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CLS 107
THE EXECUTIVE
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Lesson Topics
•
•
Part 1: History of the executive and the
legislature
Part 2: The nature and functions of executive
power
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Part 1 History of the Executive
and the Legislature in Kenya
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Part 1-Lesson Objectives
• At the end of this part you should be able to
1. Determine the constitutional structure during the
colonial period
2. Narrate the historical development of the executive
and the legislature during the colonial period
3. Determine the allocation and distribution of power
to the respective organs of government
4. Identify any limitation of powers
5. Asses the application of the doctrines of
constitutionalism and democracy to governance
functions during that period
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History of our constitutional law
•
•
•
•
Four main epochs
1877-1895
1895-1920
1920-1963
1963 to present day
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Important dates in the history of our
constitutional law (1887-1920)
•
•
•
•
•
•
•
•
1877-BEAA formed by William MacKinnon
1886-Berlin Conference
1886-Anglo-German Agreement
1888-Royal Charter of incorporation given to BEAA.
Birth if IBEA
1890-Brussels Conference
1890 THE Anglo-German Agreement
1895 –Declaration of the protectorate end of IBEA
1920 Declaration of a colony
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History of our constitutional law 1877-1895
• Jurisdiction partly based on the concessions the
BEAA (later IBEA) obtained from the sultan of
Zanzibar and agreements with local leaders and
later, from a Royal Charter.
• Concessions gave wide administrative and judicial
powers to the IBEA
• The Royal Charter reserved far-reaching rights to the
British Govt but Britain was of the view that she was
not the constitutional sovereign
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History of our constitutional law 1877-1895
• The jurisdiction to administer was initially thought to
flow from the exercise of Royal Prerogative but when
doubts arose the Foreign Jurisdictions Act was
passed in 1843 to deal with the doubts.
• Pursuant thereto the Queen could by subsidiary
legislation known as Orders-In -Council make laws
pertaining to colonial administration
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History of our constitutional law 1877-1895
• The foreign Jurisdictions Act 1843 was and amending
legislation was consolidated into the Foreign
Jurisdictions Act 1890. It was the Foreign
jurisdictions Act 1890 and orders in council made
there under that formed the legal framework for the
administration of the territory
• The orders in council themselves allowed colonial
agents considerable legislative power through
subsidiary legislation in the form of Queens
Regulations, Ordinances or Royal Instructions
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History of our constitutional law 1877-1895
• At an international law level the Company
was no more than a convenient device for the
exercise of sovereign power and Britain was
for all intents and purposes the recognised
sovereign .
• This is confirmed by the General Act of 1886
(Berlin) and 1890( Brussels)
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Jurisdiction Under English Law 1887-1895
Sources of jurisdiction
1. Royal Prerogative Power
•
Royal Charters given there under
2. The British Settlement Act 1860
3. The Foreign Jurisdictions Act 1843 -1873 and Orders
in Council made there under
4. Subsidiary legislation by colonial agents through
Queen’s Regulations, Ordinances or Royal
Instructions
•
•
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Zanzibar Order in Council 1884
The African Order in Council 1887
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Jurisdiction under international law 1887-1895
• Article 1V General Act of the Brussels conference
‘The powers exercising sovereignty or protection in
Africa may, however, delegate to chartered
companies all or a portion of the engagements
which they assume by virtue of Article 111.
They remain nonetheless directly responsible for
the engagements which they contract by the present
General Act and they guarantee the execution
thereof’
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Jurisdiction Under English Law 1895-1920
sources of jurisdiction
1. The Foreign Jurisdiction Act 1890 and Orders
in Council made there under
•
•
•
•
East African Order In Council 1897
East African Order In Council 1898
East African Order in Council 1905
Kenya Colony Order In Council 1920
2. Concessions from the Sultan and agreements
with local leaders
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Jurisdiction Under English Law 1895-1920
• The declaration of a protectorate in 1895 only had
legal implications from the point of view of English
Constitutional Law.
