EXECUTIVE USURPATION OF THE 13TH PARLIAMENT’S LEGISLATIVE AUTHORITY AND THE LEGISLATIVE ACQUIESCENCE IN THE FACE OF SEPARATION OF POWERS VIOLATIONS: A SEMINAL EXEMPLIFICATION OF EXECUTIVE SUPREMACY AND LEGISLATIVE SUBSERVIENCE IN KENYA
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Abstract
The
fundamental tenet of the doctrine of separation of powers has long held an
elevated position within the annals of democratic governance, functioning as an
indispensable bulwark against the pernicious consolidation of authority.
Revered for its capacity to engender a system of checks and balances, thereby
safeguarding individual liberties and ensuring the overall constancy of a
nation, this doctrine occupies a paramount role. However, just as any
theoretical construct of political import, its practical application frequently
falls prey to the inexorable grip of hypocrisy particularly by the Executive
arm of government, where those entrusted with the task of upholding its
sacrosanct principles find themselves ensnared in the throes of
self-contradiction.
This
essay seeks to conduct a perceptive investigation into this pool of hypocrisy
within the framework of the philosophy of the separation of powers. I will
carefully analyze historical precedents and current events to reveal the
discrepancy between the theoretical framework's idealistic assumptions and the
tangible realities that manifest in practice. This essay will go beyond merely
exposing the fallacy to delve deep into the complexities that fuel this
hypocrisy, from the intrinsic attraction of power that tempts even the most
moral people to the systemic vicissitudes experienced within complex political
environments.
1.
Introduction
Montesquieu,
both a French social commentator and political thinker in one of his earliest
statements on the doctrine of separation of powers noted that, “when the legislative and executive powers
are united in the same person, or in the same body of magistrates, there can be
no liberty… there is no liberty if the powers of judging is not separated from
the legislative and executive… there would be an end to everything if the same
man or the same body were to exercise those three powers.”[1]
It is imperative to dissect what he meant in this statement. The golden
understanding of this statement which Baron de Montesquieu argues in his book
is that, the only way to avoid absolute and arbitrary rule by the government of
the day, is to decentralize government power into various arms which include,
the Executive, Legislature and Judiciary.
2.
Understanding
the doctrine of Separation of powers
The
origin of this doctrine can be traced with Aristotle, Cicero, Machiavelli and
St. Thomas Aquinas back in the 16th century 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. [2]
Montesquieu however held a disparate view on this concept by proposing a pure
system of separation of powers.[3]
Four separation of powers principles were also adopted by Van der Vyver to
include:[4]
a. The
principle of personnel in which the same people should not be allowed to serve
more than one branch of government.
b. The
principle of trias polita, under
which the legislature, executive and judiciary are to be treated as separate
and independent arms of government.
c. The
principle of checks and balances, under which every arm of government shall be
donated special powers to check on the other arms of government to curb abuse (ultra vires).
d. The
principle of separation of functions among the arms of governments an idea that
government arms should have distinct roles in order to prevent interference or
the assumption of one by another.
The
various principles on the doctrine of separation of powers, are in one accord
that, power should not be concentrated in the hands of a few but donated to the
three arms of government to avoid excessive power being vested in one arm
leading to abuse.
The
Constitution of Kenya 2010 rekindled hope among many Kenyans who had lost faith
in specific tyrants who had concentrated power in their hands. Presidents in
particular under the previous constitutional dispensation had unfettered and
unchecked powers to influence both the legislative and judicial arms of
government.[5]
The Constitution of Kenya has dedicated an entire chapter to the legislature
under Chapter 8 and spells out its functions in an elaborate manner.[6]
This chapter of the Constitution denotes and resonates with Article 1 that the
legislature derives both its legitimacy and powers from the citizenry.[7]
Law making and the crafting of any provisions having the force of law in Kenya
is therefore a function solely dedicated to the legislature.
