In the United Kingdom the legislature and executive are very closely fused. The Prime Minister and most of his ministers are also members of the legislature. Just like Kenya before the Constitution of Kenya 2010. In the UK they sit in the House of Commons which means that the executive is at the center of parliament.
Elsewhere, in the United States of America (USA), the president is not a member of Congress (that is what they call their legislature). The USA president is elected in a separate elections from that of the president. In that case, there is a likelihood of having a president who is in a different party from that of majority of members of Congress.
A number of political analysts believe that the fusion between parliament and executive is the secret for efficiency and stability in government business in the United Kingdom. According to reports from some quarters, they believe that tyranny is a non-issue when it comes to separation of powers.
The fact that the Prime Minister is the head of executive as well as the leader of a majority party in legislature gives the president more freedom than those enjoyed by a president in a presidential system of government.
Parliaments around the globe have the practice of delegating their law-making powers to other arms of government in a process called delegated legislation. This is said to be important especially when it comes to scrutinizing small but important details about that legislation. However, you have to not that the delegated legislation still has to be approved by parliament.
In the United Kingdom, you can see that the legislature and parliament are not separate powers. They work like Siamese twins.
The Question Time in parliament facilitates scrutiny of members of executive. The executive is held accountable for their actions during this juncture.
Many British politicians have vehemently defended their lack of separation of powers by stating that it works for them.
“Friend is proposing the American constitution for Britain. He knows the deadlock that often happens with the American Constitution when Congress, the Senate and the President cannot agree on what needs to be done. If he look back to what has happened over the past few months, he will see that we were able to persuade Parliament to put our banking reforms through and were able to finance our banks so that we could rescue them, whereas it took the Americans weeks and months to get those provisions through their legislature as a result of the issues that arise from separation of powers,” former Prime Minister Gordon Brown defending British system.
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Britain has in place checks and balances to ensure that the executive does not control parliament. For example, the House of Commons (Disqualification) Act 1975 established limits on the number of Ministers who sit in Commons. Further, parliament has powers to dismiss executive officers from their offices.
Judiciary and Legislature
Let’s now find out whether there is separation of powers between the judiciary and legislature. To start with, in the United Kingdom, judges are not allowed to contest in elections for parliament. This is similar to the requirements in Kenya. In fact, judges have a role of interpreting laws.
In the United Kingdom, judges of higher courts have what is termed as life tenure. This is important in order to protect their independence. In order to remove a High Court judge from office, there must be a resolution from the House of Commons as well as from House of Lords. British is a bicameral legislature just like our motherland, Kenya.
Disciplinary proceedings are required in order to remove a judge of the lower courts. It is key to note that judges in United Kingdom have immunity and hence they cannot be sued in court.
The British Constitution provides that judges are subordinate to parliament and hence they do not have powers to challenge the powers of legislation (laws) made by parliament.
The case is quite different here in Kenya because the High Court of Kenya has the supreme authority on the constitutionality of laws.
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In both Kenya and United Kingdom, the judiciary has a role to play in law making. This is not the preserve of parliament. Why I’m I saying this? It’s because judgments made by judges are used in deciding future cases in what is called setting precedents. This is also called judicial law-making process through use of case law.
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