CHAPTER 6

FUSION AND SEPARATION OF POWERS, AND CHECKS AND BALANCES

IN KENYA AND AFRICA

This Chapter may be cited as: Ben Sihanya (forthcoming 2020) “Fusion and Separation of

Powers, and Checks and Balances in Kenya and Africa,” in Ben Sihanya (2020) Constitutional

Democracy, Regulatory, and Administrative Law in Kenya and Africa Vol. 1: Presidency,

Premier, Legislature, Judiciary, Commissions, Devolution, Bureaucracy and Administrative

Justice in Kenya, Sihanya Mentoring & Prof Ben Sihanya Advocates, Nairobi & Siaya

6.1 Conceptualising fusion vis-à-vis separation of powers in Kenya and Africa1

One of the greatest challenges to constitutional democracy in Kenya and Africa is the fusion of

powers in some arms of Government, and particularly the Presidency, the Governors, and the

security and financial agencies in the Executive. This has been historically manifested in the

constitutional, statutory, regulatory and administrative rules and values and principles informing

the practice and tradition of government and governance, including in Articles 1 and 10, 73…of

the Constitution of Kenya, 2010. It was manifested in pre-colonial Kenya2 and through the

presidency of Jomo Kenyatta, Daniel Moi, Mwai Kibaki, and Uhuru Kenyatta.3

I adopt an Afro-Kenyanist conceptual and theoretical framework on fusion vis-à-vis the

separation of powers. We therefore conceptualize, problematize and contextualize fusion and

separation of powers in Kenya and Africa ….

We also consider the debate on the fusion and separation of powers, and checks and balances in

the context of the Building Bridges Initiative (BBI) Report 2019 and also BBI 2020 report

proposed amendments and debates including the restructuring of the Executive in Chapter 9, and

Legislature in Chapter eight (8), in Clause 11 and 12 of the report; introduction of the Office of

the Judiciary Ombudsman as a member of the Judicial Service Commission (JSC) in Chapter 10;

creation of commissions and independent offices e.g. the proposed Youth Commission in Article

237A in the BBI 2020 report.

1 See Benjamin Obi Nwabueze (2003) Constitutional Democracy in Africa Vol. 1: Structure and Organizing

Principles of Government, Spectrum Books, Nigeria, Chap 8-13, at 211-369, “Nature and extent of executive

power,” (Chapter 8), “Separation of powers under the Constitution: its merits and demerits,” (Chapter 9); “Limits of

separation of powers” (Chapter 10); “Consequences flowing from separation of powers,” (Chapter 11); Efficacy of

separation of powers and other constitutional limitations on power: The question of enforcement and remedies,”

(Chapter 12); “Fostering partnership between the legislature and executive powers arising from constitutional

protection of the liberty of the individual” (Chapter 13). 2 Fusion of powers in the elders among the Luo, Kikuyu, Luhya, Baganda, Igbo, Yoruba, and Zulu….

3 See the 1969 Constitution of Kenya.

The same trend obtains in Nigeria, South Africa, Uganda and Tanzania.4 Separation of powers

and checks and balances are covered explicitly and implicitly by the values, principles and rules

of the Constitution 2010. Should the concepts “fusion and separation of powers” and “checks

and balances” be more explicitly written in Constitutional provisions as statutes, rules and

regulations in Kenya and Africa.

What are the key public powers, functions, operations, duties, obligations and responsibilities of

national and sub-national Government in Kenya? What are the core values and principles that

govern the powers, functions and operations of every arm of government? While Article 1, 10,

73 etc now mention the separation of powers, etc,5 the Constitution does not explicitly define

some of these key values and principles, or explicitly state the arms or branches of government.6

Some refer to “separation of powers” as the “division” of powers. An example is Harvard

constitutional Prof Laurence Tribe in American Constitutional Law.7 There are three key

conceptual questions. First, what are the core public powers? These are legislative, executive and

judicial. There was a long debate on whether public powers are two or four (including

“administrative” as a separate category…8

Second, what is the meaning, scope and significance of separation of powers? It means the three

sets of powers shared be separated. No agency should exercise more than one (?) set of powers;

the officers should also be separated. It also means that no one officer should exercise more than

one set of powers. Further, that officers of one branch should not appoint or disappoint officers

of another arm. But then separation is functions, not absolute checks and balances may require

some fusion. Third, what agencies exercise public power?

One of the earliest and clearest definitions of the separation of powers is found in the work of

Baron de Montesquieu (1689-1755). In his book, The Spirit of the Laws (1748), he argued that

the concentration or fusion of public power in the hands of one individual or entity would lead to

tyranny:

“If the executive and legislative powers are united in the same person or same body of persons,

there is no liberty, because of the danger that the same monarch or the same senate may make

tyrannical laws and execute them tyrannically. If the judicial powers were joined to the legislative

4 See Chapters 2, 3, 6… of CODRALKA 2. See also CODRALKA 1, Chapters ……..

5 To elaborate…

6 See Ben Sihanya (due 2020) “Constitutional Commissions and Independent Offices in Kenya: Experiences,

Challenges and Opportunities,” Chapter 17 in Ben Sihanya (due 2020) Constitutional Democracy, Regulatory and

Administrative Law in Kenya and Africa Vol. 1: Presidency, Premier, Legislature, Judiciary, Commissions,

Devolution, Bureaucracy and Administrative Justice in Kenya, Prof Ben Sihanya Advocates & Sihanya Mentoring,

Nairobi & Siaya, . 7 Laurence Tribe (2000) American Constitutional Law, 3

rd edition, Foundation Press, UK.

8 Cf. in precolonial Kenya and Africa ….Locke….

power, then the life and liberty of the people would be exposed to arbitrary control for the judge

would be the law-maker.”9

He further stated that:

“when all the three powers are combined in the same hands, there will be an end of everything.”

This is a hyperbole perhaps intended for (dramatic) effect….

6.2 Sources of the powers of National and County Government in Kenya and Africa

What are the sources of public power in Kenya and Africa? From where do the National and

County Governments derive their powers, functions….in Kenya and Africa? There are three

theoretical postulates on the sources of public power. First, the specific grant or enumerated

power theory. Second, the residual power theory. Third, the inherent power theory. (What of

implied?)

Under the specific-grant or enumerated power theory the Executive functions and powers have to

be provided by law and it‟s the function of the executive to execute these functions as provided

for by law.10

The residual power theory posits that executive power is that which remains of the functions of

government after the legislative and judiciary powers have been removed.

The inherent power theory is to the effect that power, executive functions are in inherent in the

executive with no need of such functions being defined by law. Only the High Court has inherent

powers and even this is with regards to judicial review (not appeal…) of the decisions in favour

of courts and tribunals…11

The specific grant theory is the most accurate. Why? How? Practice?

6.3 Powers of National and County Government in Kenya and Africa

The powers are functions of the National and County Government in Kenya, and Africa may be

conceptualized and problematized using a three pronged typology. First, the powers and

functions of National Government and County Government under the 4th

Schedule to the

Constitution as discussed in Chapter 1 of CODRALKA 1. Second, Article 1(8) of the US

9 …

10 Benjamin O[bi] Nwabueze (1974) Presidentialism in Commonwealth Africa, St. Martin‟s Press, New York,

2,5,10. Of all arms and agencies of government, only the High Court has inherent powers. And even this is limited

to the judicial review and not appellate functions. And this the case in spite of claims of inherent power by some

American Presidents like Lincoln or by the Kenyan apex court... 11

…This is in spite of supreme court decisions and arguments by former Supreme Court Justice JB Ojwang‟ that the

court has inherent powers e.g. in Maina Kiai & 2 Others v. Independent Electoral and Boundaries Commission & 2

Others [2017]eKLR…

Constitution which provides for powers of Congress as discussed in Chapter 7 CODRALKA 1

on the “Legislative Power and Process in Kenya and Africa.”12

Third, the administration and regulation of human resources, financial resources, technical

resources including equipment and facilities, as well as the infrastructure or architecture for

sustainable development.13

6.4 Separation of powers problematized in Kenya and Africa

In the context of the foregoing discussion, are public powers neatly separated and divided? In

any case, why should public power be separated and divided? 14

Into the 3 arms of Government?

