James Madison Comes to Kenya

In Kenya, Kepher Otenio writes at The Standard:

According to a political scientist, Wilson Agenya, each of the three branches has a specific function and the relationship among them is characterised by doctrine of separation of powers, which for many years has been overlooked.

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"None of the three arms are supposed to interfere with the autonomous operations of the other because accumulation of power in the hands of one person may lead to tyranny and that is not the Kenya we want," he says. Agenya says Kenyan leaders must be ready to abide by the dictates of the new laws, which a third of the country’s 38 million population overwhelmingly endorsed at the referendum held on August 4, last year.

There must be checks and balances. This means each of the organs has the powers to check against the misuse of abuse of power by any of the trio otherwise one arm may abuse its powers and reign over others and House Speaker Kenneth Marende is on track and should be firm always.

Vice-President of East Africa Law society of Kenya Aggrey Mwamu concurs. He says the Judiciary and Legislature were now performing the bold roles that Kenyans have been expecting them to do in the past decades. Mr Mwamu praised the bold ruling by Mr Marende over the controversial nominations of judicial officers by the President, saying neither the Legislature nor the Judiciary should accept to be subdued by the Executive.

"The Executive must be ready to uphold the rule of law and should not behave as if its decrees were final. We are in a new era of new laws which we must follow its definitions and interpretations," said Mwamu.

While some Cabinet Ministers and legislators allied to Party of National Unity (PNU) led by Finance Minister Uhuru Kenyatta contested the ruling, claiming it was skewed in favour of Prime Minister Raila Odinga, others welcomed it.

Public Service Minister Dalmas Otieno said the rule of law must be upheld to the letter.

"The basic or core idea of the rule of law ... is that the Government must be able to point to some basis for its actions that is regarded as valid by the relevant legal system," Otieno told The Standard on Sunday.

Secondly, the rule of law requires that legal rules "should be capable of guiding one’s conduct in order to allow policy makers to effectively respond to growing demands of its people".

In other words, legal rules should meet a variety of criteria and should be prospective, not retrospective, that means they should be relatively stable and that there should be an independent Judiciary, Legislature and Executive.