I intended to start a serious discussion on the topic of the Doctrine Of Separation Of powers since last year December but somehow I never found time. Let's try it now.
Going by the recent events in our country I would posit that if this doctrine was redefined and entrenched in our constitution, we would not experience the sort of impunity our country has been subjected to of late. Actually it occurred to me that our current political elite confuse the meaning of the doctrine of separation of powers with the doctrine of checks and balances!
I’ve got one example to illustrate this on the part of our body polity. As the discussion on the controversial Media Bill raged in parliament recently one member of parliament, who calls himself a learned friend by virtue of having studied law and who was also at one time no less than an Assistant Minister in the powerful ministry of Justice and Constitutional Affairs, took it upon himself to define the doctrine of checks and balances and in the same breath ignored the principle of separation of powers by ordering the president to sign the Media Bill. By ordering the president to sign the bill, Mungatana actually abused the doctrine of separation of powers!
Mr Mungatana said the following: “There must be checks and balances,” Mr Mungatana, who is the Garsen MP, insisted. “Even this Parliament is controlled by the Judiciary, while the Judiciary is controlled by the Executive, which is in turn controlled by Parliament.The President must sign this bill!”
Mungatana’s position is a classical example of one arm of the government interfering with the other arms of the government! This is the problem we have in Kenya today. Instead of the arms of government remaining INDEPENDENT and SEPARATE from one another, they try to encroach on one another’s area of jurisdiction by taking advantage of the doctrine of checks and balances. This is exactly what has led to the unprecedented corruption in Kenya!!
Now, let us look at some definitions of the doctrine of separation of powers.
Definitions of Doctrine:
According to Mr Graham Spindler, The doctrine of the separation of powers divides the institutions of government into three branches: legislative, executive and judicial: the legislature makes the laws; the executive put the laws into operation; and the judiciary interprets the laws. The powers and functions of each are separate and carried out by separate personnel. No single agency is able to exercise complete authority, each being interdependent on the other. Power thus divided should prevent absolutism (as in monarchies or dictatorships where all branches are concentrated in a single authority) or corruption arising from the opportunities that unchecked power offers. The doctrine can be extended to enable the three branches to act as checks and balances on each other. Each branch’s independence helps keep the others from exceeding their power, thus ensuring the rule of law and protecting individual rights.
Please note that the keyword in this definition is “separate” and also that the word “control” is not part of the definition. Control only gets a meaning when the doctrine of separation of powers is extended to enable the three branches to act as checks and balances whereby checks and balances is meant to remain just that, checks and balances. No single branch should take complete control of any other branches. The branches must remain separate and independent at all times!!
Now, under the Westminster System – the system of government Kenya adopted and adapted from England – this separation does not fully exist. This may explain why Mr Mungatana thought that since separation does not fully exist in the Westminster System, then the various arms of government must “control” one other in their bid to provide checks and balances.
Wikipedia, the free encyclopedia says the following about the doctrine:
Separation of powers, a term ascribed to French Enlightenment political philosopher Baron de Montesquieu, is a model for the governance of democratic states, having its origins in an ancient idea of mixed government. The model is also known as trias politica. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the uncodified Constitution of the Roman Republic. Under this model, the state is divided into branches or estates, each with separate and independent powers and areas of responsibility. The normal division of estates is into an executive, a legislature, and a judiciary.
Parliamentary democracies do not have distinct separation of powers. The executive, which often consists of a prime minister and cabinet ("government"), is drawn from the legislature (parliament). This is the principle of responsible government. However, although the legislative and executive branches are connected, in parliamentary systems there is usually an independent judiciary.
No democratic system exists with an absolute separation of powers or an absolute lack of separation of powers. Nonetheless, some systems are clearly founded on the principle of separation of powers, while others are clearly based on a fusion of powers.
The keywords in this definition are “separate and independent powers and areas of responsibility”. Again the word “control” does not feature in the definition.
