CHAPTER 6

FUSION AND SEPARATION OF POWERS, AND CHECKS AND BALANCES

IN KENYA AND AFRICA

This Draft 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 & Innovative Lawyering, Nairobi & Siaya

5.1 Conceptualising fusion vis-à-vis sseparation 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 President, the Governor, 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…of the Constitution of
Kenya 2010. It is manifested in pre-colonial Kenya2 and through the presidency of Jomo Kenyatta,
Daniel Moi, Mwai Kibaki, and Uhuru Kenyatta.3

We therefore adopt an Afro-Kenyanist conceptual and theoretical framework….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)…

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

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,”
(Chap 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,” (Chap 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, Baganda, Igbo, Yoruba, and Zulu….
3
See 1969 Constitution of Kenya.
4
See Chapters 2, 3, 6… of CODRALKA 2. See also CODRALKA 1, Chapters ……..
govern the powers, functions and operations of every arm of government? While Article 10, etc
now mentions 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. No one officer should exercise more than one set of powers.
And 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
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….

5
To elaborate…
6
See Ben Sihanya (due 2020) “Constitutional Commissions and Independent Offices in Kenya: Experiences,
Challenges and Opportunities,” Chapter 13 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, Innovative Lawyering & Sihanya Mentoring, Nairobi
& Siaya, Chapter 15.
7
Laurence Tribe (2000) American Constitutional Law, 3rd edition, Foundation Press, UK.
8
Cf. in precolonial Kenya and Africa ….Locke….
9
…
5.2 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?

5.3 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
discussed in Chapter 1 of CODRALKA 1. Second, Article 1(8) of the US Constitution which
provides for powers of Congress as discussed in Chapter 7 below 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

10
Ben[jamin] 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]…
12
To give examples…
13
……See Chapter 18 on Administrative, Regulatory Law and Governance in constitutional Democracy in Kenya
and Africa…
5.4 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? Which are 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 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…

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)
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
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

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.

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 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 head of the executive by providing that the President is to be the Head of
State and Government, exercise executive authority of the Republic, is 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 in accordance with the recommendation of the Judicial
Service Commission (JSC) and subject to the approval of the National Assembly. The appointment

18
…This is better called competitive, constructed strategic advantage…
19
Consider fusion of legislative, executive and judicial powers in the President…Executive…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, …., …., Ruto: no
reading of newspapers. Newspapers are for meat wrapping.”…, no-interpretation of court orders is fusion…
20
Cf. See Ben Sihanya (due 2020) “The Presidency and Public Authority in Kenya’s New Constitutional Order,”
Chapter 9 of CODRALKA 2 on “Constitutional Values, Principles, Policies and Politics in Kenya and Africa: Agency
and Structure.”
21
Should “appoint” be changed to reflect nomination….?
power is nominal or notional...He 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 wants the powers vested in the Head of State to appoint
judges to be delegated to JSC.23

What has been the state of debate regarding elections and swearing in of JSC Commissioners?
Control by Mr 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 vetted by the National
Assembly (NA) and appointed by President Kenyatta?24 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.25 They are biologically, intellectually,
ideologically and politically Kikuyu. And the serving member 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).26

In the context of these and related cases, Chief Justice Maraga transferred Justice Okwany and
Justice Chacha Mwita.27 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.28

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.

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
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
25
….e.g. …
26
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....
27
….
28
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……
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 proposals, as compared to the 2010 Constitution….

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,29power 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?30

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, Monday to Friday. 31 Is the executive the most omnipotent as a matter of fact and history?
The executive is also generally the most coercive?32

Is the Judiciary the most deliberative?33 The “least dangerous” branch, arm or limb of Government
as Alexander Hamilton claimed? This is arguable in the context of a largely extravagant political,
corrupt, dependent, and incompetent judiciary in Kenya, Nigeria, Uganda, and in African states.

29
These include Intergovernmental Budget and Economic Council (IBEC), and the Summit….
30
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.
31
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….
32
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.
33
“Third, shorter arm?” No first, second and third arms?.....Not elected? Demerits of elected judges and magistrates…
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), 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.

5.5 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…Attorney General is in Parliament…Then Senate to have greater oversight role…as
the “Upper House?”

5.5.1 Separation of powers under the Constitution 201034

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.35 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.

