The Separation of Powers
This is a doctrine which states that the three arms of government (judiciary, executive and parliament) should always work independently without one interfering with the other.
The separation of powers is intended to preserve liberty and safeguard against tyranny.
According to the book The Spirit of Laws written by Montesquieu and Secondat, “It was held that the major institutions should be divided and dependent upon each other so that one power would not be able to exceed that of the other two.”
The separation of powers forms a good system of checks and balances to ensure there is good governance.
The establishment of an independent Supreme Court of Kenya is a one step in the right direction towards achieving the separation of powers.
Montesquieu was among the first people to discuss the concept of separation of powers in 1748.
Liberty cannot be enjoyed if the roles of parliament and the executive arms of government are entrusted in a single person or body.
According to Cambridge Dictionary, liberty is freedom or “the state of being free.”
In strict interpretation of separation of powers, a member of any of the three arms of government cannot serve in the other two at the same time. For instance, the President of Kenya cannot also serve as the President of Supreme Court of Kenya at the same time. A member of parliament (MP) cannot serve as a High Court judge at the same time.
Under the Constitution of Kenya 2010, the President does not sit in parliament as it was the case in the constitution of 1963. This is good in terms of safeguarding against tyranny and preserving liberty.