In the USA the doctrine is defined thus:
Separation of powers is a political doctrine under which the executive, legislative and judicial branches of government are kept distinct, to prevent abuse of power. This US form of separation of powers is widely (when qualified) known as "checks and balances".
Congress has the sole power to legislate for the United States. Under the nondelegation doctrine, Congress may not delegate its lawmaking responsibilities to any other agency. In this vein, the Supreme Court held in the 1998 case Clinton v. City of New York that Congress could not delegate a "line-item veto" to the President, by which he was empowered to selectively nullify certain provisions of a bill before signing it. The Constitution Article I, Section 8; says to give all the Power to Congress.
Congress has the exclusive power to legislate, to make laws and in addition to the enumerated powers it has all other powers vested in the government by the Constitution.
The President has the responsibility to preserve, protect and defend the Constitution and the Laws of the United States in much the same way as a vassal takes an oath of allegiance to his liege lord. He is delegated authority by and with the advice and consent of the Senate, but the Congress can never give its power away.
Executive power is vested in the President. The principal responsibility of the President is to "take care that the laws be faithfully executed." By using these words, the Constitution does not require the President to personally enforce the law; rather, officers subordinate to the President may perform such duties. It has been held that the Constitution, by empowering him to ensure the faithful execution of laws , permits the President to terminate the appointment of an executive officer. Congress may not itself terminate such appointments, except by impeachment, or restrict the President's power to do the same. Congress may write legislation to restrain executive officials in the performance of their duties.
Judicial power — the power to decide cases and controversies—is vested in the Supreme Court and inferior courts established by Congress. The judges must be appointed by the President with the advice and consent of the Senate, hold office for life and receive compensations that may not be diminished during their continuance in office. If a court's judges do not have such attributes, the court may not exercise the judicial power of the United States. Courts exercising the judicial power are called "constitutional courts."
Checks and balances:
Separation of powers is not absolute; it is instead qualified by the doctrine of checks and balances. James Madison wrote that the three branches "should not be so far separated as to have no constitutional control over each other."The system of checks and balances is designed to allow each branch to restrain abuse by each other branch.
Graham Spindler summarises the doctrine as follows:
While the doctrine of the separation of powers and its practice will not necessarily be the same thing, the purpose behind the doctrine can be seen to be embedded in democracies.
In the Westminster system, discussion of the doctrine is riddled with exceptions and variations. Certainly, in its classical form it exists here only partially at best; but in practice mechanisms for avoiding the over-concentration of power exist in many ways – through constitutions and conventions; the bicameral system; multiple political parties; elections; the media; courts and tribunals; and the active, ongoing participation of citizens. The doctrine is part of a simultaneously robust and delicate constant interplay between the arms of government. A tension between separation and concentration of powers will always exist, and the greatest danger will always lie with the executive arm – not judges or legislatures – because in the executive lies the greatest potential and practice for power and for its corruption. Preventing this in a system relies as much upon conventions as constitutions and the alarm bells should ring loudly when government leaders dismiss or profess ignorance of the concept.
The Current Situation In Kenya:
Currently, we have a system whereby the executive and the legislature are one and the same. The cabinet appointed by the executive are at the same time members of the legislature. The president himself is an MP and hence a member of the legislature. That means that the entire cabinet belongs to the legislature! It is therefore not hard for them to encroach on each other’s territory. We’ve seen several times of late how the president, through informal Kamukunjis, influenced the legislature to vote in a certain way with regard to certain bills in which he had special interest. The legislature (Mungatana and Co.), on the other hand, ordered the president to sign the draconian Media Bill against the backdrop of a huge public outcry.
We also know that parliament decides how much the president earns and that the president controls parliament’s calendar.
The executive also appoints members of the judiciary. Being appointees of the executive, the judiciary must return favours to the president in his hours of need. And because the cabinet (which is also part of the legislature) influences the appointments in the judiciary, it goes without saying that the judiciary is also beholden to the legislature. As can be seen, the whole system is a vicious cycle with no one to hold accountable!