Which arm of the Government is the most or more important?15

There are at least five reasons why public power should be separated. First, because where

powers are fused or concentrated, there is a tendency to abuse those powers. On this point,

Montesquieu further argues thus:

“Constant experience shows us that every man vested with power is liable to abuse it and

to carry his authority as far as it will go… to prevent this abuse, it is necessary from the

very nature of things that one power should be a check on another .…”16

Second, division of powers facilitates and helps secure checks and balances in governance as

Montesquieu and others have argued. It would ensure that the two or three arms of government,

as appropriate, check on other or over another. First, the Legislature checks all arms of

Government through legislation and oversight through vetting of Cabinet Secretaries (CS),

Chief Justice (CJ), Deputy Chief Justice (DCJ) and financial and related accountability through

the Public Accounts Committee (PAC) and the Public Investments Committee (PIC)….Second,

the executive, and especially the President or PM checks the legislature through assent or veto

power. The courts, tribunals and bodies17

can check the Executive and the Legislature at National

12

To give examples… 13

……See Chapter 14 on Administrative Bureaucracy and Regulatory Process and Justice in Kenya and

Africa….… 14

Cf. H. B. Ndoria Gicheru and Kabuya Miano (1987) A Textbook of the Constitution and Government of Kenya for

Secondary Schools, Sterling Publishers Private Ltd, Nairobi. 15

This is akin to the Standard 4 debate whereby one stood, “proud as a peacock, to propose the motion that a farmer

is better than teacher; a mother is better than a father….While the debate served the value of teaching clear

expression and public speaking in English, the standard rhetorical debate is counter-factual because every arm of

Government is important; and plays a play different but essential roles in society. Hence there is nothing like the

first, second or third arm…but an arm of government… 16

…Montesquieu is reusing experimental, pragmatic rather than abstract lessons and authority… 17

Article 159 states “Judicial authority is derived from the people and vests in, and shall be exercised by, the courts

and tribunals established by or under this Constitution. (2) In exercising judicial authority, the courts and tribunals

shall be guided by the following principles— (a) justice shall be done to all, irrespective of status; (b) justice shall

not be delayed; (c) alternative forms of dispute resolution including reconciliation, 96 Constitution of Kenya, 2010

mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3); (d)

and County levels. Third, the Judiciary through constitutional adjudication and judicial review

which can be through a petition or a judicial review application under Order 53 of the Court

Procedure Rules…

Fourth, it facilitates specialization of functions. This would enhance competence and knowledge

regarding a specific matter, e.g. Kenya National Examination Council (KNEC) administering the

exams in schools and colleges; and Senates in universities. These are branches of the Executive.

Fifth, division of powers, which is sometimes equated to division of labour, enhances efficiency.

Each individual or agency ought to emphasize their comparative, competitive, constructed or

strategic advantage. This perspective has improved on Adam Smith‟s comparative advantage in

The Wealth of Nations.18

This is the classical and neo-classical basis of (international) trade.19

[cf. fusion of two (2) or three (3) powers in the Speaker, President or Cabinet Secretary (CS)…].

Fifth, division of powers helps secure space for individual liberties. As Montesquieu argued,

“when all powers are placed in one hand, there will be an end of everything.”

There is an argument that the powers are not strictly separated and the focus should be on

functional, pragmatic, practical and relative rather than absolute, abstract or neat, division of

powers, functions or personnel. [cf. then no one arm… should play a role in appointment,

operation, disappointment of members of the other arm… hence election for all?...]

The following five (5) arguments illustrate this point. First, Government is an organic whole.

The powers in real life are not arbitrarily segmented or separated. For instance, the President

holds some legislative power because Article 115 tasks him with assenting to all bills. The

President‟s designation of Cabinet Secretaries is also legislative and executive under Arts 132,

153.of the Constitution of Kenya, 2010. Further, the President‟s role in policy formulation as

justice shall be administered without undue regard to procedural technicalities; and (e) the purpose and principles of

this Constitution shall be protected and promoted. (3) Traditional dispute resolution mechanisms shall not be used in

a way that— (a) contravenes the Bill of Rights; (b) is repugnant to justice and morality or results in outcomes that

are repugnant to justice or morality; or (c) is inconsistent with this Constitution or any written law.” “Bodies” are

not elaborated, Another one is controversy on judicial, executive, administrative tribunals…see also Chapter 11 on

Judicial Power, Structure, and Independent Accountability in Kenya and Africa: Interests, Process and Outcomes 18

…This is better called competitive, constructed strategic advantage… 19

Consider fusion of legislative, executive and judicial powers in the Presidency andExecutive…regarding

knowledge cf..Tom Joseph Mboya as Minister and leading architect of Kenya nationhood debated academics at

Taifa Hall (e.g.) Gikonyo Kiano, Ronald Ngala…; articles, intellectually sophisticated and open minded cf. …. JFK,

…., …., Deputy President William Ruto in 2018, said that there should be no reading of newspapers. That

”newspapers are for meat wrapping.”See Grace Gitau & Stephen Munyiri (2018) “DP William Ruto accuses media

of peddling propaganda,” Daily Nation, August 5, 2018, at https://nation.africa/kenya/news/politics/dp-william-ruto-

accuses-media-of-peddling-propaganda-74568 (accessed November 6, 2020)…, no-interpretation of court orders is

fusion…

well as directing relevant officers may be regarded as legislative or rule making in character and

the Constitution 2010 seeks to limit that.20

Article 131 makes him the head of the executive by providing that the President is to be the Head

of State and Government, exercise executive authority of the Republic, and also to be

Commander-in-Chief of the Defence Forces, as well as the Chairperson of the National Security

Council, and a symbol of national unity.

Aside from these legislative and executive roles, the President also wields some power in the

judicial arm of Government. Article 166 provides that the President shall appoint the Chief

Justice21

and the Deputy Chief Justice (DCJ) in accordance with the recommendation of the

Judicial Service Commission (JSC), and subject to the approval of the National Assembly. The

appointment power is nominal or notional... The President also nominally or notionally appoints

other judges in accordance with the recommendations of the JSC. He has a role in the dismissal

of these top judicial officials.22

Remarkably, the Okoa Kenya Movement wanted the powers

vested in the Head of State to appoint judges to be delegated to the JSC.23

What has been the state of debate regarding elections and swearing in of JSC Commissioners?24

Control by President Uhuru Kenyatta through at least five (5) Kikuyus in the JSC in the 2018-

2020 period, and Kenyatta Government‟s demand that Justice Warsame (Court of Appeal) be

20

Cf. See Ben Sihanya (due 2020) “The Presidency and Public Authority in Kenya‟s New Constitutional Order,”

Chapter 3 of CODRALKA 2 on “Constitutional Values, Principles, Policies and Politics in Kenya and Africa:

Agency, Structure and Culture.” 21

Should “appoint” be changed to reflect nomination….? 22

Nancy Makokha Baraza v. Judicial Service Commission & 9 Others [2012] eKLR; Gladys Boss Shollei v. Judicial

Service Commission & Another [2014] eKLR; Adrian Kamotho Njenga v. Attorney General; Judicial Service

Commission & 2 others (Interested Parties) [2020] eKLR; Judicial Service Commission v. Mbalu Mutava &

Another [2015] eKLR 23

See Okoa Kenya Constitution Amendment Bill, 2015., at

http://kenyalaw.org/kl/fileadmin/pdfdownloads/bills/2014/TheConstitutionofKenya_Amendment_Bill_2015.pdf

(accessed 1/11/2019). 24

The BBI 2020 Report proposes an amendment to Article 171 COK 2010 for the introduction of the holder of the

Office of the Ombudsman, nominated by the President and approved by Parliament, into the Judicial Service

Commission (JSC). There is debate that the Ombudsman be ex-officio… See also LSK President (through a panel…)

Nelson Havi on Capital News when commenting on the proposed appointment of Judiciary Ombudsman by the

President, was quoted saying that “Members of public in Kenya will not permit any amendment in the Constitution

that seeks to take away the independence of the Judiciary,” in Joseph Muraya (2020) “Leaders Take On Each Other

In Raging BBI Debate,” Capital News, October 27, 2020, at https://www.capitalfm.co.ke/news/2020/10/leaders-

take-on-each-other-in-raging-bbi-debate/ (accessed November 6, 2020); Carolyne Tanui (2020) “Executive-

Appointed Judiciary Ombudsman Derogates Judicial Autonomy: DP Ruto,” Capital News, 26/10/2020, at

https://www.capitalfm.co.ke/news/2020/10/executive-appointed-judiciary-ombudsman-derogates-judicial-

autonomy-dp-ruto/ (accessed November 6, 2020). Should the Chief Justice be the direct appointing authority when

the Ombudsman is to check the Judiciary, judges, etc? Is ex officio status a compromise?

vetted by the National Assembly (NA) and appointed by President Kenyatta?25

High Court

Justice Chacha Mwita ordered that Justice Warsame should assume office immediately.

