Part 2 by dr kiarie mwaura as indicated in the relevant. Under the 2010 constitution, kenya adopted a presidential system of government in order to achieve a sharper separation of powers between the executive body and the legislature and reduce the influence of the former over the latter. Kenyas constitution is an outstanding example of crossfertilization of constitutional ideas. We, the people of kenya acknowledging the supremacy of the almighty god of all creation.
These topic pages provide a quick overview and easy access to all content that can be found on ace for any give topic of interest weather encyclopaedia files, electoral materials, comparative data, consolidated replies, case studies, or other. National values and principles of governance kenya. Chapter twothe republic 4declaration of the republic. Under this model, a states government is divided into branches, each with separate and independent powers and areas of responsibility so that the powers of one branch are not in conflict. The epic of the doctrine came with the american independence that saw it being operationalised. Kenya had tried various means to purge the judiciary even through the famous radical surgery, it could not since the whole system of government was corrupt.
This contains far reaching commitments to a wide range of rights and an ambitious vision of social equity and has the real potential to address historical injustices and grievances. Third, the work examines the dangers of judicialization of 1 constitution of kenya 2010, articles 48, 1959, 10, 1 and 4. The constitution of kenya 2010 promotes independence of the arms of the government by clearly outlining the functions of the executive under. The constitution of kenya 2010 establishes a legislature that is fundamentally different in terms of structure, membership and powers the legislature exists at both the national and county level at the national level, there is established a twochamber parliament consisting of. The doctrine of separation of powers precludes the courts from impermissibly assuming the functions that fall within the domain of the executive. Is separation of powers as provided in kenyan legislation being practiced. Vile also distinguished between what he called the pure doctrine of separation of powers, which in his view is a complete separation of powers, and its modification essentially by the fathers of the american constitution. The promulgation of the constitution, 2010 has enabled judicial reform towards administration of justice within the doctrine of separation of powers.
The application of international law in kenya under the. The doctrine of separation of power is said to be a bourgeois politicallegal theory that claims that state power is not a single entity but rather a composite of different governmental functions i. Published by the national council for law reporting with the authority of the attorney general. Constitutional law ii llb i part 1 is taught by prof ben sihanya. Second, it seeks to establish the extent to which kenya s reconstructed judiciary has juridically implemented the judicialization framework of the constitution of kenya 2010. Kenyas 2010 constitution uct faculty of health sciences. The geopolitical importance of the region makes the politics of the region to have an international dimension. Every legal system requires rules that specify the major institutions and officials of government, and determine which of them is to do 7 see, the preamble of the constitution of kenya, 2010. The constitution of kenya 2010 promotes independence of the arms of the government by clearly outlining the functions of the executive under chapter 9. A perspective on the doctrine of the separation of powers.
Civic education and campaigns for or against the proposed constitution are expected to take place in the period before 4th august 2010 when the referendum is to be held. A compendium on economic and social rights cases under the constitution of kenya, 2010 overcoming poverty is not a gesture of charity. Article 174 of the constitution provides that one of the key objectives of devolution is to promote social and economic development and provide proximate, easily accessible services throughout kenya. Pdf separation of powers in contemporary kenya walters. Separation of powers, independence of the judiciary, and good. Honouring those who heroically struggled to bring freedom and justice to our land. The constitution of kenya was the final document resulting from the revision of the harmonized draft constitution of kenya written by the committee of experts initially released to the public on 17 november 2009 so that the public could debate the document and then parliament could decide whether to subject it to a referendum in june 2010. Constitution of kenya, 2010 8 part 3functions and powers of county governments 186respective functions and powers of national and county governments. An overview congressional research service 1 introduction congresss role and operation in national politics is fundamentally shaped by the design and structure of the governing institutions in the constitution.
Under the 2010 constitution, kenya opted for a presidential system of government in order to achieve a sharper separation of powers between, and reduce the influence of, the executive body over the legislature. One of the key principles of the constitution is separation of powers. Under article 129 the executives authority is said to be derived from the people. Separation of powers in kenyas devolved administrative. The passing of the constitution of kenya of 2010 and its promulgation on. The public seal of kenya shall be such device as may be prescribed by or under an act of parliament. Constitution of kenya the constitution of kenya chapter 1 the republic of kenya 1. Koma 3 school of social science, university of kwazulunatal this article is an attempt to establish a link between the abuse of power in the presidency, and how this manipulation has been. Decentralisation of executive, administrative and parliamentary powers under the constitution 2010 7. The internal concerns the ways in which the constitution distributes power, the institutions it sets up for different tasks, modes of accountability, and methods for the enforcement of the constitution, including respect for and. Separation of powers and federalism are interlocking elements in a thoroughgoing philosophy of the division of power.
The constitution is the supreme law of the republic and binds all persons and state organs at both levels of government and the defence of this constitution. Introduction in the last few years, more and more nations have enacted new democratic constitutions. Nov 19, 2014 kenya now has a more reformed judiciary that is independent, robust and functional. Check out constitute to read, search, and compare the worlds constitutions.
With the promulgation of the constitution of kenya in 2010 there came clearer the separation of powers from the previous more powerful constitutional dispensation that had a president had unfettered powers to influence the legislature and judiciary. Broadly stated, the objective of the project was both historical and. In eritrea, the constitutional debate will have to resume one way or another. The promulgation of this new constitution marked the end of one of the longest journeys in kenyan history. Separation of powers and protection of human rights in the context of the new constitution in zimbabwe. Separation of powers and protection of human rights in the. The republic of kenya the constitution says that kenya is a sovereign republic. Kenya institutional reform in the new constitution of kenya. The constitution has given rise to debate about the extent to which courts may intervene in the conduct of the affairs of other arms of government, spawned by accusations by other branches of government, especially the legislature that the judiciary is exceeding its.
