Session 1
Introduction
1.1 Meaning of the Constitution and Constitutional law
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. The fundamental law of the state, containing the principles upon which the government is founded, and regulating the divisions of the sovereign powers, directing to what persons each of these powers is to be confided, and the, manner it is to be exercised as, the Constitution of the United States.
A constitution may also mean the act of constituting or state of being constituted
The words constitution and government are sometimes employed to express the same idea, the manner in which sovereignty is exercised in each state. Constitution is also the name of the instrument containing the fundamental laws of the state.
By constitution, the civilians, and, from them, the common law writers, mean some particular law; as the constitutions of the emperors contained in the Code.
The constitution of a contract is the making of the contract as, the written constitution of a debt.
A constitution may be defined as the fundamental law, written or unwritten, that establishes the character of a government by defining the basic principles to which a society must conform; by describing the organization of the government and regulation, distribution, and limitations on the functions of different government departments; and by prescribing the extent and manner of the exercise of its sovereign powers.
It may also be defined as a legislative charter by which a government or group derives its authority to act.
The concept of a constitution dates to the city-states of ancient Greece. The philosopher Aristotle (384322 b.c.), in his work Politics, analyzed over 150 Greek constitutions. He described a constitution as creating the frame upon which the government and laws of a society are built:
A constitution may be defined as an organization of offices in a state, by which the method of their distribution is fixed, the sovereign authority is determined, and the nature of the end to be pursued by the association and all its members is prescribed. Laws, as distinct from the frame of the constitution, are the rules by which the magistrates should exercise their powers, and should watch and check transgressors.
In modern Europe, written constitutions came into greater use during the eighteenth and nineteenth centuries. Constitutions such as that of the United States, created in 1787, were influenced by the ancient Greek models. During the twentieth century, an increasing number of countries around the world concluded that constitutions are a necessary part of democratic or republican government. Many thus adopted their own constitutions.
Different forms and levels of government may have constitutions. All 50 states of the USA have constitutions, as do many countries including Japan, India, Canada, and Germany. It is also common for nongovernmental organizations and civic groups to have constitutions.
In its ideal form, a constitution emanates from the consent and will of the people whom it governs. Besides establishing the institutions of government and the manner in which they function toward each other and toward the people, a constitution may also set forth the rights of the individual and a government's responsibility to honor those rights.
Constitutions, whether written or unwritten, typically function as an evolving body of legal custom and opinion. Their evolution generally involves changes in judicial interpretation or in themselves, the latter usually through a process called amendment. Amendment of a constitution is usually designed to be a difficult process in order to give the constitution greater stability. On the other hand, if a constitution is extremely difficult to amend, it might be too inflexible to survive over time.
The ongoing evolutionary nature of constitutions explains why England may be described as having a constitution even though it does not have a single written document that is designated as such. England's constitution instead inheres in a body of legal custom and tradition that regulates the relationship among the monarchy, the legislature (Parliament), the judicial system, and Common Law. Although England's constitution is, in a sense, unwritten because it does not originate in a single document, many written laws have been instrumental in its creation, and England in fact has one of the oldest traditions of constitutionalism.
In a truly constitutional form of government, public officials are subject to constitutional rules and provisions and may not violate them without punishment. Such constitutional governments are also called limited governments because the constitution restricts the scope of their power over the people. However, many governments that have constitutions do not practice true constitutionalism. The former Soviet Union, for example, created the 1936 Constitution of the Union of Soviet Socialist Republics, also known as the "Stalin Constitution," but that document did not establish a truly constitutional form of government. Joseph Stalin, the ruler of the Soviet Union from 1924 to 1953, could not be formally penalized or called to account for his actions, no matter how heinous, before any other government official, any court, or the people themselves. The Soviet Constitution also claimed to guarantee Freedom of Speech, press, and assembly, but in practice the Soviet government continually repressed those who sought to express those freedoms. Constitutions such as that of the former Soviet Union are called nominal constitutions, whereas those that function more truly as prescriptive documents, such as the Constitution of the United States, are called normative constitutions.
In the United States, individual state constitutions must conform to the basic principles of the U.S. Constitutionthey may not violate rights or standards that it establishes. However, states are free to grant rights that are not defined in the U.S. Constitution, as long as doing so does not interfere with other rights that are drawn from it. For this reason, groups or individuals who seek to file constitutional claims in court are increasingly examining state constitutions for settlement of their grievances. In the issue of School Desegregation, for example, groups such as the National Association for the Advancement of Coloured People (NAACP) began in the 1990s to shift focus to the state level, with the hope of finding greater protection of rights under state constitutions.
In many states, however, courts have construed their respective state constitutions to provide rights that are equivalent to those provided under the U.S. Constitution. For example, in Jackson v. Benson, 578 N.W.2d 602 (Wisc. 1998), the Wisconsin Supreme Court, citing settled precedent, noted that the Wisconsin Constitution's provisions relating to Equal Protection provide the same rights as those provisions in the federal counterpart, even though the Wisconsin provisions are phrased quite differently. The NAACP claimed that a school program in Milwaukee, which allowed parents of certain qualifying students of public schools in the city to send their children to any private, non-sectarian school of their choice at no cost, was enacted with discriminatory intent. The court treated the state and federal constitutional claims of the NAACP as alike.
1.2 Constitutional Law
Constitutional law essentially encompasses all the foundational laws that our country is based upon. The creation and execution of laws by the government and the scope of power and authority given to the government is regulated by constitutional law. Just as it sounds, it is based off of the tenets of a constitution and all the elements within the constitution that outline the power of the government, state and people.
Constitutional law is the body that governs the implementation and interpretation of the constitution. It sets forth of the terms of the Constitution and directly describes the range and use of these terms. It covers areas of law like relationships between states and the federal governments, the rights of individuals and citizens of this country and all other areas concerned with constitutional law.
Because the constitution lays out so many rules it has been argued that it is open to interpretation and not meant to be taken literally. Judges are often divided by how much they stick to the constitution and how much they interpret it in different ways. Some say a literal translation of the constitution is best, others say that the terms are far too vague to be used specifically and that the constitution should be treated more as a guideline than anything else.
