Abuses of Power in the Kenyan Constitution

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Introduction Kenya has made momentous strides towards grasping meaningful democracy principles with the promulgation of the new Constitution on 27th of August 2010[1]. As a result of these democratization initiatives, the power of the executive has been abridged and that of the legislative and judiciary considered autonomy. Hence, the Constitutional of Kenya recognises separation of powers and its allocation of powers to different organs of state as a permanent feature. Taking note of limits being imposed on the state powers in line with the principle of separation of powers as articulated by the former French theorist Montesquieu[2], it is now evident that all powers to be exercised in public functions, must flow from the constitution as the Kenyan Constitution[3] is regarded as the supreme law of the land[4]. Hence, any law inconsistence with it is regarded as null and void. Despite these significant gains abuse of power still strive as going to be conversed in the analysis below. Framework of Kenya The Constitution may be defined in terms of governance as the law that seeks to define, distribute and constrain the use of state power so that power is applied to the objectives for which it was invented and in the manner in which it was intended[5]. The Constitution of Kenya, 2010 has laid great emphasis on transparent, accountable and democratic governance[6] to ensure they do not deploy state power in a manner that does not efficiently aid the welfare of the people. Concept of accountability within the framework of Kenya Accountability exists where persons in authority are answerable for their actions and there is transparency in leadership.[7] For instance, the Executive is to be restructured by reinforced checks and balances from other institutions.[8] The Constitution of Kenya 2010 outlines national values and principles of governance[9] by introducing far reaching changes to Kenya’s system of governance. The Constitution created a decentralized system of government characterized by two levels of government, that is, the national government and the county governments[10] to correct deficiencies of centralized system of government blamed for promoting and sustaining bad governance in Kenya[11]. The Constitution 2010 indorses a compromise on decentralisation, in an attempt to enable the judiciary to carry out its functions. The judiciary has the power through judicial review mechanisms to assess executive and administrative conduct or actions of the state, state organs, state departments, and state officials.[12] Closely related to the concept of accountability is the doctrine of the Rule of Law which is one of the most important political ideals of all time[13]. It is the principles of governance in which all persons, institutions and entities are accountable to laws publicly promulgated and enforced[14]. A practical understanding of the rule of law requires officials to obey the law, and apply rules as set with all the caution and courtesy to fairness secured on such ideals as natural justice, and procedural fairness. The rule of law is violated when these institutions are undermined or interfered with. Doctrine of separation of power The doctrine of separation of power is said to be a bourgeois political legal theory that claims that state power is not a single entity but rather a composite of different governmental carried out by state bodies independently of each other. The Doctrine of Separation of powers includes the following distinct but overlapping aspects that is;

It is an Institutional separation of powers due to the need to have three major institutions thus, the legislature enacting laws, the executive enforcing laws and the judiciary interpreting laws.
It also has an element of Functional separation of powers in that state power or functions must be vested and exercised by three separate organsthat arelaw making, enforcement and interpretation, thus each organ having its discrete and defined area of power[15].
There is also an element of Separation of personnel in that no person should be a member of more than one organ.[16]
Lastly the doctrine of separation of powers has an element of limitation of appointing powers as state organs should not appoint or elect members for each other.

