The doctrine of separation of powers Essay Sample
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The doctrine of separation of powers Essay Sample
What is the relevance of the doctrine of separation of powers in the modern society? Brings about the aspect of democracy. This is because the powers of the government are limited by the people since it’s a government of the people. No organ is above the other thereby ensuring all are equal. Brings about accountability of the different organs of the government. This is brought about by the checks and balances which are provided for in the constitution. Each organ keeps the “other on toes. ” Why is it necessary to separate powers? Prevent arbitrary power.
No single organ should have too much power. The different organs of government are supposed to compliment and assist each other in carrying out their duties. If one organ were more powerful than the other, it would lead to a form of dictatorship since that organ would have no one to stop it from doing as it wishes. Too much power should be limited in a way. Prevent abuse of power. This is because the organs are each in a way the others bodyguards, should the organs say be one or one of the organs have unlimited and unchecked power, it is likely to abuse its power.
Separation of power ensures that no single organ is able to abuse its power on account of the other organs are there to curtail any excesses of power. How is the doctrine of separation of powers applied in the various arms and levels of government under the new Kenya Legal system effective August 27, 2010? Independence of the judiciary. (Act 160 of the constitution) The independence of the judiciary is needed to protect the rights of the people.
It’s also responsible for the effective administration of justice in the country and thus has a duty to protect the people from the excesses powers of the government and action of the government. The judiciary is also the guardian of the constitution. It ensures that the executive actions of officials are in accordance with the provisions of the constitution and acts passed by parliament do not conflict with it. The law courts must be open to all persons. Thus it is said to be independent when all these decisions can be made without any fear or biasness.
The independency of the judiciary is assured by the provisions of the constitution. The legal profession. Critically examine the role of an advocate in Kenyan society in general, and in the judicial process in particular. Advocates help the court in achieving its duties through research and presentation of evidence to the court, leaving the courts with the duty of determining the outcome which considerably lessens the courts workload. Helps in realizing constitution rights. Advocates play a major role in representing people in courts and thus enable them to have access to justice.
Providing legal advice. Advocates play a major role in society by playing an advisory role to citizens in general who may have a legal problem or may be just curious about the law and how it works. What knowledge and skills does an advocate need in order to effectively play these roles? Requires knowledge of substantive law. Needs to know the rights and responsibilities of a Kenyan citizen well. By so doing they can easily tell if a crime has been committed or not, even before going to court to represent their client. Needs to know if a case can be taken to court.
Under what category does the case fall, is it a civil matter or a criminal matter. Needs to know procedural law. Advocates need to know all the processes a case takes from arrest to conviction and in details. Good communication skills. To facilitate proper communication between the advocate and the client, and between the advocate and the juries and judges in the courtroom. Needs to be assertive and fast on their feet since often inside a courtroom, things may tend to change and the case may throw the advocate off balance thus he/she must be quick witted.
Great research skills. This is essential in comprehending your clients, their needs, and to preparing legal strategies. What are the systematic challenges advocates face in their efforts to play these roles effectively in the judicial process? Bulkiness of the law. The law is bulky and as one is working on a case, he/she has to go through volumes of books and countless research. This is stressful and hectic to an advocate who has a limited amount of time to distil all the information into something manageable and logical. Technicality of procedure.
Procedures of the courts tend to be too technical in that many procedures are required even before one can take the matter to court. For example, when serving a plaint one has to have enough copies to give the defendant and then wait for the defences counsel to serve them. It’s generally a tiresome process. Cost. A lot of money is spent during research, filing and also fee to be paid to court depending on the matter. At times, a client may even agree to pay only on completion of the case hence the advocate has to use his/her on own money. Court schedule.
Hearing for cases and especially appeal cases is tiresome since the schedule is usually full. Take for example, the court of Appeal as of last year 2016 August, its official calendar had been booked up to this year 2017 November. This shows how difficult it is for one to even get a hearing in such a court. Complexity of suits. Some suits are complex since they require knowledge of different disciples. In a way, the advocates are required to have knowledge in various fields. For example, in the case concerning separation of Siamese twins, the advocates had to go to medical school to learn the human anatomy.
Alternative dispute resolution. Critically discuss the following alternative dispute resolution mechanisms: Arbitration. It’s the procedure for settling a dispute wherein the parties involved at the formation of a contract decide that if any dispute arise between them at a later stage, they will resolve it through this process only and not in a court of law. A neutral third party is appointed to solve the dispute between the parties and proceed to decide the liability of the defaulting party. Conciliation.
Similar to arbitration but the difference here is that the conciliator shall listen to the parties separately and then together in order to settle the dispute. The conciliator draws out a solution. Mediation. Process wherein a case has already been filed in court and once the judge hears the case decides that the matter can be solved outside the court hence being transferred to a mediation cell, wherein the matter is solved amicably. Solution given by the mediator must be acceptable to both parties.
How are these doctrines of equity developed within the legal system?
Legal systems have incorporated mechanism for resolving disputes according to general principles of right. Equity must ensure that those who are harmed can find their relief and not used for unfair purposes.
(1) This Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of government.
(2) No person may claim or exercise State authority except as authorized under this Constitution.
(3) The validity or legality of this Constitution is not subject to challenge by or before any court or other State organ.
(4) Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid.
(5) The general rules of international law shall form part of the law of Kenya.
(6) Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.
The difference between the position of equity in the older constitutional dispensation and the current one is that; in the former constitutional order the doctrines of equity applied where written laws did not extend or apply. The new constitutional order changes this position by making the general principles of international law part of the Kenyan law. This means that the doctrines of equity automatically become part of the Kenyan laws without being subject to other statutes, a position it held in the former constitutional order.