• The territory became known as the East Africa
Protectorate
• By an agreement with the sultan of Zanzibar Britain
assumed far-reaching administrative and judicial
powers over the ten mile coastal strip and the
hinterland. This marked the beginning of direct
British administration in the protectorate.
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Jurisdiction Under English Law 1897-1920
• From an international perspective and from a
practical point of view the declaration was a
mere formalization of an existing reality and
an acknowledgement of international
obligations conferred by the General Acts of
1886 and 1890
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Jurisdiction Under English Law 1897-1920
• The legal framework gave wide ranging
legislative judicial and administrative powers
to the consuls and, later, colonial officers.
• Notable orders in council included the
Zanzibar Order-in Council 1884, the African
Order In Council 1889, the East Africa Order in
Council 1897
• These instruments gave colonial agents broad
and sweeping subsidiary legislative authority
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Jurisdiction Under English Law 1897-1920
• The Legal Status of the local inhabitants
• The status of the inhabitants of East Africa
were changed from those of aliens to those of
protected persons but in English law they are
still not subjects of the British Govt.
• Curiously the relationships between the
inhabitants and the protecting power is not
governed by international law but by the law
of the protector.
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Jurisdiction Under English Law 1897-1920
• Ole Njogo and ors vs AG of the EAP (1914) 5 EALR 70
• 1904 first agreement with the Laibon provides for certain
rights to the Masais
• 1911 second agreement with the Laibon reviews some of the
rights under the 1904 agreement.
• Plaintiff who was affected by the 1911 agreement sues for a
breach of the 1904 agreement claiming it was a civil contract,
and damages for tort for wrongful confiscation of cattle
• Preliminary objections were raised on the grounds that the
two agreements were not contracts but treaties and the
confiscation not a tort but an Act State.
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Jurisdiction Under English Law 1897-1920
• Ole Njogo contd.
• The court held that;
The Masais were not subjects of the British Government
The agreements were treaties not contracts
The tortuous acts complained of were acts of state not
torts
The courts had no jurisdiction over the matters before it
The Masais had no remedy in international law since a
tribe was not a recognised state. They had no right of
diplomatic protection
Their remedy lay in invoking the goodwill of the colonial
aggressors
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Jurisdiction Under English Law 1897-1920
• Denning LJ in Nyali Ltd vs AG 1956 KB 1
• ‘Although the jurisdiction of the crown in the
protectorate is in law limited jurisdiction, the limits
may in fact be extended indefinitely so as to embrace
almost the whole field of Government…
• The courts themselves will not mark out the limits.’
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Jurisdiction Under English Law 1897-1920
• Denning LJ in Nyali Ltd vs AG 1956 KB 1
• ‘They will not examine the treaty or grant under
which the crown acquired jurisdiction: nor will they
inquire into the usage or sufferance or other lawful
means by which the crown may have extended its
jurisdiction.
• The courts rely on the representatives of the crown
to know the limits of its jurisdiction and to keep
within it. Once jurisdiction is exercised by the crown
the courts will not permit it to be challenged’
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Jurisdiction Under English Law 1897-1920
• R vs Earl of Crew ex parte Sekgome 1910 KB 576
• The idea that there may be an established system of
law to which a man owes obedience and that at any
moment he may be deprived of the protection of
that law is an idea not easily accepted by English
lawyers. It is made less difficult if one remembers
that the protectorate is over a country in which a
few dominant civilized men have to control a great
multitude of semi-barbarous
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Jurisdiction Under English Law 1897-1920
• Per Y.P Ghai 2001
• ‘The foregoing cases suggest that there is a
residue of sovereignty left to the natives and
the power of the crown is not unlimited.
• But this purportedly limited jurisdiction
cannot be challenged in
domestic or
international courts’
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Jurisdiction Under English Law 1897-1920
• Between 1887 and 1895 in the eyes of the
British they had no legal or political
obligations in their spheres of influence
administered by the IBEA.
