ANSWER TO QUESTION NO.

1
Constitutions are known to guarantee the rights of the people and legitimize the roles of the state
organs. The constitutions also limit these roles by separating their powers. This paper however
focuses on the interplay between the constitutional commissions and the constitution. it looks at
the roles of the commissions by discussing whether they play a substantive role or procedural
role in the making of the constitutions. At what point do their roles start and at what point do the
roles end? ( if any )
This is a concept that can be traced back to the 16th century with Aristotle, Polybius, Cicero, St.
Thomas Aquinas, and Machiavelli who all argued that mixed regimes of the one, the few, and
the many were the best forms of regimes in practice because they led to a system of checks and
balances. Baron de Montesquieu, who is widely quoted on the subject of the doctrine of
separation of powers, suggested a pure separation of powers system. He argued that one body
should be equipped with the power to monitor over the other. This would prevent absolutism i.e
the ownership of all powers by one organ of state and abusing it due to lack of monitoring. He
argues that there was no separation of power in the common law. This led to an absolute
dictatorship by the executive. Power, therefore, should be distributed across the arms of the
government to avoid abuse. This will also avoid the tyranny of all power by one person or
organ.1
In its simplicity, separation of powers denotes that power should not be vested in the hands of
few, but donated to three arms of government so that none should have excessive powers. Such a
situation gave rise to the famous quote of Lord Atkin’s that ‘power tends to corrupt and absolute
power tends to corrupt absolutely.’2
Let us start by posing a basic question: why separate power between different branches of
government? Nobody wants a return to unified authority under one single ruler empowered to
make all governmental decisions. But why not? What do we gain by separating powers between
different branches of government? The classic eighteenth-century answer to this question was
that the separation of powers helps us to avert the risk of tyranny and potential abuse of power.
Separation of powers in Kenya

1
Calabresi G and Berghausen E, ‘The rise and fall of the separation of powers’ 106 Northwestern
University Law Review (2012).
2
Certainly Krabbe in his MODERN IDEA OF THE STATE (Sabine's and Shepard's trans. 1922)
25-27, seems to have no notion that the trias politica had any other source than Montesquieu.
The idea of checks and balances is part and parcel of the doctrine of separation of powers and
probably the most controversial precept that is also reflected in the constitution. It refers to the
restraints which operate between the different institutions of government to guard against abuses
of powers.3Article 10 provides that among the national values and principles of governance are
good governance, integrity, transparency, and accountability. The legislature, for instance, checks
the executive through reserving the power to impeach a President, 4 while the Executive, on the
other hand, checks the Legislature through presidential assent of a Bill into law. 5 The Judiciary
on its part checks the Executive and Legislature through its power of judicial review. 6 This is in
line with idea postulated by Montesquieu that ‘le pouvoir anête le pouvoir’ meaning that ‘power
should check power.’
(i) THE LEGISLATURE
The Legislature is established under Chapter 8 of the Constitution of kenya 2010. Article 93 (1)
provides that- There is established a Parliament of Kenya, which shall consist of the National
Assembly and the Senate. The people of kenya grant the parliament the authority to make
legislation. Article 94 (1) provides that- The legislative authority of the Republic is derived from
the people and, at the national level, is vested in and exercised byParliament.
Article 95 gives the roles of the National Assembly. The National Assembly represents the
people of the constituencies and special interests in the National Assembly. , deliberates on and
resolves issues of concern to the people. , enacts legislation, determines the allocation of national
revenue between the levels of government, as provided in Part 4 of Chapter
Twelve, appropriates funds for expenditure by the national government and other national State
organs; and , exercises oversight over national revenue and its expenditure., reviews the conduct
in office of the President, the Deputy President and other State officers and initiates the process
of removing them from office; and, exercises oversight of State organs and approves declarations
of war and extensions of states of emergency.
Article 96 highlights the roles of the senate. It provides thus-
96. (1) The Senate represents the counties, and serves to protect the interests of the counties and
their governments.