Some lawyers argue that some candidates for Law Society of Kenya‟s (LSK‟s) representative to

the JSC were sponsored by the presidency or executive.26

They are biologically, intellectually,

ideologically and politically Kikuyu. And the then serving member, Prof Tom Ojienda had been

harassed by the Kenya Revenue Authority (KRA), the Ethics and Anti Corruption Commission

(EACC), Directorate of Criminal Investigations (DCI) and DPP only to be allowed to run by the

High Court (Justice Okwany).27

In the context of these and related cases, Chief Justice Maraga transferred Justice Okwany and

Justice Chacha Mwita.28

Many judges thought to be independent and focused on separation of

powers were transferred. In fact the Constitutional and Human Rights Division at one point had

no judges in early 2019. Special transfers require reasons and processional equity.29

Significantly, the point to emphasize is not that there is neat or absolute division of powers but

that there is interdependence of functions and powers. This inter-dependence has the potential of

strengthening service delivery. The interdependence also facilitates coordination and effective

implementation of Government programmes, the protection of liberties, and service delivery.

Moreover, interdependence facilitates checks and balances whereby one power, arm or branch is

a check on the other(s).

Second, complete separation of powers would be inefficient and undesirable as it would foster

unhealthy competition among governmental agencies. It may lead to frequent disputes, deadlock,

paralysis, gridlock, and atrophy. A complex antidote to this is the Attorney General under the

1969, the BBI 2019 and BBI 2020 Report, debates and proposals, as compared to the 2010

Constitution….The BBI 2020 Report in Clause 29 proposes an amendment to Article 156 to

25

See LSK v. Attorney General, Warsame, Judicial Service Commission (JSC), High Court Constitutional Petition

No. 106 and 119 of 2018 (consolidated) eKLR. Ben Sihanya (2019) “Securing judicial independence and

accountability in Kenya,” Vol 10, Issue No 11, Nairobi Law Monthly, 38-43; Chapter 10 of CODRALKA 1. Chapter

11CODRALKA 2…See Annex on JSC members between 2013-2020, 1963-1978, 1978-2002, 2003-2013 26

….e.g. …It was alleged in newspapers that Macharia Njeru was being considered the “preferred candidate” by the

Jubilee Government in 2019. See Walter Menya (2019) “Lawyers cast vote for Judicial Service Commission

representative,” Daily Nation, May 9, 2019, Nairobi, at https://nation.africa/kenya/news/lawyers-cast-vote-for-

judicial-service-commission-representative-166052 (accessed November 6, 2020). See also Tom Kagwe JP and Tom

Kagwe (2019) “LSK elections for JSC are about ethics, integrity and accountability,” The Star, Nairobi, 27/4/2019,

at https://www.the-star.co.ke/siasa/2019-04-27-lsk-elections-for-jsc-are-about-ethics-integrity-and-accountability/

(accessed November 6, 2020). 27

Paul Muite for LSK seconded the Court of Appeal‟s reversal of the High Court decision. LSK had been a (main)

party in the High Court. LSK Council by a majority allowed all aspirants to run....See Tom Odhiambo Ojienda v

Kenya Revenue Authority & another [2018] eKLR 28

…. 29

See Jill Cottrell Ghai (eds) (2016) Judicial Accountability in the New Constitutional Order, ICJ Kenya and the

Kenyan Section of the International Commission of Jurists, Nairobi., Kenya……

clarify that as a member of the Cabinet, the A-G shall act and perform the functions of a Cabinet

Secretary (CS)…

Further, the BBI 2020 report attempts to cure such inefficiency that may or has resulted from

attempted or actual complete separation of powers among Government organs in Kenya, through

a proposed membership of the Prime Minister and Deputy Prime Ministers in the Cabinet in

Clause 25 .

Third, although the advocates of individual liberties and freedoms argue that separation of

powers and checks and balances are the best insurance policy for liberties, this is not always true.

For example, the doctrines of cooperation, interdependence, co-ordination, collaboration and of

collective responsibility may be a better way of protecting liberties and freedoms rather than

extensive separation of powers. There are joint or cooperative fora before the National Assembly

and Senate for instance, Mediation Committee (Article 112). There are intergovernmental

agreements and agencies,30

power transfer mechanisms, that are intended to serve the two levels

of Government….

Fourth, separation of powers is sometimes based on the argument that all the three (3) powers are

equally important in all contexts. This may be problematized.

First, is the legislative function the most basic or fundamental? Is it the most important?31

Second, Executive is the most ubiquitous as its officers range from the President to the village

head(wo)man. Various officials of the Executive especially in security, work on 24/7 basis. A lot

of powers are exercised unchecked as the other two arms largely operate on an 8.30 am to 5.00

pm basis, from Monday to Friday.32

Is the executive the most omnipotent as a matter of fact and

history? The executive is also generally the most coercive?33

Is the Judiciary the most deliberative?34

The “least dangerous” branch, arm or limb of

Government as Alexander Hamilton claimed? This is arguable in the context of a largely

30

These include Intergovernmental Budget and Economic Council (IBEC), and the Summit…. 31

Cf. Nwabueze (1986) “Structures, Powers and Organising Principles of Government” Constitutional Democracy

in Africa, Vol. 1 …..See also old English doctrine of parliamentary sovereignty….Parliament has no legislative

limits, except it cannot change a man into a woman and vice versa. 32

Executive is a 365 days 24/7 arm or branch?....cf. 24 hour economy in the 2013 presidential campaigns….Hence

guarantee budget of at least 3% (not 0.44%) and security…. 33

Internal security is an example of an executive or coercive function or branch of the executive. Cf. The Westgate

attack and hostage crisis of August 2013 and the subsequent terror attacks in Nairobi, Mombasa and Garissa -

largely an executive or (internal) security function? Numerous attacks in 2014; profiling of Somalis in Eastleigh,

Kasarani etc….

See: the terms Nwabueze uses to describe the executive function. 34

“Third, shorter arm?” No first, second and third arms?.....Not elected? Demerits of elected judges and

magistrates…

extravagant political, corrupt, dependent, and incompetent judiciary in Kenya, Nigeria, Uganda,

and in other African states.

Fifth, carried to its logical conclusion, the theory may yield undesirable results. It means that no

arm of Government should appoint leaders of the other arm(s). Thus, judges and magistrates

should not be appointed, approved or vetted by any arm other than the judiciary. And if powers

under popular sovereignty is not delegated (Art 1), then the people would have to directly. Thus

some states in the USA elect State (not federal) judges so as to keep them independent of the

Legislature and Executive. Yet, most electors have self interest in the process and outcome of

certain cases or do not have the capacity or knowledge to elect judges with appropriate

qualifications. And some of the judges may have a political orientation.35

6.5 Contextualising Separation of Powers, Checks and Balances under the Constitution

2010

How has separation of powers been contextualized under the Constitution of Kenya historically?

Cf. Parliamentary oriented Government where Prime minister is in the National Assembly as

under 1963 Constitution and the proposed amendment to Chapter 9 under the BBI 2020 report to

restructure the Executive to include a Prime Minister and two (2) Deputy Prime Ministers

(DPMs) who sit in Parliament and Cabinet…36

The Attorney General (A-G) is in Parliament and to perform the roles of a Cabinet Minister as

proposed under the BBI 2020 report…

Then Senate to have greater oversight role…as the “Upper House?”37

as proposed in BBI 2019

and also BBI 2020 Report.

35

After the demise of US Supreme Court Justice Ruth Bader Ginsburg, it was widely alleged that President Donald

Trump would select a conservative replacement which would give the Republican appointees a 6 to 3 majority of the

seats at the Supreme Court, just sixty (60) days to the contested presidential election. See Peter Baker & Maggie

Haberman (2020) “McConnell Vows Vote on Ginsburg Replacement as Her Death Upends the 2020 Race,” The

New York Times, September 22, 2020, at https://www.nytimes.com/2020/09/18/us/politics/mitch-mcconnell-

supreme-court-ruth-bader-ginsburg.html (accessed November 6, 2020). 36

Proposed amendment to Article 130 COK 2010 as proposed under the BBI 2020 report, and Chapter 8 to include

Government in the National Assembly. 37

Correspondent (2020) “Ruto pitches for Senate elevation, cautions against party-nominated IEBC

Commissioners,” Capital News, October 27, 2020, at https://www.capitalfm.co.ke/news/2020/10/ruto-pitches-for-

senate-elevation-cautions-against-party-nominated-iebc-commissioners/ (accessed November 6, 2020); Samwel

Owino (2020) “Uhuru, Raila rule out changes to BBI report ahead of referendum,” Daily Nation, 3/11/2020, at

https://nation.africa/kenya/news/politics/uhuru-raila-rule-out-changes-to-bbi-report-ahead-of-referendum-

2729610?view=htmlamp (accessed November 6, 2020); Ukambani leaders were also reportedly vouching for a

strengthened Senate with supervisory powers over the National Assembly. See Hillary Mageka (2020) “Ukambani

wants Senate made Upper House, roots for PM post,” People’s Daily, 3/2/2020, at

https://www.pd.co.ke/news/national/ukambani-wants-senate-made-upper-house-roots-for-pm-post-23004/ (accessed

November 6, 2020). Consider the debates in post-BBI launch and compromise, in the BBI process on strengthening

Senate, Parliament generally, and devolution.