The
Executive on the other hand has its functions defined and provided for under
Chapter 9 of the Constitution. Some scholars have however argued that the
Executive’s functions are a mere residue after the legislative and judicial
functions have been carved out. Nevertheless, Chapter 9 of the Constitution
remains alive to the presidential imperialism that the populace has witnessed
and intentionally provided for these narrow functions under Chapter 9.[8]
2.1 Sovereignty of the people
The
Constitution of Kenya 2010 under Article 1 provides that all sovereign power
belongs to the people of Kenya and shall be exercised only in accordance with
this constitution.[9]
The constitution goes ahead to provide that, the people of Kenya may exercise
this sovereign power either directly or indirectly through their democratically
elected representatives.[10]
The constitution also goes ahead to distinctively and clearly provide that the
sovereign power donated by the citizens is delegated to state organs which
shall perform functions in accordance with the constitution. These organs
include Parliament and legislative assemblies in county governments, the
national Executive and executive structures in county governments and the
Judiciary and independent tribunals.[11]
This
explicit provision by the Constitution of Kenya is informed by the mischief
that has continuously bedeviled service delivery by the various state organs
due to the existence and propagation of megalomaniacs in our political milieu. Present
and past Kenyan history vindicates Montesquieu’s assertion because the
deleterious effects borne of such hypocrisy on the effective operation of
democratic regimes can be of such a great magnitude ranging from the erosion of
civil liberties, the weakening of democratic institutions, and resultantly the
escalating disenchantment of the populace result when the separation of powers
degenerates into a simulacrum and the branches of government fail to exert the
intended restraints upon one another.
The
Kenyan Supreme Court in the case of The Institute for Social Accountability v
The National Assembly [2022], under paragraph 116 held that, “Kenyans having
witnessed excesses of absolute power vested in the Executive branch which
operated with abandon and riding roughshod over other state institutions sought
to constrain and temper the exercise of public power. Citizens during the
pre-2010 dispensation chose to respond to excesses of that legacy by explicitly
dividing state power into three branches of government to preclude the exercise
of arbitrary power.” In order to determine whether the separation of powers
has been violated in a particular case, the Supreme Court proposed a
two-pronged approach: first, consider whether a state agency was infringing on
the "nucleus, core functions, or pre-eminent domain" of another
branch of government from a functional standpoint and second, consider whether
the exercise of the contested power would jeopardize the values and principles
outlined in the Constitution. The Supreme Court concluded using this
two-pronged approach that the Constitution was crystal explicit about what
legislative power meant: it was representation, legislation, and oversight of
the government
Le
pouvoir anete le pouvoir-
power should check power
The
principle of checks and balances under the doctrine of separation of powers
tends to be a controversial precept in the sense that the doctrine advocates
for a pure and distinct separation of the roles of the arms of government yet
the principle champions for the provision of watchdog functions of one arm of
government over the other.[12]
Article 10 of the Constitution provides for the national values and principles
of good governance to include good governance, accountability and transparency
among others.[13]
This can be seen and achieved by the legislature for instance checking the
executive by reserving its presidential impeachment powers, the Executive also
exercises this checks and balances power on the legislature by assenting bills
into law while the Judiciary exercises this power on both arms of government
through judicial review.
Courts
have been implored to always uphold and maintain this healthy balance in order
to defend our democracy and avoid political abuses and imperialism. In Njenga
Mwangi & Another v The Truth, Justice and Reconciliation Commission & 4
others [2014] eKLR, the court stated that it can delve into the
constitutionality or the lack of it of actions of members of the Legislature.[14]
While in Trusted Society of Human Rights Alliance v Attorney General & 2
others [2012] eKLR, the court emphasized that the doctrine of separation of
powers did not exclude the Judiciary from determining whether proposed
appointees or nominees to State/Public office met the constitutional criterion
for appointment.[15]
The bicameral system of the legislature that the 2010 Constitution of Kenya
re-introduced has however failed to uphold and protect Chapter 8 of the
Constitution.[16]
For instance the 13th parliament of Kenya has failed to uphold the
spirit of constitutionalism and as a mouthpiece of the citizenry, it has to a
large extent been used to drive the executive’s agenda in the house.
In
Keroche
Industries Limited vs. Kenya Revenue Authority & 5 Others [2007] eKLR 240, it was held inter alia:[17] “When litigants come to the courts it is the
core business of the courts and the courts’ role is to define the limits of
their power. It is not for the Executive to tell them when to come to court! It
is the constitutional separation and balance of power that separates
democracies from dictatorships. The courts should never, ever, abandon their
role in maintaining the balance.”
The
13th parliament has also witnessed a concerning trend of the
executive branch exerting undue influence and control over legislative functions.
