JOAN CHELANGAT

REGISTRATION NO: 1040787

JURISPRUDENCE WRITTEN CAT

UNIT CODE: CLS 320

SUBMITTED TO: MR. ANDY CONS MATATA

QUESTION

Separation of powers
Separation of powers is an organizational structure where responsibilities, authorities, and
powers are divided between groups rather than being centrally withheld. Notably, the doctrine is
more often than not closely associated with political systems and is indisputably one of the key
features of a democratic system of governance. Being a forerunner to all constitutions in the
world, it encompasses division of the government into three arms, the executive, legislature and
judiciary. Alongside their institutions, each arm is assigned tasks in such a way that none
exercises the core function of another as they also check on the exercise of power by the other.

Although the doctrine is traceable to Aristotle, the writings of Baron de Montesquieu and John
Locke gave it base. It serves to purposively prevent concentration of power in an arm of the
government as well as to provide checks and balances for each of them.1 Montesquieu held that
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 legislature
and the executive. He based his tripartite model on the Constitution of the Roman Republic and
the British constitutional system. He observed that Roman Republic had powers separated so that
no one could usurp complete power. Similarly, the British constitutional system, Montesquieu
discerned a separation of powers among the monarch, the parliament, and the courts of law.2

Otherwise known as its elements, the doctrine implies that same persons should not form more
than one organ of government, for instance, cabinet secretaries should not sit in parliament.
Second is that one organ of government should not exercise the function of another, example,
cabinet secretaries should not have legislative powers. Lastly, each organ of government,
especially the judiciary, should independently exercise their functions without any form of
control, interference or undue influence from any other organ. This is because the judiciary is the
scale through which actual development of the state is measured. Therefore, if the judiciary is
not independent then it is the first step towards a tyrannical form a government as well as misuse
of power. Further, an independent judiciary ensures that not only is justice dispensed timely, but
is seen to be dispensed.3

1
Brand, J. T., Montesquieu and the Separation of Powers. (Or. L. Rev 1932)
2
De Montesquieu, C., The spirit of the laws. (Cambridge University Press 1989)
3
Sam J. Ervin,J .,"Separation of powers: judicial independence." (Duke University School of Law 1970)
The Constitution of Kenya 2010 begins by affirming the sovereignty of the Kenyan people as
well as its supremacy. It then closely relates the canon of separation of powers with that of
checks and balances. In the case of The Council of Governors and Others vs. The Senate
Petition No. 413 of 20144 the court relied on Article 165(3)5 which provides that court has the
duty and obligation to intervene in actions of other arms of Government and State Organs where
it is alleged or demonstrated that the Constitution has either been violated or threatened with
violation.

The constitution clearly allocates the different arms their specific functions together with discrete
personnel, procedures, mandates and separation of powers thus guaranteed to be genuine.
Chapter 96 deals with the functions of the executive. Article 1297 provides that executive’s
authority is derived from the people. This therefore means that the executive authority must defer
to the sovereignty of the people and respond to the national objects values and accountability
mechanisms throughout the Constitution as provided under Article 10.

With regards legislature, Article 938 provides for a bicameral system with Chapter 89 outlining
the functions of both the national assembly and senate with the senate mandated to oversee some
of the functions of the national assembly. The legislature is therefore meaningfully separated
from the executive. The basis of this Parliamentary sovereignty is founded on the political reality
that Parliament has unlimited legislative competence in exercising that political sovereignty
when legislating. It cannot therefore be bound by the courts or the executive. Provisions for
effective checks and balances between the executive and the legislature have also been provided
in the Constitution under Article 95(5)10 which provides that the National Assembly will review
the conduct of the president and deputy president and all other state organs while exercising
oversight over the state organs. The National Assembly has also been given the authority to
initiate the process of removing the president and the deputy if for instance found to be
incompetent.

4
The Council of Governors and Others vs. The Senate [2014]eKLR
5
Article 165(3) Constitution of Kenya 2010
6
Chapter 9 Constitution of Kenya 2010
7
Article 129 Constitution of Kenya 2010
8
Article 93 Constitution of Kenya 2010
9
Chapter 8 Constitution of Kenya 2010
10
Article 95(5) Constitution of Kenya 2010
On the other hand, judicial independence is established under Article 16011 which states that in
the exercise of judicial authority it shall only be subject to the constitution and the law and not
direction or control of any person or authority. Montesquieu argued that there can be no liberty if
judicial power is not separated from legislature and executive. Judiciary is the weakest of the
three arms of government since it can never attack any arm successfully and thus there is need to
enable it to defend itself against them by advocating for its independence. In the case of The
Judicial Service Commission v Speaker of National Assembly & 8 others12 it was held that the
national assembly through its Departmental Committee on Justice and Legal Affairs is not
entitled to supervise and sit on appeal on the decisions of the Judicial Service Commission. This
upholds functional independence where the commission is to carry out their functions, without
receiving any instructions or orders from other State organs or bodies.