All other forms of law necessarily fall under the auspices of constitutional law. Because it is so huge, there are many details to go into; enough books have been written about this type of law to render anything but a summary unnecessary. Suffice to say, constitutional law is the law that supersedes all others and one that literally determined the founding of the nation of the United States of America.
1.3 The Distinction between Public Law and Private Law
Private law is concerned with the relationship that individuals have with one another.
It may also involve other entities than individuals, e.g. public authorities in their legal persona e.g. when an individual signs a contract with the municipal council to supply construction materials.
Public law, to which Constitutional law is subsumed, is that law concerned with the power of the State. They are concerned with the location of state powers.
1.4 Public Law and Criminal Law
Criminal law is generally a part of public law but usually taught separately
1.5 Public Law and Politics
Public law is intricately linked to political science and government. E.g. some sources of the constitution are actually political i.e. the constitutional conventions
1.6 Constitutional Law and Administrative law
‘Constitutional law is concerned with the role and powers of administrative institutions within the State and with the relationship between the citizens and the State
H. Barnett, Constitution and Administrative law (6th edn, Routledge Cavendish, 2006) p. 3
Administrative law may be said to be the body of general principles which govern the exercise of power and duties by public authorities.
H Wade and W. Forsyth, Administrative Law (9th Edn, OUP, 2004) p. 5.
1.7 The Scope of the Kenyan Constitution
PREAMBLE
CHAPTER ONE: art 1 -3 - Sovereignty of The People and Supremacy of the Constitution
CHAPTER TWO: The Republic art 4 - 11
Declaration of the Republic
Territory of Kenya
Devolution and access to services
National, official and other languages
State and religion
National symbols and national days
National values and principles of governance
Culture
CHAPTER THREE, art 12 - 18: Citizenship
Entitlements of citizens
Retention and acquisition of citizenship
Citizenship by birth
Citizenship by registration
Dual citizenship
Revocation of citizenship
Legislation on citizenship
CHAPTER FOUR, art 19 - 59: The Bill Of Rights
Part 1 General provisions relating to the Bill of Rights: Rights and fundamental freedoms; Application of Bill of Rights; Implementation of rights and fundamental freedoms; Enforcement of Bill of Rights; Authority of courts to uphold and enforce the Bill of Rights; Limitation of rights or fundamental freedoms; Fundamental Rights and freedoms that may not be limited
Part 2 Rights and fundamental freedoms: Right to life; Equality and freedom from discrimination; Human dignity; Freedom and security of the person; Slavery, servitude and forced labour; Privacy; Freedom of conscience, religion, belief and opinion; Freedom of expression; Freedom of the media; Access to information; Freedom of association; Assembly, demonstration, picketing and petition; Political rights; Freedom of movement and residence; Protection of right to property; Labour relations; Environment; Economic and social rights; Language and culture; Family Consumer rights; Fair administrative action; Access to justice; Rights of arrested persons; Fair hearing; Rights of persons detained, held in custody or imprisoned;
Specific application of rights;
Interpretation; Children; Persons with disabilities; Youth; Minorities and marginalised groups; Older members of society
State of emergency;
Kenya National Human Rights and Equality Commission
CHAPTER FIVE: Land and Environment
Part 1 Principles of land policy: Classification of land
Public land; Community land; Private land
— Landholding by non-citizens
Regulation of land use and property
National Land Commission
Legislation on land
Part 2 Environment and natural resources: Obligations in respect of the environment; Enforcement of environmental rights; Agreements relating to natural resources; Legislation relating to the environment
CHAPTER SIX, art 73 80 - Leadership and Integrity:
Responsibilities of leadership; Oath of office of State officers; Conduct of State officers; Financial probity of State officers; Restriction on activities of State officers; Citizenship and leadership; Legislation to establish the ethics and anti-corruption commission; Legislation on leadership
CHAPTER SEVEN art 80 - 92: Representation of the People
Electoral system and process; General principles for the electoral system
Legislation on elections
Registration as a voter
Candidates for election and political parties to comply with code of conduct
Eligibility to stand as an independent candidate
Voting
Electoral disputes
Independent Electoral and Boundaries Commission and delimitation of electoral units
Independent Electoral and Boundaries Commission
Delimitation of electoral units
Allocation of party list seats
Part 3Political Parties: Basic requirements for political parties; Legislation on political parties
CHAPTER EIGHT: The Legislature
Establishment and role of Parliament; Establishment of Parliament; Role of Parliament; Role of the National Assembly; Role of the Senate; Composition and membership of Parliament; Membership of the National Assembly; Membership of the Senate; Qualifications and disqualifications for election as member of Parliament; Promotion of representation of marginalised groups; Election of members of Parliament; Term of Parliament; Vacation of office of Member of Parliament; Right of recall; Determination of questions of membership
Part 3Offices of Parliament
Speakers and Deputy Speakers of Parliament; Presiding in Parliament; Party leaders;
Procedures for enacting legislation; Exercise of legislative powers; Bills concerning county government; Special Bills concerning county governments; Ordinary Bills concerning county governments; Mediation committees
Money Bills
Presidential assent and referral
Coming into force of laws
Parliaments general procedures and rules
Powers, privileges and immunities
Public access and participation; Right to petition Parliament
Official languages of Parliament
Quorum
Voting in Parliament
Decisions of Senate
Committees and Standing Orders
Power to call for evidence
Miscellaneous
Location of sittings of Parliament
Parliamentary Service Commission
Clerks and staff of Parliament
CHAPTER NINE: The Executive
Part 1Principles and Structure of the National Executive: Principles of executive authority; The National Executive
Part 2The President and Deputy President: Authority of the President; Functions of the President; Power of mercy; Exercise of presidential powers during temporary incumbency; Decisions of the President; Election of the President; Qualifications and disqualifications for election as President; Procedure at presidential election; Death before assuming office; Questions as to validity of presidential election; Assumption of office of President; Term of office of President; Protection from legal proceedings; Removal of President on grounds of incapacity; Removal of President by impeachment; Vacancy in the office of President