Separation of powers principles protects both individuals and each branch of government from incursion by the others.[17] The doctrine of the separation of power is distinctively highlighted in the constitution, 2010[18]. Separation of powers in the Kenyan Constitution The Kenyan Constitution modifies the relationship between the Judiciary, the Legislature and the Executive by reintroducing cornerstone principles of the constitutionalism supremacy, parliamentary sovereignty and judicial independence[19]. The Constitution of Kenya, 2010 gives the concept of separation of powers a two pronged approach. State power has been separated and dispersed both vertically and horizontally[20]. In this way each of the branches shall be a check to the others each must be confined to the exercise of its own function and not allowed to encroach upon the functions of the other branches. The theory is based on the assumption that all the three organs of the government are equal yet in most cases, the executive is more powerful. The three arms of government The Legislature Under the previous constitution, Parliament had only one chamber[21]. After implementation of the 2010 Act, the Parliament now has two chambers, the National Assembly and the Senate[22]. The main function of the legislature is to protect the Constitution, promote democratic governance and make laws.[23] In particular, the independence of the legislature is guaranteed by the Constitution through the establishment of the Parliamentary Service Commission[24]. The National Assembly together with the Senate acts as a control and critic of the Government[25]. It reviews the conduct of the President, the Deputy President and other state officers and initiates the process of their removal from office[26]. The Senate comprises 47 members elected by registered voters of the counties[27]; each county represented by one member. The Senate enjoys powers to impeach the President, vote on the laws relating to the amendment of the Constitution and the authority to approve the appointment of public officials[28]. In exercising this function, they must obey the constitution. THE EXECUTIVE The Executive is the arm of government that implements government laws and policies[29], role neither performed by the Judiciary, nor the Legislature. The executive has its share of power consisting of the President, the Deputy-President, the Attorney-General and the Cabinet Secretaries[30].Cabinet Secretaries shall not be members of the National Assembly (Parliament) even though they get approval from the parliament[31]. The Executive authority is vested in the President with the assistance of the Deputy President and Cabinet Secretaries[32]. Under the Constitution of Kenya 2010, there will be established 47 counties in Kenya. Each county will have its own system of elected government as well as an elected Governor. The Governor is directly elected by the voters in the county and appoints an executive committee from amongst people who are not members of the county assembly[33]. The 2010 Constitution enshrines a presidential system of government[34]. The President, the Deputy President, and the Cabinet exercise the executive authority derived from the people of Kenya[35]. THE JUDICIARY The second organ is the judiciary whose main function is to interpret and apply the law. It comprises courts, judges and magistrates[36]. The judiciary determines disputes which arise between individuals, and those arising between individuals and the State. One of the issues for judicial reforms intended to be resolved by the New Constitution was the need to have a more independent and transparent judiciary.[37] However, the efficacy of the Judiciary in honouring its mandate is founded on the substantive and procedural independence granted to it[38]. Institutional independence is therefore paramount to guard the constitution, the rule of law and fundamental justice[39]. The New Constitution attempts to address this concern by creating an all-encompassing and accountable Judicial Service Commission[40] as an independent mechanism for appointment of judges[41]. Checks and balances It is now generally accepted that the Judiciary, like its counterparts in the executive and the legislature, must be held accountable to the discharge of its constitutional mandate of judicial function. Indeed, accountability has been called the other side of the coin of the independence of the Judiciary. Separation of powers is not absolute; it is instead qualified by the doctrine of checks and balances The key concerns of over-centralisation of power in the office of the President are addressed by ensuring checks on executive power through periodic reporting to the National Assembly[42]. The legislature also checks the executive through reserving the power to impeach a President[43], while the executive on the other hand checks the legislature through presidential assent to make a bill law[44]. The judiciary on its part checks the executive and legislature through its power of review[45]. Conversely the executive and legislature check the judiciary through determining the appointment of the members of the judiciary[46]. The legislature exercises its oversight role in a number of ways. As mentioned above, the appointment of certain members of the Executive is subject to approval by the National Assembly[47]. In addition, Parliament is required to consider for approval the appointment of certain office bearers in the judicial arm, such as the Chief Justice and Deputy Chief Justice[48]. This was affirmed by The High Court in Centre for Rights Education and Awareness (CREAW) and Others v The Attorney General[49], where the applicants challenged as unconstitutional the President’s nomination of certain individuals to the offices of Chief Justice, Attorney General, Director of Public Prosecutions, and Controller of Budget .In this way, the Court exercises oversight of the National Assembly, even where the National Assembly itself is exercising the oversight responsibility of the Executive. In this way each of the branches shall be a check to the others and no single group of people will be able to control the machinery of the state[50]. In addition to the above three perspectives of the horizontal separation of powers, the architecture and design of the Constitution take a plural approach to the organisation of the legislature in the form of a bicameral institution thus creating a further dispersal of power.