2.4 Doctrine of separation of powers

The doctrine of separation of powers is a fundamental concept in constitutional law that defines the distribution of governmental powers among different branches of government. This doctrine is designed to prevent any one branch from becoming too powerful and to ensure a system of checks and balances within a government. The doctrine typically divides government powers into three main branches: the legislative branch, the executive branch, and the judicial branch.

The executive

The constitution of Kenya 2010 promotes independence of the arms of the government by clearly outlining the functions of the Executive under Chapter 9. Under Article 129 the Executive’s authority is said to be derived from the people. This therefore means that the executive authority must defer to the sovereignty of the people and respond to the national objects values and accountability mechanisms throughout the constitution as provided under Article 10.

The national executive of the Republic comprises the President, the Deputy President and the rest of the Cabinet.

The composition of the national executive shall reflect the regional and ethnic diversity of the people of Kenya.

Legislature

Other than the old constitution providing for the legislative role of parliament, the issue of interference from other organs was a common occurrence. The bicameral system of Parliament established under the Lancaster Constitution was amended. These Post-independence constitutional changes and legal amendments that spanned over three decades undermined and weakened key institutions including the Legislature, Judiciary, the Police, and the Electoral System while strengthening the Executive, particularly the presidency. The changes resulted in the centralisation and monopolisation of power by the executive and minimised checks and balances on the executive by other institutions. The Constitution of Kenya 2010 has re-introduced the bicameral system under Article 93. Chapter 8 on the legislature has also provided roles for both the houses of parliament. The Senate is there to ensure that it oversees some of the functions of Parliament. The legislature is therefore meaningfully separated from the executive..

Judiciary

The 2010 constitution under Article 160 has laid down elaborate mechanisms to guarantee judicial independence in the execution of its judicial and interpretive functions. Kenya now has a more reformed judiciary that is independent, robust and functional.

Separation of powers is composed of the following principles:

1. The principle of trias polita, requiring a formal distinction between the legislatures, executive and judicial branches.
2. The principle of personnel according to which the same people should not be allowed to serve more than one branch of the government at the same time.
3. Separation of functions between the three branches to avoid one interfering with or assuming the roles of the other.
4. The principle of checks and balances that requires that each organ be entrusted with special powers designed to serve as checks on the exercise of functions by the others in order to come to an equilibrium