Functions of the Deputy President; Election and swearing-in of Deputy President; Vacancy in the office of Deputy President; Removal of Deputy President
Remuneration and benefits of President and Deputy President
Part 3The Cabinet: Decisions, responsibility and accountability of the Cabinet; Secretary to the Cabinet; Principal Secretaries; Other offices
Attorney-General
Director of Public Prosecutions
Removal and resignation of Director of Public Prosecutions
CHAPTER TEN: Judiciary
Judicial authority and legal system: Judicial authority; Independence of the Judiciary; Judicial offices and officers
System of courts: Superior Courts - Supreme Court; Court of Appeal; High Court
Appointment of Chief Justice, Deputy Chief Justice and other judges; Tenure of office of the Chief Justice and other judges; Removal from office
Subordinate courts
Kadhis Courts
Judicial Service Commission: Establishment of the Judicial Service Commission; Functions of the Judicial Service Commission: Judiciary Fund
CHAPTER ELEVEN: Devolved Government
Objects and principles of devolved government
Objects of devolution
Principles of devolved government
County governments
County governments
Membership of county assembly: Speaker of a county assembly
-- County executive committees
Election of county governor and deputy county governor
Removal of a county governor
Vacancy in the office of county governor
Functions of county executive committees
Urban areas and cities
Legislative authority of county assemblies
Functions and powers of county governments
Respective functions and powers of national and county governments
Transfer of functions and powers between levels of government
The boundaries of counties
Boundaries of counties
Relationships between governments: Cooperation between national and county governments; Support for county governments; Conflict of laws: Suspension of county governments
Qualifications for election as member of county assembly; vacation of office of member of county assembly
County assembly power to summon witnesses
Public participation and county assembly powers, privileges and immunities
County assembly gender balance and diversity
County government during transition
Publication of county legislation
Legislation on Chapter
CHAPTER TWELVE: Public Finance
Principles and framework of public finance: Equitable sharing of national revenue; equitable share and other financial laws
Equalisation Fund
Consultation on financial legislation affecting counties
Other public funds: Consolidated Fund and other public funds; Revenue Funds for county governments
Contingencies Fund
Revenue-raising powers and the public debt: Power to impose taxes and charges: Borrowing by national government: Borrowing by counties: Loan guarantees by national government; Public debt
Revenue allocation: Commission on Revenue Allocation
Division of revenue: Annual Division and Allocation of Revenue Bills; Transfer of equitable share; Budgets and spending; Form, content and timing of budgets; Budget estimates and annual Appropriation Bill; Expenditure before annual budget is passed; Supplementary appropriation
County appropriation Bills
Control of public money: Financial control; Accounts and audit of public entities; Procurement of public goods and services
Financial officers and institutions: Controller of Budget; Auditor-General; Salaries and Remuneration Commission; Central Bank of Kenya.
CHAPTER THIRTEEN: The Public Service
Values and principles of public service
The Public Service Commission: Functions and powers of the Public Service Commission; Staffing of county governments; Protection of public officers
Teachers Service Commission
CHAPTER FOURTEEN: National Security
Part 1National Security Organs
238Principles of national security
239National security organs
240Establishment of the National Security Council
Part 2The Kenya Defence Forces
241Establishment of Defence Forces and Defence Council
Part 3The National Intelligence Service
242Establishment of National Intelligence Service
Part 4The National Police Service
243Establishment of the National Police Service
244Objects and functions of the National Police Service
245Command of the National Police Service
246National Police Service Commission
247Other police services
CHAPTER FIFTEEN: Commissions and Independent Offices
Application of Chapter
Objects, authority and funding of commissions and independent offices
Composition, appointment and terms of office
Removal from office
General functions and powers
Incorporation of commissions and independent offices
Reporting by commissions and independent offices
CHAPTER SIXTEEN: Amendment of the Constitution
Amendment by parliamentary initiative
Amendment by popular initiative
CHAPTER SEVENTEEN: General Provisions
258Enforcement of this Constitution
259Construing this Constitution
260Interpretation
CHAPTER EIGHTEEN: Transitional and Consequential Provisions
SCHEDULES
First Schedule – Counties; Second Schedule - National symbols; Third Schedule - National Oaths and affirmations; Fourth Schedule - Distribution of functions between National and the county governments; Fifth Schedule - Legislation to be enacted by Parliament; and Sixth Schedule - Transitional and consequential provisions.
Session 2
Nature, Types, Classifications of Constitution
2.0 Introduction
Definition: - A constitution is a set of rules, generally written, which identify and regulate the major institution of the state and govern the relationship between the state and the individual citizen. In most countries the written constitution is the ultimate source of legal authority; all actins of government and the law making body (legislature) must conform to the constitution.
In order to uphold and interpret the constitution there will be a Supreme Court. As the constitution is the ultimate authority, action which contravenes the rules of the constitution will be both unconstitutional and unlawful. Written constitution also contains procedural rules for the amendment of the constitution.
Constitution, whether written or unwritten, will share common features. They will identify the principal institutions of the state- the executive, the legislature and the judicial. In relation to each of these institutions, the constitution will identify the rights and freedoms of citizens, through a Bill of Rights which operates both to protect citizens and to restrict the power of the state
2.1 Nature of constitutional law
2.1.1 The scope of constitution law
The constitution contains what is referred to as the basic/fundamental/ foundational laws of a state. However, not all constitutional laws are contained in a constitution some are left to the work of legislation by parliament. Constitution laws made through legislation may be altered or removed in the same ways as all other acts of parliament are altered or repealed. Constitutions law includes customs, convention, which are sanctioned by public opinion and might not be enforceable in a court of law.
2.1.2 The ingredients of a constitution
It asserts the existence of a sovereign state for which the laws contained in the constitution apply.