All the three arms of government can do whatever they want without being accountable to the Kenyan public, the taxpayer. This is the root cause of corruption!!
Picture this, Kimunya is accused of corruption and the legislature passes a vote of no confidence in him and he steps down from the executive. The Cockar Commission is appointed to investigate him and actually indicts him of corruption. What does the president do thereafter? With the support of some members of the executive and the legislature, the corrupt fellow is reinstated into the executive!! And we wonder why we have sooooo many scandals!!??
The Big Question:
How should we redefine the Doctrine Of Separation Of Powers and the Doctrine Of Checks and Balances to suit the Kenyan situation with a view to ending endemic corruption and how can we entrench this in the forthcoming new constitution?? Should we perhaps adopt the USA model where the entire cabinet are not allowed to be members of the legislature??
A critical question which is frequently being asked nowadays is whether our country has lost the war against corruption. Despite public complaints, the Government has adopted a lethargic approach to the problem. The apparent unwillingness to punish corrupt individuals has bred a dangerous culture of impunity. Recent experiences show that the situation could be moving from bad to worse. There is thus a sense in which the citizens of this country might be forgiven for concluding that the fight against corruption has already been lost. But to understand why we find ourselves in the current predicament, characterised by hopelessness, it will be prudent to take a look at the political genesis of the crisis.
Culture Of Corruption
The ominous culture of corruption was institutionalised by the first African Government led by Jomo Kenyatta. Under Kenyatta, the seeds of ethnic chauvinism were planted when he dished out large tracts of land to his Kikuyu people and preferred to run a government dominated by personnel from Central Kenya. By doing this, Kenyatta created the regrettable impression that occupants of political and Civil Service positions were supposed to exploit their ranks in favour of personal and ethnic interests. This attitude has not changed.
Kenyatta’s deliberate Kikuyunisation of the Public Service hoodwinked the people of the Mt Kenya region to look at themselves as a special breed of citizens. Besides, the Gema community was misled to nurture a false sense of entitlement to virtually all the opportunities and resources of the nation. Consequently, Gema operatives established corrupt cartels which regulated the distribution of the country’s resources and employment opportunities. Increasingly, it became difficult for citizens outside Mt Kenya to be served without first giving bribes.
Under Daniel Moi, the situation deteriorated further when corrupt cartels from the Kalenjin community emerged with the sole aim of displacing the Kikuyu from the centre of political and economic power.
When Mwai Kibaki took power in 2003, the deadly cells of corruption from the Mt Kenya region were, ostensibly, resurrected to reclaim their former positions. For the past six years, these cartels have been associated with various corruption scandals. It has been a vicious cycle of sorts.
But the trend shows that next time we have a Turkana President, corrupt cartels from the Turkana community will begin looting the country’s resources. And may be the Turkana will begin viewing themselves as special citizens too. On their part, the citizens of this country have contributed to the problem of corruption by voting in leaders with a stinking past. But the most important reason why we have lost the war on corruption is the Constitution. Constitutional weaknesses have also been blamed for the poor distribution of the country’s resources as well as employment opportunities. President Kibaki’s recent decision to reappoint Amos Kimunya to the Cabinet is a fine example of our constitutional anomalies.
Even after Parliament had passed a Motion of censure and a vote of no confidence against Kimunya, the President went ahead and reappointed the Kipipiri legislator as Minister for Trade. Under the current laws, the President is not obliged to consult anybody before appointing anyone to a public office.
If the Constitution had allowed other branches of Government to vet public appointments made by the President, some of the corrupt ministers and Civil Servants would not be endorsed. The fight against corruption will only be won if the constitution is changed to allow the Judiciary and Legislature to vet Executive appointments so that corrupt individuals are excluded from public life.
Furthermore, the present constitutional dispensation recognises a unitary and highly centralised model of government that empowers the Executive to have limitless access to the country’s resources. Under the system, Kenyatta and Moi, alienated public land in favour of their friends and communities. The Mau Forest settlement, the grabbing of prisons’ land in Kitale and the seizure of both the Karura and Ngong Forest land epitomised the Executive abuse of power during the Moi administration.
