SEPARATION OF POWERS AND CHECKS AND BALANCES 1 Introduction In conceptualizing participation in governance as being representative, it has been noted that the challenge for both constitutional theory and constitutional architecture and design is to come up with mechanisms for control of the representatives to ensure that they do not deploy state power in a manner that does not effectively serve the welfare of the people. The organization of governance needs to be done in such manner as to avoid abuse and misuse of public or state power. When concluding the discussion on the people, particularly the issues of social contract, the will of the people and the sovereignty of the people, separation of powers as well as checks and balances were identified as being among some of the methods available for effective organization of governance and power control mechanisms. This topic seeks to examine the conceptualization of this concept in the context of architecture and design of the concept in the Kenyan Constitution of 2010. 2 The concept of separation of powers Governance was introduced because stronger members of society had a higher concentration of strength and power in their hands. Governance was meant to impose some controls on the strong so that even the weaker could access the resources they needed for their own survival and self- preservation. Yet the solution of governance involved the consolidation of individual strengths and powers into a common fund to create a stronger power known as state power to be used for the benefit of all. This in effect was going back to the problem of a concentration of power. The challenge for human beings was how to create a stronger power to be used to rescue man from the misery of the primitive state of nature, yet at the same time organizing that stronger power in such manner as to avoid the dangers of concentration of power . Indeed, throughout human history, the structuring and design of governance has always had to contend with the problem of a concentration of power in one centre of power with the attendant temptation for abuse of power. Right from the invention of governance as conceptualized in the first topic, the solution to this problem was to be found partly in a dispersal of power as a strategy that can be used to avoid abuse of power. It is this dispersal of power that is ordinarily referred to as separation of powers or trias politica . Scot Buchanan in his article, 1
"So Reason can Rule: The constitution Revisited" wrote about this dispersal of power thus: All constitutions break down the whole governmental institution in parts with specific limited powers, but the constitution of the United States is well known for its unusually drastic separation of powers. 1 In this regard, it is argued that the authority of the state is well ordered in terms of the doctrine of trias politica , or the separation of powers in accordance with which there is a division of legislative, executive and judicial functions. Roberts takes a functional approach and preaches the distribution of the power of the state in terms of functions with each distinct function being performed by a different branch or department of government. In his "Separation of powers", he says: Separation of powers refers to a dispersion of power among the various branches or agencies of government, as a result of which each branch is primarily concerned with the performance of different functions and to this end is more or less independent of the others. There does seem to be considerable agreement that there ought to be some functional dispersion of power, if there is to be a libertarian rather than an authoritarian government. 2 The modern theory and design of separation of powers is normally attributed to John Locke who in his "Two Treatises of Government" distinguishes the legislative, executive and federative functions of government. John Locke notes that because of the exorbitances of those to whom the power of the people is given to manage on behalf of the people, the balancing of the power of government, by placing several parts of it in different hands becomes necessary. He obviously recommends a separation of powers and the institution of checks and balances. 3 Locke's initial 1 Scot Buchanan, So Reason Can Rule: The Constitution Revisited 2 Roberts, Separation of Powers 3 Note 10 at pages 364-365 John Locke recommends separation of powers in the following manner: "The legislative power is that which has a right to direct how the force of the commonwealth shall be employed for preserving the community and the members of it. But because those laws which are constantly to be executed, and whose force is always to continue, may be made in a little time; therefore there is no need, that the legislative should be always in being, having always business to do. And because it may be too great a temptation to human frailty apt to grasp at power, for the same persons who have the power of making laws, to have also in their hands the power to execute them, whereby they may exempt themselves from obedience to the Laws they make, and suit the law, both in its making and execution, to their own private advantage, and thereby come to have a distinct interest from the rest of the community, contrary to the end of society and government : therefore in well ordered commonwealths, where the good of the whole is so considered, as it ought, the legislative power is put into the hands of divers Persons who duly Assembled, have by themselves, or jointly with others, a Power to make laws, which when they have done, being separated again, they are themselves subject to the laws, they have made; which is a new and near tie upon them, to take care, that they make them for the publick good. But because the laws, that are at once, and in a short time made, have a constant and lasting force, and need a 2
conception of the legislative power was of a non-permanent nature arguing that the nature of the legislative work was such that it does not have to be done continuously. The Constitution of Kenya 2010 recognizes this concept of separation powers among the legislative, executive and judicial right at the very beginning of the Constitution. Article 1 which recognizes that all sovereign power belongs to the people of Kenya divides, defines and separates this power into the legislative, executive and judicial powers. Article 1(3) provides in this respect that— Sovereign power under this Constitution is delegated to the following State organs, which shall perform their functions in accordance with this Constitution— a) Parliament and the legislative assemblies in the county governments; b) The national executive and the executive structures in the county governments; and c) The Judiciary and independent tribunals. 3 The rationale and justification for separation of powers The quest for separation of powers was informed by the fear for concentrated power and the attendant abuse of power. A concentration of power was perceived as being a threat to the welfare and liberties of the people. In proposing separation of powers, one of John Locke's motivating reasons was to ensure that legislators do not make oppressive laws. He argues that if the legislators were to be the ones to execute the laws which they have themselves made, they would have an opportunity to exempt themselves from the execution and force of those laws. Knowing that the laws they make will be executed by a different person who may not exempt them from their force and effect, they would make laws that are less oppressive. Jean Jacques Rousseau also emphasized this approach to separation of powers as a rationale thereof. He urges for total separation of the legislative from the executive powers; suggesting that if the executive were to become a law maker then he ought to resign his office as executive. 4 perpetual execution, or an attendance thereunto: Therefore 'tis necessary there should be a power always in being, which should see to the execution of the laws that are made, and remain in force. And thus the legislative and Executive Power come often to be separated". 4 See note 2 at page 36 where Rousseau says that: "The legislator occupies in every respect an extraordinary positioning the state. If he should do so by reason of his genius, he does so no less by reason of his office, which is neither magistracy, nor sovereignty. This office which sets up the Republic, nowhere enters into its constitution; in common with human empire; for if he who holds command over men ought not to have command over the laws, he who has command over the laws ought not any more to have ft over men; or else his laws would be the minister of 3
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