6.5.1 Separation of powers under the Constitution 201038

The Constitution of Kenya 2010 proposes major reforms concerning the realisation of efficacy,

accountability, integrity in governance and separation of powers. We discuss some of them.

Art. 77 on restriction of activities of State officers: a full-time State officer shall not participate

in any other gainful employment.39

It further provides that a State officer shall not hold any

office in a political party. Cf. the 1969 Constitution of Kenya: some members of the Executive

and Parliament had party roles.

6.5.2 The Legislature at national and sub-national level in Kenya and Africa40

What are the key legislative powers and functions at the national and county levels in Kenya?

How do these compare with the Nigerian, South African, Ugandan and Tanzanian constitutional

experience in terms of federal vis-à-vis states; national vis-à-vis provinces; and national vis-à-vis

local authorities, respectively? What constitutional rules, values and principles implement these

in the context of separation of powers and checks and balances vis-à-vis the executive and the

judiciary?

Article 124 empowers each House of Parliament to establish if need be committees, and shall

make Standing Orders for the orderly conduct of its business, including the proceedings of its

committees.41

The Parliamentary Service Commission (PSC) under Article 127 is responsible for

providing services and facilities to ensure efficient and effective functioning of Parliament;

constituting offices in the parliamentary service, and appointing and supervising office holders.

Other functions include; preparing annual estimates of expenditure of the parliamentary service

38

Direct, indirect separation of powers, vertical, horizontal separation of powers…. 39

Cf. Straddling that was implemented under the Ndegwa Commission Report of 1971. Articles 10 and 47 seek to

secure the values and principles of new public management: executive and administrative efficiency and cost-

effective popular participation; and juridical due process. These point to separation of powers, checks and balancing,

and a limitation of straddling. Straddling requires to be subjected to public participation then policy formulation and

legislation. Chapter Six of the Constitution requires public officers to promote the people‟s interests and welfare, to

ensure dignity of the office the officer holds, and to limit conflict of interest...See also CODRALKA 1 Chapter

….on straddling in public service…; Chapter 4 on Constitutional Values, Principles, Policies and Politics in Kenya

and Africa: Agency and Structure… See also Clause 28 of the BBI 2020 Report and the debates on Article 155

COK 2010 whether to remove Parliament from the vetting process of Principal Secretaries to uphold impartiality in

public service and ensure their accountability is administrative…. To take some of the foregoing to text…. 40

The powers, functions and legislative, representative and oversight mandates of the Speakers, Deputy Speakers,

Clerks, MPS, Senators and MCAs in the National Assembly, Senate and County Assemblies manifest the fusion and

separation of powers and checks and balances within the legislative branches of government. 41

Ben Sihanya (2014) “Background, status, operational mechanisms and enhancing quality delegated legislation in

Kenya,” working paper presented during the retreat of the Senate Committee on Delegated Legislation and

chairpersons of the Committees on delegated Legislation of the County Assemblies, at Serena Beach Hotel,

Mombasa, Kenya in 21/2/2014. See also CODRALKA 1 Chapter 14 on Administrative Bureaucracy and

Regulatory Process and Justice in Kenya and Africa….….

and submitting them to the National Assembly for approval, and exercising budgetary control

over the service, among others.42

The National Assembly, Senate and the County assemblies have exclusive legislative powers on

any matter within their jurisdictions (Art. 109). These three legislative bodies perform three

major functions: legislation, oversight and representation. Other functions have been added by

the Constitution, statutes, rules and regulations, administrative processes, practices, customs or

tradition.43

Despite efforts of States to ensure Parliamentary independence, it is arguable that there is

subordination of the legislature- particularly to the executive. Nwabueze problematizes this

phenomenon arguing that coordinated government machineries under the leadership of either a

President or Prime Minister accord primacy to the executive.

This model is characteristic of parliamentary systems of governance in which the President

coordinates and therefore dominates both the executive and legislative processes of Government.

So much so that Dr Lee has characterized the Parliaments of the presidential regimes of African

by the word “passivity” and proceeds to describe the executive as „efficient‟ and dismiss the

legislature as being merely “decorative.”44

The Kenyan Parliament is however commended as

being among the more fierce, independent and instrumental African Parliaments.45

Parliament‟s roles are strictly limited to the three above. Members of Parliament do not have

administrative responsibilities over Constituency Development Fund (CDF), now called National

Government Constituency Development Fund (NGCDF). In The Institute of Social

Accountability & Another v. National Assembly & 4 Others,46

the High Court of Kenya declared

the CDF Act unconstitutional on February 20, 2015. This was on the ground that it violated the

principles of devolution and public finance.47

In Ghana, a Member of Parliament can serve as an Attorney General who is also a Minister of

State. Under Article 88, the Constitution of Ghana provides that “there shall be an Attorney-

General of Ghana who shall be a Minister of State and the principal legal adviser to the

Government.” Article 78 of the Constitution of Ghana further provides that a Minister of State

42

See Ben Sihanya (due 2020) “Constitutional Commissions and Independent Offices in Kenya: Experiences,

Challenges and Opportunities,” Chapter 17, CODRALK 1, op. cit. 43

See Chapter 1, 3, 4, and 14 CODRALKA 1 on Administrative Bureaucracy and Regulatory Process and Justice in

Kenyan and African Constitutional Democracy… 44

JM Lee (1962) “Parliament in Ghana,” Vol 16, Parliament Affairs, at 376…. 45

Benjamin Obi Nwabueze (1974) Presidentialism in Commonwealth Africa, St. Martin‟s Press, New York,

Chapter IX, at 255-294, “Subordination of the legislature.” … 46

… 47

A new Act, the National Government Constituencies Development Fund Act, No. 30 of 2015 has since been

enacted, although it still presents challenges regarding management of CDF.

shall be appointed by the President with the prior approval of Parliament from among members

of Parliament or persons qualified to be elected as members of Parliament. This raises critical

questions on fusion and separation of powers as a member of the Legislature can occupy a

critical position in the Executive arm of government.

6.5.3 The Executive and Administration in Kenya48

Under the text of the Constitution of Kenya 2010, the three arms of the Government have

arguably gained greater independence from one another. If implemented, there shall be no more

major influences from the Executive on the Parliament and Judiciary as evident under the 1969

Constitution. The Executive arm has been removed from the Parliament under Art. 152 (3) which

states that “a Cabinet Secretary shall not be a Member of Parliament.”

Further, the 1969 constitutional system where the executive enjoyed relative monopoly powers

over the appointment and promotion of judges and senior staff of the judiciary has been cured

under the 2010 Constitution, and may further be amended if the proposals of the BBI 2020

Report are passed. The Judicial Service Commission (JSC) manages the welfare and human

resource function of the judicial staff. But there are challenges and ambivalence in the transition

since 2010.

Significantly, in some cases, the President has ignored clear constitutional provisions, or pooh

poohed court decisions such as Justice Mumbi Ngugi on unconstitutionality of appointing county

commissioners49

and Justice David Majanja on presidential refusal to gazette the commissioners

of the National Land Commission (NLC). Equally significant is the tussle between Governors

and County Commissioners.50

Uhuru Kenyatta ordered after the Garissa University College terror attack that he was taking

responsibility for the attack. He defied a court order barring police recruits to report to training.

He ordered that the 10, 000 recruits report immediately to Kiganjo Training College.51

The

President later reversed the executive order to conform to the earlier court order after public

pressure. The President had the option to appeal the Court order. He was in contempt of court,

and this suggested he was unconstitutionally exercising executive and judicial powers. This

48

The powers, functions and structure of the executive at the national and county government levels also manifest

the fusion and separation of powers as well as checks and balances within the Executive branch of government. This

is among the President, Deputy President, proposed Prime Minister, two Deputy Prime Ministers, Cabinet

Secretaries (Cabinet Ministers as proposed under the BBI 2020 report), Permanent Secretaries……..Governors,

Deputy Governors, County Executive Committees (CEC) members as proposed under the BBI 2020 report can be

dismissed or reassigned by the County Governor, etc….. 49

Centre for Rights Education & Awareness (CREAW) & 8 Others v. Attorney General & Another [2012] eKLR. 50

See Laban Wanambisi (2020) “Governor, County Commissioners Clash Looms,” Capital News, 3/4/2013, at

https://www.capitalfm.co.ke/news/2013/04/governor-county-commissioners-clash-looms/ (accessed November 6,

2020). 51

….

illustrates that there is the need for public scrutiny and pressure from stakeholders including the

media in ensuring constitutional implementation.52

Under article 132(3)(b) of the Constitution53

as read with section 7 of the National Government

Co-ordination Act, the president can delegate his executive functions to County Commissioners.