The principle of separation of powers among the three branches of Government — the Executive, the Legislature and the Judiciary — has been thoroughly adulterated. Elected Members of Parliament have often invaded the Executive domain by serving as Ministers.
Recently, I proposed that we adopt a presidential system with a federal constitution. My argument then, and now, was that such system would appropriately provide for a dignified balance of power amongst the three branches of Government.
Because of the regional imbalances, facilitated by a powerful Executive under a unitary disposition of government, I also proposed that Kenya adopts a federal constitution. This model will allow us to establish a relatively strong central government that shares power with provincial or state legislatures. Sovereignty will thus be constitutionally divided between a central governing authority and constituent political units (majimbo).
To ensure that individuals do not serve in more than one branch of government, elected Members of Parliament should never be appointed ministers. Ministers should be chosen from a non-partisan group of qualified citizens whose elevation should be ratified by Parliament. The President too should not be an elected Member of Parliament, representing a geographical constituency. This arrangement will strengthen our institutions, fight poverty, enhance accountability and reduce corruption in the public service.
Chocking on disease
As we ponder the Goldenberg rip-off, the Anglo-Leasing scam, the Triton scandal and the maize crisis, we must collectively admit that we are a sick nation suffering from the debilitating disease of corruption. We should thus seek urgent treatment or choose to die. Corruption has killed our spirit and undermined our hopes. It has mutilated our patriotism and destroyed our economy. Corruption has bred famine and starvation. It has given us bad leaders and weakened our national institutions. Corruption is the reason we are poor and miserable. Whatever happens, we must remain focused on the reform agenda so this vice is eventually neutralized.
It should not matter to us who takes power in 2012. As long as the current constitution remains in place, corruption will continue to be a way of life in Kenya. We must thus seize the opportunity to change the Constitution to write laws that will comprehensively facilitate the fight against corruption. This is the only we can secure our children’s’ future and our country’s place in the civilised world.
Dr Kisiang’ani teaches History and Political Studies at Kenyatta University. kisiangani2007@ gmail.com
Considering the prevalent merriment typical of the Christmas season, the significance of today in the nation’s political history will probably be lost in the usual feel-good festivities.
Today is after all December 27. It is the first anniversary of the disputed polls that sparked an orgy of violence and destruction that almost torn asunder our country. The hasty and controversial declaration of President Kibaki the winner in the presidential vote sparked countrywide and deadly unrest.
Supporters of his key opponent, Raila Odinga resulted to violent protests to contest what they believed was a stolen election. Senseless destruction of life and property followed. The country was zoned into turfs controlled by ethnic-minded goons. Kenyans turned against other Kenyans leading to mass exodus of "foreigners". Parts of the country become no-go zones for those guilty of belonging to the "wrong" tribe. Horrendous attacks and retaliations were planned and executed. The body count rose. By the time Kofi Annan and the African Union helped hammer a truce that set up the National Coalition Government, more than a 1,000 people lay dead, hundreds displaced and millions worth of property left in ruin.
The negative consequences of the bitter disagreements over who won the presidential vote are still reverberating across the country. Stark and shameful evidence of our moment of madness still scars the country in squalid camp sites of the internally displaced, ruined and abandoned homes and idle farms. Memories of the bereaved, the grieved and the impoverished still fester. The decibels of dissonance from a bloated, disparate Government stitched in expedient strings continue to grow louder.
Anniversaries are useful for retrospective analysis. They offer a good opportunity for refreshing on useful memories. They are a perfect time for an assessment of achievements if any. They are the right moment to gauge performance against set targets. In our case, having apparently learnt vital lessons and amid our leaders big and lofty talk on what the country needs to do to avoid a recurrence of the regrettable madness, today should ideally be a time to pull out the score card.