Power is then divided among various organs of the state. Thus the judicial, executive, and the legislative power is Cleary defined and given to the various organ. Also, for the purpose of co-ordination, their relationship to each other is laid down. The various function of each organ are listed down:
Setting out the powers of the legislature, the privileges of its members, status of ministers and position of civil servant who work under them
The armed forces and the poser to control them.
The general system of the courts plus tenure and immunity of judges
Treaty-making power,
Relationship between the central government and the local authorities.
It defines who is to be governed under the constitution i.e. citizenship and then it tells us how the citizen is to relate to the government especially where the rights of the citizen are involved.
It also consider historical and political backgrounds of a state e.g. if the major issue at independence was land then, it is likely that it will deal with these issues.
Other issues dealt with are those of national security, taxation and public finance.
It also gives the procedure for alteration of the constitution.
2.1.3 Importance/uniqueness/special nature of constitutional law
It the supreme law of the land in accordance with judicial, parliamentary and executive practice. It also requires special procedures for amendment.
Constitutional laws are largely written and this is in contrast with other sources of law like common law, which are largely unwritten.
2.1.4 Characteristics of constitution
It establishes government machinery;
It states the mode of operation of this machinery;
It prescribe the rules of access to this machinery;
It defines the lines of initiative in the management machinery;
It regulates areas of interplay within this machinery;
It prescribes rules of resolution of conflict within this machinery and also in relation to private interests.
2.1.5 Qualities of a Good Constitution
Dynamic, durable and elastic. It must be compliant with the changes in society in terms of technology est. it must not be too rigid to prevent change and not too flexible as to encourage tampering with the basic principles
Clear and definite: it should define clearly its contents
It must have a clear amendment procedure and must provide for how and when it is to be amended
It should protect the fundamental rights of the individual
It should be internally consistent and shouldnt contradict itself or other laws
It must be practical to apply
2.1.6 The following are the Key Features of a Democratic Constitution
a) Codification: A codified constitution is contained in one single document, which, is the single main source of constitution law but an unmodified constitution consists of several different sources and are not contained in a single written document.
b) Legal Status: this refers to the presence or absence of entrenchment:
Entrenchment refers to whether the constitution is legally protected against modification. Some constitutions are considered to be the highest laws of the state, which, may mean that they are entrenched and require a more complex mode of modification than the rest of the laws of the state. Usually lack of entrenchment also means that constitutional laws are not higher than the rest of the laws in the state and they are all modified similarly.
c) Distribution of sovereignty: this refers to where sovereignty is located in the state. Sovereignty may be of three different types:
Unitary: where all sovereign power belongs to a single centralized government
Federal: where sovereign power is shared between a weak central and other provincial regions of the state. The central government is usually more powerful than the regional governments.
Confederal: where sovereign power is shared between a weak central power and stronger regional power in such a way that the poser given to the centre is very minimal.
d) Extent of separation of power: separation of power refers to the Separation of the executive, judicial and legislative power within government.
e) Lines of accountability - Ministers may be accountable to the President who appoints and dismisses them and the president is accountable to the people through elections. The legislature may also pass a vote of no confidence against the president, which means that the president will resign or that parliament will be dissolved and general elections are held. In a parliamentary system, ministers are accountable to parliament but the prime minister is the one who appoints and dismisses them.
2.2 Classifications of Constitutions
a) Supreme and Subordinate Constitution
A supreme constitution is not subject to any external superior force. While a subordinate constitution is one where the constitution is drafted and introduced in a country by an external sovereign power, and theoretically may be amended or repealed by that external power. A good example is the Lennox Boyd Constitution in Kenya which was enacted by the British government in Kenya when England was Kenyas colonial master.
It is in this respect that much debate has arisen concerning the status of the British Constitution following membership of the European Union and the enactment of the European Community Act of 1972. It has been argued that the English Constitution has now to some extent been insurbodinated to the European Union system. Similarly, debates arise with regard to the European Human Rights system after the enactment of the Human Rights Act of 1998 which seeks to make English law compliant with the European Convention of Human Rights.
The key question normally is: where does sovereignty lie? From the standpoint of the European Court of Justice of the Community, the treaties that established and define the community and the Union are supreme and sovereign and the sovereignty of the member states is limited by membership.
From the standpoint of the British judges, however, the sovereignty of the British Parliament remains Intact. Britain has just voluntarily accepted the European Union Law under an ordinary Act of Parliament, the European Communities Act, which provides for the reception and enforcement of European Community laws within the domestic courts of Law. This Act can easily be amended by Parliament if it is deemed that England no longer wishes to be subjected to the European Community system or the laws enacted thereunder.
b) Flexible and Rigid Constitutions
Dicey defines a flexible constitution as:
‘one under which every law of every description can legally be changed with the same ease and in the same manner by one and the same body’ (Dicey, Introduction to the Study of the Law of the Constitution, 1885).
He defined a rigid constitution, on the other hand as:
One under which laws generally known as constitution or fundamental laws cannot be changed in the same manner as ordinary laws.’
A further subdivision of rigid constitution is based on whether the special amending procedure is the sole power of the legislature or some agency outside the legislative has to be brought. In the later case, the constitution may be said to be supreme over the legislature.
Also, sometimes parts of the constitution may not be alterable at all. For example:
Some articles of the German Federal Republic Constitution (1949)
Basic article of the constitution of the republic of Cyprus (1960)
The representation of a state in the U.S.A. senate (unless the state consents)
Plus some provisions may be unalterable within a certain time e.g. some provisions of the U.S.A constitution before 1808.
In India, the Supreme Court in Kesavananda Bharati v. State of Kerala (1973) held that certain features of the Constitution India, such as the provision for secularism, are beyond the limit of the powers of amendment of the Indian parliament. That the "basic structure of the Constitution could not be abrogated even by a constitutional amendment". This has come to be known as the Basic Structure Doctrine.
As a general rule, unwritten constitutions are flexible while written constitutions are rigid but there are exceptions. For example, the Constitution of Singapore (and Australia too) is written but largely flexible.
c) Written and unwritten constitution
An constitution is said to be written when most constitutional laws are specifically enacted such that they are contained in a formal document which, is however, supplemented by other acts of parliaments that contain constitutional laws.
