the same body or magistrates, there can be no liberty. He further explained that there is no liberty if the judicial power is not separated from the legislative and executive powers. Where it is joined with the legislative power, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Where it is joined with the executive power, the judge might behave with violence and oppression. There would be an end of everything, were the same man or same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.[2]

From the foregoing an inference can be drawn that the doctrine of separation of powers consists of three essential limbs. First and foremost is the proposition that one branch of government should not carry out the duties of another.[3] Secondly, no branch of the government should exert control over or interfere with another branch’s performance of its duties.[4] Finally, there should be a golden rule that the same individuals should not serve in more than one of the three branches of government simultaneously.[5] Notably, most of the people only play close attention to the first two requirements of this principle and fail to give the third requirement the respect that it deserves. Fortunately enough, these two parts that are seen are the most fundamental are the very same ones which are subjected to the highest levels of abuse.

Basis of the doctrine

The theoretical foundation of separation of powers doctrine is the assumption that in any democracy there will always be a government with three arms. These three arms are supposed to perform their traditional roles as opposed to encroaching on the jurisdiction of others. The said arms of government are the legislature, the executive and the judiciary. The legislature is expected to set things in motion by making and amending laws.  Once these laws have been made then the executive arm takes control by implementing these laws. The judiciary then is tasked with the role of interpreting the laws made by the legislature.

The overriding objective of this doctrine is to ensure that no arm of the government wields too much power. It attempts to avoid autocracy whereby the top leadership has absolute control of the government. Therefore the importance of the doctrine in promoting checks and balances cannot be gainsaid. The judiciary checks the two arms of government by performing its role of judicial review. It can therefore declare that an entire statute is unconstitutional. It can at the same time make pronouncements on the legality or otherwise of certain provisions of any act. The judiciary therefore ensures that both arms of the government do not usurp the power given to them.

The legislature as earlier stated makes and amends laws. It therefore makes laws that either allow or limit what the executive and the judiciary can do. It also plays a pivot role in vetting appointees of the judiciary and the executive. The legislature can therefore use the power that has been donated to them by the voters to shoot down any appointment which in their wisdom or lack of it they deem inappropriate. The executive is not in any way less important as it sort of functions as the financier of both the legislature and the executive. At the same time it implements plans that may be beneficial or otherwise to both the executive and the judiciary. The president who is the leader of the executive checks the law making process by assenting to bills. Essentially he or she is the person who transforms a bill into an act of parliament. That goes without saying that he can opt not to assent to a bill.

The politics of the separation of power doctrine

Focus of this article is not the goodness of it but the frequent failure of the said doctrine. I vehemently disagree that as a matter of fact there is something like separation of power to begin with. The notion that the three arms of the government are equal and therefore should be treated to equal punishment is equivalent to evading the harsh reality that we ought to face. If we are being honest with each other and if you ask a reasonable man on the street the definition of a government then their definition will not fall short of describing the executive arm. Therefore, most of the people view the executive arm of the government as the entire government and this assertion is partially and practically true.

Kenyan politics is structured in such a manner that the head of the executive is the head of the winning coalition in the general elections. The party that happens to win the presidential seat most of the time gets lucky enough by winning majority of the seats in both the national assembly and the senate. However, if that fails to happen then the holder of the office of the president often mobilises some of the members in the majority to join his camp.[6] The president often uses state power and mercenary to ensure that this happens. In as much this is positive as it helps the government to easily pass laws that will enable them to implement policies that are in accordance with their campaign manifestos, it also has a negative connotation attached to it. The flip side of it is even more dangerous as it posses dangerous threats to democracy.

It is partially true that the legislature is just an appendage of the executive. It is even safe to argue that the legislature is just independent and impartial in paper. The truth of the matter is that the party that has the majority in parliament has the freedom of determining how business is conducted in the August House. It starts all the way from the appointment of the speaker. The speaker of the house is often sponsored by political parties and it is a matter of fact that the party with the majority in the house is the one who is highly to win this first yet crucial battle in the running of parliament.[7] Therefore, this ex-officio Member of Parliament who ought to be an independent and impartial individual is just but a political appointee. It is safe to assume that this office is often compromised by this appointment.

The leadership of parliament is hugely influenced by political parties. These parties specifically the ruling party as we have seen always have a stake in the outcome of parliamentary business. We have witnessed whipping of leaders who are viewed as acting against the ‘party position’.[8]  Of what essence is the need for citizens to be fooled that their elected members will act in their best interest yet they are only in parliament to further the interest of their parties? Essentially, members of parliaments are just remote controlled by their parties. Parties often have a predetermined way of voting. It is saddening to see members from the winning party voting in an oppressive law simply because it has been brought to the house by their political party. It makes no sense at the same time for the opposition to oppose laws that will be beneficial to the citizens merely because it has been sponsored by the government.

