Separation of powers, division of the legislative, executive, and judicial functions of government among separate and independent bodies. The constitution of kenya can only be amended in two ways. The separation of powers in a democracy is to prevent abuse of power and to safeguard freedom for all. Although the system shows, the perspectives of the doctrine might influence some applications of it but some recent evidences showed important aspects that further explored the contents of the separation of powers within the context of the constitutional system of the united kingdom. When the legislative and the executive powers are united in the same person or in the same body of magistrates, there can be no liberty if the judicial powers be not separated from the. The challenge of constitutionalism and separation of. Theres no separation of powers in zambia by the mast on march 12, 2019 you should, at all times, bear in mind that judicial power and authority is derived from the people of zambia, edgar lungu recently told a group of high court judges he was swearing in. It was held that the major institutions should be divided and dependent upon each other so that one power would not be able to exceed that of the other two.
Horizontal separation of powers is basically about separation of powers between the three branches of government at one level. Our findings suggest that in relation to the break up of the centralization of state power, devolution has created strong, powerful county governments that can act as a counterweight to central government. The second part focuses on how the doctrine operated in kenya. Awolich summary the republic of south sudan, although fairly nascent as an independent state, aspires to become a democracy that embraces constitutionalism. Separation of power in the contemporary kenya by omondi jacques walters introduction separation of powers is best captured in baron montesquieus formulation. The governmental concept of separation of powers enforced through a series of checks and balances was incorporated into the u. Is separation of powers as provided in kenyan legislation being practiced. Separation of powers is a doctrine that is to the effect that specific functions, duties and. Theres no separation of powers in zambia the mast online. The doctrine of separation of powers in the south african constitution due to the british colonial flavour, the preconstitutional dis pensation in south africa did not favour the doctrine of the separation of powers to flourish. One of the key principles of the constitution is separation of powers. Analysis of the 2010 constitutional provisions on the presidency stephen mutula 1 2 wilson k. The constitution of kenya provides that the sovereign power of the people shall be vested in the executive, the legislature and the judiciary, reflecting the.
Doctrine of separation of powers functions, effects. Different arms of government and constitutional commissions and offices were set up in order to achieve this goal. Separation of powers and protection of human rights in the. An analysis of the emerging tensions between parliament and the judiciary kabathi antony gathitu g62804532012 a thesis submitted to the university of nairobi law school in partial fulfilment of the degree of masters of laws llm supervisor dr juliet okoth, lecturer. Separation of powers, therefore, refers to the division of government responsibilities into distinct branches to limit any one branch from exercising the core functions of another. It is a feature of the peculiary british conception of the separation of powers that parliament, the executive and the courts have each their distinct and largely exclusive domain. Under the 2010 constitution, kenya adopted a presidential system of government in order to achieve a sharper separation of powers between the executive body and the legislature and reduce the influence of the former over the latter. Vertical distribution of powers can be undertaken from the purely local all the way long to the purely global. Introduction in the last few years, more and more nations have enacted new democratic constitutions. The design and architecture of kenyas new constitution may, therefore, herald the beginning of the return of the east africa community to constitutional democracy. This may extend from the municipal, sub nationalregional, national, supranational, to global level. A perspective on the doctrine of the separation of powers based on.
In more than 50 years of partnership, the united states and kenya have developed deep political, economic, security, and cultural ties. Contemporary perspectives from subsaharan africa published by. The current structure of the kenyan power sector reveals the imprint of successive waves of reformin the separation of policy from regulation. The separation of powers doctrine is a fundamental principle of law that maintains that all three organs of government remain separate. Parliament has a legally unchallengeable right to make whatever laws it thinks right. Esprit des lois spirit of laws published in 1748, for the first time enunciated the principle of separation of powers. Separation of powers in kenyas devolved administrative.
The theory of separation of powers maintains that the three arms of power of the government should run as separate parts of the government in a democratic country. The doctrine of separation of powers jaba shadrack. The separation of powers is a representation for the governance of a state. Separation of powers in kenyas devolved administrative system. Most of the politicians who wielded political and economic power during kenyattas regime hailed from the. The subject of separation of powers has arisen over and over again in kenya since 2010 when kenya instituted a new constitution. The separation of powers is a constitutional principle introduced to ensure that the three major institutions of the state namely. Pretoria university law press pulp the pretoria university law press pulp is a publisher at the faculty of law, university of pretoria, south africa. Abstract this paper is essentially a study of the new governance system in kenya. The spirit of the laws, the separation of powers is intended to guard against tyranny and preserve liberty. This short, engaging video focuses on the constitutional principle of separation of powers. Abstract this paper is essentially a study of the new governance system in kenya and an.