• Sovereignty vested in the Sultan of Zanzibar
but the company acquired administrative
legislative and judicial rights under the
concessions given by the sultan
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Jurisdiction Under English Law 1897-1920
• But the company also had a royal charter
which gave the British government
extraordinary power over its activities and
which in effect was the legal source of the
companies authority.
• The company was for all intents and purposes
an agent of the British Government
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Jurisdiction Under English Law 1897-1920
• In the eyes of international law sovereign
power vested in the sultan subject to any
concessions given to the British Govt or its
agent-the IBEA. This was the purport and
import of the General Acts of Berlin of 1886
and 1890
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1895-1920
Jurisdiction Under the Protectorate
• Once a protectorate was declared jurisdiction
was now exercised directly
• The international law basis of jurisdiction
were the General Acts of 1886 and 1890
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1895-1920
Jurisdiction Under the Protectorate
• The constitutional basis for jurisdiction was a
combination of royal prerogatives , the Foreign
Jurisdictions Acts of 1843 and 1890 and the Ordersin-Council made there under e.g. the African Orderin-Council and the Zanzibar Order-in-Council. The
East Africa Order-in-Council 1897
1899and
1902.Pursuant to these orders in council various
ordinances such as the Crown Lands Ordinance, were
enacted
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Jurisdiction over Land and natives
• On the Authority of Ole Njogo vs AG of EAP
the indigenous
communities in the
protectorate were not British subjects but
foreigners.
• Under International Law the indigenous
communities were not states and therefore
had neither rights nor obligations under
international law.
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Jurisdiction over Land and natives
• Title to land was conferred initially by
agreement with the natives but later by
legislation such as the Crown Lands
Ordinances (CLO)of 1902 and 1915
• The 1915 CLO and the 1920 Kenya Colony
Order-in-Council the natives became tenants
at will of the crown .Wainaina vs Murito 1923
(9) 2 KLR 102
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Jurisdiction over Land 1887-1920
• The two Crown Lands Ordinances made some
exceptions with regard to ownership of land in
the ten mile coastal strip
• With respect to the ten mile coastal strip, the
Land Titles Ordinance provided for an
adjudication of ownership of Land belonging
to the Sultans subjects as of 1914
• After 1914 radical title vested in the crown not
the sultan
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Jurisdiction over Land 1887-1920
• Law officers opinion 1886
• Under the IBEA era and under the protectorate the British
government had no civil or criminal jurisdiction over
foreigners who were not British subjects save with the
consent of the foreigner or of his government
• This position was given legislative imprimatur in the 1884
Zanzibar Order in Council and the 1889 African Order in
Council
• Judicial decisions in R v Montopoulo (1895) 19 ILR(Bomb.) 741
and Imperatrix vs Juma and Urzee (1898) 22 ILR (Bomb.) 54
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Jurisdiction over Land 1887-1920
• 1920 Kenya Colony Order in Council-Kenya
becomes a British colony.