Relying on these provisions, President Uhuru Kenyatta recently added more powers to county

commissioners, a move that has been seen by critics as a deliberate scheme to reinstate the

provincial administration.54

Article 131(3) states that the President shall not hold any other state or public office. This

includes other offices that the President has held before.55

Thus, the President shall neither be a

Member of the Senate nor National Assembly. Likewise the Deputy President shall be elected

alongside the President under Article 148 and shall not be a presidential appointee from among

ministers who are elected members of National Assembly as envisaged in Section 15 of the 1969

Constitution. See also Justice Majanja‟s holding in relation to the President and the Deputy

President eligibility to hold offices in a political party.56

The establishment of the office of Director of Public Prosecutions (ODPP) under Art. 157

significantly reduces the influence of the Attorney-General (Executive) on the Judiciary. The

DPP shall exercise state powers of prosecution and may under Art. 157(6)(c) only discontinue

any proceedings at any stage before judgment is delivered any criminal proceedings instituted by

its office or taken over by its office with the leave of court. The A-G under the 1969 Constitution

had plenary powers on prosecution.

The A-G had the power to discontinue at any stage before judgment was delivered any such

criminal proceedings instituted or undertaken by himself or another person or authority.57

This power was abused by the A-G in Otieno Clifford Richard v. Mrs Lucy Muthoni Kibaki58

when the A-G terminated the intended private prosecution against Mrs Lucy Kibaki when the

52

The then Chief Justice Willy Mutunga said, “We speak up for the rule of law and defend constitutionalism as a

rational and predictable system of organizing society because any other system-including the rule of man - is fraught

with pitfalls that would threaten the viability of any nation.” See closing remarks of the Chief Justice Willy Mutunga

during the LSK Annual Conference on August 15, 2014. 53

Article 132 (3) (b) of the Constitution provides that the president shall “direct and co-ordinate the functions of

ministries and government departments….” 54

Rawlings Otieno and Felix Ochich (2014) “President Uhuru Kenyatta gives more powers to county

commissioners,” The Standard, Nairobi, 9/6/2014, at

http://www.standardmedia.co.ke/thecounties/article/2000121313/president-uhuru-kenyatta-gives-more-powers-to-

county-commissioners?pageNo=2 (accessed 9/6/2014)…. 55

The first three presidents were MPs of Gatundu, Baringo Central and Othaya, respectively…. 56

Isaac Aluoch Polo Aluochier v. Attorney General [2013] eKLR…. 57

Section 26 (3) of the 1969 Constitution. 58

Otieno Clifford Richard v. Mrs Lucy Muthoni Kibaki, Chief‟s Magistrate Misc. Criminal Application No. 5 of

2005.

court found that it was in accordance with section 26(3) of the 1969 Constitution and section

82(1) of the Criminal Procedure Code. The plaintiff in this case was a photojournalist working

with KTN. He lodged a complaint against Mrs Lucy Kibaki.59

This application sought

permission to conduct private prosecution and issuance of summons to procure the attendance of

the First Lady to answer assault charges against Otieno Clifford Richard.60

Executive power as exercised under the office of the Director or Criminal Investigations (DCI)

and the Director of Public Prosecutions (DPP) has arguably been abused in various instances.

This is especially in light of the functions of the Ethics and Anti-corruption Commission (EACC)

under the Anti-Corruption and Economic Crimes Act (ACECA) which gives EACC powers to

investigate corruption cases and give recommendations for prosecution. In many cases, the DCI

and the DPP have taken up the roles of EACC under Anti-Corruption and Economic Crimes Act,

(ACECA).61

6.5.4 Judicature: Judiciary and tribunals in Kenya and Africa62

What are the key judicial powers and functions? What are the key constitutional rules, values and

principles regarding the judiciary and its relationship to the Legislature and Executive? What are

the powers and functions of judicial officers including Judges, Magistrates, Kadhis and judicial

staff? How are these different from or similar to the powers and functions of the key officers and

staff in the legislature and executive?

Under Art. 159 the Constitution of Kenya 2010, the judicial authority is derived from the people

and vests in, and shall be exercised by the courts and tribunals established by or under the

Constitution. The judiciary is the ultimate (not the only) interpreter of the Constitution.63

These

themes are explored in detail in this book and its sequel.64

Significantly, Marbury v. Madison is (1803) is the leading (or locus classicus) on the judicial

function, especially its role in checks and balances. In Marbury, the United States Supreme

59

What had Mrs Kibaki done?.....cf. Mrs Kibaki‟s relevant contact vis-a-vis Hyslop Ipu, Gitobu Imanyara….cf. her

conduct towards Matere Keriri, the then Vice President Moody Awori,…. 60

In Otieno Clifford Richard v. Mrs Lucy Muthoni Kibaki Chief Magistrate Misc. Criminal Application No. 5 of

2005; R. v. Ole Ntimama HC Cr Rev No. 23 of 1995; Raila v. Prof Saitoti & Others Misc App No. 31 of 1995. 61

Cf. the investigation and prosecution of Kiambu Governor Ferdinand Waititu in July 2019, among others; Hon

Philomena Mbete Mwilu v. Director of Public Prosecutions and Others…..;Ferdinand Ndung’u Waititu Babayao v.

Republic [2019] eKLR….

….. 62

NB the powers, functions, structure and jurisdiction of the unions, courts tribunals, judges and magistrates also

manifest some fusion and separation of powers, as well as checks and balances within the judiciary. 63

See Ben Sihanya (2014) “Interpretation, construction and translations applied to constitutions, contracts, statutes

and other legal instruments,” in Chapter 1 of CODRALKA 1 and Chapters 26of CODRALKA 2. 64

See Chapter 8 of CODRALKA 1 on Judicial Power, Structure, and Independent Accountability in Kenya and

Africa: Interests, Process and Outcomes. See also Chapter 11 of CODRALKA 1 and Chapters 6 CODRALKA 2.

Court asserted its position as the ultimate arbiter by reaffirming the power of courts to exercise

judicial review and nullifying laws that are otherwise unconstitutional.

Chief Justice Marshall said:

“The province of the court is, solely, to decide on the rights of individuals, not to inquire how the

executive, or arguing officers, perform duties in which they have a discretion.”

The then United States President Thomas Jefferson faulted the decision and reasoning of Chief

Justice Marshall in the Marbury case by arguing that powers to avoid laws that are extra-

constitutional had the effect of placing the judiciary, (whose members are unelected) at a higher

echelon than arms of government. This, he argued, made such powers of the Court amenable to

abuse.

“You seem to consider the judges as the ultimate arbiters of all constitutional questions; a

very dangerous doctrine indeed, and one which would place us under the despotism of an

oligarchy. Our judges are as honest as other men, and not more so. They have, with others,

the same passions for party, for power, and the privilege of their corps... Their power [is] the

more dangerous as they are in office for life, and not responsible, as the other functionaries

are, to the elective control.65

Chief Justice Marshall added:

“The Constitution has erected no such single tribunal, knowing that to whatever hands

confided, with the corruptions of time and party, its members would become despots. It has

more wisely made all the departments co-equal and co-sovereign within themselves.”66

Independence of the Judiciary has also been enhanced and guaranteed under Art. 160.

First, in the exercise of judicial authority, the Judiciary, as constituted by Article 161, shall be

subject only to the Constitution and the law and shall not be subject to the control or direction of

any person or authority.67

Second, the office of a judge of a superior court shall not be abolished while there is a

substantive holder of the office

Third, the remuneration and benefits payable to or in respect of judges shall be a charge on the

Consolidated Fund.

Fourth, the remuneration and benefits payable to, or in respect of, a judge shall not be varied to

the disadvantage of that judge, and the retirement benefits of a retired judge shall not be varied to

65

Thomas Jefferson (1830) Memoir, Correspondence, and Miscellanies, from the Papers of Thomas Jefferson, Gray

and Bowen, at 372-375. …Note the concepts of co-equal co-sovereign;….. 66

Ibid.. …Note the concepts of co-equal, co-ordinate, co-sovereign…..; 67

These seven points are discussed in detail in CODRALKA 1 Chapter 8 on Judicial Power, Process and

Independent Accountability in Kenya and Africa……

the disadvantage of the retired judge during the lifetime of that retired judge. Judges reportedly

raised this to argue that their income should not be taxed.68

There were similar arguments regarding the Salaries and Remuneration Commission‟s (SRC‟s)

proposal to review the salaries and remuneration of State Officers. The question has always been,

is SRC to exercise power arbitrarily? For example, in the context leading to and related to the

teachers strike of 2013;69

on remuneration of MPs,70

Members of County Assembly (MCAs)71

;

on job evaluation and salaries and remuneration of professors, lecturers, technical administrators,

secretarial, clerical and other staff of public universities in the context of the following collective

bargaining agreements (CBAs): 2012-2017; 2017-2021…;72

who is to vet the SRC?

