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CHAPTER
1
SEPARATION
OF POWER AMONG VARIOUS ORGANS OF GOVERNMENT AND ITS IMPACTS ON NATIONAL
DEVELOPMENT
1.1 Introduction
What
is special as regards the Judiciary as the bearer of the peoples mandate is
that it is the primary and ultimate arbiter, when the operations of the several
public bodies run into conflict; it is the dominant interpreter not only of the
totality of the Constitution, but also of all other laws applying in the land..1
1.2 Background
The doctrine of “the separation of
powers as usually understood is derived from Montesquieu, whose elaboration of
it was based on a study of Lock’s writings and as imperfect understanding of the
eighteenth century English Constitution. Montesquieu was concerned with the
preservation of political liberty. “Political liberty” is to be found he says,
“only when there is no abuse of power”. But constant experience shows its that
every mans invested with power is liable to abuse it, and to carry his
authority as far as it will go … To prevent this abuse, it is necessary from
the nature of things that one power should be a check on another… when the
legislature and executive powers are united in the same person or body… there
can be no liberty … Again, there is no liberty if the judicial power is not
separated from the legislative and the executive… There would be as end of
everything if the same person or body whether if the nobles or of the people, were
to exercise three powers”.
The question whether the separation of
powers (i.e. the distribution of the various powers of government among
different organs) in so far as is practicable, is desirable, and (if so) to
what extent, is a problem of political theory and must be distinguished from
the question which alone concerns the constitutional lawyer namely, whether and
to what extent such a separation actually exist in any given constitution (Hood
Phillips and Jackson 2001:12).
The Constitution brought with it new
reforms. The most critical salient features in the constitution are; a devolved
system of governance; weakening of the presidency through the introduction of
various checks on the executive, a bicameral legislature; strengthening of
judicial independence; and enactment of a progressive bill of rights.4 Following
the 2013 General election, things started falling apart for the newly formed
institutions both at the county and national levels. These include; differences
between the senate on one hand and the national assembly, between senate and
governors, the executive against the judiciary and also between the judiciary
and the legislature.
Indeed Justice David Maraga when he
was being vetted for the Office of the Chief Justice job was asked by the
National Assembly Justice and Legal Affairs Committee how he was going to end
wrangles between Parliament, Executive and the Judiciary. Justice Maraga said
he would work to ensure that there are clear checks and balances to prevent
abuse and excess as well as ensure harmony among the three arms of government.5
This is after MPs raised the query that Judiciary encroaches on Parliament‘s
lawmaking powers through court orders. Maraga said he would establish a
quarterly round table where the President, Speaker and Chief Justice meet and
deliberate issues of public interest.6
1Jackton
B. Ojwang, Ascendant Judiciary in East Africa: Reconfiguring the Balance of
Power in a Democratizing
Constitutional Order (Nairobi:
Strathmore University Press, 2013), p. 26.
2 Dennis
Davis, Democracy and Deliberation
(Juta & Co. Ltd 1999) 47.
3 Patrick
Lumumba, Morris Mbondenyi & Steve Odero, The Constitution of Kenya: Contemporary Readings (Law Africa 2011)
45.
SEPARATION OF POWER AMONG VARIOUS ORGANS OF GOVERNMENT AND ITS IMPACTS ON NATIONAL DEVELOPMENT
Chapters: 1 - 5
Delivery: Email
Delivery: Email
Number of Pages: 75
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