Reinvigorating the Separation of Powers and the Politics of Inter-Branch Relations in Post-2010 Kenya

Brief Overview of Kenya’s Constitutional History

Kenya has had three Constitutional documents since independence. The first was the Independence Constitution of 1963, which was in the mould of other British decolonising charters. The key features of the Independence Constitution were its quasi-federal state structure, a bicameral legislature, and a Bill of Rights limited to the protection of civil and political rights. Ghai and McAuslan have argued that the Independence Constitution’s overarching motif was its remarkable distrust of power.

Between 1963 and 1969, the independence leaders embarked on radical and far-reaching amendments to the key features of the Constitution. These constitutional amendments included replacing the quasi-federal with a unitary state structure and the bicameral with a unicameral legislative design. The major goal, and the consequence of the amendments, was to remove limitations on the President’s powers and instead consolidate power in this office. A revised issue of the Constitution incorporating the various amendments came into force in 1969.

It is noteworthy that Kenya operated as a one-party state in the immediate post-independence period. Kenya became a de facto one-party state in 1969, but the 19th Constitutional Amendment in 1982 went a step further and made Kenya a de-jure one-party state. The period from 1969 to 1992 was marked by authoritarian governance and the unbridled power of the presidency as the executive branch dominated and exercised control over the legislature and the judicial branch.

Agitation for democratic reforms that began in the late 1980s yielded fruit with the repeal, in December 1991, of the provision that declared Kenya to be a one-party state. However, the transition to multiparty democracy did not focus on comprehensive institutional restructuring and an overhaul of the rights framework. Thus, despite the transition to political pluralism, the President continued to dominate the constitutional system and exercised unchecked powers over the subordinated legislative and judicial branches. In a quest to change this state of affairs, pro-reform activists mounted a campaign agitating for comprehensive constitutional reforms to usher in better governance structures in the country. Finally, after so many false starts, the long-drawn constitutional reform process led to the enactment of Kenya’s third constitutional document in 2010.

Horizontal Accountability and Inter-Branch Politics in Post-2010 Period

A key feature of the 2010 Constitution is its attempt to address the balance of powers that had been skewed in favour of the President in the pre-2010 dispensation. Towards this end, the 2010 Constitution introduced a devolved (quasi-federal) system of government, a bicameral legislature, an independent judiciary with explicit judicial review powers, and independent constitutional commissions as the fourth branch of government. Given the country’s experience of cowed courts and enfeebled legislature in the pre-2010 dispensation, the aim of these structural changes is to improve horizontal accountability.

Implementing this reinvigorated scheme of horizontal accountability has not been without its challenges, and the country has had mixed success with the realisation of the objective of tempering the powers of the presidency. On the one hand, the county governments, created under the devolved system of government and the judiciary, have asserted their independence despite a robust fight-back by the executive branch. But, on the other hand, the legislature and the constitutional commissions remain beholden to presidential whim and control.

The 2010 Constitution creates forty-seven county governments and devolves executive and legislative powers on them. Their key mandates relate to health services, agriculture, pre-primary education, village polytechnics, county public works and services and trade development and regulation. Regarding funding, an equitable share of the ordinary tax collected by the national government at the national level is their primary source of revenue. The 2010 Constitution stipulates that the equitable share should not be less than fifteen per cent of all the revenue raised by the national government. The other sources of income for county governments are property rates, entertainment taxes, service charges, conditional grants from the national government and loans. However, the operations and service delivery by the county governments have been hampered by delayed disbursement of funds to counties by the national government.

The courts have robustly exercised the power of judicial review in the post-2010 dispensation. This has seen the courts declare unconstitutional and nullify several laws, actions and policy initiatives undertaken by the executive branch. The best representation of the courts’ independence came with the Supreme Court’s landmark decision in the Raila Odinga 2017 case nullifying the re-election of President Uhuru Kenyatta and ordering the Electoral Commission to conduct a fresh presidential election. This was the first time a court on the African continent nullified a presidential election.

In yet another consequential decision, in May 2021, the High Court in the David Ndii case nullified a constitutional amendment bill. The Court also injuncted an intended referendum, which was to be held under a constitutional amendment process spearheaded by the President and dubbed the Building Bridges Initiative. The High Court reasoned that the 2010 Constitution incorporated the basic structure doctrine. Therefore, core structural commitments of the Constitution could only be altered by the exercise of primary constituent power (in a four-stage process consisting of civic education, public participation, constituent assembly and a referendum) and not through the constitutionally enumerated exercise of secondary constituent power (consisting of public participation and a referendum) or constituted power (the parliamentary process).

However, these court decisions have led to a severe backlash against the judiciary and a concerted effort by the executive to reassert control over the judiciary. The backlash has been in the form of reduced budgetary allocation to the judiciary, refusals to comply with court orders, and a refusal to appoint judges nominated for appointment by the Judicial Service Commission after a competitive recruitment process. Lastly, an ongoing quest to amend the 2010 Constitution proposes introducing an ‘Office of the Judiciary Ombudsman’. This office would be appointed by the President and vested with the authority to process complaints and initiate the removal of judges and magistrates as a mechanism for judicial accountability.

The bicameral parliament, consisting of the National Assembly and the Senate, while vested with the primary oversight role over the executive branch, has failed to discharge this role adequately. The 2010 Constitution moved away from semi-presidentialism to a presidential system of government to create a clear distinction between the executive and parliament. With cabinet secretaries being non-parliamentarians, the expectation was that parliament would be more robust in its oversight of the executive. However, the nature of Kenyan politics is such that parliamentarians tend to be beholden to party leaders. Thus, there is a dearth of robust opposition following the 2018 detente between President Kenyatta and the opposition leader, Raila Odinga.

It is noteworthy that the executive spearheads the ongoing quest to amend the 2010 Constitution. It is seeking to revert Kenya to a semi-presidential system of government that will see the President appoint Cabinet Ministers and their deputies from amongst the Members of the National Assembly, thus increasing the President’s control of this legislative chamber. However, this constitutional amendment process is currently on hold pending ongoing appellate proceedings in the Court of Appeal and, subsequently, the Supreme Court, following the High Court’s decision in the David Ndii case. Notably, the High Court’s decision has heightened inter-branch tensions between the executive and the judiciary—with the President accusing the courts of usurping the Kenyan people’s sovereignty.

The constitutional commissions were expected to offer an additional mechanism for oversight of the executive branch. However, because the Commission leaders tend to be loyalists of the ruling party, and due to budgetary challenges and turf wars with other government agencies, they have not been effective. Thus, the promise of the Commissions serving as instruments for accountable governance has not been realised.

Conclusion

The 2010 Constitution is a bold attempt to restructure state power to ensure limited and accountable governance. However, in practice, the legislature and the constitutional commissions are beholden to the executive branch. They have thus been unable to offer effective oversight over the executive branch. In addition, while the courts and county governments are relatively independent, their effectiveness has been hampered by the executive using delayed and inadequate budgetary allocation to try to control them.

Walter Khobe is a lecturer in the Department of Public Law at Moi University, Kenya.

Suggested Citation: Walter Khobe, ‘Reinvigorating the Separation of Powers and the Politics of Inter-Branch Relations in Post-2010 Kenya’ IACL-AIDC Blog (7 September 2021) https://blog-iacl-aidc.org/spotlight-on-africa/2021/9/7/reinvigorating-the-separation-of-powers-and-the-politics-of-inter-branch-relations-in-post-2010-kenya.