The breakdowns of several democracies in Latin America during the Cold War, as well as concerns about the (re)establishment of civilian government in the region democratized in the 1980s and 1990s, continue to influence contemporary debates about the relative advantages or disadvantages of the separation of powers. If it is true, as Linz (1990, 1994) and others have argued, that presidential facilitated the breakdown of democracy (even if it is not the proximal or only cause), can we design political institutions less prone to malfunction? Less ambitiously, can scholars at least contribute to understanding the causes of democratic breakdown and democratic success? As more and more countries adopted democracy during the “third wave” of democratization that characterized the late twentieth century, scholars, politicians, and policymakers around the world have continued to ask these critical questions. Linz argued that because the executive and legislative are elected separately, they may derive their legitimacy from governing from very different sources. Moreover, conflict is more likely because of discouraging politicians in both branches of government from moderating their stances or seeking new coalition partners. In contrast, mutual dependence in a parliamentary system heightens the incentives for cross-branch negotiation.
Moreover, when such conflict emerges and persists, presidential lacks the exit option of the confidence vote, which allows for a relatively smooth transition from one government to the next in parliamentary systems, without engendering a constitutional crisis. These factors generate a relatively higher likelihood of conflict between branches of government under the separation of powers, which can, in turn, become a regime crisis, regardless of the distribution of partisan preferences. Other scholars such as Main Waring (1993) and Jones (1995) added that conflict and its persistence are even more likely, and more likely to lead to crises, under multiparty situations, which make inter-branch negotiation more difficult and accentuate existing problems. Again, these scholars concluded that while minority and coalition governments are frequent in all democracies, the parliamentarian is more flexible because the PM depends on the legislature to survive. Thus although executive-legislative conflict is not inevitable under presidential, it is nevertheless more likely as well as more likely to lead to a real crisis.
Scholars agree that presidential experiences such crises more frequently than parliamentarian, but they disagree about the factors leading to a breakdown. Adam Przeworski and his collaborators have made the most intriguing contributions to recent debates: in contrast to those who suggest that party system fragmentation contributes to regime instability, Przeworski et al. (2000), hereafter referred to as PACL for the authors’authors’ initials) reconfirm that presidential is more fragile than parliamentarian, but question the connection between party system attributes and presidential regime fragility.
2.14. Criticisms on the doctrine of separation of powers
The theory of separation of powers in its pure or extreme form has had its shortcomings and challenges. Therefore, it’sits criticized on the following grounds:
- a) The government is an institution that ‘sits an organic whole; consequently, it cannot work as if it’sits segmented into symmetrical compartments. It means that every institution or organ of the state needs cooperation, assistance, and consultation from the organs. The legislature needs interpretation of the Constitution from the judiciary, just as the executive and the executive and judiciary require the legislature’s enactment of laws and adoption of policies. Thus, complete separation is practically impossible.
- b) Separation is undesirable. Since absolute separation would generate a spirit of competition rather than cooperation and tolerance in government functioning, this state of affairs would lead to frequent disputes, deadlocks, and inefficiencies. From this, the public interest or good or liberty would be injured. The sound government demands musical collaboration among the three organs of the state. Separation of powers is necessary only to the extent that it promotes and improves specialization of functions, divisions of Labor, and efficiency. In welfare states, government policies can only succeed in the organs of the country see eye to eye.
- c) Proponents of the theory of separation of powers believed that the liberty of the individual depends solely on the separation of powers. This belief is not borne out by facts. In Britain‘sBritain’s case, there is no strict separation of powers (parliamentary system of government and monarch), yet they enjoy unexcelled liberty. It is because freedom is protected through political consciousness and the vigilance of the people. To protect individual liberty, the separation of the legislature and the executive, on the other hand, from the judiciary on the other, is more critical than the termination of the government from the executive. In a situation where there is complete separation of the three organs, liberty may not be invulnerable since the legislature may pass oppressive laws which the executive must enforce. The judiciary must apply to particular cases.
