SEPARATION OF POWERS

 

"Treachery! Seek it out."[1]

In Shakespeare’s play Hamlet, Prince Hamlet’s command, as quoted above, cuts through the fog of betrayal, urging the unmasking of a kingdom’s deceit veiled by treachery. Kenya’s constitutional democracy too echoes this call, grappling with its own treachery: the corrosion of the separation of powers. When the legislature, executive, or judiciary oversteps its bounds, it brandishes poisons reminiscent of the sword and wine that doom Denmark in Shakespeare’s play, Hamlet[2]. Through select cases, this document explores these breaches, wielding Hamlet’s imagery to spotlight the threats to governance. It demands vigilance—for treachery festers where power strays.

 

The Constitutional Bedrock: Separation of Powers

The Constitution of Kenya, 2010, establishes three[3] arms of government—legislature, executive, and judiciary—ensuring no single branch reigns supreme. Yet, like a stage primed for tragedy, ambition often lures one arm of government to encroach upon the functions of another arm of government.

The Poisoned Sword: Legislative Overreach into the Executive Realm

In Gikonyo & another v National Assembly of Kenya & 4 others; Council of Governors & 3 others (Interested Parties [2024] KEHC 10886 (KLR), the High Court declared the National Government Constituencies Development Fund (NG-CDF) Act of 2015 as amended in 2022 and 2023 unconstitutional. This is because the Act “undermined devolution by intruding into county functions, created inefficiency through duplication, and violated the doctrine of separation of powers by allowing MPs to oversee projects.” This ruling received mixed reactions, both from the citizenry and the leadership.

On the 23^rd of September 2024, Mumias East Member of Parliament, Peter Salasya, shared a video on Instagram (a popular social media platform) castigating the youth who were celebrating this high court decision[4]. He stated, “I want to speak to the young people who are castigating that the CDF to be removed yet most of them wamesomea kwa (have studied in) classes zimejengewa na (built by) CDF. Hizo (Those) classes in primary schools zinajengwa na (have been built by) CDF also majority of the secondary schools were built by the CDF and any project in schools are being done by the CDF,”

It is undeniable that the NG-CDF has been instrumental in ensuring that the common mwananchi, ‘Wanjiku’, gets a piece of the national cake of development. However, the constitution establishes a system, where the Legislature carries out the oversight role and the Executive implements. The working of the NG-CDF creates a scenario where Parliament implements projects and carries out its own oversight. This is against the well-established principle of law: Nemo judex in causa su a(No one should be a judge in their own cause) and as a safeguard, the Constitution establishes a system of checks and balances where Parliament is mandated to oversight the Executive, and not itself. As a result, NG-CDF has been the hallmark of corruption in the country[5]

 

The Poisoned Wine: Executive imperialism extends to Parliament

The Parliament of Kenya has faced backlash from the people. This is because in the recent past, Parliament has appeared to serve the interests of the Executive, instead of representing the people, its constitutional mandate[6].

On the 25^th of June 2024, the hallowed precincts of Parliament were breached by angry protestors (Kenya’s liberators, the Gen-Z)[7]. They were irked by the affirmative vote in the National Assembly that passed the Finance Bill 24/25[8] which was viewed as too burdensome due to the oppressive tax policies it introduced. As a result, the current President announced the withdrawal of the bill during a national address, stating that he had "listened to the people" and would not sign the bill into law[9].

Similarly, the Social Health Insurance Bill, 2023, that introduced the new healthcare system of the Social Health Insurance Fund (SHIF) and the State Health Insurance Fund (SHA), has faced significant amount of criticism due to its failing functionality[10]. It is important to note that this bill went through the legislative process in the National Assembly. However, the Auditor General found that this new system had several gross irregularities[11] that show that the National Assembly is merely a rubberstamp of the Executive, as earlier alluded. Among them she stated that the Government of Kenya neither controls nor owns the SHA system that cost the taxpayer a whooping 104.8 billion Kenyan shillings. This has raised concerns about the security of confidential patient data that is now at the hands of private entities. Additionally, she noted that the system was procured through a "Specially Permitted Procurement Procedure" without being included in the approved procurement plan or the medium-term budgetary framework, violating Section 53(7) of the Public Procurement and Asset Disposal Act, 2015. The question then is, what is the role of parliament?  

In both cases, it is noteworthy that these legislators fiercely defended these bills on public platforms[12], only to recant on their earlier stances[13] in a somewhat comical damascene moment of epiphany, when Saul miraculously turns into Paul.