Devolution in kenyas new constitution in 2010, on the cusp of kenyas new constitutional dispensation, the society for international development sid embarked on a project called thinking, talking and informing kenyas democratic change framework. State power has been separated and dispersed both vertically and horizontally 20. The judiciary is under attack from the executive and the legislature. Parliament makes the law, the executive implements the law while the judiciary interprets the law. How the south african constitutional court plotted its course oscar sang 1. Klrc has an additional mandate of preparing new legislation to give effect to the constitution. The separation of powers is a model for the governance of a state. Constitution of kenya, 2010 2 the constitution of kenya, 2010 arrangement of articles preamble. In uganda, president museveni will make another attempt to get a new lease on power. The new constitution was approved by 67% of kenyan voters. Essentially, there is no strict separation of powers under the constitution of tanzania, both in principle and practice. In this way each of the branches shall be a check to the others each must be confined to the exercise of its own function and not allowed to encroach upon the. Separation of powers, independence of the judiciary, and.
In the last decade the concept of a separation of powers has evident in a number of policy initiatives. The application of international law in kenya under the 2010 constitution. The constitution was promulgated on 27 august 2010. President museveni will make another attempt to get a new lease on power. In the zambian doctrine of separation of powers, each branch of government has a distinct role to play and no one branch should interfere in the others function. Devolution under the constitution of kenya, 2010 comprises of two levels of government. The worlds constitutions to read, search, and compare. Abuses of power in the kenyan constitution free essay. The republic of kenya shall be a multiparty democratic state.
Sovereignty of the people 1 all sovereign power belongs to the people of kenya and shall be exercised only in accordance with this constitution. Three months later, on 4 august, it was approved by over 67 per cent of the. In terms of the constitution the ndpp is the authority mandated to prosecute crime, while the commissioner of police is the authority mandated to manage and control the saps. God bless kenya main body of the constitution chapter one sovereignty of the people and supremacy of this constitution sole part 1. The subject of separation of powers has arisen over and over again in kenya since 2010 when kenya instituted a new constitution. Under the 2010 constitution, kenya opted for a presidential system of government in order to achieve a sharper separation of powers between, and reduce the influence of, the. Kenya s election is next in the series if the fragile coalition survives the period. The evolution of the political question doctrine article pdf available march 2015 with 5,585 reads how we measure reads.
The previous government suggested that, in its reforms of the judiciary in the. A perspective on the doctrine of the separation of powers based on. What is most disturbing is the courts interpretation of section 66 against the abstract 19 id at 80. The extent of judicial independence and separation of. The constitution of kenya, 2010 gives the concept of separation of powers a two pronged approach. The paper seeks to compare separation of powers in the repealed and new constitution with its effect to the counties. The doctrine of separation of powers jaba shadrack. The constitution of the united republic of tanzania 1977 represents a contemporary approach in constitutionalising the doctrine of separation of powers. Part 4the boundaries of counties 188boundaries of counties. The constitution was presented to the attorney general of kenya on 7 april 2010, officially published on 6 may 2010, and was subjected to a referendum on 4 august 2010. Constitution of kenya 2010 wikisource, the free online. All members of parliament are elected for a fiveyear term. Dec 14, 2008 in the sudan the referendum that determines whether the south should separate is due for 2010 11.
Will kenyas 2010 constitution work for women and children. The separation of powers is a representation for the governance of a state. Christian roschmann, et al human rights, separation of powers and devolution in the kenyan constitution, 2010. In it, one can see montesquieus idea of separation of powers, american presidentialism embodied in the united states constitution. International center institutional reform in the new constitution of kenya for transitional justice executive summary the passing of the constitution of kenya of 2010 and its promulgation on august 27, 2010, heralds the deep desire of kenyans, as individuals and communities, to live in a society that respects and. The constitution of kenya 2010 divides the territory of kenya into two governments made up of 47 counties, commonly referred to as the national and county governments. The public seal of kenya shall be such device as may be prescribed by or under an. Second, it seeks to establish the extent to which kenyas reconstructed judiciary has juridically implemented the judicialization framework of the constitution of kenya 2010. The constitution does not contemplate a situation where constitutional provisions have to be interpreted against one another.
The constitution of kenya was promulgated on 27 august 2010 after a period of. Proud of our ethnic, cultural and religious diversity, and determined to live in peace and unity as one indivisible sovereign nation. Institutional reform in the new constitution of kenya ictj. An analysis of the emerging tensions between parliament and the judiciary kabathi antony gathitu g62804532012 a thesis submitted to the university of nairobi law school in partial fulfilment of the degree of masters of laws llm supervisor dr juliet okoth, lecturer. Devolution and access to services 1 the territory of kenya is divided into the counties specified in the first schedule. Devolution is one of the most transformative changes to kenyas governance system brought about by the constitution of kenya, 2010. The constitution states taht all sovereign power belongs to the people of kenya. At the national level, kenya has a bicameral parliament consisting of the national assembly and the senate. The 2010 edition replaced the 1963 independence constitution. Powers of congress test questions free pdf file sharing. Analysis of the 2010 constitutional provisions on the presidency stephen mutula 1 2 wilson k.
The president and his cabinet are not members of parliament. Nov 11, 2018 kenya consists of the territory and territorial waters comprising kenya on the effective date, and any additional territory and territorial waters as defined by an act of parliament. Kenya s constitution is an outstanding example of crossfertilization of constitutional ideas. Many a times we say ghana practices separation of powers but taking a look to the 1992 constitution i ask myself, do we truly practice this concept. Kenyas new constitution was enacted on 27th august 2010 replacing the old one that had been in place since kenyas independence in 1963.