One of the benefits of separation of powers in government is that it prevents arbitrary use of
powers. This is because where absolute power is conferred on one body it is bound to be
misused. Separation of powers thus serves to ensure that government powers are not
concentrated in the hands of a single central authority. In the case of Hampton v United States
(1976)13 Justice Taft held that it is breach of the National fundamental law if congress gives up
its legislative power and transfer it to the president or to the judicial branches or if by law
attempts to invest itself or its members with either executive power or judicial powers.

Secondly, separation of powers creates a harmonious working relationship across all three organs
of government which leads to effectiveness of the government as a whole. This is because when
each institution of the separate organs are aware of their role and duties, there is bound to be
respect for each institution’s duties and role, and this will create a good working condition
among workers and civil servants. Division of functions also means lesser and more specific
responsibilities to the institutions of the different organs.

Further, separation of powers promotes protection of liberty.14 Montesquieu held that the secret
of civil liberty lays in the separation of these powers in the reserving of each type of power to
different person or body of persons. As such, the only mechanism that can protect the liberty and

11
Article 160 Constitution of Kenya 2010
12
The Judicial Service commission v Speaker of National Assembly & 8 others [2014 ]eKLR
13
Hampton v United States (1976)
14
Jeremy Waldron., "Separation of powers in thought and practice." (BCL Rev. 54, 2013)
rights of citizens, more especially the minority in the country is when powers to govern are not
concentrated in the hands of one authority. Otherwise the powers will be corrupted absolutely
and clearly, this is what separation of powers advocates for.

Despite the various advantages of the doctrine, many defects surfaced once it was applied to real
life situations and governments. One is that the doctrine is based on the assumption that the
functions of the three arms of the government are completely distinguishable from one another.
However, that is not the case, as it is not easy to draw a demarcating line between one arm and
another with mathematical precision. In fact, the smooth running of the government is as a result
of the cooperation and mutual adjustment of all the three organs.15

Secondly, if the doctrine is adopted in its entirety, it is impossible for the different arms to
function effectively. It is to effect that the legislature can only legislate and it cannot punish
anyone that commits a breach on the same. That it cannot delegate any legislative function even
though it does not know the details of the subject-matter of the legislation yet the executive
authority may have expertise over it. In reality, separation of powers thus can only be relative
and not absolute. Strict separation of powers is a theoretical absurdity and practical impossibility.

Further, a fundamental object behind Montesquieu’s doctrine was the protection of liberty and
freedom of an individual, but that cannot be achieved by mechanical division of functions and
powers. In England, the theory of Separation of Powers is not accepted and yet it is known for
the protection of individual liberty. For freedom and liberty, it is necessary that there should be
Rule of Law and impartial and independent judiciary and eternal vigilance on the part of
subjects.16

In conclusion, as was said by Lord Action, power corrupts and absolute power tends to corrupt
absolutely. The Montesquieu doctrine is not merely a myth but also carries truth in that, each
organ of the government should exercise its power on the principle of checks and balances to
prevent any of them from usurping excess power. However, in the modern state, the doctrine is
theoretical and impracticable to follow is absolutely. As such, the smooth running of the

15
Fairlie, John A. "Separation of powers." ( Rev. 21, Mich. L. 1922)
16
Carolan, Eoin. The new separation of powers: a theory for the modern state. (OUP Oxford, 2009.)
government should also be attributed to cooperation and mutual adjustment of all the three
organs.
REFERENCES

Constitution of Kenya 2010

Kenya Law Reports

Brand, J. T., Montesquieu and the Separation of Powers. (Or. L. Rev 1932)

Carolan, Eoin. The new separation of powers: a theory for the modern state. (OUP Oxford,
2009.)

De Montesquieu, C., The spirit of the laws. (Cambridge University Press 1989)

Fairlie, John A. "Separation of powers." ( Rev. 21, Mich. L. 1922)

Jeremy Waldron., "Separation of powers in thought and practice." (BCL Rev. 54, 2013)

Sam J. Ervin,J .,"Separation of powers: judicial independence." (Duke University School of