- d) The theory is premised on the false assumption that the three organs are equally important. In a democracy, the legislature is a microcosm of people and expresses their will in the form of laws that the executive implements and the judiciary interprets. The government’s very nature is such that the will of the law-making power must, to a certain extent, be superior to the executive and the judiciary. The legislature’s superiority is further confirmed by its control of the public purse, which gives it power over the executive and the judiciary.
- e) The theory of separation of powers can yield undesirable results. In the USA, some states elect judges to keep them independent of the legislature and the executive.
2.15 Factors that hinder complete separation of powers
2.15.1. Lack of Political Will
One of the challenges to implementing judicial reforms was the lack of sufficient political goodwill for legal changes. This point is repeated in almost all the reform initiative reports, either expressly or impliedly. The rule of law is said, ”is all about politics and restraint of raw political power and judicial reform is thus a long term process highly dependent on political will”. Studies on judicial reform across several Latin American countries reiterate this contention and observe that “adequate implementation of reforms depends on the committed political and judicial will and a broad base of social support; hence transparency and systematic monitoring is essential.” Therefore, political will is essential for the judiciary’s reform to succeed since it is the executive responsible for developing policies and implementing them.
One area that can be used to illustrate this lethargy is that of financial independence. To achieve financial autonomy, legislation was required to be enacted to enable the judiciary to access funds directly from the Consolidated Fund. As of 2005 and 2009, the draft Judicial Services Bill still appeared as pending in the Judiciary Strategic Plans, meaning that the executive never acted on it. The Bill was tabled before Parliament by the Minister for Justice and Constitutional Affairs, only after enacting the new Constitution. It was subsequently debated and passed into law shortly after that. The absence of a justifiable explanation for this delay can reasonably be construed as evidence of a lack of political will to deny financial autonomy to the judiciary.
2.15.2. Lack of Effective Implementation Strategies
During the period under study, lack of implementation hindered the realization of judicial reform in Kenya. On the application of salaries and terms and conditions of service, and related issues, the Waruhiu Report (1980), in their review of reform initiatives since independence, observed that: Many of the recommendations that were accepted by the government were straightforward and could have been implemented almost immediately. However…many of them took as long as eight years to be applied, and many others have never been looked into. Whatever half-hearted implementation was done, it was piecemeal, uncoordinated, and without a clear sense of direction. The result has been that the impact of whatever recommendation that was implemented has been largely dissipated.
The Kotut Report (1992), over ten years later, expressed concern that the Waruhiu Report (1980) recommended that judges be employed on permanent terms, had not been implemented. Implementation regarding salary increments was made, not only for the judiciary but across the whole civil service. The Kanyeihamba Report (2002) lamented that “many of the fundamental recommendations of the Kwach Committee (1998) had not been implemented. Twenty years later, the Ouko Report (2009) still expresses similar concerns that; Kenyans. Unfortunately, due to lack of resources, and a transparent framework for implementation, the implementation has been painfully slow, and most of them have yet to be put to their full effect. Thus, although some reforms have been carried out, these isolated reforms have themselves not been sufficient to bring change that is needed to transform the judiciary into a strong independent institution.
Attempts to reform the judiciary were indeed half-hearted and infrequent; implementation was haphazard and not designed to address the root causes of the identified challenges. Most of them completely missed the intended target of entrenching judicial accountability to strengthen judicial independence. Instead, some attempts, like the ”radical surgery”, had the opposite effect of compromising judicial independence. It is a clear demonstration that meaningful, adequate protection for judicial independence squarely lies in the normative order provided by the Constitution. Even if administrative and other systemic measures are necessary for the protection of judicial independence, all this is collateral. The Constitution is the bedrock of legal authority upon which judicial role can effectively be underpinned with the consequence of increased independence. The Constitution, to borrow David Law’ sLaw’s words, matters. There will indeed be no point in debating judicial independence if the inclusion of guarantees is of no consequence in practice. The following discourse is intended to test the New Constitution’s sincerity regarding warranties it provides for judicial independence.