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Organs of Government
Last Updated On: 06-Nov-2021Posted On: 06-Nov-2021
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[size= 10.0pt; mso-fareast-font-family: 'Times New Roman'; mso-bidi-font-family: 'Courier New'; color: black]A Constitution establishes the regulatory framework for political activity and the governance process in a country. One of the things it does it to establish organs of government, define their functions and specify their powers for the discharge of these functions.[/size]
[size= 10.0pt; mso-fareast-font-family: 'Times New Roman'; mso-bidi-font-family: 'Courier New'; color: black]Experience from all over the world, and from time immemorial has taught that three particular organs of government are the most basic. These are: the Executive; (b) the Legislature; and (c) the Judiciary. These organs correspond to the vital and most basic governance functions, namely (and respectively), (i) the conduct of policy and administration; (ii) the making or repealing or amendment of the governing laws; and (iii) the adjudication of conflicts that arise while the laws of the land are being implemented through executive and administrative decision-making or action.[/size]
[size= 10.0pt; mso-fareast-font-family: 'Times New Roman'; mso-bidi-font-family: 'Courier New'; color: black]Although all Constitutions will provide for the three organs, their functions and powers, the Constitutions of different countries thereafter take different approaches, as some may go further and provide for additional governance -related organs. For example, the Ugandan Constitution provides for a further constitutional organ, known as the Inspector-General of Government, as does that of Tanzania , which provides for the Permanent Commission of Inquiry - both being nomenclature describing the Ombudsman institution.[/size]
[size= 10.0pt; mso-fareast-font-family: 'Times New Roman'; mso-bidi-font-family: 'Courier New'; color: black]The current Constitution limits itself to the three basic organs of government. In this paper we consider the broad outlines of these organs of government.[/size]
[size= 10.0pt; mso-fareast-font-family: 'Times New Roman'; mso-bidi-font-family: 'Courier New'; color: black]2. The Executive Organ[/size]
[size= 10.0pt; mso-fareast-font-family: 'Times New Roman'; mso-bidi-font-family: 'Courier New'; color: black]The Executive under the Kenya Constitution started off with a dual character, under the Independence Constitution in 1963. The day-to-day operation of government was conducted under the direction of a Prime Minister, who was the leader in Parliament of the political party with the largest number of seats in the house. The more occasional, symbolic and constitutional acts of government, such as formally naming the Prime Minister, proroguing or dissolving Parliament, were conducted by the Governor-General, representing the Queen of England, who operated in the capacity of Head of State.[/size]
[size= 10.0pt; mso-fareast-font-family: 'Times New Roman'; mso-bidi-font-family: 'Courier New'; color: black]The Executive organ was a diverse entity with a clear scope for checks-and-[/size]
[size= 10.0pt; mso-fareast-font-family: 'Times New Roman'; mso-bidi-font-family: 'Courier New'; color: black]balances. This feature, however, was taken away with the inauguration of Republican status on December 12, 1964. The advent of the Presidency severed the political link between Kenya and Her Majesty the Queen's Government in the United Kingdom. Henceforth, the Executive of the Kenyan State consisted solely in the President, who was his own Prime Minister while in his other capacity, he was the Head of State and Commander-in-[/size]
[size= 10.0pt; mso-fareast-font-family: 'Times New Roman'; mso-bidi-font-family: 'Courier New'; color: black]Chief of the Armed Forces. An unqualified monolithic structure was thus installed upon the constitutional system.[/size]
[size= 10.0pt; mso-fareast-font-family: 'Times New Roman'; mso-bidi-font-family: 'Courier New'; color: black]If this monolithicism was at first essentially instrumental, it was to be confirmed in place, firstly by the changed politics that brought the single party system, and then by a series of amendments that enhanced and consolidated the executive powers of the President and gave him the upper hand in his interplays with the Legislature. In the few years following the establishment of Republican status, all the main elements of diversity in the constitutional system, such as the semi-federalist structure and the bicameral Parliamentary system, were removed and the outstanding and greatly empowered profile of the President, became the main landmark of the constitutional order.[/size]
[size= 10.0pt; mso-fareast-font-family: 'Times New Roman'; mso-bidi-font-family: 'Courier New'; color: black]Those who have paid keen attention to the more recent political changes in Kenya will readily recognize that, it is precisely the monolithicism of the immediate post-independence years that prompted the public to initiate clamours for change, leading to the re-introduction of the multi-party system and a re-dedication to the principle of pluralism.[/size]
[size= 10.0pt; mso-fareast-font-family: 'Times New Roman'; mso-bidi-font-family: 'Courier New'; color: black]Against this experience, it may now be regarded as a basically valid proposition that the people of Kenya are likely to support enlargement of the number of participating agencies in the stall of the Executive.[/size]
[size= 10.0pt; mso-fareast-font-family: 'Times New Roman'; mso-bidi-font-family: 'Courier New'; color: black]However, the present Constitution of Kenya retains the limited - scope Executive; and this will necessarily be a subject in respect of which the Constitution of Kenya Review Commission should receive the opinions of the members of the public.[/size]
[size= 10.0pt; mso-fareast-font-family: 'Times New Roman'; mso-bidi-font-family: 'Courier New'; color: black]Issues pertaining to the ideal characteristics of the Executive must also address its interplays with Parliament. The term Parliament means all the elected and nominated members of Parliament, taken together with the President as Head of State; for it is only this whole institutional chain that can make and compete the law-making process. But the person who is President, by virtue of being an ordinary Member of the National Assembly as well as the Head of Government, also belongs to the National Assembly qua member and qua Head of a government (in effect, a Prime Minister) who is accountable on the floor of the National Assembly. The effect is that Kenya has a Presidency that is inseparably fused with the National Assembly. This is a classic example of the absence of separation of powers.[/size]
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