5.5.2 The Legislature at national and sub-national level in Kenya and Africa36
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

34
Direct, indirect separation of powers, vertical, horizontal separation of powers….
35
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…To take some of the foregoing to text….
36
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.
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.37 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
and submitting them to the National Assembly for approval, and exercising budgetary control over
the service, among others.38

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.39

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.”40 The Kenyan Parliament is however commended as
being among the more fierce, independent and instrumental African Parliaments.41

37
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 Administering and Regulating Constitutional Democracy
in Kenya and Africa….
38
See Ben Sihanya (due 2020) “Constitutional Commissions and Independent Offices in Kenya: Experiences,
Challenges and Opportunities,” Chapter 13, CODRALK 1, op. cit.
39
See Chapter 1, 3, 4 CODRALKA 1 on Admin and Regulatory Process in Kenyan and African Constitutional
Democracy…
40
JM Lee (1962) “Parliament in Ghana,” Vol 16, Parliament Affairs, at 376….
41
Benjamin Obi Nwabueze (1974) Presidentialism in Commonwealth Africa, St. Martin’s Press, New York, Chapt
IX, at 255-294, “Subordination of the legislature.”…
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,42 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.43

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
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.

5.5.3 The Executive and Administration in Kenya44

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 in
under the 2010 Constitution. 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
commissioners45 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.

42
…
43
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.
44
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, Cabinet Secretaries, Permanent Secretaries……..Governor, Deputy Governor,
CEC members, etc…..
45
Centre for Rights Education & Awareness (CREAW) & 8 Others v. Attorney General & Another [2012] eKLR.
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.46 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
illustrates that there is the need for public scrutiny and pressure from stakeholders including the
media in ensuring constitutional implementation.47

Under article 132(3)(b) of the Constitution48 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.49

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.50 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.51

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.

46
….
47
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.
48
Article 132 (3) (b) of the Constitution provides that the president shall “direct and co-ordinate the functions of
ministries and government departments….”
49
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)….
50
The first three presidents were MPs of Gatundu, Baringo Central and Othaya, respectively….
51
Isaac Aluoch Polo Aluochier v. Attorney General [2013] eKLR….
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.52

This power was abused by the A-G in Otieno Clifford Richard v. Mrs Lucy Muthoni Kibaki53 when
the A-G terminated the intended private prosecution against Mrs Lucy Kibaki when the 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.54 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.55

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).56

5.5.4 Judicature: Judiciary and tribunals in Kenya and Africa57

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

52
Section 26 (3) of the 1969 Constitution.
53
Otieno Clifford Richard v. Mrs Lucy Muthoni Kibaki, Chief’s Magistrate Misc. Criminal Application No. 5 of 2005.
54
What had Mrs Kibaki done?.....cf Mrs Kibaki’s relevant contact vis-a-viz Hyslop Ipu, Gitobu Imanyara….cf her
conduct towards Matere Keriri, the then VP Moody Awori,….
55
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.
56
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
…..
57
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.
Constitution. The judiciary is the ultimate (not the only) interpreter of the Constitution.58 These
themes are explored in detail in this book and its sequel. 59

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 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.60
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.”61

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.62

58
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.
59
See Chapter 10 of CODRALKA 1 on Judicial Power, Structure, and Independent Accountability in Kenya and
Africa: Interests, Process and Outcomes. See also Chapter 12 of CODRALKA 1 and Chapters 6 CODRALKA 2.
60
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;…..
61
Ibid. . …Note the concepts of co-equal, co-sovereign…..;
62
These seven points are discussed in detail in CODRALKA 2 Chapter 11 on Judicial Power, Process and
Independent Accountability in Kenya and Africa……
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
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.63

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;64 on remuneration of MPs,65 Members of County Assembly (MCAs)66; 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…;67 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

63
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).
64
……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
65
……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)
66
….
67
……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).
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.68 They are published in the
Kenya Gazette Supplement No. 95.69 This is a limited delegated legislative power; the rules must
be consistent with the constitution and the relevant statutes.

5.6 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….
5.6.1 Conceptualising Devolution in Kenya and Africa70
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.71 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.72 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.”