 

The Rot Beneath: A Democracy Imperilled

Ultimately, these breaches—legislative overreach, executive imperialism—echo Hamlet’s instruments of ruin that claimed the lives of Laertes, Claudius, Gertrude and Hamlet. Similarly, it is the people as a collective that suffer when the separation of powers is violated. The Constitution isn’t a mere parchment—it’s a pact to defend. It is the act of the people as the almighty sovereign[14]. The system of checks and balances, drawn from the doctrine of Separation of Powers, is at the heart of a successful democracy. For as Marcellus wisely observed in the play, "Something is rotten in the state of Denmark."  Let us heed this warning and stand watch against the poisons that menace the spirit and substance of constitutionalism.

Authored by Maxwell Otieno and Craig Ashimosi, associate editors at the University of Nairobi Law Journal and students of law at the University of Nairobi.

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[1] William Shakespeare, Hamlet (Stanley Wells and Gary Taylor eds, Oxford University Press 2005) Act 5, Scene 2.

[2] William Shakespeare, Hamlet (Stanley Wells and Gary Taylor eds, Oxford University Press 2005) Act 5, Scene 2. In Hamlet, Act 5, Scene 2, King Claudius and Laertes conspire to kill Hamlet during a fencing match using two deadly methods: a poisoned sword and poisoned wine. Laertes' rapier is coated with a lethal poison, ensuring that even a minor wound will be fatal. As a backup, Claudius prepares a poisoned cup of wine, intending to offer it to Hamlet if the sword fails. However, their plan backfires—Laertes is wounded with his own poisoned blade, Gertrude accidentally drinks the poisoned wine and dies, and Hamlet ultimately kills Claudius with the same poisoned sword before succumbing to the poison himself

[3] PLO Lumumba and Luis Francheschi, The Constitution of Kenya: A Commentary (Strathmore University Press 2014). The authors note that Commissions and Independent offices might as well be the fourth arm of government because of their constitutional independence and significant governance roles.

[4] Valerian Khakayi, 'Salasya lectures youths endorsing court's decision on CDF' (K24 Digital, 24 September 2024) https://k24.digital/411/salasya-on-courts-decision-about-cdf/ accessed 15 March 2025.

[5] Lydiah Nyawira, 'Auditor General Questions Sh135m CDF Spending in Central Region' (The Standard, 8 March 2017) https://www.standardmedia.co.ke/kenya/article/2000226173/auditor-general-questions-sh135m-cdf-spending-in-central-region accessed 16 March 2025.

[6] Constitution of Kenya 2010, art 1(2)

[7] Mate Tongola, 'Protestors breach Parliament, gain entry into compound' (The Standard, 25 June 2024) https://www.standardmedia.co.ke/national/article/2001497842/protestors-breach-parliament-gain-entry-into-compound accessed 16 March 2025.

[8] The Finance Bill, 2024 (Kenya Gazette Supplement No 551, 9 May 2024) https://www.kenyalaw.org/kl/fileadmin/pdfdownloads/bills/2024/TheFinanceBill_2024.pdf accessed 16 March 2025.

[9] Barbara Plett Usher and Farouk Chothia, 'Kenya's Ruto: The leader who rose from chicken seller to president' (BBC News, 13 September 2022) https://www.bbc.com/news/articles/c3gg30gm0x2o accessed 16 March 2025.

[10] Samwel Owino and Joseph Openda, 'MPs: Our beef with Ruto health plan and why SHA is not working' (Nation.Africa, 31 January 2025) https://nation.africa/kenya/health/mps-our-beef-with-ruto-health-plan-and-why-sha-is-not-working--4907450 accessed 16 March 2025.

[11] Office of the Auditor General, Report of the Auditor General on National Government Ministries, Departments and Agencies for the Financial Year 2023/2024 (2025)

[12] Samwel Owino, 'MPs recruited to popularise SHA amid resistance' (Nation.Africa, 14 December 2024) https://nation.africa/kenya/news/mps-recruited-to-popularise-sha-amid-resistance--4856794 accessed 16 March 2025.

[13] Moses Kinyanjui, 'MPs lament gaps in SHA services, blame MoH for failing health sector' (Citizen Digital, 3 February 2025) https://citizen.digital/news/mps-lament-gaps-in-sha-services-blame-moh-for-failing-health-sector-n356963 accessed 16 March 2025.

[14] Attorney-General & 2 others v Ndii & 79 others; Dixon & 7 others (Amicus Curiae) (Petition 12, 11 & 13 of 2021 (Consolidated)) [2022] KESC 8 (KLR) (31 March 2022) (Judgment) (with dissent)