Our kind of ‘separation of powers’ is not what Montesquieu envisioned

Kenya's Supreme Court judges file into the chamber during the opening of the 11th Parliament in the capital Nairobi April 16, 2013. REUTERS/Noor Khamis (KENYA - Tags: POLITICS)

Joshua Nyabwa

Separation of powers is a “vital tool to advance our democratic hygiene”, for it is generally accepted that when all powers are vested in one body, there can be no liberty and liberty can only be found where various powers are vested in different bodies. Since the days of pharaoh in Egypt to today, it is widely accepted that man is in nature selfish and the notion that ‘power corrupts, absolute power corrupts absolutely’, the democratic oxygen will be unhygienic if all these powers were to be vested in an individual.

It becomes a pertinent question meriting an intellectual’s attention: whether the trial court should question the constitutionally-prescribed operational procedures of the legislature; whether the trial court should be overly ready to pass judgment on whether such internal procedures in respect of which the legislature is the sole manager, have been followed meticulously or not. Suppose the court intervened in such matters but ‘erred’, is the outcome, in effect, a re-writing, now by the court, of the governing rules and procedures of a different arm of government?, I seek to answer those questions in this paper, in a bid to redeem the National Assembly from the shackles of parliament sovereignty that their activities cannot be questioned by a court of law

Separation of powers

The principle is perfectly recorded in ancient and continuing, respectable scholarship. It was classically articulated by Baron de Montesquieu and translates vividly as follows;

“Political liberty is alien, save in restrained governance. And even then, indeed, it is not always found in restrained governance; it abides in restrained governance only on the condition that abuse of power is kept at bay; yet it’s sheer human nature, that all persons entrusted with power, are inclined to abuse it – and such abuse proliferates illimitably….To arrest the very prospect of abuse of power, it is essential, in the very nature of things, that one power-agency be reined-in by another.”

But what is separation of powers?  Simply understood it refers to the allocation of power and functions among the branches of government. Baron postulates the pure separation of powers as summarized by M.C Ville:

“It is essential for the establishment and maintenance of political liberty that the government be divided into three branches or departments, the legislature, the executive and the judiciary. To each of these three branches there is a corresponding identifiable function of government, legislative, executive and judicial. Each branch of government must be confined to the exercise of its own function and not allowed to encroach upon the functions of the other branches. Furthermore, the persons who compose these three agencies of government must be kept separate and distinct, no individual being allowed to be at the same time a member of more than one branch.”

This  strict separation especially between law making and law executing and judicial exposition of existing law functions is neither sufficient to promoting liberty or rule of law nor attainable: and thus Madison wrote, “experience has shown us that no skill in the science of government has yet been able to discriminate and define, with sufficient certainty, its three great provinces, the legislative, executive and judiciary it undercuts judicial checks on the executive without advancing any principle other than separation for the sake of separation and it has even lost sight of the principles underlying separation of powers”, to insist upon the maintenance of absolute separation merely for the sake of doctrinal purity could severely hinder the quest for a workable government with no appreciable gain for cause of liberty or efficiency.

As was correctly held in democratic systems of government in which checks and balances result in the imposition of restraints by one branch of government upon another, there is no separation that is absolute . . . . The scheme is always one of partial separation the National Assembly has been riding on the premise established by Baron, crying foul whenever the Judiciary questions its activities or procedures calling them internal matters to be regulated by internal structures and not the court, this view cannot only be wrong but it is also misplaced.

Partial separation of powers / checks and balances

The principle of ‘checks and balances’, what Barendt calls the ‘partial’ separation theory, like the ‘pure’ separation theory, recognizes that each of the three branches has a core function and that it is most critical to maintain separation around these core functions. Unlike the ‘pure’ version, it posits that overlap beyond the core functions is necessary and even desirable. Each of the institutions of state is given some power over the others; their functions are deliberately constructed so that they overlap. It presupposes that a specific function is assigned primarily to a given organ, subject to a power of limited interference by another organ to ensure that each organ keeps within the sphere delimited to it. It requires that each branch of government is able to check the exercise of powers by the other, either by participating in the functions conferred on them or by subsequently reviewing that power. And that is what the Kenyan constitution sought to do.

