The Importance Of The Separation Of Powers Between The Branches of Government

The Constitution of Kenya, promulgated in 2010, establishes the separation of powers between the three arms of government: The Executive, the Legislature and the Judiciary. This separation is designed to ensure that no single branch becomes too powerful. It provides a system of checks and balances.

The Executive is headed by the President, who is both the Head of State and Head of Government. The President is assisted by the Deputy President and the Cabinet. The Executive is responsible for implementing and enforcing laws, managing the country’s affairs and directing Government policy.

The Legislature consists of the National Assembly and the Senate, collectively known as Parliament. The National Assembly represents the people from a constituency level. They create general laws and have an important role when it comes to determining how the national revenue is allocated and spent. The Senate represents and protects the interests of Counties and their governments. They participate in law making by considering, debating and approving bills concerning Counties. They also determine and have oversight on the allocation of the national revenue to the County Governments. Parliament in general has oversight over the Executive, to ensure accountability and transparency.

The Judiciary is responsible for interpreting the law, administering Justice, and safeguarding the Constitution. It is composed of various courts with the Supreme Court at its apex. The other Courts include the Court of Appeal, the High Court and other subordinate courts such as Magistrate Courts. The Judiciary is headed by the Chief Justice, who is also the President of the Supreme Court.

The Constitution was written in such a way that each branch of government is independent, in order to ensure a balance of power. The main aim is to prevent the abuse of power by any one branch.

As an example of this, the following are the key ways the Legislative Arm of the Government keeps the Executive Arm in check.

  • Oversight: Parliament has the power to scrutinize government actions, policies and expenditure. This includes questioning Cabinet Secretaries in Parliamentary Committees, conducting investigations into the conduct of the Executive, and reviewing and approving the national budget.
  • Impeachment: Parliament can initiate impeachment proceedings against the President, Deputy President or other members of the Executive Branch for serious violations of the Constitution or for gross misconduct.
  • Approval of Appointments: Key Executive appointments such as Cabinet Secretaries and Ambassadors require Parliamentary approval.
  • Legislation: Parliament enacts laws that regulate the Executive’s actions. Through the legislative process, Parliament can amend, repeal or introduce laws that limit or direct the actions of the Executive.
  • Vote of No Confidence: Parliament can pass a motion of no confidence against the President or any member of the Cabinet. A successful vote of no confidence can require the resignation of the affected official, thus holding the Executive accountable for its actions.
  • Budgetary Control: The Legislature approves and oversees the national budget, controlling the Executive’s access to public funds.

While there have been instances where the Legislature has exercised its oversight role effectively, several challenges have hindered its ability to function as envisioned by the Constitution.

  • Political Influence and Patronage: The close relationship between the Executive and some members of the Legislature has undermined the independence of Parliament. Political patronage and party loyalty often results in MPs/Senators aligning with the Executive’s interests rather than prioritizing accountability and oversight.
  • Intimidation and Harassment: Some Members of the Legislature have claimed that they face intimidation and harassment if they go against the Executive’s wishes. They claim that State Agencies can be used to target them when they try to perform proper and impartial oversight.
  • Corruption and Compromise: Corruption investigations and reports in the country have many times implicated Members of the Legislature. MPs/Senators who accept bribes and other forms of compromise weaken the Legislature’s oversight function.
  • Public Engagement and Awareness: Limited public awareness and engagement in the legislative process weakens the pressure on MPs and Senators to perform their oversight duties effectively. Without robust civic participation and scrutiny, there is less accountability for both the Legislature and the Executive.

It is important that there is separation and independence between the various arms of government in order to prevent abuse of power by any one branch. This is especially true of the Executive and Legislative branches because of their currently perceived close relationship. The balance of power has to be there in order to ensure accountability, transparency and the proper functioning of Government.

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