January 2025
GROUP
WORK
Presented by
Group 04
The Problem
Overview
01 05
Introduction Checks and Balances
02 06
Legislature Independence of Courts
03 07
Executive Lack of Independence of
Courts
04 08
Judiciary Conclusion
C O N S T R U C T I O N L AW A
01. INTRODUCTION
The government of Kenya operates under a
separation of powers framework that consists of
three distinct arms:
The Executive, the Legislature, and the
Judiciary.
Each arm has specific functions, and they are
designed to act as checks and balances on each
other, ensuring no single branch has unchecked
power.
C O N S T R U C T I O N L AW A
02. LEGISLATURE
(Parliament)
Kenyan Parliament is a bicameral body, meaning it
consisting of two houses:
1. The National Assembly: This house has 349 elected and
nominated members,
a) 290 Members
b) 47 Women Representatives
c) 12 Nominated members
2. The Senate: This house has 67 members, representing
counties and special interest groups.
a) 47 Members
b) 16 Women Nominated
c) 2 Representatives (Youth)
d) 2 Representatives (PWD)
C O N S T R U C T I O N L AW A
THE NATIONAL ASSEMBLY
HIERARNCHY FUNCTIONS
Represents the people of the constituencies and special
SPEAKER interests in the National Assembly.
Deliberates on and resolves issues of concern to the
DEPUTY SPEAKER people.
Determines the allocation of national revenue between the
MAJORITY LEADER MINORITY LEADER levels of government, as provided in Part 4 of Chapter
Twelve.
Appropriates funds for expenditure by the national
DEPUTY DEPUTY
government and other national State organs.
Exercises oversight over national revenue and its
MAJORITY WHIP MINORITY WHIP expenditure.
Reviews the conduct in office of the President, the Deputy
CLERK President and other State officers and initiates the process
of removing them from office
MEMBERS Approves declarations of war and extensions of states of
emergency.
C O N S T R U C T I O N L AW A
THE SENATE
HIERARNCHY FUNCTIONS
SPEAKER Debate and approve county bills.
Determine the allocation of national revenue to counties.
DEPUTY SPEAKER
Represent the interests of the counties at national level.
Consider and determine the resolution of impeachment for
MAJORITY LEADER MINORITY LEADER
both county and national government.
DEPUTY DEPUTY
MAJORITY WHIP MINORITY WHIP
CLERK TO THE SENATE
MEMBERS
C O N S T R U C T I O N L AW A
LEGISLATURE
(FUNCTIONS IN GENERAL )
Law-making: The primary function of Parliament is to make
and amend laws for the country. Laws can originate from
either house but must be passed by both.
Representation: Parliament represents the interests of the
people and the counties (in the case of the Senate).
Budget approval: Parliament is responsible for debating
and approving the national budget as proposed by the
executive.
Oversight of the Executive: Parliament monitors and
scrutinizes the actions of the executive. It does so through
question times, committees, and the impeachment process.
Protecting devolution: The Senate plays a critical role in
protecting the interests of counties by debating bills that affect
county governments and revenue allocation.
C O N S T R U C T I O N L AW A
03. EXECUTIVE
This ARM of government consists of;
•The President: The head of state, head of government, and
commander-in-chief of the Kenya Defence Forces.
•Deputy President: Second in command and assists the
President in the execution of government functions.
•Cabinet Secretaries: Appointed by the President, they are
responsible for overseeing various ministries such as health,
education, finance, etc.
•Principal Secretaries: Senior officers in ministries, responsible
for the implementation of policies under the direction of the
Cabinet Secretaries.
•Attorney General: The chief legal adviser to the government.
C O N S T R U C T I O N L AW A
EXECUTIVE FUNCTIONS
HIERARNCHY Policy formulation and implementation: The executive
is responsible for developing and executing government
THE PRESIDENT policies and laws as passed by the legislature.
Budget preparation and economic planning: The
National Treasury, under the executive, prepares the
DEPUTY PRESIDENT budget, which outlines the country's economic plans and
expenditure.
Foreign relations: The executive is responsible for
CABINET managing the country's international relations and ensuring
SECRETARIES national security.
Law enforcement: Ensures that laws are implemented
and maintained through agencies like the National Police
PRINCIPAL Service.
SECRETARIES
Commander-in-Chief of the Armed Forces: The
President ensures the security and defense of the country
by commanding the military.
C O N S T R U C T I O N L AW A
04. JUDICIARY
The courts operate in two levels;
1. Superior Courts:
a) Supreme Court
b) The Court of Appeal
c) High Court
2. Sub-ordinate Courts:
a) The Magistrate Courts
b) The Kadhi Courts
c) The Court Martials
d) Tribunals
HIERARNCHY
C O N S T R U C T I O N L AW A
FUNCTIONS
Interpretation of the law: The judiciary interprets
the law and the constitution, ensuring that laws are
applied uniformly across Kenya.
