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Recently, the High Court delivered a ruling, directing the government to purchase all locally produced rice before resorting to importation. The ruling followed a petition by some concerned farmers who sued the State for prioritising importation while leaving them stranded with their produce.
On the face of it, the ruling sits right with the quest to advance public interest. It makes perfect sense to shield farmers from the crippling disruption occasioned by cheap imports. But that’s just about where the justification ends.
A legitimate concern arising from the ruling is the extent of its reach. It appears to venture into the realm of policy prescription. For instance, the ruling prescribed the number of days available to the executive to mop up all the locally available rice before considering any importation.
The extent of the prescription feels unsettling. Ordinarily, policy should largely be an executive-driven ecosystem, acknowledging the expanse of information and expertise at its disposal.
The ruling on the rice case neatly falls within the infinite contestation around the separation of powers.
Largely associated with the 18th-century French philosopher Montesquieu, the principle of separation of powers broadly outlines the functional contours among the three branches of a government. Legislature is required to make laws; the executive to implement laws; and the judiciary to interpret laws.
Mainstreamed within the separation of powers is a system of checks and balances. It serves as a safeguard against abuse by any particular branch. It engenders mutual accountability among the three branches.
In short, it addresses the impracticality of the absoluteness of the separation of powers. But an enduring challenge remains what an optimal or a perfect separation of powers should look like. Attaining the optimal balance remains an enduring challenge across the democratic world.
Upon resuming office last year, the US President unleashed a series of executive orders that some have criticised as engendering Executive overreach, especially at the expense of Congress.
In France, invocation of Article 49.3, one that allows the executive to bypass parliament in the law-making process, has occasionally triggered tensions between the two branches of the French government.
In Kenya, contestations around the separation of powers have had an overt manifestation. In the law-making sphere, for instance, the use of presidential veto, as provided for under Article 115 of the 2010 Constitution, has occasionally triggered disquiet.
Parliament, especially the National Assembly, has variously protested against what it considers the misuse of the veto to usurp its law-making powers. It has consistently featured across all the Parliaments, from the 11th to the current 13th Parliaments.
At some point under the 12th Parliament, the National Assembly staged a boycott to express its frustration with what it adjudged President Uhuru Kenyatta’s usurpation of law-making powers through the misuse of veto.
Similarly, separation of powers has strongly featured in the protracted fight around the National Government Constituency Development Fund (NG-CDF).
Opponents of the NG-CDF have consistently argued that permitting the National Assembly to share in the implementation role, a sphere reserved for the Executive, affronts the principle of separation of powers.
While urging caution, the case of rice importation clearly shows the risks of the executive’s recklessness in blurring some governance lines. It is not a secret that in their quest to whet their debilitating appetite, some elements within the executive have often engaged in acts of sabotage.
Publicly, it is hard to argue against why the Judiciary should not offer policy prescriptions to the executive, especially when a public interest angle is on clear display.
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By Alex Ogutu