The failure of the 13th Parliament to uphold the principles of separation of
powers, as enshrined in the Constitution as stated above, has detrimental
consequences for democracy and governance in Kenya. I will assiduously unravel the
innate contradictions pervading the theory and practice, and endeavor to kindle
dialogue and introspection as to how we might bridge the yawning chasm betwixt
the exalted ideals of the separation of powers and its flawed instantiation.
3.0 Executive dominance
The
13th Parliament has been criticized mostly for its acquiescence to presidential
authority, which has contributed to the deterioration of legislative
independence. The President-led executive branch has overtime overstepped its
bounds in influencing parliamentary proceedings, which made it difficult for
lawmakers to carry out their duties as a distinct and equal branch of the
government.[18]
This has been expressed in the most recent controversial Finance bill that resultantly received Presidential assent into law
(Finance Act 2023)[19]
on 26th June 2023 using threats from the presidency. This has been
expressed in various forms including:
Kenya’s Deputy President, H.E
Rigathi Gachagua
“Some
of you leaders are lying to Kenyans, but know that if your MP is opposed to the
Finance Bill, they should not ask for roads.” Rigathi
Gachagua, 4th June 2023.
3.1.0 Party Whips and Loyalty
Members
of Parliament have often been pressured and dragged by the majority party whip
to toe the party line rather than exercise their legislative discretion and
independence. Dissenting voices within the ruling party, Kenya Kwanza faced and
some still face the risk of disciplinary action, including the withdrawal of
privileges or denial of key positions within the parliamentary committees and denial
of national constituency development projects from the national government.
Consequently, meaningful debate and deliberation were stifled, reducing
Parliament to a rubber-stamp institution of oppressive laws against the public
opinion of the citizenry.
Majority whip National Assembly,
Hon. Silvanus Osoro
“With
the fact that the government does not lose, I want to assure you (President
William Ruto) that even the Finance Bill will pass.” Silvanus Osoro, 12th May 2023.
3.2.0 Executive Control and Manipulation
of Legislative Priorities
The
Executive has continuously kept a tight hold on the parliamentary agenda,
deciding which bills and motions were given top priority. This selective
process favors legislation supported by the executive, which has the advantage
of numerical superiority whereas measures introduced by opposition MPs or
private members have been frequently put on hold or purposely delayed.[20]
This has the effect of undercutting the ideal of pluralistic representation and
stifling diverse viewpoints.
President of Kenya, H.E Dr. William
Ruto
“I
am waiting for the Members of Parliament who will go and vote against the
employment of these young people, against housing that would give these people
the chance to own a house with five per cent mortgage.” Dr.
William Ruto, 4th June 2023.
4.0 Legislative Passivity
Another
noteworthy shortcoming of the 13th Parliament is the lack of any meaningful
checks on executive power and its passive response to executive abuse. Even
though Parliament under Article 95 of
the Constitution has a clear constitutional obligation to hold the government
accountable and oversight state organs, it lacks the boldness and attentiveness
in carrying out its duty.[21]
This passivity is visible in a number of ways:
4.1.0 Legislative inefficiency
The 13th Parliament, just like previous
parliaments, has portrayed a scarcity of significant legislative efforts
intended to rein in presidential overreach or strengthen the separation of
powers. MPs have failed to support significant legal reforms that will
strengthen the checks and balances between the branches of government.[22]
This can be explained by their focus on partisan interests and
self-preservation. Because of this dereliction of duty on the part of the
legislature, the executive has continued to hold sway, weakening and
undermining the separation of powers.
4.2.0 Lack of Oversight
Parliament's oversight authority, which is
crucial for enforcing accountability of the administration, has been severely
underutilized. The independence and resources required to conduct in-depth
investigations are sometimes lacking in committees tasked with examining
government acts and policies.[23]
The public's trust in Parliament as the guardian of sound governance has been damaged
as a result of the executive's ability to avoid scrutiny.
Kenya's
democracy and system of governance will continue to suffer a myriad of severe
repercussions as a result of the 13th Parliament's inability to adequately
protect the separation of powers. The democratic principles of responsibility,
openness, and citizen engagement have been compromised by the executive's
unfettered power. The lack of a strong, independent legislature has made it
difficult to represent a variety of viewpoints, marginalized the opposition,
and created few opportunities for substantive democratic conversation. Furthermore,
the loss of the division of powers led to a decline in popular confidence in
the democratic system, encouraging cynicism and disillusionment among the
populace.
