SEPARATION OF POWER

A government at war with itself

Parliament and the Executive appear to have ganged up to strangle the Judiciary.

In Summary
  • In recent times the Judiciary has come under concerted attack from the Legislature and, on one unfortunate occasion, from the presidency.
  • As if that is not enough Parliament has become a virtual dictatorship.
Chief Justice David Maraga at the Judiciary on Monday, November 4, 2019.
Chief Justice David Maraga at the Judiciary on Monday, November 4, 2019.
Image: CHARLENE MALWA

The separation of powers is a model for the governance of a state. Under this model a state’s government is divided into branches, each with separate and independent powers and areas of responsibility so that the powers of one branch do not conflict with the powers associated with other branches.

First espoused by Frenchman Montesquieu, a great advocate of human dignity he developed the theory of separation of powers to uphold the liberty of the people. He believed that the application of the theory would prevent the overgrowth of a particular organ which would spell danger for political liberty. It is a concept adopted by democracies worldwide and has thus far stood the test of time.

In Kenya government is split into three distinct areas, the Executive, the Legislature and the Judiciary.

In recent times the Judiciary has come under concerted attack from the Legislature and, on one unfortunate occasion, from the presidency. The President described Supreme Court judges as “wakora” (rogues) after the court nullified his 2017 reelection and swore to “revisit the issue” after the by-election if he was reelected. It was not clear to the electorate whether the President was speaking in a fit of anger or whether he intended to follow through with his threat.

Ominous signs erupted when the Legislature decided to strangle the Judiciary by significantly scaling down its budget thus seriously crippling its operations. As if on cue the President in an unprecedented move declined to ratify and swear in Court of Appeal Judges approved by the Judicial Service Commission.

Opposition leader Raila Odinga was effectively neutered after the March 2018 handshake with President Uhuru Kenyatta. With the two acting in tandem they are now passing amendments and legislation in Parliament at will. The level of debate in Parliament has declined to undesirable levels as the President and the ODM leader rally their parliamentary troops to over-ride the National Assembly shogun

Democracy in Kenya is under subtle attack in a government at war with itself. One doesn’t have to be a “rocket” scientist” to decipher that the President and his deputy no longer read from the same script and further that Parliament has been emasculated and captured by the Executive.

Opposition leader Raila Odinga was effectively neutered after the March 2018 handshake with President Uhuru Kenyatta. With the two acting in tandem they are now passing amendments and legislation in Parliament at will. The level of debate in Parliament has declined to undesirable levels as the President and the ODM leader rally their parliamentary troops to over-ride the National Assembly shogun.

As if that is not enough Parliament has become a virtual dictatorship. In the words of Tongaren MP David Eseli Simiyu, the Speaker is selective in picking MPs during debate often picking sycophants and ignoring the more controversial and intelligent members. This is a really sad time for democracy in Kenya.

Only Musalia Mudavadi the last man standing in the opposition is constantly shadow boxing the Executive valiantly as it rides over the interests of Kenyans roughshod.

United States Ambassador Kyle McCarter has courageously shot down the Nairobi-Mombasa expressway project funded by his government due to serious concerns enumerated in his communication. Reports from the grapevine indicate that some fat cats in government are now shopping for a Chinese contractor to implement the same despite serious concerns in cost and design.

 

Parliament and the Executive appear to have ganged up to strangle the Judiciary. This in itself is a form of corruption and one can only guess how frustrating it is for Chief Justice David Maraga to oversee an institution that is being killed gradually by other arms of government. Or is it a plot to force him out of office by concerted frustration leading to resignation?

A similar game appears to be playing out on Deputy President William Ruto. People in high office often disagree on principle and implementation but that should not be allowed to hamper operations. People have been known to agree to disagree and thereafter continue to work in harmony once the grey areas have been identified.

The other option, of course, is to request a deputy to hand over a letter of resignation forthwith once a CEO has lost confidence. The body language and lack of rapport between our top leaders do not augur well and will eventually affect government operations.