A constitution is said to be unwritten when there is no formal document referred to as the constitution and constitutional laws are contained in a series of documents, which, are simply acts of parliaments that contain constitutional laws.
Advantages of written constitution
Some of the advantages of having a written constitution include:
It ensures clarity. The principles are well defined and formal;
It stabilizes and limits political power effectively. Written constitutions cannot just be interpreted as whatever the government says it is at any given time.
It is a direct source of reference as it is easily accessible and information about them is easily obtainable
Disadvantages
They are rigid and cannot be easily amended to keep up with society's changes since they are entrenched;
They are inaccurate of constitutional affairs of the country because they dont encompass the totality of the constitution applicable in any given country
The unelected Judiciary have the key political role in determining what the constitution is. It may thus override the elected Parliament which is the organ empowered to make law by declaring the laws thus made as unconstitutional.
Unwritten Constitution
What are usually referred to as unwritten constitutions are not normally completely unrecorded but found in scattered legislation supplemented by conventions exercised by the people. The best examples are the constitution of Britain, Israel and New Zealand.
Advantages
They are elastic and adaptable to change as they can be easily amended just like any other Act of parliament, i.e. by a simple majority
There is room for a tradition of ideals and practices to be incorporated in the constitution. These ideals may form the basis of the principles.
Disadvantages
They are not able to protect peoples rights effectively as they are not clearly defined.
Political powers are not clearly defined and instability may reign, for example, courts are given too much power in the premise of translating the constitutional principles which are to be found in the various sources of the constitution such as statutes and acts of parliament, judicial decision, customs and usages
They are vague and indefinite.
The unwritten constitution of Britain
The Magna Carta -1215: It contained statements of grievances the settlement of which was brought about by the union of important classes in the community. It set out the rights of various classes of the material community according to their different needs:
The church was to be free,
London plus other cities were to enjoy their liberties and freedoms,
Merchant were not subject to unjust taxation,
It also laid down clause stating that no man should be punished expect by judgment of his peers or of the law of the land and that to no one should justice be denied. It has been described as a document having contributed to the origin of the writ of habeas corpus and trial by jury but trial by jury and the writ of habeas corpus are said to have other sources too. It cemented the peoples wish to a fair hearing.
Petition of right 1628:
It was a protest against:
Taxation without consent of parliament
Arbitrary imprisonment
Use of commission of martial law even in time so peace.
And billeting of soldiers on private person.
The king yielded to these protests but its effects were weakened when Charles I held that his prerogative powers had not thereby diminished.
Bills of right and acts of settlement 1688:
It outlawed the pretended power of suspending laws or execution by legal authority without the consent of parliament by making it illegal,
That the levying of money for use by the crown by preference of prerogative without grant of parliament for a longer time or in any manner that the same is or shall be granted is illegal.
Raising and keeping of armies during peacetime without the consent of parliament is illegal.
The election of members of parliament ought to be free.
That the freedom of speech and debates or proceedings in parliament ought not to be impeached or questioned in any court of law or place out of parliament,
That excessive bail or fines imposed or cruel and unusual punishments ought not to be imposed.
That all grants and promises of fines or forfeiture of particular persons before conviction are illegal and void,
That for redress of all grievances and for the amending, strengthening and preservation of the laws of parliament ought to be held frequently,
Act of settlement 1700:
Provided for succession to the throne,
Added certain important provisions complementary to those contained in the bill of rights,
Government by and through parliament,
Other statutes include:
Act of union with Scotland 1706,
Parliament Act 1911,
The supreme court of judicature act 1925,
Minister of the crown act 1937,
Statute of Westminster 1931,
Indian Independence Act 1947,
d) Unitary and Federal Constitutions
In unitary constitutions, sovereign power is vested in a single centralized government. An example of this is Kenya.
In a federal constitution, power is divided among the states regions and then the central government gets comparatively more authority and power.
Under a written constitution, the constitution will define which powers are exercisable by the central federal government, and which powers are exercisable by the constituent parts- usually known as states- of the federation. In a federal state, powers are usually diffused rather than concentrated in any one body. The constitution has overriding force and any conflict between the federal government and state government will be determined according to the constitution. For centuries, Britain has been a unitary state, with one parliament having ultimate law- making power over all the constituent nations- England, Northern Ireland, Scotland and Wales. Where powers are devolved, to local government and now to the assemblies of Northern Ireland, Scotland and Wales, these powers remain subject to the United Kingdom Parliaments ultimate control
The right of choice and exit - A federal system allows citizens to compare political systems and vote with their feet by moving to a state they find more congenial.
The possibility of experiment - Federalism allows and encourages experimentation in political, social and economic matters. It is more conducive to rational progress because it enables the results of different approaches to be compared easily. The results of experience in ones own country are also less easily ignored than evidence from foreign lands. All this is particularly important in times of rapid social change.
Accommodates regional preferences and diversity/Unity in diversity - The decentralisation of power under a federal constitution gives a nation the flexibility to accommodate economic and cultural differences. These characteristics correlate significantly with geography, and state laws in a federation can be adapted to local conditions in a way that is difficult to achieve through a national government. By these means overall satisfaction can be maximised and the winner-take-all problem inherent in raw democracy alleviated.
Participation in government and the countering of elitism - A federation is inherently more democratic than a unitary system because there are more levels of government for public opinion to affect.
The federal division of powers protects liberty- The diffusion of lawmaking power under federalism is a shield against an arbitrary central government. By dividing sovereignty, the federal division of powers reduces both the risk of authoritarianism and the apprehension of it. The states help to preserve judicial independence and impartiality as well. The existence of independent state court structures prevents a national government from filling all the courts in the land with judges believed to be its supporters. That this aspect of the federal compact has not attracted much attention or comment in Australia is probably a function of history.