• All vestiges of sovereignty lost but
paradoxically the inhabitants now had better
rights than they had under English law
• Kenya became part of the British Empire
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Constitutional set up in the colonial era
• From Ghai and McAuslan quoting Wright
(1947)
• The colonial government in Kenya was based
on two great principles of subordination
1. The legislature is subordinate to the executive
2. The colonial government is subordinate to the
imperial government
Constitutional set up in the colonial era
• In the early stages of the dependency the
legislature was the same as the executive, in the
person of the commissioner or governor
• In one sense constitutional progress is measured
by the manner in which there is a growing
separation of institutions and functions
• The progress to independence was reflected in
their changing composition and powers, and their
relationship with one another and with the
governor
Establishment of the machinery of
government
• EAPG Notice No 11 of 1898- issued by the
Foreign office pursuant to the Foreign
Jurisdictions Act
• The names of the administrative officers in the
protectorate were assimilated to those of
similar officers in British India
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Establishment of the machinery of
government
• East Africa Order In Council 1897
• Established the beginning of administrative
machinery in the protectorate
• Indian and English law formally imported into the
protectorate
• The order in council placed more emphasis on
judicial power and institutions
• Commissioner given extensive powers to set up
native courts with exclusive criminal jurisdiction over
natives
Establishment of the machinery of
government
• Pivotal position of the commissioner
Appointed by her majesty as the CEO of the territory
Primary responsibility was to establish the
administration
Also had responsibility to maintain law and order
Had extensive legislative powers through the ‘Queens
Regulations’
Legislative powers enhanced by the 1899 EAOIC
Enjoyed absolute immunity from the jurisdiction of
the courts
Establishment of the machinery of government
• EAOIC 1902
More emphasis placed on administration
Administration vested in the commissioner
Was given wide discretion to divide the country
into provinces and districts
His authority over civil servants was defined
Prerogative of mercy was vested in him
Legislative powers elaborated and expanded
Move from the foreign office to the colonial office
in 1905
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Establishment of the machinery of government
• EAOIC 1905
• Designation of ‘Commissioner’ changed to
‘Governor and Commander-in-Chief’
• He acquired the power to appoint all judicial
officers
• He however lost the power to personally
legislate for the protectorate
• Establishment of the Legislative council and
the executive council
Establishment of the machinery of government
• Legislative Council
• This was one of the major developments brought
about by the 1905 EAOIC and was a consequence of
settler agitation for a say in the governance of the
protectorate
• It was composed of the Governor and not less than
two other persons appointed by the crown. By 1909
composition
included
nominated
unofficial
representatives
Establishment of the machinery of government
• Legislative Council
• Henceforth governor theoretically lost the power to
legislate on his own
• He however got the crucial right to veto legislation
• Accordingly the legislative council could not in
practice legislate without him
• All laws were subject to the veto power of the
colonial office
• Governor had to file an annual report on all laws
enacted with the colonial secretary
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Establishment of the machinery of government
• Executive Council
• Comprised ‘officials’ only
• Advised the governor on matters of
administration
• It was an attempt to keep the unofficial
members of the legislative council out of
executive functions
Importance of the two councils
1. Each operated as a forum for debate and
agitation for greater democratic space
2. Seats therein allocated to accommodate
increased demands for participation in
governance
3. Government maintained an official majority in
both until the mid fifties
4. Their progressive development became the index
of the country’s constitutional advance
5. Were the forerunners to what became the
cabinet and parliament
Developments in the two councils
• Legco
• Six officials two unofficial to represent the Europeans
• 1909 First Indian Jevanjee nominated. Nomination not
renewed
• 1916 Recommendation that African interests be
represented by a Chief Native Commissioner
• 1919 Europeans allowed elected representation through
the EAOIC 1919 and the Legco Ordinance 1919
• 1919 .Two Indian nominated reps allowed
• 1919 Universal adult suffrage based on a communal role
introduced
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Developments in the two councils
• Legco
• 1923 Devonshire whitepaper
• Actually prompted to determine the Indian quest for
equality with the Europeans
• Declared Kenya a ‘black man’s country’.
