MEANING OF SEPARATION OF POWERS

The doctrine means that specific functions, duties and responsibilities are allocated to distinctive institutions with a defined means of competence and jurisdiction. It is a separation of three main spheres of government, namely, Legislative, Executive and Judiciary. Within the constitutional framework the meaning of  the terms legislative, executive and judicial authority are of importance:

(a) Legislative authority – Is the power to make, amend and repeal rules of law.

The Legislative constitute of the following An upper house – the Senate

• Each of the 47 counties will have a Senator
• A senator elected by the voters.
• Tentative total number of Senators will be 60.
• Presides over presidential impeachment hearings (article 145)

A lower house – the National Assembly

• Each constituency (290 the number gazetted by Independent Electoral and Boundaries Commission in October 2012).
• Majority of the Members of National Assembly will be directly elected by voters
• There will be a Women's Representative MP elected from each county – therefore guaranteeing a minimum of 47 women MPs in the National Assembly.
• Tentative total number of MPs will be 347.
• Votes to investigate and impeach the president (article 145)

County Assemblies and Executive

• The country will be divided to approximately 47 counties – the counties are comparable to the current districts.
• Each county will have a County Executive headed by a county governor elected directly by the people and;
• A county assembly elected with representatives from wards within the county.

(b) Executive authority – Is the power to execute and enforce   rules of law.

The executive at the top most levels will be constituted of a president, deputy president and the Cabinet.

Key functions of the president

• Shall be the Head of state & Head of government of the Republic of Kenya.
• Shall not be a member of parliament
• Commander-in-Chief – and will declare war and state emergency upon approval by the National Assembly and Cabinet respectively.
• Head of Government – will wield executive authority and will co-ordinate and supervise all major sections of the executive branch.

(c) Judicial authority – Is the power; if there is a dispute, to determine what the law is and how it should be applied in the disputes.

Supreme Court – highest judicial organ consisting of the Chief Justice, the Deputy Chief Justice and five other judges. This court will handle appeals from the Appeals and Constitutional courts. It will also preside over presidential impeachment proceedings.

• Court of Appeal – will handle appeal cases from the High Court and as prescribed by Parliament. It will constitute not less than 12 judges and will be headed by a president appointed by the chief justice.

An independent Judicial Service Commission has been set up to handle the appointment of judges. They will recommend a list of persons to be appointed as judges by the president (this article will be enforced after the transitional period). The commission will consist of the following:

• A Supreme Court judge – elected by members of the Supreme Court to chair the commission
• Court of Appeal judge – elected by members of the Court of Appeals to chair the commission
• The Attorney-General
• Two advocates, one a woman and one a man, each of whom has at least fifteen years' experience, nominated by the statutory body responsible for the professional regulation of advocates
• One person nominated by the Public Service Commission.

The doctrine of separation of powers means ordinarily that if one of the three spheres of government is responsible for the enactment of rules of law, that body shall not also be charged with their execution or with judicial decision about them. The same will be said of the executive authority, it is not supposed to enact law or to administer justice and the judicial authority should not enact or execute laws. Lord Mustill in Rv Home Secretary defined the doctrine of separation of powers in England as: ‘It is a feature of the peculiarly British conception of the Separation of powers that Parliament, the executive and the courts have each their distinct and largely exclusive domain. Parliament has a legally unchallengeable right to make whatever laws it thinks right. The executive carries on the administration of the country in accordance with the powers conferred on it by law.

The courts interpret the laws, and see that they are obeyed

The origin of the doctrine of separation of powers

The modern design of the doctrine of separation of powers is to be found in the constitutional theory of John Locke (1632-1704). He wrote in his second treaties of Civil Government as follows: ‘It may be too great a temptation for the humane frailty, apt to grasp at powers, for the same persons who have power of making laws, to have also in their hands the power to execute them, whereby they may exempt themselves from the law, both in its making and execution to their own private advantage’.

It is clear that he was advocating the division of government functions into legislative, executive and judicial. However it is the French philosopher (jurist) Montesquieu (1689–1755) who is usually credited with the first formulation of the doctrine of separation of powers. He based his exposition on the British Constitution. In the pertinent chapter of his well celebrated work, L’ Esprit des Lois (1748), he purported to describe the British Constitutional system of the 18th Century so that it might serve as an example to France of a political dispensation founded on liberty, which according to him, was the supreme objective of a political society. JD van Der Vyver observed that Montesquieu was a poor observer, since the British constitutional system did not comply then, neither does it today, with the basic norms of the idea of separation of powers. Even if it were so, Montesquieu’s analysis of the British system, is generally accepted as political ideal which is worth pursuing. Montesquieu recognized the three basic pillars of state

applaud role of media in democratic government

. The Role of the Media in the democratic society (Situational analysis in the countries of Africa)

• Thomas Jefferson once said that if he had to choose bnewspapers or newspapers without a government, he would pick the latter .

1. Media must be free of the following

• Censorship

• Self-censorship

• Control of the government

• Physical and moral pressure

• Political prejudice

2. Service to the people

• to inform responsibly

• to challenge those in power (government, parliament, local authorities)

• communicate and maintain social relations between social groups effectively

3. Main principles

• not to mislead the public

• reproduce events accurately (reflect the most accurate picture of happenings)

• the right for freedom of expression

• being in-between the political parties and society

• being in opposition to government when it concerns human rights protection

6. In the Central Asia the media used for propaganda of interests if parties, government officials, businessmen, MPs, criminals etc. via:

• promoting reforms, ideas, decisions favourable only for those in power

• creating positive or negative images

• biased coverage

• Custom journalism

7. Social Media in Africa

• work as alternative source of information

• allow to communicate actively and openly

• allow to call to account those in power
• Accordingly the social media partly function as traditional media should function in the democratic government

References

Azarya, V. 1988. "Reordering State Society Relationships; Incorporation and Disengagement" in N. Chazan and D Rothchild, (ed) The Precarious Balance: State Society in Africa. West View Press, Boulder and London.

Bayart, Jean-Francois. 1986. "Civil society in Africa," in Patrick Chabal, (ed)Political Domination in Africa. Cambridge University Press.

Daily Nation, Thursday, July 26, 1996.Huntington, Samuel. 1968. Political Order in Changing Societies. Yale University Press.

Hyden, Goran. 1996. "Civil Society and Governance." Paper presented at the Governance workshop, Mount Meru Hotel, Arusha - Tanzania, May. Ng'ethe, Njuguna, et al, 1990. "Government - NGO Relationship in the Context of Alternative Development Strategies in O'Donnel, G. and Schmitter, P. C. 1986. Transitions from Authoritarian Rule; Tentative Conclusions about Uncertain Democracies, Baltimore: Johns Hopkins University Press.

Owiro, A. Okoth. 1992. "Laws and ethical decision-making in news processing in Kenya: Problems and Prospects." in Magayu and Kabatesi (eds) A new democratic error? A publication of the School of Journalism, University of Nairobi, Kenya.

Rothchild, David, and Chazan, Naomi, (ed) 1988. The Precarious Balance; State society Relations in Africa, Westview Press. Boulder and London.

Rukwaro, George. K. 1992. "The press laws and evolution of a multiparty state in Kenya." in Magayu and Kabatesi (eds). A New Democratic Error! Publication of the School of Journalism, University of Nairobi.

Wanyande, Peter. 1995. "Mass Media State Relations in Kenya