Better supervision of government - Decentralised governments make better decisions than centralised ones, for reasons additional to the spur of competition provided by the citizens right of choice and exit. State governments can be more closely supervised because of lower monitoring costs. There are fewer programmes and employees, and the amounts of tax revenue involved are smaller. Citizens can exercise more effective control over government officials when everything is on a smaller scale. Unlike the Commonwealth, the states cannot create money, and this further limits the scope for abuse of power. Large governments encourage wasteful lobbying by interest groups engaged in what economists call rent-seeking, the pursuit of special group benefits or privileges.
Stability - Federations are exceptionally stable. Of the five countries that survived the 20th century without a violent change of government, four are federations: the USA, Canada, Australia and Switzerland. Stability is a cardinal virtue in government. Stable government enables individuals and groups to plan their activities with some confidence and so makes innovation and lasting progress possible. Political stability is much valued by ordinary people because they are the ones likely to suffer the most from sudden shocks or changes of direction in the government of the country.
Fail-safe design - Besides acting as a brake on extreme or impetuous action by the national government, federalism cushions the nation as a whole from the full impact of government blunders by making it harder for any one group of politicians to ruin the entire economy at once.
Competition and efficiency in government - Inefficiency in government usually takes either or both of two forms. One is a tendency to higher tax rates, which is obvious and easy to detect.
Competitive edge for the nation - Often overlooked even by advocates of federalism is the value of competition among the states as a means of enhancing the international competitiveness of the nation as a whole. In other contexts, this is quite a familiar principle. It is, for example, the basis on which international sporting teams are selected. Out of the deliberately encouraged rivalry between local, regional and state teams emerges the squad that will represent Australia in the Olympics or other international events. Competitive federalism harnesses this principle to the goal of earning a better standard of living for all.
Quasi- Federal Constitution:
In the countries with this type of constitution, there are territorial units and federal authorities just as in the federal constitutions. The differences is that they are not entirely coordinated
Confederal Constitution:
In the countries with this type of constitution, there are territorial units and a federal authority just as in the Federal constitutions. However, the territorial units hold more power than the central federal authority
e) Military Constitutions
This kind of constitution provides for hierarchy of government structure with a superior legislature and the executive and judiciary at the centre.
Advantages
In most cases, the constitution is supreme, limiting the power of the legislature to both enact laws and amend the constitution.
In a military constitution, the state organs are clearly defined in a hierarchial structure
It enhances nationhood
Disadvantages
The doctrine does not clearly work because it will probably lead to the state organs competing for power. Also, the legislature will be made powerless and thus its powers to make laws will be too limited
f) Republican and monarchical constitution
In a republican constitution, power is transferred by means of presidential election, while in a monarchical constitution: power is inherited from the king or queen by one of his/her children.
In republic, such as Kenya and the USA, there will normally be a Head of state (usually designated a President) who is directly elected by the people. In Britain by contract, the monarchy remains , with the Queen as Head of state and holding widespread formal powers (under the royal prerogative) in practice these powers are conventionally exercised by the elected government of the day which is headed by the prime minister.
g) Quasi-permanent and Transitional constitution:
A transitional constitution is purposefully made for a given period of time whose limits are clearly defined in terms of time of applicability. A good example is the Interim South African Constitution of 1993 which was repealed by the 1996 permanent Constitution.
A quasi-permanent constitution, on the other hand, is created so that it can apply for unlimited and undefined periods of time.
h) Presidential and parliamentary constitutions
In a presidential constitution powers are vested in hands of the president and the president is the head of state. In a parliamentary system the prime minister is answerable, to parliament and he is the head of government.
The merit of a presidential executive constitution is that there is a clear separation of powers. The disadvantage is that there is too much power given to the president
The principle of separation of power when applied results in a presidential executive, which is autonomous government entitles under the parliamentary type. The chief executive is the Prime Minister, who is a member of parliament and is responsible for the legislature. E.g. Italy.
Finally, a constitution may be classified according to whether the powers and function of the principal institution of the state- the executive, legislature and judiciary- are separated or not. Under the united state constitution for example:
Art 1 of the Constitution vests executive power in the President;
Art 2 vest legislative power in the Congress and Art 3 vests supreme judicial power in the Supreme Court;
The president is elected separately from Congress and may not be a member of the Congress;
The President may veto legislation passed by congress, but his or her veto may be overridden by a two-thirds vote in the senate;
The president appoints Supreme court Judges and other members of the upper Judiciary;
The Supreme Court has the power to declare acts of the President, Acts of congress or of state legislatures unconstitutional and therefore unlawful.
Session 3
Sources of Constitutional Law
3.1 The Constitution
The main source of Constitutional law is the Constitution.
3.1.1 The 2010 Constitution
The main source of Constitutional law in Kenya at present is the Constitution enacted in 2010. Under article 2, this document is the supreme law of the Republic of Kenya binding all persons and all State organs at both levels of government. No person may claim or exercise State authority except as authorised under the document of whose validity or legality is not subject to challenge by or before any court or other State organ.
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.
The High Court has the power to declare any law that has been enacted by Parliament as unconstitutional for being repugnant to the Constitution. In Samuel G. Momanyi v The Hon. Attorney General & Another, the Court declared section 45(3) of the employment Act unconstitutional for being discriminatory contrary to Articles 27 and 48 of the 2010 Constitution for allowing only persons who had worked for over one year and one month to claim that their employment had been unfairly terminated.
3.1.2 The Repealed Constitution
Before the enactment of the 2010 Constitution, the Lancaster Constitution as amended from time to time formed the core of the Kenyan constitutional law.
Despite its repeal by the 2010 Constitution, the new Constitution was not aimed at implementation all at once. The Transitional and Consequential Provisions (Chapter 18) envisaged a staggered process of implementation through legislation by Parliament to bring it into effect (see the 6th Schedule to the 2010 Constitution). Thus, during the transitional period, the repealed Constitution still operates as a source of Constitutional law.
For example, although a bicameral chamber of Parliament has been established under the 2010 Constitution, that provision is yet to take effect until the next general election, the current National Assembly established under the repealed law still plays the full role of the legislature.
