Separation of Powers PDF

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Separation of powers...

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Separation of Powers Charles-Louis de Secondat, baron de La Brède et de Montesquieu, an 18th century French social and political philosopher, established the phrase "trias politica" or "separation of powers." Separation of powers is the separation of government tasks into different branches with the goal of preventing one department from performing the basic activities of another. The goal is to keep power from concentrating in one person's hands by establishing checks and balances. The powers of the Kenyan government's branches are as follows: 

The legislative branch which is in charge of enacting state laws and allocating funds for government operations.

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The executive branch in charge of putting public policy into effect and enforcing it once the legislative branch has passed and financed it.

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The judicial branch in charge of interpreting the constitution and statutes, as well as implementing such interpretations to cases that come before it.

In line with the case between Garissa County Government v National Land Commission and 3 others1, the principle of separation of powers comes out clearly where the National Land Commission in exercising its legal mandate of appointing Garissa County Land Management Board, acted in bad faith by replacing the name of a qualified appointee with someone who had not been interviewed at all which is procedurally unfair as set out under Article 47(1) of the Constitution. As a result of this, the petitioner, who is the County Government of Garissa goes to the courts to seek redress. The principle of separations of powers plays a role by checking on the powers of a government organ or institution to ensure power is not misused as in the case above.

1 [2016] eKLR

In Anarita Karimi Njeru v AG2 and Meme v Republic & Another3, it was held that in claiming that a single right in the Bill of Rights that has been violated, it upon the petitioner to prove the manner in which the right has been violated. Article 258(1) of the Constitution also implements the principle of separation of powers by averring that, Every person has the right to institute court proceedings, claiming that this Constitution has been contravened, or is threatened with contravention. Therefore, the judiciary being one of the three arms government plays a critical role by checking and balancing powers of the two arms of government in order to avoid abuse of that power. Section 5 (2) of the Fair Administrative Action Act4 avers that “nothing in this section shall limit the power of any person to – (b) Apply for review of an administrative action or decision by a court of competent jurisdiction in exercise of his or her right under the Constitution or any written law or (c) Institute such legal proceedings for such remedies as may be available under any written Law.” This provision ensures that the principle of separation of powers is observed by empowering the judiciary with the mandate of reviewing and administrative action by either if the two arms of government.

2 (No.1) 1979 Klr 154 3 [2004] eKLR 4 Fair Administrative Action Act, No. 4 of 2015...