3
Carrol A, Constitutional and administrative law, Longman Publishers, 2007, 39.
4
Article 145, Constitution of Kenya (2010).
5
Article 115, Constitution of Kenya (2010).
6
Ibid
(2)The Senate participates in the law-making function of Parliament by considering, debating
and approving Bills concerning counties, as provided in Articles 109 to 113.
(3)The Senate determines the allocation of national revenue among counties, as provided in
Article 217, and exercises oversight over national revenue allocated to the county governments.
(4)The Senate participates in the oversight of State officers by considering and determining any
resolution to remove the President or Deputy President from office in accordance with Article
145.7
(ii) THE JUDICIARY
The judiciary is established by the Constitution of kenya 2010 under Chapter 10. Article 159
specifically establishes the judiciary. The functions of this Arm of government is spread across
different courts established under this Chapter. The courts are of diferent jurisdictions and their
functions are specifically provided for by various articles under the chapter.
Article 160 (1) makes provision for the judicial independence. It provides thus “In the exercise
of judicial authority, the Judiciary, as constituted by Article 161, shall be subject only to this
Constitution and the law and shall not be subject to the control or direction of any person or
authority.”8
This Arm of government is very essential to the people of Kenya since it solves disputes that
arise due to the conflicting interests that dwell within human beings. It also plays an independent
role in determining disputes among organs of government as well as interpreting the Constitution
to ensure effective governance.
(iii) THE EXECUTIVE
This Arm of government is a creation of Chapter 9 of the Constitution of kenya 2010.
Executive authority derives from the people of Kenya and shall be exercised in accordance with
this Constitution.9
The Constitution provides that the Executive authority shall be exercised in a manner compatible
with the principle of service to the people of Kenya, and for their well- being and benefit. 10 The
national executive of the Republic comprises the President, the Deputy President and the rest of
the Cabinet. The president is the head of the executive.

7
Article 96 of the Constitution of kenya 2010
8
Ibid. See Artcle 160(1)
9
Article 129 (1) of the Constitution of Kenya 2010
10
Ibid. see Article 129 (2)
The doctrine of separation of powers has not been fully realized in kenya. this is due to
competing conflict of interests that dwell among the top leadership in kenya. Court orders have
been issued against the Executive by the judiciary but the former never honors the orders. The
Legislature has been summoned by the judiciary but they have never appeared before it. The
same applies to the executive who send representatives when they are summoned. The Cabinet
Secretary for Health Ho. Mutahi Kagwe was summoned to appear before a committee
established under the Legislature but did not attend.
Other instances where the doctrine has not been promoted is President Uhuru Muigai Kenyatta
has in the course of service, threatened the constitutional bodies that have been mandated to
provide for checks and balances. As the head of the executive and the head of state, he has the
machinery at his disporsal that aids him in his quest for ‘bad governance’. in 2013, Raila Odinga
went to court of law to seek redress after losing presidential seat to the current president. See
case of Raila Odinga & 5 Others v Independent Electoral and Boundaries commission & 3
others[2013] eKLR . the president used tactics of blackmail and intimidation plus bribery to win
his way.11 The court ruled thus ‘We will, therefore, disallow the Petition, and uphold the
Presidential- election results as declared by IEBC on 9th March, 2013.’
The doctrine faces challenges of the executive having control over other arms of government.

ANSWER TO QUESTION NO. 2

Collective engagement by every member of a state in matters concerning how they should be
governed forms a fundamental exercise of democracy in the modern good
governance. Good governance is the method whereby public institutions conduct public affairs,
manage public resources, associate degreed guarantee the conclusion of human rights in
a passing manner essentially free of abuse and corruption, and with due regard for the rule of
law. It ensures that the human rights area unit delivered to the voters by the ruling government.12
Participation ensures that the practice of dictatorship by the ruling elite is eliminated and rules
are not injuriously imposed on the citizens by the ruling elite. Most governments especially in
the developing African continent have adopted into their local laws the principle of participation.

11
‘Petition 5, 3 & 4 of 2013 - Kenya Law’ <http://kenyalaw.org/caselaw/cases/view/87380/>
accessed 21st January 2021
12
Sumner A and others, Access to Governance and Policy Processes: What Enables the
Participation of the Rural Poor? (Rome: IFAD, Rural Poverty Report 2008)
In kenya, for example, the Constitution of kenya 2010, which prides itself for its homegrown
nature has included this principle. Harmony is achieved whenever the citizens participate on
matters to do with the governance of their country. Participation is commonly realized through
the voting and civic education.
Participation principle is an internationally recognized element of good governance. Article 1 of
the Declaration on the Right to Development proclaims that every human person and all peoples
"are entitled to participate in, contribute to, and enjoy economic, social, cultural and political
development" This principle is internationally recognized under the Universal Declaration of
Human Rights. Article 21 (1) states that;
“Everyone has the right to take part in the government of his country, directly or through freely
chosen representatives.”13
Article 25 of the International Covenant on Civil and Political Rights (ICCPR) also makes
provision on participation. It states;
“Every citizen shall have the right and the opportunity, without any of the distinctions mentioned
in article 2 and without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely chosen
representatives; (b) To vote and to be elected at genuine periodic elections which shall be by
universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression
of the will of the electors;
(c) To have access, on general terms of equality, to public service in his country.” 14
Article 29 of Convention on the Rights of persons with Disabilities (CRPD-2006) also provides
for participation. It provides thus;
“ States Parties shall guarantee to persons with disabilities political rights and the opportunity
to enjoy them on an equal basis with others, and shall undertake:
a) To ensure that persons with disabilities can effectively and fully participate in political and
public life on an equal basis with others, directly or through freely chosen representatives,
including the right and opportunity for persons with disabilities to vote and be elected……….”15

