Do you understand why separation of powers is important for protecting our freedom. A perspective on the doctrine of the separation of powers based on. For this reason the doctrine of separation of powers was heavily intertwined in the structure of the constitution. 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 constitution of kenya provides that the sovereign power of the people shall be vested in the executive, the legislature and the judiciary, reflecting the. Abstract this paper is essentially a study of the new governance system in kenya and an. 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. The separation of powers is a representation for the governance of a state. 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.
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. Analysis of the 2010 constitutional provisions on the presidency stephen mutula 1 2 wilson k. Constitution to ensure that no single person or branch of the new government could ever become too powerful. The design and architecture of kenyas new constitution may, therefore, herald the beginning of the return of the east africa community to constitutional democracy.
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 governmental concept of separation of powers enforced through a series of checks and balances was incorporated into the u. Koma 3 school of social science, university of kwazulunatal this article is an attempt to establish a link between the abuse. Institutional failure and its effect on separation of powers. Kenya now has a more reformed judiciary that is independent, robust and functional. In more than 50 years of partnership, the united states and kenya have developed deep political, economic, security, and cultural ties. 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. Constitutionalism and democratic governance in africa. One of the key principles of the constitution is separation of powers. Doctrine of separation of powers functions, effects. Separation of power in the contemporary kenya by omondi jacques walters introduction separation of powers is best captured in baron montesquieus formulation.
The constitution of kenya can only be amended in two ways. Home governance institutional failure and its effect on separation of powers. Separation of powers and protection of human rights in the context of the new constitution in zimbabwe. The current structure of the kenyan power sector reveals the imprint of successive waves of reformin the separation of policy from regulation. 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 separation of powers in a democracy is to prevent abuse of power and to safeguard freedom for all. The subject of separation of powers has arisen over and over again in kenya since 2010 when kenya instituted a new constitution. The president and his cabinet are not members of parliament. Pretoria university law press pulp the pretoria university law press pulp is a publisher at the faculty of law, university of pretoria, south africa. 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. Most of the politicians who wielded political and economic power during kenyattas regime hailed from the.
Separation of powers, independence of the judiciary, and. It is a regional and crossborder issue, with a strong political dimension that goes beyond the existing humanitarian. The power to determine which assets should be subject to temporary or final confiscation is a judicial power vested in the courts by s. The spirit of the laws, the separation of powers is intended to guard against tyranny and preserve liberty. Abstract this paper is essentially a study of the new governance system in kenya. The second part focuses on how the doctrine operated in kenya.
Contemporary perspectives from subsaharan africa published by. Constitution call for the powers of the federal government to be divided among three separate branches. Fusion and separation of powers, and checks and balances in kenya and africa this draft chapter may be cited as. The intent is to prevent the concentration of power and provide for checks and balances. Separation of powers in kenyas devolved administrative system. Is separation of powers as provided in kenyan legislation being practiced.
Different arms of government and constitutional commissions and offices were set up in order to achieve this goal. The challenge of constitutionalism and separation of. Even though the constitution of kenya has provided a rosy picture of separation of powers, there cannot be absolute separation. The division of state and federal government into three independent branches. Introduction in the last few years, more and more nations have enacted new democratic constitutions. Separation of powers, division of the legislative, executive, and judicial functions of government among separate and independent bodies. In that way, no arm will and should get into matters of the other, for instance. Parliament has a legally unchallengeable right to make whatever laws it thinks right. The traditional characterizations of the powers of the branches of american.
The doctrine of separation of powers jaba shadrack. 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. Separation of powers under the constitution of kenya 2010 separation of powers. 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 separation of powers doctrine is a fundamental principle of law that maintains that all three organs of government remain separate. Separation of powers in kenyas devolved administrative. The system of separation of powers divides the tasks of the state into three branches.
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. Esprit des lois spirit of laws published in 1748, for the first time enunciated the principle of separation of powers. Vertical distribution of powers can be undertaken from the purely local all the way long to the purely global. However, although the concept of separation of powers is much to be desired. Theres no separation of powers in zambia the mast online. Separation of powers and protection of human rights in the.
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. 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. Separation of powers is a doctrine that is to the effect that specific functions, duties and. 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. Separation of powers legal definition of separation of powers. Horizontal separation of powers is basically about separation of powers between the three branches of government at one level. The challenge of constitutionalism and separation of powers doctrine in south sudan abraham a. 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. 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. 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.
That is, amendment by parliamentsry initiative and amendment by popular initiative. Comparison and lessons for eac member states by prof. This may extend from the municipal, sub nationalregional, national, supranational, to global level. 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. 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. 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. How the south african constitutional court plotted its course oscar sang 1. Gains or loses, claripress, on behalf of centre for law and research international, nairobi. Montesquieu propounds that the political authority of a state is divided into the legislative, executive and judiciary functionaries.
The economy has become closely intertwined with state patronage and ethnic politics, and leads businesspeople to become architects of violence, and to collude in. A perspective on the doctrine of the separation of powers. This short, engaging video focuses on the constitutional principle of separation of powers. The separation of powers is a constitutional principle introduced to ensure that the three major institutions of the state namely.
803 527 1533 249 289 1162 641 1017 1003 563 517 1092 1534 100 1244 951 85 74 1451 142 486 829 608 757 205 395 1304 1314 1311 1465 927 441 551 1181 571 270 1169 1163 878 579 558