5.0 Conclusion
Throughout
this didactic exposition, it is incumbent upon us to maintain a critical lens
through which to survey the phenomenon of hypocrisy within the separation of
powers doctrine. It behooves us not to summarily dismiss the entirety of the
theory due to instances of miscarriage, but rather to acknowledge the
imperativeness of perpetual vigilance, transparency, and accountability in the
ceaseless pursuit of a more equitable and efficacious mode of governance. For
democratic resilience, effective checks on governmental abuses, and the
protection of people's rights and liberties, a sound separation of powers is
essential; Courts should also provide a pushback against any existing blended
and blurring functions of the legislative and executive which tend to make our
constitutional terrain a site of a centralizing drift.
AUTHOR’S BIO
NAME: DEVALINE RIOBA MARIITA
INSTITUTION: UNIVERSITY OF NAIROBI
SCHOOL OF LAW
YEAR OF STUDY: 4.0 (PROGRESSING TO
4.1 IN SEPTEMBER)
I
am an ardent student of constitutional law, corporate law, and champion for
significant constitutional and progressive reforms. I stands as an exemplary
legal enthusiast with an unwavering commitment and curiosity to advancing
justice, equality, and the rule of law. With an astute grasp of constitutional
principles, a comprehensive understanding of corporate legal frameworks, and an
impassioned drive for transformative reforms, I
actively engage in research, policy development, and public discourse to
reshape our Kenyan constitutional system, foster accountability, and champion
progressive change for a more just and inclusive society.
[1]
Montesquieu, The Spirit of the Laws (New York Hafner Pub. Co, 1949)
[2]
Calabresi G and Berghausen E, ‘The Rise and Fall of the Separation of Powers’
(106 Northwestern University Law Review, 2012)
[3]
Cooper S, ‘Considering ‘Power’ in Separation of Powers’ (Standard Law Review,
1994)
[4]
Van der Vyver JD, ‘Political Power Constraints in the American Constitution’
(South African Law Journal, 1987)
[5]
Onalo PL, An African appraisal:
Constitution-making in Kenya, (Trans Africa Press Publishers , 2004)14
[6] PLO Lumumba, MK Mbondenyi and SO Odero,
‘Separation of Powers’, The Constitution of Kenya
[7]
Article 94(1), Constitution of Kenya 2010
[8]
Ambani J and Mbondenyi MK, The New Constitution of Kenya: Principles,
Government and Human Rights (Law Africa Publishing, 2013) 85
[9]
Article 1(1), Constitution of Kenya, 2010
[10]
Article 1(2), Constitution of Kenya, 2010
[11]
Article 1(3) Constitution of Kenya, 2010
[12]
Kanyinga, K, ‘Democracy and Political Participation in Kenya’ (2014)
[13]
Article 10, Constitution of Kenya, 2010
[14] Njenga
Mwangi & Another v The Truth, Justice and Reconciliation Commission & 4
others [2014] eKLR
[15] Trusted
Society of Human Rights Alliance v Attorney General & 2 others; Matemu
(Interested Party); With Kenya Human Rights Commission & another (Amicus
Curiae) (Petition 229 of 2012) [2012]
[16]
Kirui, K., & Murkomen, K. ‘The Legislature: Bi-Cameralism under the New
Constitution’ Working Paper No.8. Kenya: SID
[17] Nairobi
HCMA No. 743 of 2006
[18]
Pelizzo, R & Stapenhurst, R, ‘Oversight Effectiveness and Political Will:
Some Lessons from West Africa’ (The Journal of Legislative Studies, 2014)255-261
[19]
Finance Act, 2023
[20]
Oloo, A., & Oyugi, O, ‘Democracy and Good Governance in Kenya: Prospects
and Obstacles’ DPMF Workshop and Conference Proceedings ; https://www.dpmf.org/images/democracy-adams.htm
[21]
Article 95(5)(b) Constitution of Kenya, 2010
[22]
Onyango G, ‘Legislative Oversight and Policy-Reforms in “unsettled” Political
Contexts of Public Administration’ ( International Journal of Public
Administration, 2019) 1-16
[23]
ibid
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