13
United Declaration of Human Rights (1948)
14
International Covenant on Civil and Political Rights (ICCPR)-1966
15
Convention on the Rights of persons with Disabilities (CRPD-2006)
In kenya, Citizen participation is provided for in the Constitution of Kenya 2010 and the County
Governments Act of 2012. It is the constitutional mandate of the two levels of government to
effectively implement these provisions of the law. Citizen participation is the process through
which stake holders make contributions on the matters that affect them either economically,
culturally, politically and socially.16
Kenya has incorporated in its constitution the acknowledgment of principles of good governance.
the constitution of Kenya 2010 is the supreme source of law in the land and every provision
therein should be strictly followed.
Article 10 (1) 17 provides thus;
The national values and ‘principles of governance’ in this Article bind all
State organs, State officers, public officers, and all persons
whenever any of them––
(a) applies or interprets this Constitution;
(b) enacts, applies, or interprets any law; or
(c) makes or implements public policy decisions.
Article 10 (2) further provides thus;
The national values and principles of governance include–– (a) patriotism, national
unity, sharing and devolution of power, the rule of law, democracy, and participation
of the people; (b) human dignity, equity, social justice, inclusiveness, equality, human
rights, non-discrimination and protection of the marginalized; (c) good governance,
integrity, transparency and accountability; and (d) sustainable development.
Justice Mwita observed in the case of Kenya Human Rights Commission vs. Attorney
General & Another [2018] eKLR that “absence of any demonstration by the Respondent as to
how it complied with the Constitutional requirement of Public Participation, this court ought to
find, as found by Justice Mwita in the above cited case, that there was a violation of an important
constitutional step in the form of public participation and that the Amendments fails this
constitutional compliance step.”18 See also Robert N. Gakuru& Others vs. Governor Kiambu
County & 3 others [2014] eKLR.

16
Kimutai, G., & Aluvi, P.A. (2018). Good Governance and Service Delivery: A Study of Citizen
Participation in Kisumu County. Universal journal of management, 6, 59-69.
17
Of the Constitution of Kenya, 2010
18
Kenya Human Rights Commission vs. Attorney General & Another [2018] eKLR
Article 38 (1) 19provides that “Every citizen is free to make political choices, which includes the
right— (a) to form, or participate in forming, a political party; (b) to participate in the activities
of, or recruit members for, a political party; or (c) to campaign for a political party or cause.”
In the Peoples Republic of South Africa, the Republic Constitution of South Africa 1996
provides for peoples participation. Article 180 (c ) provides that “National legislation may
provide for any matter concerning the administration of justice that is not dealt with in the
Constitution, including- the participation of people other than judicial officers in court
decisions.”20
Even though the supreme sources of law provide for this fundamental principle, the governments
still use dubious means to suppress public participation. In kenya, for example, the move to
change part of the Constitution of Kenya 2010 is malicious and it intends to protect the interests
of the ruling elite. Kenyans are not given enough time to make decision on the current Building
Bridges Initiative (BBI). Further, some parts of the state are strongholds for the ruling elite and
they are not expected to question the move.
In South Africa, the opposition party- Economic Freedom Fighters (EFF) is always suppressed
by the Ruling Party. This therefore threatens the implementation of this principle.

ANSWER TO QUESTION NO. 4

The concept of governance can be traced in the millennial age of human existence. It existed
with human existence and scholars have voiced their thoughts that humans cannot be separated
from governance.
The principles of good governance are; transparency, participation, consensus oriented,
accountability, rule of law. Some scholars, however, argue that strong civil society and
decentralization of government are also key towards achieving good and great governance.
Henry Mintzberg (1996) in one of his models of good governance known as performance-
Controlled Model, believes that government is more like business where there is accountability.
That there are units within the government that are tasked with various responsibilities that must
be performed. These units, although different, tighten up towards achieving the aims of
governance. There is a lot of reliance on flexibility and personal initiatives of the people. 21
Public Service in Kenya
19
Of the Constitution of kenya 2010
20
Republic Constitution of South Africa 1996
Ethics has been closesly associated with morals and integrity. Blackslaw Dictionary does not
give a defination of the term- ethics. It , however, defines ‘ethical’. It defines ethical as;
“Of or relating to moral obligations that one person owes another; esp., in
law, of or relating to legal ethics and In conformity with moral norms or
standards of professional conduct.”22
A public officer is a professional officer who serves the public with ethical rules.
The Australian Council of Professions (2004) defined a profession as;
‘A profession is a disciplined group of individuals who adhere to ethical standards and uphold
themselves to, and are accepted by, the public as possessing special knowledge and skills in a
widely recognized body of learning derived from research, education and training at a high
level, and who are prepared to exercise this knowledge and these skills in the interest of others.
It is inherent in the definition of a profession that a code of ethics governs the activities of each
profession. Such codes require behaviour and practice beyond the personal moral obligations of
an individual. They define and demand high standards of behaviour in respect to the services
provided to the public and in dealing with professional colleagues. Further, these codes are
enforced by the profession and are acknowledged and accepted by the community.’23
The public service is established under Chapter 13 of the Constitution of kenya 2010.The
principles of public service are in tandem with the principles of good governance as provided
under the same Constitution.
Article 10 (2) of the Constitution24 (principles of good governance) provides thus;
The national values and principles of governance include–– (a) patriotism, national
unity, sharing and devolution of power, the rule of law, democracy, and participation
of the people; (b) human dignity, equity, social justice, inclusiveness, equality, human
rights, non-discrimination and protection of the marginalized; (c) good governance,
integrity, transparency and accountability; and (d) sustainable development.
This paper realizes that principles of good governance and principles of public service are
similar. This clearly indicates that good governance marinates with public service.

