Separation of power in Kenya: analysis of the relations between judiciary and the executive

Abstract

The separation of powers doctrine is a fundamental principle of law that maintains that all three organs of government remain separate. This requires that the judiciary, the executive and the legislature all remain distinct from each other to ensure that the different arms of government do not encroach upon each other. The rationale of the separation of powers is often elided with the rationale of checks and balances and with the rationale of the dispersal of power generally in a constitutional system. The subject is divided into two substantive parts. The first part analyses the origin, nature, purpose and major modern manifestation of the doctrine of separation of powers. The second part focuses on how the doctrine operated in Kenya under the repealed constitution (pre-2010) and how it has contributed to a solid and sustained constitutional system post 2010. The relationship between the executive and the judiciary forms the crux of the second part with judicial independence as a common theme.