Fifth, a member of the Judiciary is not liable in an action or suit in respect of anything done or

omitted to be done in good faith in the lawful performance of a judicial function. Some of the

rationales include the fact that they may have made honest mistakes; there is room for appeal,

etc.

Sixth, budget of the Judiciary and JSC be guaranteed through participation. It should be

sufficient, be protected through the Judiciary fund (Article 173 Constitution of Kenya, 2010) and

not arbitrarily reviewed through supplementary budget e.g. in 2019.

The retirement age of judges may only be changed in a manner consistent with the constitution

and statute. It is 70. Was it changed from 68 to 70, to 72 to 74, to 70? Why? Compare US, where

Supreme Court judges serve for life? ...only impeachable....death.....any need to amend the

Constitution on 70? Consider the argument that 75 is generally okay for Supreme Court Judges,

academics, or some Presidents.....

The Constitution of Kenya also gives the Chief Justice the mandate to make rules providing for

the court proceedings to facilitate access to justice for all persons.73

They are published in the

68

Jillo Kadida (2008) “Judges protest as new tax rule enforced,” Daily Nation, Nairobi, 9/6/2014 at

http://www.nation.co.ke/news/-/1056/476746/-/5g8sg1z/-/index.html (accessed 9/6/2014). 69

Caroline Theuri (2013) “Teachers strike in push for big pay rise,” Daily Nation, Nairobi, 12/12/2013 at

https://www.nation.co.ke/kenya50/education/Teachers-strike-in-push-for-big-pay-rise/2032870-2109124-

uofd1x/index.html (accessed at 9/3/2020); Teachers Service Commission (TSC) v. Kenya Union of Teachers

(KNUT) & 3 Others [2015] eKLR 70

……Roselyne Obala & Cyrus Ombati (2019) “Why MPs insist on more allowances in battle with SRC,”

Standard, Nairobi, 10/7/2019 at https://www.standardmedia.co.ke/article/2001333243/why-mps-insist-on-more-

allowances-in-battle-with-src (accessed 9/3/2020) 71

…. 72

……Richard Munguti (2017) “Court stops SRC‟s new pay structure for universities academic staff,” Daily

Nation, Nairobi, 2/8/2017 at https://www.nation.co.ke/news/Court-SRC-pay-structure-lecturers-UASU/1056-

4042078-so09q1/index.html (accessed 9/3/2020); Austine Oduor (2019) “Lecturers, SRC form advisory team in pay

talks row,” Standard, Nairobi, 28/9/2019 at https://www.standardmedia.co.ke/article/2001343643/lecturers-form-

team-to-resolve-pay-row-with-src (accessed 9/3/2020).; Ouma Wanzala (2020) “Varsity staff back in court over

Sh8.8bn SRC pay row,” Daily Nation, Nairobi, 27/2/2020 at https://www.nation.co.ke/news/education/University-

staff-head-back-to-court-Sh8-8bn-pay-row-SRC/2643604-5470402-u6t7l8/index.html (accessed 9/3/2020). 73

This power is conferred by Article 22(3) as read with Article 23 and Article 165(3) (b) of the Constitution of

Kenya.

Kenya Gazette Supplement No. 95.74

This is a limited delegated legislative power; the rules must

be consistent with the constitution and the relevant statutes.

6.6 Devolution and key issues: vertical separation of powers?

What is devolution? How is it related to fusion and separation of powers, and checks and

balances in Kenya and Africa?

Article 189(1) of the Constitution specifically requires the performance of functions by the two

levels of government in a manner that respects their independence by providing as follows:

“Government at either level shall perform its functions, and exercise its powers, in a manner that

respects the functional and institutional integrity of government at the other level, and respects

the constitutional status of institutions of government at the other level and, in the case of county

governments, within the county level.”

The various and emerging forms of devolution embody varieties of fusion and separation of

powers, checks and balances….

6.6.1 Conceptualising Devolution in Kenya and Africa75

Devolution is the transfer of political, administrative and legal authority, power and

responsibility from the centralized government unit to some unit at local or regional level.76

Devolution is a practice in which the authority to make decisions in certain spheres of public

policy at the national level is delegated by law to sub-national level.77

In a devolved system, the

units of devolution to which power and authority is devolved are autonomous from each other,

though interdependent functionally. Article 6(2) of the Constitution of Kenya 2010 provides that

“the Governments at the national and county levels are distinct and inter-dependent and shall

conduct their mutual relations on the basis of consultation and cooperation.”

74

Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules,

2013(Mutunga Rules). The overriding objective of these rules is to facilitate access to justice for all persons as

required under Article 48 of the Constitution. 75

Develop a typology of “devolution laws”….Critically discuss the following Acts, rules and regulations, among

others, County Government Act, 2012.; Coordination of National Government Coordination Act No 3 of 2013. The

Inter-Governmental Relations Act, No 2 of 2012.See also CODRALKA Chapters 1, 3, 4…on Administering and

Regulating Constitutional Democracy in Kenya and Africa;. 76

See Chapter 4 of CODRALKA 1 & 2; Sihanya Mentoring Matrix on devolution and related decentralization in

Kenya and Africa (2020) 77

East African Center for Law & Justice (2011) “Devolution (Implementation and challenges).” See

http://eaclj.org/constitution/20-constitution-feature-articles/38-devolution-implementation-and-challenges.html

(accessed 8/6/2014).....

The 2014 County Government (Amendment) Act that had established county development

boards brought a conflict between Senators and county Governors. Governors were opposed to

this move by Senators to usurp the executive and legislative power of county governments.78

If the Act was to be implemented, all county budgets, development plans, and projects would

have had to be approved by the board before being tabled in the County Assembly. There were

two serious constitutional problems that could arise from this proposed structure:

First, the county executive is responsible in developing county budgets and development plans

while the county assembly is to approve them under Article 179(1) and Article 185(4) of the

Constitution.79

As such requiring the prior approval by the proposed county development boards

would be unconstitutional. The Constitution is the supreme law of the Republic and any law that

is inconsistent with it is void to the extent of its inconsistency.80

Second, the county development boards which consist of senators and Members of the National

Assembly would go against the vertical separation of power between the national and county

levels and horizontal separation of powers between the legislature and the executive. This would

be contrary to the principle of devolved government which provides that county governments

shall be based on democratic principles and the separation of powers.81

The Amendment Act was immediately challenged at the High Court and the court has recently

declared it unconstitutional.82

The court re-emphasized the above points in the following terms:

“...Oversight authority does not mean executing the duties of county executives. The Senate

cannot dismantle the architects of devolution through legislation. Any statute that threatens to

weaken devolution is unconstitutional....”83

78

Ben Sihanya (2014) “Devolution in Kenya National Government vis-à-vis County…Government and the Legal

Effect of Transition,” working paper presented at the State Counsel Workshop, September 11, 2014 at the Great Rift

Valley Lodge in Naivasha….. 79

County Government of Kiambu & Another v. Senate & Others [2017] eKLR 80

Article 2 of the Constitution of Kenya 2010; Conrad Bosire (2014) “Katiba Corner: The „War‟ between Senators

and Governors: What Does the law say?”The Star, Nairobi, February 22, 2014, at http://www.the-

star.co.ke/news/article-156346/katiba-corner-war-between-senators-and-governors-what-does-law-say (accessed

09/09/14). 81

Article 175 (a) of the Constitution of Kenya 2010 states: “County governments established under this Constitution

shall reflect the following principles— (a) county governments shall be based on democratic principles and the

separation of powers; (b) county governments shall have reliable sources of revenue to enable them to govern and

deliver services effectively; and (c) no more than two-thirds of the members of representative bodies in each county

government shall be of the same gender.” 82

See Paul Ogemba (2016) “Judges reject senators‟ control of county funds,” Daily Nation, Nairobi, June 10, 2016,

at http://www.nation.co.ke/news/politics/Judges-Senators-County-Development-Boards/-/1064/2783260/-/8ufifh/-

/index.html (accessed 18/6/2016). 83

See Council of County Governors v. The Senate, The National Assembly and the Senators of the 47 Counties,

Petition No 1 of 2014, eKLR…..

How have the National Assembly, Senate and County Assemblies promoted devolution? Where

have they compromised the values, principles and objectives of devolution? And what is to be

done in Kenya, Nigeria and South Africa?

6.6.2 Senate v. National Assembly in the promotion of devolved government in Kenya

The Senate represents the counties, and serves to protect the interests of the counties and their

governments.84

The Senate participates in the law-making function of Parliament by considering,

debating and approving Bills concerning counties, as provided in Articles 109 to 113 of the

Constitution. And some MPs have problematically argued that the Senate is inferior to the

National Assembly in the legislative process: that the National Assembly legislates or makes

laws, while Senate (merely) participates in the law-making process.85

A Bill concerning

Counties can originate from either the Senate or the National Assembly. When such a Bill is

passed in either House, the Speaker of the House that passed it shall refer it to the Speaker of the

other House. If both Houses pass the Bill in its original form, it's then passed on for Presidential

Assent.

