Separation Of Powers: A La Montesquieu Or The 2010 Constitution?

Machakos senator Johnstone Muthama displays injuries he sustained after Opposition MPs protested in parliament during the security bill debate yesterday.There was chaos in parliament during the debate of the bill that was opposed by opposition MPs.Photo/HEZRON NJOROGE
Machakos senator Johnstone Muthama displays injuries he sustained after Opposition MPs protested in parliament during the security bill debate yesterday.There was chaos in parliament during the debate of the bill that was opposed by opposition MPs.Photo/HEZRON NJOROGE

The judiciary is under attack from the executive and the legislature. In recent weeks, both the President and Parliament have criticised the judiciary for “interfering” in their work. Recently the President was reported as having invited the Chief Justice and Speakers of the two legislative houses to discuss these complaints. Now a constitutional amendment Bill is soon to be introduced in the National Assembly to prohibit the courts from interfering with matters, pending consideration or procedures before Parliament. The judiciary has also been attacked for not paying due “deference” to the other arms of the government.

The criticism is based on the principle of the separation of powers attributed to a French philosopher, Baron Montesquieu, who argued that the concentration of state power in one institution would lead to tyranny. The division of powers (broadly legislative, executive and judicial) in separate institutions would prevent tyranny. Montesquieu has been invoked by Parliamentarians to condemn the judiciary for its “interference”. It is unlikely that these Parliamentarians have read Montesquieu, who realised, as is obvious, that dividing powers in this way may prevent extreme tyranny, but it will not prevent any one of the three acting in a capricious and arbitrary manner. Separation of powers must be supplemented by “checks and balances” so that one arm could stop another abusing its power. Recent orders by courts to the other arms fall squarely within this rule. Some Parliamentarians state that even if the judiciary can intervene, it should desist from doing so because of the “deference” they owe to MPs who “speak on behalf of the people”, thus commanding higher authority than non-elected judges.

We may, however, question the relevance of Montesquieu to our times. He was writing at a time where there was no modern conception of democracy, the role of the state was quite limited, and there were few limitations on the powers of the executive. It makes much greater sense — and is a better recognition of Kenya’s sovereignty (a subject dear to both our executive and Parliament — that we should turn to its constitution, approved by an overwhelming majority, to consider the constitutional basis of the relationship between parliament and the judiciary. After all, our democracy is not Parliamentary or majoritarian democracy (where courts might traditionally have been regarded as owing “deference” to Parliament) but a constitutional democracy. People have made the constitution the supreme law, as reflecting people’s sovereignty. The constitution not merely distributes state power among institutions, and limits it, but also prescribes the values and principles, and frequently the procedures, in accordance with this power must be exercised. For example, the people have delegated law making power to legislatures, but reserved for themselves the power to influence the law (through participation, and sometimes through extreme sanctions like recall of recalcitrant legislators). In extreme cases, they may even begin the amendment of the constitution, and have a veto over amendments of its important provisions.

The people have chosen (or at least approved) distribution of state powers in a number of ways – vertically, between the centre and counties, and then, at both levels, horizontally. Horizontally, power is distributed between a number of different institutions, not just the traditional three arms. A number of independent commissions and office holders have been established to perform state functions — and they are endowed with people’s sovereignty as truly as the traditional arms (this is very clearly set out in Article 249(1) (a) for commissions who are to “protect the sovereignty of the people” and others in Article 1(3), listing these organs as direct delegates of sovereignty). We have travelled a long way from the systems for which Montesquieu or even the US’ Madison, whom the more erudite MPs quote as authority for the separation of powers, developed their theories. It is time we turned our attention away from these venerable political philosophers to the people driven and people owned constitution, but mindful of their advocacy for checks and balances.

So how does the constitution define the relationship between the judiciary on the one hand and the legislature and executive on the other? As far as institutions at the level of the central government are concerned, there is no reference to the separation of powers. Some judges have implied the separation of powers from Article 1(3), which lists the three major arms of government. There may indeed be separation of institutions and tasks but these tasks are described in detail in the constitution. Nor are these institutions free to behave as they wish — this article says clearly that they “shall perform their functions in accordance with this constitution”. As we proceed from this very first Article through the constitution, we find lists of state powers as well as numerous restrictions on these powers, but also obligations of these institutions. Constantly they are reminded of their obligations to respect and observe the constitution, and in most cases sanctions are provided for breach of their duties (including impeachment of president and vice-president and dismissal through courts or special tribunals).

There is reference to separation of powers in respect of county governments. However, there is no basis for reading into this that each institution is free to do what it wishes. Their functions and responsibilities are set out clearly, some of them involving various forms of engagement with other institutions. Nor is there any general global understanding of the separation of powers in terms of complete independence of institutions, as the executive and the legislature have claimed. Montesquieu drew his inspiration from the English experience — but seems not to have realised that the English Parliament was emergency as supreme institution, responsible to none, and able to regulate others.

If separation of powers is not a value of the constitution, or at least not such a major value as to merit inclusion in Article 10, the rule of law is. And here may be the clue to the reach of the authority of the judiciary. There is no doubt that the judiciary is the ultimate custodian of the constitution (within its own framework). It has the final powers of interpretation of the constitution (various Articles testify to this, the most prominent being Article 258, which give the courts the power to interpret the entire constitution, and to give appropriate remedies for its breach). Moreover, the courts are required to take a broad rather than a narrow view of the reach of the constitution. They must interpret the constitution “in a manner that promotes its purposes, values and principles; advance the rule of law, and the human and fundamental rights and freedoms in the Bill of Rights; permits the development of the law; and contributes to good governance” (Art. 259).

There are a number of good reasons for conferring this wide and broad jurisdiction on the judiciary (who members were vetted for competence and integrity on promulgation of the constitution). One is the centrality of the rule of law (due to the lawlessness of the Kenyatta and Moi regimes). Another is the open and transparent judicial process. Judges do not seek business or make policy on their own. They respond when disputes or complaints are brought to them. They give all parties opportunities to present their case and arguments. Judges must justify their decisions by reference to the law and where relevant, the constitution — not by their own preferences. They must follow rules of procedure scrupulously as must the parties appearing before them. And if a party thinks that the judge has made a mistake of law or fact, that party can take the case to a higher level court, and in most cases ultimately to the Supreme Court. Justification of decision by reason in law is their highest duty. Unfortunately, other major institutions of state in Kenya are not well known for their openness, transparency, patience, understanding of the law and constitution, impartiality, fairness, and consistently — or the imperatives of Kenya’s democracy. Deference after all is not a legal entitlement, but must be earned.

The author was the chair of the CKRC and the Kenya National Constitutional Conference, which together produced the Bomas Draft Constitution.