[51] However A complete separation of the three organs may lead to constitutional deadlock (d isunity of powers). Thus, a complete separation of powers is neither possible nor desirable powers of president. Likewise in other countries[52], doctrine of separation of powers is not applied strictly and absolutely in Kenya. In modern countries, therefore, there is always some overlapping of functions. For example: Legislation has become so far-reaching and complex that Parliament cannot enact all of it. Acts of Parliament must leave details to be filled in by regulations made by other authorities, usually Ministers. Hence the Executive branch must be given some law-making powers. Also, the role of government has expanded so greatly that many decisions which affect people’s lives must be made quickly, and some of these decisions require specialised knowledge which is not possessed by judges or magistrates. Many of these decisions are made by administrative tribunals established by and answerable to Ministers. Hence the Executive branch is increasingly given judicial powers. This is not necessarily undesirable so long as the tribunal obey the basic standards of fairness laid down by the law and courts are able to review their decisions. It is recognised in Kenya also that judges do not just interpret the law. They develop and adapt the law to take account of changing circumstances, and in that way they actually make law. Hence the judicial branch has some law-making or legislative powers, but this power should not go beyond refining and developing existing law. Conclusion The Constitution promulgated on 27 August 2010 is not anyone’s perfect document. For those who had struggled against Moi’s regime, it changes too little. For the governing elite and its supporters, it changes too much. It also leaves considerable space for institutions and their relationships with one another to develop. But the tale of the determination of Kenyans in pursuing constitutional change may give some indications of the future. that many Kenyans will use the Constitution as a basis on which to build a strong democratic order. Conclusively, The Constitution promulgated on 27 August 2010 is not any person’s perfect document. For those who struggled under the previous regimes, it changes too little. For the governing elite and its supporters, it changes too much. It also leaves considerable space for institutions and their relationships with one another to develop. But the tale of the determination of Kenyans in pursuing constitutional change may give some indications of the future. the new Constitution establishes rules, values, and principles that, if realized through strong implementation and legislative measures, can contribute significantly to attaining justice and a just society based on the rule of law that many Kenyans will use the Constitution as a basis on which to build a strong democratic order. What the country emerged with is a compromise document that accommodated the interests of all groups that strenuously sought representation. Read more at: https://www.standardmedia.co.ke/article/2000132919/despite-political-hiccups-2010-constitution-is-a-godsend/ Criticism of article Juristerred in that he wasted oceans of ink and mountains of paper in trying to define doctrine of separation of powers e there are not always clear dividing lines between administrative, legislative and judicial functions jurists have and in a modern State there must be a great deal of co-operation and interaction between the Executive and the Legislature, in particular, if the States business is to be efficiently conducted. Second find jurist who supports separation of powers of journals as below A strict separation of powers system could prove catastrophic although……..wrote a journal upholding doctrine of separation of powers in Kenya.in a bid to allocate functions to the three arms of the government,[53] there was to be elimination of the appointment of Cabinet Ministers from within parliament and relying on technocrats rather than politicians. This may result in the Kenyan presidency in the near future becoming even less answerable to the wishes of the electorate while the legislature/parliament sinks into irrelevancy. This is mainly because Kenyan MPs are not U.S. Senators or Congressmen; the system of parliamentary committees is but new and weak. Individuals become Members of Parliament, after expending vast sums of money. But national development needs to be directed by a strong executive if it is not to get out of hand and wasted in a sea of corruption. The Judicial Service Commission (JSC) conduct the appointment of judicial officers[54]. The JSC shortlist successful candidates for the position of the Chief Justice and Deputy Chief Justice and hands them to the president[55] to pick from the list the preferred candidate giving the judiciary (JSC) some political autonomy somehow[56]. The judicial independence is two pronged consisting of institutional independence and judicial independence. Institutional independence is where the judicial arm of government is independent from the executive and legislative arm while the judicial independence is whereby a judge is able to decide cases solemnly based on the law and the facts without external interferences.[57] Third Nevertheless, this manner of judicial appointments poses acute constitutional, policy and ethical questions. For example, the relevance of open interviews as a basis of approval and appointment[58], the essence of Section 129 of the evidence Act[59] which provides that judges and magistrates should not be subjected to procedures that may undermine the discretion of the judicial function and the judicial offices before the public. Institutional independence is enforced to ensure security of judicial officers against any external pressure that may jeopardize the dispensing of justice.