In the tussle between the Senate and the National Assembly over the division of revenue bill in

early 2013, the Members of the National Assembly felt that the Senate had no constitutional

mandate to revisit the Bill.86

The Division of Revenue Bill deals with the amount of money that

is to be allocated to the Counties from the National Government. Therefore this is a bill

concerning county governments87

rather than a money Bill, as was held by the Supreme Court in

its advisory opinion.88

Some of the mischief addressed by the proposed Annual Division of Revenue Bill in the BBI

2020 Report in Article 218…., and the proposed introduction of Article 218A on County

84

Article 96 of the Constitution of Kenya 2010…. 85

…..Hanibal Goitom (2017) “National Parliaments: Kenya,” The Law Library of Congress, Global Legal Research

Center at https://www.loc.gov/law/help/national-parliaments/pdf/kenya.pdf,(accessed March 9, 2020). 86

In 2014, the Senate introduced the Bill in their House before it was enacted in the National Assembly and this

created another confrontational move. See Roselyne Obala (2013) “Another clash looms over controversial revenue

Bill,” The Standard, Nairobi, June 9, 2014 at

http://www.standardmedia.co.ke/thecounties/article/2000110026/another-clash-looms-over-controversial-revenue-

bill (accessed 9/6/2014).... 87

Under Article 114 of the Constitution of Kenya 2010: “(1) A money Bill may not deal with any matter other than

those listed in the definition of “a money Bill” in clause (3). (2) If, in the opinion of the Speaker of the National

Assembly, a motion makes provision for a matter listed in the definition of “a money Bill,” the Assembly may

proceed only in accordance with the recommendation of the relevant Committee of the Assembly after taking into

account the views of the Cabinet Secretary responsible for finance. (3) In this Constitution, “a money Bill” means a

Bill, other than a Bill specified in Article 218, that contains provisions dealing with— (a) taxes; (b) the imposition of

charges on a public fund or the variation or repeal of any of those charges; (c) the appropriation, receipt, custody,

investment or issue of public money; (d) the raising or guaranteeing of any loan or its repayment; or (e) matters

incidental to any of those matters. (4) In clause (3), “tax”, “public money”, and “loan” do not include any tax, public

money or loan raised by a county. ….” 88

Speaker of the Senate & Another v. Hon. Attorney-General & Another & 3 Others [2013] eKLR Advisory

Opinion Reference 2 of 2013…..

Allocation of Revenue Bill include the need to provide a legal framework for the division of

revenue among counties in Kenya…?

6.7 Checks and balances under the Constitution 2010

The main object of separation of powers among the three arms of the Government is to facilitate

and help secure checks and balances in governance.89

One of the major pressing issues that

culminated in the call for constitutional reforms in Kenya, was the unbridled, exclusive or club-

like, exploitative or rent-seeking, omni-present and oppressive imperial presidency.

Article 10 of 2010 Constitution outlines basic values and principles of governance that shall

apply to and bind all State organs, State officers, public officers and all persons whenever any of

them applies or interprets the Constitution. These also apply whenever any one of them enacts,

applies or interprets any law; or makes or implements public policy decisions.90

These values

and principles also apply to the making of rules to regulate presidential and executive power.

6.7.1 Checks and balances in appointments, nomination, vetting and approval in Kenya

and Africa

Any appointment to State or public office of any person by the Executive is subject to scrutiny

by National Assembly, Judiciary, Commission or independent office. The roadside presidential,

ministerial declarations and handpicking have been curtailed in new laws that emphasize

procedural discipline in executing state functions and duties.

Article 129 states explicitly that,

“Executive authority derives from the People of Kenya and is to be exercised in accordance with

the Constitution. The executive authority shall be exercised in a manner compatible with the

principle of service to people of Kenya, and for their benefit.”91

Moreover, the composition of any state organ must reflect the regional and ethnic diversity of the

people of Kenya.92

This nullifies and contradicts Sections 23, 24 and 25 of the 1969 Constitution

which emphasized executive or presidential authority and discretion.93

Can the appointments of diplomats by the President be regarded as a trial to the principles and

national values in our Constitution? Most of the diplomats appointed were 2013 Jubilee losers.

89

See Montesquieu, The Spirit of the Laws (1748) 90

See sec 5.4 above…. 91

…. 92

There have been serious issues regarding the ethnically biased appointments under the Kenyatta II (K+) regime.

Cf. appointments to parastatals, Solicitor General (in light of com[position of State Law Office), “Head of Public

Service,” the Communication Authority Kenya, etc….. 93

See Mwangi Mureithi I; Mwangi Mureithi II cases. Kibaki‟s supporters like Amos Kimunya cited these provisions

in a debate in Parliament regarding Kibaki‟s appointment of County Commissioners……See also CODRALKA 1

Chapters 5, 6, 7, 9, 10, 14 and 20….on Mwangi Stephen Mureithi 1-5…..

They include Mr Njeru Githae, Mr Chirau Ali Mwakwere, Mr Sam Ongeri, and Mr Kiema

Kilonzo.94

The following are some of the offices that may only be established or operationalised through the

involvement of more than one arm of the Government and or independent offices and

commissions.

A replacement to the office of Deputy President (Art.149)95

Chief Justice (CJ) and Judge (Art. 166)96

Commission and Independent Offices holder (Art. 250).

Attorney-General (Art.156)

Director Public Prosecutions (DPP) (Art. 157)

Cabinet Secretary (CS) (Art. 152)

Secretary to the Cabinet ((Art. 154)

Principal Secretaries (PS) (Art. 155)97

Remarkably, there were attempts by retrogressive forces under Kibaki and Kenyatta Kamwana

to confer the President powers to have a greater influence on the appointment of the Chief Justice

through amendment to Section 30 (3) of the Judicial Service Act 2011 vide the Statute Law

(Miscellaneous Amendment) Act 2015. The amendment, which was hurriedly endorsed by

Jubilee legislators in the National Assembly, had deleted subsection (3) of the Act and

substituted it with a new section that provided that the Secretary of the Judicial Service

Commission (JSC) “shall forward the names of three (3) qualified persons for each vacant

position to the President.”98

94

Mr Kiema Kilonzo was appointed as the first Kenyan Ambassador to Turkey in 2013 after losing the Kitui

gubernatorial elections to Mr Julius Malombe. Eugene Okumu (2014) “2013 Jubilee poll losers make come-back in

new government diplomatic appointments,” The Star, Nairobi, 15/8/2014, at http://www.the-star.co.ke/news/article-

184735/2013-jubilee-poll-losers-make-come-back-new-government-diplomatic-appointments (accessed 29/9/14).....

cf. post 2017 election appointments, including to…., to Chief Administrative Assistants (CAS), Ambassador…. See

also CODRALKA Chapters ….. on Foreign, Policy, Diplomatic, Consular, and International Relations and

Cooperation in Kenya and Africa…. 95

President nominates, National Assembly vets… President appoints… 96

The Judicial Service Commission (JSC) nominates, President, National Assembly vets, President assents…. 97

See Speaker Kenneth Marende‟s ruling, as well as the rulings by Justices Musinga and Ibrahim respectively, in

CREAW and MUHURI on the 2011 controversial nominations of persons to offices of the A-G, Controller of

Budget, DPP and the Chief Justice by the office President. Also see the Mungatana (The Public Appointments) Bill

2011. See Centre for Rights Education and Awareness (CREAW) & 8 Others v. Attorney General & Another (2012)

eKLR…; Muslims for Human Rights (Muhuri) & 2 Others v. Attorney General & 2 Others [2011 eKLR. High Court

at Mombasa Petition 7 of 2011.

…..See also CODRALKA 1 Chapter 9 on “President and Deputy President in Kenya and Africa,” and Chapter 10 on

“Prime Minister and Deputy Prime Minister in Kenya and Africa.” 98

See….Cf. Kenya Human Rights Commission Press Statement on the Amendment to Section 30 (3) of the Judicial

Service Act 2011, January 13, 2016, at http://www.khrc.or.ke/2015-03-04-10-37-01/press-releases/510-press-

statement-on-the-amendment-to-section-30-3-of-the-judicial-service-act-2011-vide-the-statute-law-miscellaneous-

This was challenged in court and a five-judge bench99

rightly declared section 30 (3) of the JSC

Act null and void as it would interfere with the doctrine of separation of powers.100

6.7.2 Approval of annual and supplementary budgets in Kenya and Africa101

The National Assembly (NA) under Article 95(4) determine the allocation of the national

revenue between the levels of Government, as provided in Part 4 of Chapter Twelve.102

It also

appropriates funds for expenditure by the national Government and other national State organs;

and exercises oversight over national revenue and its expenditure.