Recommended that missionary represents Africans
in the Legco
• Indian claims to equality with Europeans rejected
• Voting on communal role continued
Developments in the two councils
• The Legco
•
•
•
•
•
•
•
•
1924 Legislative council amendment ordinance
Arabs granted elective representation in the Legco
Indians granted five elected seats
Nominated’ official representatives increased to 10
Voting based on communal rolls
Governor was the president of the council
Duration of council was three years
Nominated members held office at the pleasure of
the Governor
Developments in the two councils
•
•
•
•
The Exco
It played an advisory role only
Had to be convened by the governor
Governor had to act on its advice save where there
was an emergency
• Governor could only exercise the prerogative of
mercy in consultation with the Executive Council
• Governor could act in opposition to the council but
had to communicate his action to the colonial
secretary
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Developments in the two councils
• The governor was the president of both councils
• He alone could initiate legislation on matters of
finance
• He had an official majority in the Legco who held
office at his pleasure
• He could veto legislation, prorogue or dissolve the
Legco at any time
• He answered, however, to the colonial office which
could exercise both executive and legislative powers
directly
Developments in the two councils
• The two councils were , at least, theoretically
independent of one another
• The executive council needed the approval of
the legislative council to translate policy into
law
• But the Governor had the right to veto
legislation
• But the official majority in the Legco
undermined its effectiveness
Developments in the two councils
• Major themes
• Increased European agitation for an unofficial
majority in the Legco and more participation
in the Exco
• Increased Indian agitation for equality of
representation and voting on a common role
• Increase agitation by Africans for elected
representation in both councils
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Developments in the two councils
• 1948 Royal Instructions were issued to alter
the composition of the Legco
• 18 officials ( Governor as president, speaker as
vice president, seven ex officio and nine
nominated official members)
• 22 unofficial ( seventeen elected, eleven
Europeans, up to five Indians and one Arab,
five nominated unofficial, four to represent
the interests of the African community and
possibly one to represent the Arabs)
Developments in the two councils
• 1948
• Speaker became the presiding officer
• Governor retained his titular position as head of the
council
• Speaker had a casting but not a deliberative vote
• Speaker was initially to be nominated but there were
proposals that the position become elective
Developments in the two councils
• 1951
• Unofficial representation increased to 28- 14
European, Six Asians ( four non- Muslim and
two Muslim), two Arabs ( one elected one
nominated) and six African representatives
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Developments in the two councils
• The Exco
• The Europeans also agitated for representation in the
Exco
• The council was advisory to the governor but was not
responsible to the legislature
• 1938 parity established between official and
unofficial members of the Exco
• 1945 appointment of the head of the civil service as
the secretary to the Exco
Developments in the two councils
• African Representation
• Initially it was assumed that Africans were unable to
represent themselves and did not even know what
their best interest was
• 1923-Devonshire white paper recommended the
appointment of a missionary
• It however became obvious that Europeans could
not represent African interests
• Native councils set up to provide a forum for
representation
Developments in the two councils
• 1944 Eliud Mathu appointed to the Legco
• 1946 Walter Odede appointed as the second African
representative
• 1948 number increased to four
• 1952 number increased to six
• All were appointed , none was elected
• 1954 Lyttleton Constitution six constituencies for
Africans, Nairobi , Central Coast, R Valley Southern
Nyanza, Northern Nyanza
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Developments in the two councils
• 1954 Lyttleton Constitution
• Council of ministers established with limited
membership from the Legco. Had 3 Europeans
2 Asians and 1 African
• Council of ministers became the principal
instrument
of
government
Collective
responsibility introduced
• Exco retained some important powers
• Governors powers undiminished
Developments in the two councils
• 1958 Lennox Boyd Constitution introduced
elective representational parity of Africans
and Europeans in both councils . 14 African
14 Europeans in the Legco
• 1960 McLeod Constitution
• 1960 and 1962 Lancaster house conferences
commenced the final match towards African
domination of both councils
PART 2
THE NATURE AND FUNCTIONS OF
THE EXECUTIVE
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LESSON CONTENT
I.
Introduction
1. Definition of the executive
2. Importance of executive power
3. Functions of the executive
4. The Nature and Characteristics of executive power
5. Facets of executive power
6. Manifestations of executive power
7. Types of executive power
8. Executive structures
9. Limitation and Control of executive power
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Lesson objectives
• At the end of this session you should be able to
Define ‘executive power’
Explain the Importance of executive power
Describe the functions of the executive
Explain the nature and characteristics of executive power
Describe the Facets of executive power
Describe the manifestations of executive power
Discuss the different types of executive power
Describe the different executive structures
Identify and explain the means and ways of limiting and
controlling executive power
10. Determine the type of executive well suited for your country
1.
2.
3.
4.
5.
6.
7.
8.
9.
