Constitutional LawFusion and Separation of Powers, and Checks and Balances in Kenya and Africa – Chapter 6

January 31, 2023

My overarching argument is that the study and practice of public or governmental powers in Kenya and Africa has not sufficiently integrated the appropriate fusion and separation of powers and checks and balances ……… See Chapter 5, “Methodology of Constitutional, Administrative and Regulatory Law in Kenya and Africa: The Constitutional Sociology, Political Economy and Cultural Politics of Sustainable Development” CODRALKA 1.

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, 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, tradition and history of government and governance.

This includes under Articles 1 (sovereignty of the people) and 10 (national values and principles of governance), and 73 (responsibilities of leadership) of the Constitution of Kenya, 2010.2 It has been manifested in pre-colonial Kenya and colonial Kenya and through the presidency of Jomo Kenyatta, Daniel Moi, Mwai Kibaki, Uhuru Kenyatta II and William Samoei Ruto.

I adopt an Afro-Kenyanist conceptual and theoretical framework on fusion vis-à-vis the separation of powers. We therefore conceptualize, problematize and contextualize the appropriate fusion and separation of powers, and checks and balances in Kenya and Africa….

These include addressing the concepts or theory, policy, practice and history or tradition, and the methodology regarding the following terms or doctrines, legislative competence, executive competence, jurisdiction, justiciability, independence of judiciary, political question doctrine (public) policy, devolution, horizontal and vertical separation of powers….5 We thus elaborate my three-pronged methodology of constitutional sociology, political, economy, and cultural politics….

We also consider the debates on the fusion and separation of powers, and checks and balances in the context of the Building Bridges Initiative (BBI) Report 2019 and BBI 2020 Report, proposals, and related debates. These include debate on the restructuring of the Executive in Chapter nine (9), and Legislature in Chapter 8 of the Constitution of Kenya 2010, and Clause 13 (14, 17, 28, 29, 30, and 31 of the Constitution of Kenya (Amendment) Bill, 2020. Further, we also consider the proposals and debates on the Office of the Judiciary Ombudsman as a member of the Judicial Service Commission (JSC) in Article 172A; creation of commissions and independent offices including, the Youth Commission (Article 237A) in the BBI 2020 Report and Constitution of Kenya (Amendment) Bill 2020. The BBI constitutional reform issues remained in debate even after the Supreme Court of Kenya decision partly following President Ruto’s letter to the Speakers seeking constitutional amendment and Raila Odinga’s emphasis on public participation in the amendment process….

The same trend obtains in Nigeria, South Africa, Uganda and Tanzania.7 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?

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