Adjudication of disputes: Courts resolve
disputes between individuals, and between
individuals and the state. This includes civil,
criminal, and constitutional matters.
Protection of rights: The judiciary is the
protector of the Bill of Rights, ensuring that the
fundamental rights and freedoms of individuals are
upheld.
Oversight of other arms of government: The
judiciary acts as a check on both the executive and
legislature by ensuring that their actions conform to
the constitution. It has the power to declare laws or
executive actions unconstitutional.
C O N S T R U C T I O N L AW A
05. CHECKS & BALANCES
Legislative Checks on Executive:
Parliament can reject the executive's budget or other
key policies.
It can question, investigate, and impeach members of
the executive, including the President, if necessary.
Judicial Checks on Executive and Legislature:
•The judiciary can rule executive orders or
parliamentary laws as unconstitutional.
•It ensures that both the legislature and executive
operate within the limits set by the constitution.
Executive Checks on Judiciary and Legislature:
•The executive is responsible for enforcing laws,
including judicial decisions.
•The President can veto laws passed by the legislature,
although Parliament can override this with a two-thirds
majority.
06. Independence of
C O N S T R U C T I O N L AW A
Courts
Independence of Courts in Kenya refers to the judiciary's freedom to
operate without interference from other arms of government, individuals, or
organizations.
•Constitutional Guarantee:
Article 160 of the Constitution guarantees the independence of the Judiciary. It states that courts shall
not be subject to the control or direction of any person or authority.
•Judicial Service Commission (JSC):
The JSC oversees judicial appointments, promotions, and disciplinary matters, ensuring that the
process is free from executive or political influence.
•Security of Tenure for Judges:
Judges cannot be arbitrarily removed from office. Their removal is governed by strict constitutional
procedures involving a tribunal to investigate allegations of misconduct.
•High-Profile Rulings:
•2017 Presidential Election Petition: The Supreme Court, led by Chief Justice David Maraga, annulled the
re-election of President Uhuru Kenyatta, citing irregularities in the electoral process. This showcased
judicial independence in the face of political pressure.
•2021 BBI Ruling: The Court of Appeal declared the Building Bridges Initiative (BBI) unconstitutional,
demonstrating that courts could hold even government-backed initiatives accountable.
•Budgetary Independence:
Although the judiciary relies on government funding, the Constitution mandates financial autonomy to
prevent undue influence through budgetary manipulation.
07. Lack of Courts’
C O N S T R U C T I O N L AW A
Independence
Despite constitutional guarantees, several challenges undermine judicial
independence in Kenya.
•Political Interference:
•Delays in Judicial Appointments: In 2021, President Uhuru Kenyatta declined to appoint six judges recommended
by the Judicial Service Commission (JSC), citing "integrity issues" without providing concrete evidence. This was
seen as an attempt to influence the judiciary's composition.
•Pressure in High-Profile Cases: The judiciary has faced allegations of succumbing to political pressure in cases
involving influential politicians or government projects.
•Budgetary Constraints:
•The judiciary often operates under limited budgets, with delayed or reduced allocations from the executive. For
example, Chief Justice David Maraga in 2019 publicly lamented the executive's underfunding of the judiciary,
affecting service delivery and independence.
•Disregard for Court Orders:
•Government institutions have been accused of ignoring court orders. For example, in 2018, the government defied
a court order to reinstate opposition leader Miguna Miguna's passport and facilitate his return to Kenya.
•Threats and Intimidation:
•Judges have faced threats and intimidation, particularly in politically sensitive cases. Following the Supreme
Court’s annulment of the 2017 presidential election, Chief Justice Maraga and other judges reported receiving
threats and harassment.
•Public Perception and Corruption:
•Instances of judicial corruption weaken the perception of independence. Some judges have been accused of
delivering biased rulings in exchange for bribes or political favors, eroding trust in the judiciary's impartiality.
C O N S T R U C T I O N L AW A
08. CONCLUSION
In conclusion, the three arms of government in Kenya i.e the Executive, Legislature, and
Judiciary are designed to operate independently while ensuring checks and balances within
the system.
The principle of separation of powers ensures that no single arm dominates the others,
promoting democracy, transparency, and accountability. However, challenges such as political
interference, budgetary constraints, and corruption can hinder the effective functioning of
each arm, requiring ongoing reforms to strengthen governance and the rule of law in Kenya.
C O N S T R U C T I O N L AW A
Thank you
B Y G R O U P 0 4