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Definition of executive power
• Many definitions and descriptions
Aristotle -That which is concerned with
magistrates – deals with the distribution of public
offices their authority and manner of
appointment, generate and implement policy and
issue orders
John Locke-The Federative power- dealt with
matters of war peace leagues and alliances .
Montesquieu the power by which the prince
makes peace, sends and receives ambassadors
and prevents invasion
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Definition of executive power
• Executive functions- more political and discretionary.
Involves broad policy decisions
• Administrative functions- more implementational
and mechanical, involve little policy decisions
• Executive functions are discretionary and generally
not amenable to judicial review (The political
question doctrine)( See Madbury vs Madison,
Paddy Ouma Onyango vs AG)
• Administrative or enforcement functions are more
amenable to judicial review
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Importance of executive power
.
• Executive power is regarded by some as the
most important arm of Government. E.g. De
Smith, Dr Ajwang CUEA because it
Formulates and executes government policy
Implements and enforces the law as laid down by
the legislature and interpreted by the judiciary
Best illustrates the limits of separation of powersfrequently exercises legislative and judicial
functions
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The executive and its functions
• John Locke-the good of society requires that certain
things be left in the hands of executive power
• Nwabueze –Government is universally accepted as a
necessity. Man cannot fully realize himself except
within ordered society
• The necessity for Government creates its own
problems.
How to limit the arbitrariness inherent in
government
How to ensure Govt power is exercised for the
good of society
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The executive and its functions
• Classical economic theory takes the position that the
executive power should be limited to three roles.
Maintenance of internal order
Conduct of foreign affairs
National defence
These three are the core business of Government
• The government has no role to play in the market place
• Even the provision of social services should be left to
the market forces
• Privatization leads to economic efficiency and frees
government resources which can then be concentrated
in the core business of government
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The executive and its functions
• Even communists believe that a stateless
society is an inevitable consequence of socioeconomic development
• The bible itself suggest that law and
government itself is a consequence of the
fallen nature of man
• Experience in real life has exposed the
inefficiencies and imperfection of the of the
markets in achieving ‘pareto efficiency’.
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The Executive and its functions
• Apparently all agree that government
generally and executive power and functions
is a necessary evil.
• The social welfare state is a halfway stop
between the free market and the command
economy and permits the government to do
more than just its “core business”
• The task of constitutionalism is the control of
this necessary evil.
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The executive and its functions
• It is all that remains after you take away
Judicial and Legislative functions
1.
2.
3.
4.
Maintenance of law and order
Coordination of foreign policy
National defence
Provision of social services such as education,
health, housing, transport, etc.
5. Economic development such as the formulation
of sound macro-economic policies
that
encourage economic development
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The executive and its functions
• It is the implementation arm of the government
• The executive also performs limited legislative and
judicial functions through subsidiary legislation and
administrative tribunals
• In addition to the core business
Internal peace, foreign affairs and national
defence,
• It also undertakes socio-economic programmes in
the welfare state
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Quasi-Judicial and subsidiary
Functions
• In the area of administrative law the executive
performs a number of quasi judicial functions i.e.
functions which determine the rights and
liberties of the individual
• Because of practical and pragmatic reasons,
parliament delegates a lot of law making power
to the executive
• Under the principle in Madbury vs Madison both
functions are amenable to Judicial Review
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The nature and characteristic of executive power
• Executive powers are said
1.
2.
3.
4.
5.
6.
7.
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Urgent
Efficient
Direct
Discretionary
Residual
Indeterminate
Incapable of precise definition
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The nature and characteristic of executive power
• It is urgent efficient and direct unlike
legislative and judicial power which is
deliberative and systematic
• It is residual, discretionary and incapable of
precise definition
• Executive power is what remains after you
take away judicial and legislative power
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Facets of executive power
• According to Bagehot executive power can be
divided into two facets- the “efficient” and
the “dignified”
• “Efficient”-the organ that runs the day to day
affairs of government
• “Dignified”- Plays a ceremonial and symbolic
role-attended with splendor, pomp and
ceremony
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Facets of executive power
• Some systems try to keep the two facets
largely separate
• Others prefer a substantial fusion of the two
facets
• Presidential systems tend to fuse the two
facets
• Parliamentary systems tend to separate the
two facets
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Manifestations of executive power
• Commanding role in matters of peace and war
• Authority in the maintenance of peace and
order
• Mandate to safeguard against external
aggression
• Responsibility in matters of economic an social
services.
