Thursday, April 07, 2005

Seperation of Powers

"One of the greatest problems that has faced African nations is the lack of clear separation of powers between the executive, the legislature and the judiciary. This is one of the core sources of poor governance, corruption and political instability in various nations.

The doctrine of separation of powers is now universally accepted as an important pillar of democratic governance and the rule of law. The doctrine is rooted in the understanding that the primary responsibility of formulating national development programmes and implementing laws lies with the Executive, while law-making is the responsibility of Parliament. On the other hand, the interpretation of the laws and arbitration of disputes is the responsibility of the Judiciary. In this respect, the three arms of government act to check on the excesses of each other and to maintain the balance of power.

We recognise that this doctrine of separation of powers does not in itself mean that a country is democratic. This is because experience has shown that it is possible for a country to have the three arms of government, without necessarily qualifying as a democracy. For example, in Africa, especially during the past decade, over-concentration of power in the Executive seriously undermined the operations of the other organs of government. The situation may have been considered necessary or even beneficial, but for the long-term it caused far-reaching distortion of governance.

It is therefore necessary to have a political commitment to respect and uphold the doctrine of separation of powers. Let me add that independence of the three arms of government does not imply total isolation from each other. The various government organs must work together to effectively deliver services to the public. Therefore, collaboration and co-operation should not always be seen as a compromise of their mandate. Though constitutionally mandated to operate independently in the discharge of their various functions, the three arms of government are necessarily inter-dependent as part of one whole, that is the government."

Excerpt from a speech made by President Kibaki

http://www.statehousekenya.go.ke/speeches/kibaki/april05/2005040402.htm


I remember a while back when the first draft of the constitution was published, I was very happy to see that a provision I support greatly was included. This being a total seperation of powers between the Executive and Judiciary, according to the draft, the prezzo was not to be a member of parliament, and his cabinet was not to include members of parliament. But as with many things about Kenyan, I was dissappointed in the end. The MPs managed to get rid of the provision and it is no longer part of the draft constitution. However, I still hold firm to my belief that there needs to be a seperation of powers. I am not sure that in the above excerpt and speech that Mr. Kibaki had the same thing in mind that I do, but I hope he does.

I must admit that I am very partial to the American system of government, I concur with the founders that there should be 3 independent branches of government, whereby an individual can not be working in two at the same time.

I have always had a number of reservations with our current system. I have always wondered, who represents the president's (or ministers) constituency in parliament? I have never heard of the prezzo (or minister) rising in the house to ask a minister a question. So I wonder, are the people of Othaya getting the short end of the stick? One may argue that the prezzo or minister can simply ask the relevant minister duting their meetings, (this is probably what happens), but then the question becomes, why should the people of Othaya, Kiambaa, Langata etc, have special avenues to address their issues? I thought all constituencies were created equal and should be treated the same?

On the same line, it is well known that Prezzos and the ministers are quite partial to their consituencies. They give special attention and development resources to their people, at the expence of country wide development. I do not blame them for this, they are politicains and they obviously want to be reelected and therefore have to carry favor with the voters. But is this right? Is this ideal for a nation that is struggling to develop? I think not.

As mentioned above, ministers are primarily politicians and then ministers and I believe the experience of the last couple of years has borne this out. Our ministers are constantly involoved in controversies and intrigues that have little to do with their ministries, and more to do with electoral and party politics. The constant bad blood and lack off adherence to the axiom of "collective responsibility" have served to further convince me of the need for total seperation of powers. I know that this would not guarantee total unity in the Executive (as the conflict between Rumsfeld and Powell, over Iraq showed), however, the fights are less likely to be public and constrained to policy arguments and not whether party membership is coporate, individual etc. Moreover, the president will be able to discipline his ministers more effectively without having to worry about alienating a particular segment of his coalition etc..

In the final analysis, ministers are likely to be more focused on their jobs and the good of all Kenyans, if they were not also MPs and politicians.

The following is a link to an interesting discussion about the role of a cabinet:
http://www.mashada.com/forums/index/show_topic/22/66081/index.php

3 Comments:

Blogger karoki said...

I think separation of powers is imperative if ministers are to focus on their job assignments rather than politicking.

Interesting goverment structure you propose. future goverment?

5:18 PM  
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