What has become of the judiciary is not even worth saying. Not only has our courts been derided but also the holders of such officers. Even our very own supreme court has not been spared this belittling treatment. The outcome of the bitter exchange between the chief justice emeritus David Maraga and the then president Uhuru Kenyatta will forever be remembered as part of the dark history of the judiciary.[9] The president in an attempt to prove what had been known along that the executive is superior to the judiciary took a raft of measures that left tongues wagging in the corridors of justice. The judiciary budget was cut[10] and the president failed to appoint some judges.[11] The chief justice was treated with contempt especially during public holidays. Disregard of court orders became the order of the day. It is very evident that the judiciary of Kenya will continue to function just as a puppet of the executive.

The legislature has also been taking the judiciary for a ride. The judiciary has been performing its role of interpreting laws albeit inefficiently and with inordinate delays. There have been several judgements that have declared certain sections of our laws illegal. It is our expectation that parliament should have moved with speed and amended such laws. However, the contrary is true as the August house is still taking its sweet time to swing into action. That said there are insufficient laws to begin with. The actions and inactions of parliament paints the judiciary in bad light as it is seen as just an arm of government that is engaging in judicial activism.

The judiciary is operating on a tight rope and it has always cautioned itself against making judgements that will see it being punished. In any case the legislature and the executive decide to combine forces and isolate the judiciary then it will no longer be of any importance. We have witnessed good cases against politicians being thrown away simply because there is insufficient evidence.[12] Both the defence and the prosecution has always played blame games and claimed that the director of criminal investigation failed to either do good research before instituting the proceedings in court or that the investigative body failed to offer its full support. At the end of the day these very same politicians point accusing fingers at the judiciary for allowing itself to be used as an avenue for settling political scores.

Conclusion

Against this backdrop anyone who claims that the separation of powers doctrine is a reality is either a visitor to Kenya or is being unrealistic. This doctrine lost its essence before it could even be implemented. However, there is need for us to push for the full introduction of the said doctrine as it will assist us in having a mature democracy. But before that sees the light of the day, the doctrine of separation powers will just remain as writing on a piece of paper with nothing of importance to the people who ought to be eating from its fruits. True separation of powers doctrine will only occur once each arm has been guaranteed financial independence.

 About Author

Michael Omondi Odhiambo is a final year at the University of Nairobi. He has interests in legal research and article writing.


[1] Resource separation of powers: An overview (2021) National Conference of State Legislatures. Available at: https://www.ncsl.org/about-state-legislatures/separation-of-powers-an-overview  (Accessed: 15 June 2023).

[2] Rachit Garg et al. (2022) Separation of powers, iPleaders. Available at: https://blog.ipleaders.in/separation-of-powers/  (Accessed: 16 June 2023).

[3] Ibid.

[4] Ibid.

[5] Ibid.

[6] Nyamori, M. (2022) Ruto opens new battlefront with Raila in raid on Azimio affiliates, Nation. Available at: https://nation.africa/kenya/news/politics/ruto-opens-new-battlefront-with-raila-in-raid-on-azimio-affiliates-3920452  (Accessed: 17 June 2023).

[7] Okoth, B. (2022) Moses Wetangula elected speaker of the National Assembly, The Standard. Available at: https://www.standardmedia.co.ke/article/2001455216/moses-wetangula-elected-speaker-of-the-national-assembly  (Accessed: 17 June 2023).

[8] Too, E. (2020) Murkomen and Kihika officially replaced in Senate, The Standard. Available at: https://www.standardmedia.co.ke/nairobi/article/2001371065/murkomen-and-kihika-officially-replaced-in-senate  (Accessed: 17 June 2023).

[9] David Maraga hits back at ‘threats’ over Kenya election re-run (2017) BBC News. Available at: https://www.bbc.com/news/world-africa-41322927  (Accessed: 17 June 2023).

[10] Mumbere, D. (2019) Kenya’s CJ Maraga complains against budget cuts, ‘disrespect’, Africanews. Available at: https://www.africanews.com/2019/11/04/kenya-s-cj-maraga-says-judiciary-under-attack//  (Accessed: 17 June 2023).

[11] Ogemba, P. (2021) Heartbreak for six judges as Uhuru rejects their appointment, The Standard. Available at: https://www.standardmedia.co.ke/national/article/2001414750/heartbreak-for-six-judges-as-uhuru-rejects-their-appointment  (Accessed: 17 June 2023).

[12] Kiplagat, S. (2022) DPP withdraws Sh7.3 billion fraud charges against gachagua, Business Daily. Available at: https://www.businessdailyafrica.com/bd/economy/dpp-withdraws-sh7-3-billion-fraud-charges-against-gachagua-4014036  (Accessed: 17 June 2023).

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Michael has an unbeatable interest in research and is a keen and enthusiastic follower of emerging jurisprudence. He can be reached at Myllomosh@gmail.com