• Mandate in maintenance of international
relations
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Types of executive powers
1. Prerogative powers
2. Juridical powers
3. Extra juridical powers
• Each of the above can be further classified as
Enumerated powers or Residual powers
Limited or unlimited
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Types of Executive Powers
Prerogative powers .
• Are either common law or statutory
• A consequence of our written constitution is
that these powers are now codified in the
constitution.
• They were personal to the king and could not
be delegated
• These powers are legal and inherent
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Types of Executive Powers
• Prerogative powers
• At common law these included
The power to make war and peace
The power to send and receive ambassadors
Maintenance of internal order
The power to summon and prorogue parliament
The power to dissolve parliament
The power to assent to bills
Immunity for civil and criminal processes
The power to appoint the vice president
The power to appoint ministers
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Types of Executive powers
Juridical powers• Conferred by statute and can also be exercised
through subordinates
Extra Juridical powers
• Are powers which are incidental to and flow
naturally and directly from juridical powers
• Because of its indeterminate and discretionary
nature arbitrariness is inherent in executive
power a fundamental objective of the principle
of constitutionalism is the regulation of executive
power
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Executive Structure
• The structure of executive determines where
the center of power is
• It also allocates executive competences
• It may distinguish between the vesting of
executive power and the exercise of the same
• It is a principle determinant of the
constitutional architecture for the limitations
of executive power
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Executive structure
• The predominant structures are
The presidential system
The parliamentary system
Semi-Presidential system
Parliamentary systems heads of state
Non-executive heads of state
A fusion of the presidential and parliamentary system
• It is important to consider where the “efficient”
and the “dignified” facet of executive power lies
and to allocate power as appropriate
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Executive structures
• Presidential systems-US and now Kenya
• Parliamentary systems-UK
• Mixed or hybrid systems-France, S.A TZ
Kenya(until 27th August 2010)
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Executive Structure
The presidential system
• The president enjoys executive powers alone
• The centre of power is the presidency
• The constitution vests executive power in the
office of the president. The executive the
legislature and the Judiciary are formally distinct
• The presidential powers are subject to
constitutional controls
• The best example of the presidential system is
the US system
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Executive Structure
The US Presidential system
• The president is the head of state and head of government
• The president is not a member of the legislature but may
be an active member of a political party
• Neither are his ministers who are appointed ,not elected
• But some executive powers are subject to congressional
approval e.g. appointments to high offices, declaration of
war, the making of treaties
• The judiciary has extensive powers of judicial review but
generally defers to executive discretion.
• The US system is considered an extreme example of the
separation of powers principle
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Executive Structure
Parliamentary system
•
•
•
•
•
There are two centers of power with clearly defined roles
The executive is part of the legislative system.
The best example is the UK system
There is a head of state and a head of Government
The queen is the head of state – Her roles are largely
ceremonial. She is the symbol of nationhood and its
continuity
• The head of state and the head of government as well as
members of the cabinet are members of the legislature
• The Queen is the head of state, the prime minister is the
head of Government .
