Separation of Powers in Kenya: The Judicial Function and Judicial Restraint; Whither Goeth the Law?

Abstract

The subject of separation of powers has arisen over and over again in Kenya since 2010 when Kenya instituted a new constitution. The Constitution has given rise to debate about the extent to which courts may intervene in the conduct of the affairs of other arms of government, spawned by accusations by other branches of government, especially the legislature that the judiciary is exceeding its mandate by interfering in the affairs of the other arms of government. An attempt to determine to what extent the judicial arm may intervene as such must directly interrogate the theoretical nature of the judicial function, and the judicial function in the context of the Constitution of Kenya.This article will seek to define the extent to which the judicial arm may intervene in the conduct of affairs of other arms of government. The subject is divided into three substantive parts. Part 1 examines the evolution of the theoretical underpinnings of the separation of powers doctrine, while Part 2 looks at separation of powers from a functional perspective, with specific focus being devoted to the judicial function. Part 3 then proceeds to analyse the operation of the concept of separation of powers with specific reference to the judicial function in the context of Kenya’s constitution. In this part, special attention will be accorded to the doctrine of judicial restraint as a philosophy governing the fulfilment of the judicial function vis-à-vis the functions of other branches of government. It is concluded that the self-imposed limit objectified in judicial restraint constitutes a veritable device for giving expression to the doctrine of separation of powers.

Keywords: Separation of powers, judicial restraint, merit review, constitutionality of appointments