The Senate under Article 96(3) determines the allocation of the national revenue among counties,

as provided in Article 217. Senate also exercises oversight over national revenue allocated to the

county governments.

6.7.3 Oversight authorities in Kenya and Africa

The National Assembly is to review the conduct in the office of the President, the Deputy

President and other State officers and initiate the process of removing them from office. The

National Assembly is to exercise oversight over the State organs (Article 95 (5).)

What is the role of the Public Accounts Committee (PAC) in scrutinizing the cash scandal at the

Office of the President (OP)? There have been outcries from the members of the public on the

disappearance of KES 15 billion from the Office of the President in the run up to 2013

presidential election.

The withdrawal of the cash was linked to the Office of the President (OP) Accounts, the Police

Commissioner‟s Account and the Inspector-General of Police Account and the Director of

Criminal Investigations Accounts.103

There was also discussion on cash withdrawn from the

Central Bank at night and transported using Land Rovers to State House.104

amendment-act-2015.html (accessed 15/6/2016).....The Chief Justice‟ appointment was revisited by supporters of

President Kenyatta in the Building Bridges Initiative (BBI) debates 2018-2020. … 99

The bench comprised justices Richard Mwongo, Mumbi Ngugi, Weldon Korir, Joseph Onguto and George

Odunga…… 100

Cf. ……See Montesquieu, The Spirit of the Laws (1748), op. cit. 101

We discuss public finance (chapter 13) in detail; under Chapter 3 in relation to values, principles, policies and

ethics, leadership and integrity in public finance…..See also CODRALKA Chapter 6 on National Government and

County Government Powers, Functions, Process, Regulation and Administration of Economic, Public Finance…….. 102

Cf. 1969 Constitution of Kenya….. 103

….. 104

Isaac Ongiri (2014) “MPs split on fresh Sh8.3bn audit,” Daily Nation, Nairobi, 1/9/2014, at

http://www.nation.co.ke/news/politics/MPs-Office-of-the-President-Scandal-Audit/-/1064/2437900/-/fqwermz/-

/index.html (accessed 29/9/14).....

The Senate under Article 96(4) is to participate in the oversight of the State officers considering

and determining any resolution to remove the President or Deputy President from office. This

should be in accordance with Article 145 on removal of the President by impeachment.

The County Assembly under Article 185 is mandated to act as an oversight instrument on the

county executive.105

Significantly, the county executive members are not members of the county

assembly and are answerable to the governor but they are still subject to checks by the county

assembly.106

What is the solution when a county assembly stalls the operation of the county executive led by

the county governor? Makueni County Governor Kivutha Kibwana has appealed to the President

to exercise his powers under Article 192 of the Constitution of Kenya 2010 which provides that

the President may suspend a county government in case of an emergency arising out of internal

conflict or war or in any other exceptional circumstances.107

Kivutha Kibwana cited delays in passing Bills and the budget, plans to remove four of the county

executives by the MCAs and to make it worse the executive members targeted are women and

one of the direct implication of this is that the cabinet would not meet the threshold set under

Article 81(b) of the Constitution of Kenya 2010 on the two-thirds gender rule.108

Cf. the case of Peter Gatirau Munya v. Dickson Mwenda Githinji & 2 Others,109

the case of

Governor Paul Chepkwony (Kericho County) and the case of Machakos Deputy Governor, Mr

Bernard Kiala.110

The Judiciary is to offer oversight over the Executive through regular adjudication and judicial

review. It also has key responsibilities of upholding the rule of law, respecting, safeguarding the

law and protecting persons from violations, threats, and infringements.

105

Art 185(3) states that “a county assembly, while respecting the principle of the separation of powers,, may

exercise oversight over the county executive committee and any other executive organs…..” 106

This is also the case for Cabinet Secretaries and the President…… 107

Article 192(1) of the Constitution of Kenya 2010; See also section 123 of the County Governments Act, 2012….. 108

Mazera Ndurya (2014) “Kivutha Kibwana seeks assembly dissolution,” Daily Nation, Nairobi, 25/9/ 2014, at

http://www.nation.co.ke/news/politics/Kibwana-seeks-assembly-dissolution/-/1064/2465498/-/jt0al5z/-/index.html

(accessed 29/9/14). 109

Peter Gatirau Munya v. Dickson Mwenda Githinji & 2 Others, Petition No 2 of 2014….. 110

Nikko Tanui (2014) “Kericho MCAs impeach Governor Paul Chepkwony,” The Standard, Nairobi, 14,/5/2014 at

http://www.standardmedia.co.ke/thecounties/article/2000121154/kericho-governor-chepkwony-ousted (accessed

9/6/2014).

6.7.4 Constitutional commissions and Independent Offices in Kenya and Africa111

There are also 14 constitutional commissions, “two” (they are more) constitutional independent

offices, constitutional tribunals, statutory commissions, statutory tribunals and other bodies that

are to oversee the running and management of State organs. The constitutional commissions

include;112

1. Kenya National Human Rights and Equality Commission (Art 248 (2) (a))

2. Judicial Service Commission (JSC) (Art 171)

3. National Land Commission (NLC) Art 248 (2) (b)

4. Parliamentary Service Commission (PSC)Art 248 (2) (d)

5. Commission on Revenue Allocation (CRA) (Art 215)

6. Public Service Commission (PSC) Art 248 (2) (d)

7. Salaries and Remuneration Commission (SRC) Art 248 (2) (h)

8. Teachers Service Commission (TSC) Art 248 (2) (h)113

9. National Police Service Commission (NPSC) Art 248 (2) (j)

10. National Gender and Equality Commission (NGEC) (Art 59 (4))

11. Commission for Implementation of the Constitution (CIC) (Sixth Schedule;

defunct….)

12. Ethics and Anti-Corruption (EACC) (replaced the Kenya Anti-Corruption

Commission (KACC)) (Art 79)

13. Commission on Administrative Justice (CAJ) (Art 59 (4))

14. Independent Electoral and Boundaries Commission (IEBC) (Art 88)

The Building Bridges Initiative (BBI) Report 2020 proposes the following key amendments:

(1) the creation of a Youth Commission by introducing Article 237A to ensure the realization

of Article 55.

(2) the creation of the Independent Policing Oversight Commission to ensure accountability

in the police service by proposed amendment of Chapter 14 Constitution of Kenya 2010.

(3) the removal of the National Police Service Commission (NPSC) and its replacement by

the Kenya Police Council to ease and streamline policy and command of police units.

Clearly, there is need for a detailed study of fusion and separation of powers, checks and

balances in the context of the Building Bridges Initiative (2020) and related reform debates in

Kenya and Africa.

111

Constitutional commissions and independent offices in Kenya and Africa is discussed more systematically and in

detail in Chapter 15 (CODRALKA 1). NB: Only the Parliamentary Service Commission (PSC) and the Judicial

Service Commission (JSC) are chaired by ex-officio officers or belong to parliament and the judiciary in the first

place, respectively. 112

Chapter 15, Constitution of Kenya 2010. Is the listing in Art 248 suggestive of an hierarchical relationship? What

typology or clustering would better serve the need for appropriate conceptual, problematization and

contextualization of CIOs? They should not be called Chapter 15 Commissions partly because some of the

commissioners are established by or under other chapters or articles even though Chapter 15 has details…… 113

Cf. Education Commission…in Uganda…

6.8 Summary of Findings, Conclusion and Recommendations on Fusion and Separation of

Powers and Checks and Balances in Kenya and Africa

There are three key research questions or arguments, findings and conclusions. First, even

though the Constitution of Kenya 2010 clearly provides for separation of powers, the presidency,

and the higher executive at the national level, and the governors of the 47 counties have fused

powers.

Second, the checks and balances have been emphasized by only some High Court judges. The

Court of Appeal and the Supreme Court have been inconsistent. And the presidency and the

National Assembly as well as Senate and some County Assemblies have not complied and have

sometimes compromised the judicial and popular views on checks and balances.

Third, judicial incompetence and corruption in some cases have undermined judicial

independence, accountability and authority on separation of powers and checks and balances in

Kenya. The challenge is to secure judicial independent accountability given that most judges,

magistrates and judicial offices do their best to balance the separation and fusion of powers as

well as checks and balances in Kenya and Africa.

...the discourse continues in the Oracle‟s Shrine, class, articles, books, online, in the blogosphere,

social media, and appropriate fora…

© Prof Ben Sihanya, JSD (Stanford), Revised 27/2/2013; 26/9/2013; 14/6/2014; 14/10/14;

16/02/15; 16/06/; 31/08/15; 10/2/2016; 29/6/2016; 14/4/17; 10/4/2018; 20/12/2018 11/3/2019;

2/8/; 31/10/; 1/11/19; 9/3/; 12/3/; 6/11/2020; 24/11/2020

email: sihanyamentoring@gmail.com; sihanya@innovativelawyering.com (use both)

url: www.innovativelawyering.com