The Constitution deliberately constructed the functions so as to overlap. It places checks and balances on each and every institution and that the three arms “…should assert checks and balances on each other in a harmonious cycle of mutual frustration” The three branches are not hermetically sealed from each other and exhibit a degree of overlap. In Justice Frankfurter’s words, [t]he areas are partly interacting, not wholly disjointed. In this set-up, it is to be recognized that none of the several governmental organs functions in splendid isolation. Separation of powers needs adjustment and pruning. As Mr. Justice Cardozo correctly held:

“The doctrine of ‘separation of powers’ is not a doctrinaire concept to be made use of with pedantic rigor. There must be sensible approximation; there must be elasticity of adjustment in response to the practical necessities of government which cannot foresee today the development of tomorrow in their nearly infinite variety.”

Must Kenyan courts desist from any interference with the clear intentions of Parliament as expressed in legislation – as do the British courts? A comparative study between South Africa and Kenya

The Nigerian scholar, Professor B.O. Nwabueze rejected the view in these terms:

“The review by the ordinary courts of the constitutionality or legality of legislative and executive acts, and of the propriety of administrative acts of a quasi-judicial nature is the main bulwark of constitutionalism.”

In South Africa, the constitutional court has in several decisions held that the judiciary is the guardian of the constitution and has the powers to intervene where there are threats to the violation of human rights or the constitution. As held in Doctors for Life International v Speaker of the National Assembly and Others 2006:

“This Court ‘has been given the responsibility of being the ultimate guardian of the Constitution and its values’ and that ‘When it exercises its legislative authority, Parliament ‘must act in accordance with, and within the limits of, the Constitution’. “And it is the duty of the court to ensure that ‘…constitutionalism, accountability and the rule of law constitute the sharp and mighty sword that stands ready to chop the ugly head of impunity off its stiffened neck.

As the guardian of the Constitution, the High Court from time to time disappoints the ambitions of legislators and governments. This is part of our system of checks and balances. People who exercise political power, and claim to represent the will of the people, do not like being checked or balanced and this may be the reason why the National Assembly is not happy. Mahomed CJ, once held, “No Parliament, no official and no institution is immune from judicial scrutiny in such circumstances.”

Kenyan experience

In James Opiyo Wandayi v. Kenya National Assembly and 2 Others, it was held that the doctrine of the separation of powers is inapplicable where it is alleged that the Constitution has been violated.  while in CORD and 2 Others v. Republic of Kenya and 10 Others, The court’s position was that it could indeed intervene in respect of such proceedings: because it was entrusted with power to determine issues of constitutionality. So, the doctrine of the separation of powers does not preclude it from examining all matters of the legislature and the executive. The High Court’s stand was that it had an obligation to intervene, where there had been a failure to abide by the Standing Orders of Parliament; that the court can question the Standing Orders themselves, to confirm their consistency with the Constitution. To the same intent, the High Court, in Okiya Omtatah and 3 Others v. Attorney-General and 3 others, thus stated:

“To agree with the National Assembly that this Court cannot interrogate its work will amount to saying that the National Assembly can fly beyond the reach of the radar of the Constitution. That is a proposition we do not agree with. Our view is that all organs created by the Constitution must live by the edict of the Constitution.”

Also in Njenga Mwangi and Another v. Truth, Justice and Reconciliation Commission and Four Others, the learned Judge was of the view that this Court can enquire into any unconstitutional actions on their part. The Supreme Court pronounced itself in that Speaker of the Senate and Another v. Attorney-General and 4 Others, 2013. “We would state, as a legal and constitutional principle, that Courts have the competence to pronounce on the compliance of a legislative body, with the processes for the passing of legislation.”


The doctrine of separation of powers does not bar the courts from questioning the acts of the legislature, however care must be taken while doing so, this is because the judiciary is the guardian of the constitution and has the powers to intervene where there are threats to the violation of human rights and when the legislature exercises its legislative authority, Parliament ‘must act in accordance with, and within the limits of, the Constitution’ ^


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