Institutional failure and its effect on separation of powers. Under this model, a states government is divided into branches, each with separate, independent powers and responsibilities so that powers of one branch are not in conflict with those of the other branches. For this reason the doctrine of separation of powers was heavily intertwined in the structure of the constitution. Under the 2010 constitution, kenya opted for a presidential system of government in order to achieve a sharper separation of powers between, and reduce the influence of, the executive body over the legislature. The president and his cabinet are not members of parliament.
When the legislative and the executive powers are united in the same person or in the same body of magistrates, there can be no liberty if the judicial powers be not separated. The doctrine of separation of power is said to be a bourgeois politicallegal theory that claims that state power is not a single entity but rather a composite of different governmental functions i. Constitution to ensure that no single person or branch of the new government could ever become too powerful. Kenya now has a more reformed judiciary that is independent, robust and functional.
There is no absolute separation of powers in the uk. An overview congressional research service 1 introduction congresss role and operation in national politics is fundamentally shaped by the design and structure of the governing institutions in the constitution. Separation of powers and protection of human rights in the context of the new constitution in zimbabwe. The idea of the practice of separation of power entails that the government should have three organs, the executive, legislature and the judiciary and the powers and functions of all should be separate from each other. The epic of the doctrine came with the american independence that saw it being operationalised. In that way, no arm will and should get into matters of the other, for instance.
Koma 3 school of social science, university of kwazulunatal this article is an attempt to establish a link between the abuse. Do you understand why separation of powers is important for protecting our freedom. The power to determine which assets should be subject to temporary or final confiscation is a judicial power vested in the courts by s. Separation of powers legal definition of separation of powers. Pdf separation of powers in contemporary kenya walters. The system of separation of powers divides the tasks of the state into three branches.
The intent is to prevent the concentration of power and provide for checks and balances. That is, amendment by parliamentsry initiative and amendment by popular initiative. Fusion and separation of powers, and checks and balances in kenya and africa this draft chapter may be cited as. A perspective on the doctrine of the separation of powers.
Using examples of corruption and abuses of power, this article examines how governmental power is exercised in kenya and analyzes the potential of the new constitutionwhich took effect on august 27, 2010, following approval by the citizenry at a referendum held on. The constitution of kenya provides that the sovereign power of the people shall be vested in the executive, the legislature and the judiciary, reflecting the democratic ideal that if power is concentrated in the hands of a few, it is prone to misuse. Ben sihanya forthcoming 2020 fusion and separation of powers, and checks and balances in kenya and africa, in ben sihanya 2020 constitutional democracy, regulatory, and administrative law in kenya and africa vol. Such a separation, it has been argued, limits the possibility of arbitrary excesses by government, since the sanction of all three branches is required for the making, executing, and administering of laws. Comparison and lessons for eac member states by prof. Home governance institutional failure and its effect on separation of powers. However, although the concept of separation of powers is much to be desired. The constitution of kenya 2010 divides the territory of kenya into two governments made up of 47 counties, commonly referred to as the national and county governments. Separation of powers, independence of the judiciary, and. How the south african constitutional court plotted its course oscar sang 1.
Montesquieu propounds that the political authority of a state is divided into the legislative, executive and judiciary functionaries. The traditional characterizations of the powers of the branches of american. Even though the constitution of kenya has provided a rosy picture of separation of powers, there cannot be absolute separation. The challenge of constitutionalism and separation of powers doctrine in south sudan abraham a. The constitution has given rise to debate about the extent to which courts may intervene in the conduct of the affairs of other arms of government, spawned by accusations by other branches of government, especially the legislature that the judiciary is exceeding its. Constitution call for the powers of the federal government to be divided among three separate branches. Sharing power and checking one another the system of separation of powers divides the tasks of the state into three branches. Constitutionalism and democratic governance in africa. The economy has become closely intertwined with state patronage and ethnic politics, and leads businesspeople to become architects of violence, and to collude in. Outlines the enforcement of the constitution, the manner in which the constitution shall be interpreted, the terms used in the constitution and how they are rightly interpreted. The division of state and federal government into three independent branches.