3.1.3 The National Accord (Appended to the National Accord and Reconciliation Act)
Following the disputed presidential election results in December 2007, an unprecedented wave of violence erupted in several parts of the country. The violence quickly spread and was transformed into an ethnic conflict. The crisis had the potential of growing into a civil war as both the Government/Party of National Unity and the main opposition political party, the Orange Democratic Movement (ODM), hardened their positions.
The crisis brought to the surface deep-seated issues and divisions in Kenya. It threatened the very existence of Kenya as a unified nation-state. The country was rapidly getting divided into ethno-regional blocks.
On 28th February 2008 and under the auspices of the African Union Panel of Eminent African Personalities chaired by Mr. Kofi Annan, the Government/PNU and ODM signed the Agreement on the Principles of Partnership of the Coalition Government. In the framework of the Kenya National Dialogue and Reconciliation (KNDR) the parties agreed to enact the National Accord and Reconciliation Act 2008 to end the political crisis. The National Accord laid the foundation for power sharing and for moving the country out of the crisis.
The Accord was annexed to the Constitution and therefore became part of the sources of Constitutional law. Thus within it, it was required for the Principles to consult on various appointments.
The Accord also established the power of the Prime Minister as the supervisor and coordinator of government functions.
The Accord prescribes when the coalition Government will come to an end among other major issues.
3.2 Legislation
Acts of parliament and other subsidiary legislation done by bodies to which parliament has conferred the power to legislate are sources of constitutional law.
An Act is a statute enacted as primary legislation by national or sub-national legislative organs. In Kenya, under the 2010 Constitution, it is anticipated that the counties will have legislative assemblies in the form of County Assemblies under the devolved system.
The Constitution divides the legislative competence between the national legislature and the county legislature (the 4th schedule to the Constitution). Some of the areas of legislative competence of the national and county legislative organs overlap including agriculture, education, health etc).
3.2.1 The Process of Legislation
A draft Act of Parliament is known as a Bill. In territories with a Westminster system, most Bills that have any possibility of becoming law are introduced into Parliament by the government. This will usually happen following the publication of a white paper, setting out the issues and the way in which the proposed new law is intended to deal with them.
A Bill may also be introduced into Parliament without formal government backing; this is known as a private member's Bill.
In territories with a multi-cameral parliament, most Bills may be first introduced in any chamber. However, certain types of legislation are required, either by constitutional convention or by law, to be introduced into a specific chamber. For example, bills imposing a tax, or involving public expenditure, are introduced into the National Assembly in Kenya (see articles 109 and 114), or into the House of Commons in the United Kingdom by convention. Conversely, bills proposed by the Law Commission and consolidation bills traditionally start in the House of Lords in the UK.
In Kenya, a Bill not concerning county government is considered only in the National Assembly while a Bill concerning county government may originate in the National Assembly or the Senate.
Once introduced, a bill must go through a number of stages before it can become law. In theory, this allows the bill's provisions to be debated in detail, and for amendments to the original bill to also be introduced, debated, and agreed to.
In bicameral parliaments, a bill that has been approved by the chamber into which it was introduced is send to the other chamber. Broadly speaking, each chamber must separately agree to the same version of the bill. Finally, the approved bill receives assent; in most territories this is merely a formality, and is often a function exercised by the head of state.
Standing orders also provide for the process of legislation. Usually, the Bill goes through:
First reading Is a formal process that involves no debate.
Second reading The debate on general principles of the Bill is done.
Committee Stage - Bills usually go through House Committees or to a Committee of the Whole House where the Bill goes through a detailed line by line examination. Amendments are usually considered here and public opinion is accepted. Debate on amendments is unrestricted.
Report Stage After the end of Committee Stage the committee tables its report before the House. At this stage, there are further chances to amend the Bills by members through a vote. For long and complex Bills, this may be spread over several days.
Third Reading Bill is then read and passed or opposed by the House.
If passed, the Bills are sent to the President for his assent.
3.2.2 Presidential Assent
In Kenya, A Bill passed by Parliament has to get presidential assent to become a law. Under the Constitution, a Bill that has been passed by Parliament and assented to by the President shall be published in the Gazette as an Act of Parliament within 7 days after assent (art 116).
An Act of Parliament comes into force on the 14th day after its publication in the Gazette, unless the Act stipulates a different date at which it will come into force.
An Act of Parliament that confers a direct pecuniary interest on members of Parliament shall not come into force until after the next general election of members of Parliament.
3.3 Judicial Precedent
3.3.1 Definition
A judgment of a court of law cited as an authority for deciding a similar set of facts; a case which serves as authority for the legal principle embodied in its decision. The common law has developed by broadening down from precedent to precedent.
A judicial precedent is a decision of the court used as a source for future decision making. This is known as stare decisis (to stand upon decisions) and by which precedents are authoritative and binding and must be followed.
3.3.2 Ratio Dicidendi and Obiter Dictum
In giving judgment in a case, the judge will set out the facts of the case, state the law applicable to the facts and then provide his or her decision. It is only the ratio decidendi (the legal reasoning or ground for the judicial decision) which is binding on later courts under the system of judicial precedent.
Any observation made by the judge on a legal question suggested by the case before him or her but not arising in such a manner as requiring a decision is known as obiter dictum (a saying by the way). There may several reasons for a decision provided by the judge in any given judgment and one must not assume that a reason can be regarded as 'obiter' because some other 'ratio' has been provided. Thus, it is not always easy to distinguish ratio decidendi from obiter dictum when evaluating the effects of a particular decision.
3.3.3 Hierarch of Courts in Kenya
Supreme Court - All courts, other than the Supreme Court, are bound by the decisions of the Supreme Court (art 163(7).
Court of Appeal Is bound by the decision of the Supreme Court. Its decisions are binding upon the High Court and other subordinate Courts
High Court Is bound by the decisions of the Supreme Court and Court of Appeal. Its decision is binding on the subordinate courts to which it also possesses supervisor jurisdiction.
Subordinate Courts - Magistrate Courts and Kadhi Courts decisions have no binding force.