68
This power is conferred by Article 22(3) as read with Article 23 and Article 165(3) (b) of the Constitution of Kenya.
69
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.
70
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;.
71
See Chapter 4 of CODRALKA 1 & 2; Sihanya Mentoring Matrix on devolution and related decentralization in
Kenya and Africa (2020)
72
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.73

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.74 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.75

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.76

The Amendment Act was immediately challenged at the High Court and the court has recently
declared it unconstitutional.77 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....”78

73
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…..
74
County Government of Kiambu & Another v. Senate & Others [2017] eKLR
75
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).,,,,
76
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.”
77
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).
78
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?

5.6.2 Senate v. National Assembly in the promotion of devolved government

The Senate represents the counties, and serves to protect the interests of the counties and their
governments.79 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.80 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.81 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 governments82 rather than a money Bill, as was held by the Supreme Court in its advisory
opinion.83

5.7 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.84 One of the major pressing issues that

79
Article 96 of the Constitution of Kenya 2010….
80
…..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).
81
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)....
82
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; Constitution of Kenya, 2010 69
(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. ….”
83
Speaker of the Senate & Another v. Hon. Attorney-General & Another & 3 others [2013] eKLR Advisory Opinion
Reference 2 of 2013…..
84
See Montesquieu, The Spirit of the Laws (1748)
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.85 These values and
principles also apply to the making of rules to regulate presidential and executive power.

5.7.1 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.”86

Moreover, the composition of any state organ must reflect the regional and ethnic diversity of the
people of Kenya.87 This nullifies and contradicts Sections 23, 24 and 25 of the 1969 Constitution
which emphasized executive or presidential authority and discretion.88

Can the appointments of the 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.
They include Mr Njeru Githae, Mr Chirau Ali Mwakwere, Mr Sam Ongeri, Mr Kiema Kilonzo.89

85
See sec 5.4 above….
86
….
87
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…..
88
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
Chapters….on Mwangi Stephen Mureithi 1-5…..
89
Mr Kiema Kilonzo was appointed to…..He had been……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).....See also CODRALKA Chapters ….. on Foreign, Policy, Diplomatic, Consular,
and International Relations and Cooperation in Kenya and Africa….
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.
 Chief Justice (CJ) and Judge (Art. 166)90
 Commission and Independent Offices holder (Art. 250).
 A replacement to the office of Deputy President (Art.149)91
 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)92

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.”93

This was challenged in court and a five-judge bench94 rightly declared section 30 (3) of the JSC
Act null and void as it would interfere with the doctrine of separation of powers.95

90
The Judicial Service Commission (JSC) nominates, President, National Assembly vets, President assents….
91
President nominates, National Assembly vets… President appoints…
92
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 2 Chapter 9 on “President and Prime Minister in Kenya and Africa.”
93
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-
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. …
94
The bench comprised justices Richard Mwongo, Mumbi Ngugi, Weldon Korir, Joseph Onguto and George
Odunga……
95
Cf ……See Montesquieu, The Spirit of the Laws (1748)
5.7.2 Approval of annual and supplementary budgets in Kenya and Africa96
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.97 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.

5.7.3 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.98 There was also discussion on cash withdrawn from the Central
Bank at night and transported using Land Rovers to State House.99

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.100 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.101

96
We discusses public finance (chapter 12) in detail under Chapter 3 in relation to values and ethics, leadership and
integrity in public finance…..See also CODRALKA Chapter 5on National Government and County Government
Powers, Functions, Process, Regulation and Administration of Economic, Public Finance……..
97
Cf 1969 Constitution…..
98
…..
99
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).....
100
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…..”
101
This is also the case for Cabinet Secretaries and the President……
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.102

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.103

Cf. the case of Peter Gatirau Munya v. Dickson Mwenda Githinji & 2 Others,104 the case of
Governor Paul Chepkwony (Kericho County) and the case of Machakos Deputy Governor, Mr
Bernard Kiala.105

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.

5.7.4 Constitutional commissions and Independent Offices in Kenya and Africa106

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;107
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)

102
Article 192(1) of the Constitution of Kenya 2010; See also section 123 of the County Governments Act, 2012…..
103
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).
104
Peter Gatirau Munya v. Dickson Mwenda Githinji & 2 Others, Petition No 2 of 2014…..
105
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).
106
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 exofficio officers or belong to parliament and the judiciary in the first
place, respectively.
107
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……
 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)108
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)

5.8 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 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; 9/3/2020; 12/3/2020
email: [email protected]; [email protected] (use both)
url: www.innovativelawyering.com

108
Cf Education Commission…in Uganda…