21
‘Classic Paper – “Managing Government, Governing Management”. Henry Mintzberg. | Local
Government Utopia’.
22
Garner BA and Black HC (eds), Black’s Law Dictionary (9th ed, West 2009)
23
Australian Council of Professions, 2004, “ About Professions Australia : Definition of a
Profession”http://www.professions.com.au/defineprofession.html
24
Of Kenya 2010
In Kenya, the conduct of public officers is governed by the Constitution of Kenya 2010 ,
Leadership and Integrity Act No. 19 of 2012 the Public Officers Ethics Act CAP 183 Laws of
Kenya.
Article 75(1)(a) of the Constitution of Kenya 2010 has streamlined the conduct of the public
officers hence ensures that there is proper administration. It provides, thus;
‘A State officer shall behave, whether in public and official life, in private life, or in association
with other persons, in a manner that avoids any conflict between personal interests and public
or official duties….’25
The long title of the Leadership and Integrity Act No. 19 of 2012 strengthens the implementation
of the Constitution. It reads-An Act of Parliament to give effect to, and establish procedures and
mechanisms for the effective administration of Chapter Six of the Constitution and for connected
purposes.
It further provides that A State officer shall respect the values, principles and the requirements of
the Constitution, including—the principles governing the conduct of State officers provided for
under Article 75 of the Constitution.26
Article 232 (1) provides “The values and principles of public service include— (a) high
standards of professional ethics; (b) efficient, effective and economic use of resources; (c)
responsive, prompt, effective, impartial and equitable provision of services; (d) involvement of
the people in the process of policy making; (e) accountability for administrative acts; (f)
transparency and provision to the public of timely, accurate information.”27
The values and principles of public service applies to all State organs in both levels of
government; and all State corporations.28
In order to implement this provision, Article 234 (2) (c) mandates the established Public Service
Commission(PSC) to promote these values and principles. 29The PSC also ensures that the public
service is efficient and effective.30
The long title of the Public Officer Ethics Act CAP 183 Laws of Kenya reads-AN ACT of
Parliament to advance the ethics of public officers by providing for a Code of Conduct and

25
Constitution of kenya 2010
26
See Section 3 (2)(d) of the Leadership and Integrity Act No. 19 of 2012.
27
Article 232(1) of the Constitution of Kenya 2010
28
Ibid. see Article 232 (2)
29
Ibid. See Article 234(2)(c )
30
Ibid. See Article 234 (2) (e)
Ethics for public officers and requiring financial declarations from certain public officers and to
provide for connected purposes.31This therefore ensures that the public officers declare their
finances in order to tame corruption and embezzlement of public funds. Section 9(1) (c) further
mandates the public officers to improve the performance standards and level of professionalism.
It provides-A public officer shall to the extent appropriate to his office, seek to improve the
standards of performance and level of professionalism in his organization.32
There is also established the Public Accounts Committee. The Public Accounts Committee is
established pursuant to the provisions of S.O. No. 205.
Standing Order 205 (1) provides thus;
“There shall be a select committee to be designated the Public Accounts Committee.” 33
It consists of a chairperson and not more than sixteen other Members.
The Public Accounts Committee is responsible for the examination of the accounts showing the
appropriations of the sum voted by the House to meet the public expenditure and of such other
accounts laid before the House as the Committee may think fit.34
This committee studies the public audit and also summons the cabinet secretaries to the
committee for questioning regarding the public funds. It subsequently issues report of findings to
government budget audit.

31
Public Officer Ethics Act CAP 183
32
Ibid
33
Standing Order 205(1) of the National Assembly Standing Orders as adopted by the National
Assembly on 9th January, 2013 during the Fourth Session of the Tenth Parliament
34
‘Public Accounts Committee | The Kenyan Parliament Website’
<http://www.parliament.go.ke/the-national-assembly/committees/public-accounts-
committee> accessed 21st January 2021