There are a number of must-entries in the latter. Post-mortems on the disputed elections have more or less isolated the key causative factors. There has been near-unanimity among key decision-makers that outdated and anachronistic governance and historical and social injustices catalysed the chaos. Equally, the country has been more or less agreed on the remedial reforms necessary. Thus an appraisal of desired changes versus achievements so far would be good fodder for today.
The beginning must surely be with the Electoral Commission of Kenya (ECK). It is guilty of bungling the election. It provided the matchbox that lit the tinder box.
Details of the shocking magnitude of its incompetence and complicity by a section of its officers were laid bare during the Kriegler Commission. The latter understandably recommended its dissolution in favour of a leaner, professional and competent outfit. The Waki team was also harsh on ECK’s performance.
After *footing on the agenda, the Government has, to its credit, finally found the requisite amity to kill ECK and form a care-taker alternative. But the true test of its commitment will be in the staffing and operationalisation of a permanent and not interim body. This framework should be introduced together with new constituency boundaries as well as a formula for combining the first-past –the-post seats with additional seats on a Mixed Member Proportional Representation (MMPR) to ensure representation of minorities and marginalised groups, and a specific reference to gender equity.
The Government however scores poorly in political reforms. First, it has failed to deliver a new constitution within the one year deadline envisioned by the National Accord. The main reason why the presidential poll is so emotive in this country is because of the near-imperial constitutional powers vested on the Executive. The President has vast powers to use or abuse even whimsically so. In our local arrangement where the winner takes all, the electoral stakes are pushed dangerously high.
The ideal solution is not a power sharing arrangement between the President and the Prime Minister as two individuals. Actually what we need is a power balance between the institutions of the Executive and the Legislature. It is necessary to reform the constitution in such a way that the President is required to seek Parliament concurrence in decisions with fundamental implications for the country. Creating the position of Prime Minister who would be the leader of the party with majority of MPs in Parliament and who would be the leader of Government while the President is the leader of the State would be an important dilution of the current State House powers.
An assessment of the prevailing political set up in the country however points to a worrying disproportionate shift of power from one arm of the Government to the other. If left unchecked, there is a genuine danger of replacing the Executive dictatorship with a Parliamentary autocracy. Lately, the latter body has been flexing its muscles. Whereas an assertive Parliament is healthy for the country’s democracy, it must be tempered with constitutional restraints against runaway hegemonic tendencies.
Second, the political class has failed its supporters by refusing to share power with them in the recent elections of party officials. The exclusion of women, youth and persons with disabilities from senior positions in the bigger political parties is a significant failure of those parties to transform from conservative male dominated institutions to liberal forward looking all-inclusive outfits. They have cleverly managed to meet the requirements of the Political Parties Act but without addressing the rationale for those requirements; that is so old school! Let’s hope voters are watching and will be so much the wiser in their support for political parties next time around.
Reforms in the Judiciary have also lagged behind. The already drafted Judicial Service Bill should have been part of the constitutional package that ushered the ECK out. This Bill will give the Judiciary the necessary financial Independence it needs from the Executive. Our leaders must stop moaning about the lack of independence of our Judiciary when the power to ensure such independence really lies in the hands of Parliament, otherwise surely in real political speak, tutasema Washindwee!
Finally, the Government must also urgently pull its socks on land reforms. Apart from the urgent need for land redistribution, we need to rethink our culture with regard to land ownership. Dialogue should be encouraged to think about title of property or assets that is not necessarily land. Only five per cent of the land in Kenya is arable; yet our population is growing and we need to feed and house it.
Solutions to the land question must therefore included the management of the economy providing real alternatives such as affordable housing for Kenyans both in rural and urban areas. Let me conclude by passing on an SMS message I received on Christmas Day, which I think reflects typical Kenyan humour richly spiced with tongue-in-cheek undertones; "May your happiness increase like the recent flour prices, your joy be plenty like the salaries of our MPs, May you be kept safe like Bush from the shoe and your worries disappear like Petrol this week." Do have a Merry Christmas and a happy New Year, if you can!
—Njoki (firstname.lastname@example.org) is a former Nominated MP and an advocate of the High Court.