THE DOCTRINE OF CHECK AND BALANCE

BY MWAKISIKI MWAKISIKI EDWARDS

The separation of powers, together with the rule of law and parliamentary sovereignty runs like a thread through most of the constitutions. It is the doctrine which is of great importance to the state and to the concept of constitutionalism; in so far as it prescribes the appropriate allocation of powers and the limits of those powers, to differing institutions. The concept has played a major role in the formation of constitutions. The extent to which powers can be and should be, separated and distinct was a central feature in formulating, for example both the American and French constitutions. 

Check and balance is a mechanism designed to limit the power of a single individual or body of the government and provide for the harmonious interrelationship of the people and all of the organs of the government or other social institutions. The system of check and balance between three arms of the state which are executive, parliament and judiciary. 

The Executive

This can be defined as that branch of the state which formulates policy and is responsible for its execution. In formal terms, the sovereign is the head of the executive. The Prime Minster, Cabinet and other ministers, for the most part, are elected Members of Parliament. In addition the civil social service local authorities, police and armed forces constitute the executive in practical terms. 

The Legislature

branch of the state which formulate law as it’s prime function and it has a duty of approving bills and government budget and its mostly composed with member of parliament elected from each constituency. Art. 64 (5)

The Judiciary

it is that branch of the state which adjudicate upon conflicts between individuals. The judiciary is independent of both the parliament and the executive. It is the feature of judicial independence which is of prime importance both in relation to government according to law and in the protection of liberty of the citizen against the executive Art. 107A and 107B

Check and balance can be vividly seen in the whole process through which laws are formed in the country and this can be analysed as follows:-

Firstly, the legislative branch introduces and votes on a bill. The bill then goes to the executive branch, where the President decides whether he thinks the bill is good for the country. If so, he signs the bill, and it becomes a law. If the President does not believe the bill is good for the country, he does not sign it. This is called a veto power vested to the president. 

Secondly, The legislative branch gets another chance. With enough votes, the legislative branch can override the executive branch's veto, and the bill becomes a law. 

Thirdly, Once a law is in place, the people of the country can test it through the court system, which is under the control of the judicial branch. If someone believes a law is unfair, a lawsuit can be filed. Lawyers then make arguments for and against the case, and a judge decides which side has presented the most convincing arguments. The side that loses can choose to appeal to a higher court, and may eventually reach the highest court of all, that is the court of appeal. 

Fourthly, If the legislative branch does not agree with the way in which the judicial branch has interpreted the law, they can introduce a new piece of legislation, and the process starts all over again as it is an endless process. 

Apart from the process of how law are made, a process that largely explain the concept of check and balance, the concept can also be best understood by considering the followings aspect where three arms of the state do interact to one another and limiting either of the branch to become more powerful.  In other circumstances the parliament may adopt a no-confidence vote in government and the government or the cabinet in turn may dissolve the parliament. 

The Executive checks on the Legislature and Judiciary

Under this respect the executive checks on legislature and judiciary through the followings:-

Through Veto power, This is when a parliament passes a bill and after passing it the president has the power to veto it. The usual way to do this is to send the bill back to parliament with a veto message within ten days of receiving it. The veto message explains to parliament and the nation why the president is rejecting a bill. This is called a return veto. 

Through Impoundment, Impoundment happens when the president refuses to spend money parliament has appropriated to a specific department, agency, or program. Presidents and executive agencies use impoundment to control government spending. They also use it to prevent the government from spending tax shillings on projects of which the president's administration does not approve. 

Through Appointment Power, under the virtue of the constitution presidents have the power to nominate people to serve on the high courts and lower  courts. The Parliament gets to vote whether to approve or reject these nominations. A simple majority is all that is required to approve the president's choices.  (Cite the article of Constitution that gives the president power to appoint)

Through Pardon and Reprieves, The president has the power to grant pardons and reprieves for offenses against the States. A pardon is complete forgiveness for a crime. It prevents the criminal from being punished by the law. A reprieve suspends a sentence, or punishment, to give a criminal time to ask the court to change the sentence. The pardon power checks the power of the courts by allowing a president to forgive a criminal if he thinks the courts were unfair. (Cite the provisions of Constitution that gives the president power to pardon)

The Legislature checks on the Executive and Judiciary. Art. 45 of Cap 2

Through Impeachment, The executive officials may only be removed from office by impeachment for and conviction of treason, bribery, and other high crimes and misdemeanours and the parliament has the sole authority to conduct the process. The parliament can impeach officials by vote of a simple majority. Impeachment serves as an accusation of misconduct. Once impeached, an official faces trial in the courts, which can remove the official by vote of at least a two-thirds majority. The judiciary plays no role in the process. 

Through Override Vetoes, When the president has vetoed a decision to pass a bill the legislature can veto the president’s decision. This can be done by a vote which has about 2/3 majority then the president’s veto can be override by the parliament. 

Through Parliamentary Question Time, Members of parliament hold the executive branch of government accountable through question in respect of which the exercise has to respond or answer.  For example the presence of prime minister in the parliament is for this purpose. 

Through Confirmation of Judicial Nominees, The Legislature confirms the people who are assigned to run the justice of the peace. The nominees are chosen by the executive and the names are sent to parliament to be approved. 

The Judiciary checks on the Executive and Legislature

Through Judicial Review, Judicial review is the power to review government action for compliance with the Constitution. The Constitution does not specifically give the  judiciary this power. Instead, the  Court assumed the power in its decision in (attach a case relating to judicial review here)

Judicial interpretation, Judicial interpretation is the act of deciding what a parliamentary law or executive regulation means. In theory, judicial interpretation is not supposed to be a check on parliament or executive power. Instead, it is supposed to determine and enforce the will of parliament or the executive branch. In practice, however, interpreting laws and regulations gives courts considerable power to determine what they mean, which can affect the exercise of parliament and executive power. 

Conclusion

After analysing the three government branches, you see clearly how the system of checks and balances works. The doctrine of separation of powers is not completely separate for fear of one branch having too much power. The three branches check and balance each other to make sure that none of the three branches has the most power. The Legislature writes the laws, The Executive branch executes the laws and the Judiciary makes sure the laws are implanted.

References 

Electronic sources

www.unconstitution.net/consttop

www.factmonster.com

www.enotes.com

Books

Barnett, H (2010). Constitutional and Administrative Law Eighth Edition. Francis group publishers: Britain

Kowalski K. M. (2006). A Balancing Act: A look at the checks and balances: Lerner Publication company.Briston.