Separation of Powers in Judicial Enforcement of Governmental Ethics in Kenya and South Africa

Abstract

The Kenyan Constitution, 2010 and the 1996 South African Constitution prescribe eligibility criteria for appointment into public office. The courts in both countries have been vested with the role of policing the boundaries of constitutionality of the exercise of power by the other arms of government. This mandates courts to ascertain whether an appointment by the executive branch meets the constitutionally prescribed threshold. The power of judicial review of appointments by the executive branch has brought the question of separation of powers between the judiciary and the executive into sharp relief. This paper discusses the separation and intertwining of powers between these two branches of government in the context of their respective roles in public appointments.