[1] Kenya promulgated the new constitution on 27th August 2010, regarded as the most striking accomplishment in governance in Kenya since attaining freedom in 1963. See also Philip J. Crowley. 2011. Implementation of Kenya’s New Constitution. [2] The principle of separation of powers among the various arms of government may be traced from the French writer, Charles Louis de Montesqui in his, “The Spirit of the Law” in which he argues that separation of powers ensures that the functions, personnel and powers of the major institutions of the state are not concentrated in one body. It ensures diffusion rather than a concentration of power within the state, the fundamental purpose being to avoid the abuse of power and thereby to protect the rights and the liberties of the citizens. [3] The Constitution of Kenya[Kenya],27 August 2010, available at: https://www.refworld.org/docid/4c8508822.html [accessed 01 September 2014] [4]See Preamble of the Constitution 2010. Article 2 of the Constitution of Kenya, 2010 asserts Supremacy of the Constitution over other laws of Kenya and binds all persons and state organs at both levels of government. [5] See, John Mutakha Kangu, “The Social Contract Arian Conceptualisation of the Theory and Institution of Governance”, Moi University Law Journal, p. 21. [6] See, the Preamble of the Constitution of Kenya, 2010; See also, Article 10 thereof. [7]The role of the Judiciary in the accountability and governance of the devolved Government Structure Presentation to the Institute of Certified Public Accountants of Kenya (ICPAK) 20th Economic Symposium at the Hilton Hotel, Nairobi, February 24, 2012.Prof Ben Sihanya, JSD (Stanford). [8] Although a strong Executive will still be enforce, the new reforms limit its power vis-A -vis the legislature and judiciary. See Brian Kennedy and Lauren Bieniek. 2010. “Moving forward with constitutional reform in Kenya,” A Report of the Center for Strategic and International Studies (CSIS), Africa Program, Washington, D.C. [9] See Article 10 [10] See Article 189 [11]See Supra note 7 above. [12]See Gichira Kibara (2011) “Reforming the Judiciary: Responsiveness and accountability of the Judiciary,” A study under the auspices of the Friedrich Ebert Stiftung (FES) and University of Nairobi’s Department of Political Science & Public Administration, Occasional Paper Series, Nairobi, presented at the FES workshop, Nairobi Safari Club. Mr Kibara is the Ag, Permanent Secretary, Ministry of Justice National Cohesion and Constitutional Affairs. [13] Liam Murphy, ‘The Political Question of the Concept of Law,’ in: (Jules Coleman ed.), Hart’s Postscript: Essays on the Postscript o The Concept of Law, 371(2001). [14] Kempe Ronald Sr. 2012. The Political Economy for Democratic Country of Kenya. Continuum International Publishing Company. [15] Supra note 2 above. [16] As an example, Ministers (cabinet secretaries) are not part of the legislature. See Article 152(3). See also, Wade Phillips. 2011. Constitution and Administrative Law [17] Stern, 131 S. Ct. at 2609 (quoting Bond v United States. 131S. Ct. 2355, 2365. 2011) [18] The powers of the Government under the Constitution of Kenya 2010 are divided into 3 functions mainly the executive function at national and county levels, legislative function at national and county levels and the judicial function.See Article 1 [19] Constitutional Supremacy entails that the constitution stands as the highest law of the land thus summum lege. Parliamentary sovereignty entails that the Parliament has unlimited legislative powers when legislating. It cannot therefore be bound by the courts or the executive. [20] Vertically, this power has been divided, separated and dispersed in terms of the different levels of governance; namely, the National government and the County government. In this way each of the branches shall be a check to the others and no single group of people will be able to control the machinery of the state. Power at the national level of governance is further divided, separated and dispersed horizontally into different departments of government in terms of the traditional three organs of state; namely, the legislature, executive and judiciary. See Lon L. Fuller. The Morality of Law, 1969, 46-91. See also Human Rights, Separation of power and devolution in the Kenyan Constitution. 