• Executive power is vested in the cabinet
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Executive Structure
Presidential- Parliamentary system
• Notable examples are France, Israel, Tanzania Kenya (untill
27th August)
• The president is both head of state and head of
government
• But executive power may be shared with a prime minister
.The PM may be no more than an administrative
technocrat. E.g. TZ
• Govt is answerable to both the president and the
legislature. E.g. France- Cohabitation of opponents possible
• There is need to carefully and precisely define executive
powers when the same are divided. In France one runs the
domestic agenda and the other handles foreign affairs
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Executive structure
• Parliamentary systems head of state-HM’S
Government in the UK
• Head of state is the nominal chief executive
• Prime minister is the one who exercises
executive power
• Non-executive Heads of State
• Head of state completely excluded from
executive power -purely ceremonial
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Executive structure-Kenya
• Until the 27th August 2010 Kenya had a
parliamentary executive- the executive is
collectively responsible to the people through
parliament
• In Kenya the office of the president is clothed
with powers of the President of America and
the privileges and immunities of the Queen of
England
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Executive structure
The history of the Executive structure in Kenya
• 1963-1964- Dual Executive system The Governor
General on behalf of the Queen was the head of
state (“the dignified facet”)
• the prime minister was the head of Government
(“the efficient facet”)
• It was not long before problems arose from this
transplanted model. Kenyatta, Mboya and
Nyerere argued that he model was “unafrican”
and argued for a fusion of the two facets single
and undivided, American style
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Executive structure
• 12-12-1964- the prime minister was by constitutional
amendment that created the Republic of Kenya transformed
into a president with full executive and ceremonial powers
• There was neither an election nor a referendum
• March 2008-Power sharing and the restoration of the office of
the prime minister. The president remains head of state and
head of government.
• The president appoints the prime minister! ( a ceremonial
function)
• The imperial presidency survived thanks to sloppy
draftsmanship.
• Prime minister does have executive powers and some of the
presidents executive powers seriously curtailed.
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Structure and Composition of the Kenyan
executive under the old constitution
•
•
•
•
•
•
•
•
•
•
•
The president
The prime minister
The vice president
The cabinet
Assistant ministers
Constitutional office holders
Independent institutions
The civil service
The diplomatic service
Instruments of internal order and national defence
Local government
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Structure and Composition of the Kenyan
executive under the new constitution
NATIONAL GOVERNMENT
DEVOLVED GOVERNMENT
•
•
•
•
•
•
•
•
•
•
•
•
President
Deputy president
Cabinet secretaries
The diplomatic service
Public service
Constitutional offices and bodies
Instruments of internal order and
national defence
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Governor/Mayors
Deputy governor/Deputy Mayors
County executives
County civil service
Local government
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Executive structure
Collective responsibility
Two strands of the concept at common law
1. The collective responsibility to resign when there
is a vote of censure
2. The collective responsibility to stand by the
government or quit
• Collective responsibility arguably presupposes
collective decision-making. Object is to ensure
a united front by Govt.
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Executive structure
• In common law the head of govt is obliged to act on the
advice of the cabinet . Even the queen must act on the advice
of her ministers. There is collective decision-making in Govt.
• The prime minister is not directly elected. He is only a primus
inter pares in the cabinet
• In Kenya the president
Is directly elected
has the primary responsibility to govern
is not obliged by the constitution to act on the advice of
the cabinet. No collective decision making, why collective
responsibility?
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Executive Structure
The Queen as a head of state-Excerpts from De Smith
1.
2.
3.
4.
5.
A symbol of national identity
A focal point of loyalty
Transcends partisan rivalry
Strengthens national cohesion
Preeminently a dignified element in the
British constitution
6. The pillar of the established church
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The Queen as a head of state-Excerpts from De Smith
7. The exemplar of family virtue
8. Expected to do what no ordinary mortal can expect
to achieve
9. Not allowed the smallest indiscretion or verbal
lapse
10. Must comport herself so as not to give offense to
nobody. Must not do or say anything wrong
11. Must always do the right thing irrespective of her
private inclinations
12. When she does all the above her office is attended
by magic and mystery
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Control of executive power
•
•
•
•
By the courts
By parliament
By civil society
By a vibrant press
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Limitation of executive power
•
•
•
•
By constitutionalism
By the rule of law and the principle of legality
By popular sovereignty
By separation of powers , devolution,
affirmative action , minority rights protection,
bill of rights and independent institutions
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END OF LESSON 3
THANKS FOR LISTENING
ANY QUESTIONS?
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