2010. Comparison and lessons for EAC member states. By Prof. Christian Roschmann, Mr. Peter Wendoh & Mr. Steve Ogolla [21] [22] Article 93 [23] [24] Article 95 (4) [25] See Article 95 and 96 [26] Article 95 (5) [27] Article 98 [28] Article 96 [29] University of London. Constitutional Fundamentals: Separation of Powers, p. 45. [30] Article 130 [31] Article 152(10) [32] Article 131 [33] [34] See M Bockenforde, ‘The Design of the Executive Branch’, in M BA¶ckenfA¶rde, N Helding, and W Wahiu. A Practical Guide to Constitution Building, International Institute for Democracy and Electoral Assistance (International IDEA) (2011), 146–182. [35] See Arts 129 and 131. [36] Art 159. The courts include Magistrate courts, High Courts, Constitutional Court and Supreme Court of Appeal as well as any other court that maybe created and officers of the Courts including, the Chief Justice, the Attorney General, Judges and Magistrates who are protected by law. [37] Ochich, G.‘The Changing Paradigm of Human Rights Litigation in East Africa.’Nairobi: International Commission of Jurists Publication, 2007 (5): 29. According to the author, the Executive-Judiciary partnership during the colonial era sowed the seeds for what has manifested itself in form of a refined apparent friendship that has persisted between the judiciary and executive arms of government. This has been unfortunate, considering that the most serious incidences of human rights abuse are often orchestrated by or with the complicity of the executive.’ [38] As noted by the Special Rapporteur on the Independence of Judges and Lawyers ‘’The Provincial judges Reference’’ (1997) 3 SCR the court stated that institutional independence is fundamental because of increased role in dispute resolution. Institutional independence is therefore paramount to guard the constitution, the rule of law and fundamental justice. See also P, Cumaraswamy, ‘The Independence of the Judiciary: A Human Rights Priority’ United Nations Background Note, 1996. The concept as enunciated by various legal instruments and extant literature requires States to establish independent and impartial tribunals to give effective remedies for the realisation of human rights. See, for instance, Articles 8 and 10 of UDHR, Article 14 of ICCPR, Article 26 of ACHPR, Article1 of the Universal Charter of the Judge, 1999 and the Bangalore Principle on Judicial Conduct, 2002 [39] Hon. Mr. Justice AlnashirVisram. Role And Responsibility Of The Courts Under The Constitution Of Kenya, 2010. Accessed at https://www.kenyanlaw.org (Asses 24/08/2014) [40] See Article 251 of the Constitution of Kenya. Members of The Judicial Service Commission apart from the Chief Justice and the Attorney General hold office for a term of five (5) years. [41] See Article 172(1) of the Constitution of Kenya. The functions of the Judicial Service Commission are to promote and facilitate the independence and accountability of the judiciary and the efficient, effective and transparent administration of justice. [42] [43] [44] [45] [46] [47] [48] [49] [50]M.J.C Vile, “Constitutionalism and the Separation of Powers”, in: Francois Venter (ed.) Constitutional Comparison: Japan, Germany, Canada & South Africa as Constitutional States, Cape Town: Juta & Co., Ltd, 2000, p. 212.13 [51] Kenya’s 2010 Constitution [52] [53] [54] The Judicial Service Commission (JSC) conducted interviews from May 3-12 2011 to nominate the Chief Justice, and the Deputy Chief Justice. The interviews were conducted in the open and aired live by the media. In accordance with the 2010 Constitution, the public participated in the process by sending their questions, comments and opinions to the interview panel who then posed such questions or comments to the interviewees [55] Article 172(1) of the Constitution of Kenya [56] In April 2011, after the President withdrew his nomination of Justice Alnasir Visram as the Chief Justice, and deferred to the JSC, the Commission conducted public interviews of the candidates short-listed for the offices [57] Harry Stephen Aranda The extent of judicial independence and separation of powers under Kenyan legal system. Sep 18. 2013. [58] Under Article 166 of the Constitution of Kenya, 2010 [59] Cap 80, Laws of Kenya. under section 6 of the Judicature Act, Chapter 8 of the Laws of Kenya provides for judges’ professional immunity in these terms: “No judge or magistrate and no other person acting judicially, shall be liable to be sued in a civil court for an act done by him in the discharge of his duty whether or not within the limits of his jurisdiction, provided he, at the time, in good faith believed himself to have jurisdiction to do or order the act complained of…

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