3.3.4 Avoiding Precedents
Judicial precedent is an important source of law as an original precedent is one which creates and applies a new rule. However, the later decisions, especially of the higher courts, can have a number of effects upon precedents. In particular, they may be:
Reversed: where on appeal in the same case the decision is reversed, the initial decision will cease to have any effect
Overruled: where in a later case a higher court decides that the first case was wrongly decided
A refusal to follow: this arises where a court, not bound by the decision, cannot overrule it but does not wish to follow it so it simply refuses to follow the earlier decision
Distinguished: where an earlier case is rejected as authority, either because the material facts differ or because the statement of law in the previous case is too narrow to be properly applied to the new set of facts
Explained: a judge may seek to interpret an earlier decision before applying it or distinguishing it, thus the effect of the earlier case is varied in the circumstances of the present case.
Per Incuriam These are decisions made in error or mistakes and can be avoided. E.g. a decision of the court that has been reached in total contradiction to the clear provisions of a statute is per incurium and may thus be avoided the courts.
3.3.5 Advantages of Judicial Precedents
It creates certainty in law since it is possible to forecast the way a court will rule by looking at earlier decisions.
It brings uniformity to the law as similar cases are treated in similar manner.
Precedents offer flexibility in law as it offers ways in which earlier decisions can be avoided.
Precedents are based on real facts unlike legislation and are thus practical.
They are detailed as one has a broad body of case-law to look at.
3.3.6 Disadvantages of using Precedents
It is difficult to determine what exactly the ratio dicidendi is since in most cases, there are a number of reasons that determine how the court rules.
It may take a long time before a case comes to court in order to settle the question of what the appropriate law is.
Cases can be easily avoided especially since it is possible to distinguish the facts in order just to avoid inconvenient precedents.
Too much case-law makes matters too complex.
3.4 Customs of Parliament
This is sourced from the many customs and usages of Parliament. Parliament has certain rights and immunities which offers protection from external interference and enables it to discharge its functions. These include the right to free speech and to regulate its own affairs. Such privileges are respected by the courts and have now been incorporated into the Constitution and statutes in Kenya (art ) and are also included in the
3.5 Constitutional Conventions
According to Dicey (Introduction to the Study of the Law of the Constitution 1959 at 24), Conventions, understandings, habits or practices, which, though they may regulate the conduct of officials, are not in reality, law at all.
Although these may be classified as non-legal sources of constitutional principles, according to w. Jennings (The law and the Constitution: 5th edn. University of London Press 1959), Conventions provide flesh which clothes the dry bones of the law.
Conventions are binding rules of behaviour accepted as obligatory by those concerned in the working of the Constitution.
The values of constitutional conventions are more prominent in the UK where there is no written Constitution than in Kenya, e.g. the Convention relating to the monarchy to give priority to the leader of the majority party to try and form a government after elections.
In Kenya, we may however classify the principle relating to collective responsibility of ministers as a constitutional convention not articulated in any express law.
3.6 International Law
Under Art 2(5) and (6) of the Constitution, the general rules of international law shall form part of the law of Kenya and any treaty or convention ratified by Kenya shall form part of the law of Kenya under the Constitution.
3.7 Advisory or authoritative works
The opinion of writers of authority e.g. historians, politicians, scientist and lawyers may be cited as being authoritative of certain constitutional principles. Of course these are non-binding/non-legal sources of constitutional law.
Session 4
Constitutional History of Kenya
4.0 Introduction
When one looks at that history, one is able to discern the issues that have made Kenyans clamour for change, including the issue of reduced power at the centre; some communities seeking to get out of their marginalized status; and some others wishing to secede and so on. Below is an analysis of the major phases of Kenyas search for a new order.
4.1 Phase 1: 1885-1960 (Colonial History)
European missionaries began settling in the area from Mombasa to Mount Kilimanjaro in the 1840s, nominally under the protection of the Sultan of Zanzibar. In 1886 the British government encouraged William Mackinnon, who already had an agreement with the Sultan and whose shipping company traded extensively in East Africa, to establish British influence in the region.
He formed a British East Africa Association which led to the Imperial British East Africa Company being chartered in 1888 and given the original grant to administer the dependency. It administered about 150 miles (240 km) of coastline stretching from the River Tana via Mombasa to German East Africa which were leased from the Sultan.
In 1886 colonial rivalry between Britain and Germany flared up and an Anglo-German Agreement Partitioned and clearly defined German and British spheres of influence. A straight line traced between Kenya and Tanganyika along the actual boundaries divided the territories. North of the line, Kenya and Uganda went to England. The Southern part together with Ruanda-Urundi to the west went to Germany. Germany seized the occasion to reduce the mainland possessions of Sultan of Zanzibar to a 16 km wide coastal strip, keeping free access to all ports.
After the IBEA became bankrupt, England assumed direct control of the territory constituting Kenya by declaring it a protectorate in the hinterland in 1895 with the administration being transferred to the British Foreign Office. In 1902 administration was again transferred to the Colonial Office and the Uganda territory was incorporated as part of the protectorate.
In 1902, the East Africa Syndicate received a grant of land in order to promote white settlement in the Highlands. The capital was shifted from Mombasa to Nairobi in 1905 and in 1906 an order in council constituted the administrator a governor and provided for legislative and executive councils. Lieutenant Colonel J. Hayes Sadler was the first governor and commander in chief.
In 1920, the British declared Kenya and a colony in the interior parts of Kenya (and retained a protectorate at the 10-miles coastal strip that was under the reign of the sultan of Zanzibar).This phase was marked by subordination and subjugation of the local people by colonizers.
Colonial rule was by decree, ordinances and also was marked by dictatorship of the colonial governor, who represented the queen of Great Britain. Africans were clamouring for freedom and land, which had been taken away since Kenya was declared a settler colony. All fertile land was taken away for large scale farming and livestock keeping. Communities that previously resided on such lands, like the Maa speaking communities, were deprived, chased away or simply held in reserve lands.
Africans were denied the rights to organize and even form political parties. The British administered Kenya both as a protectorate and also a colony. But the interior colony only meant where they had presence: both in the major towns and also rural areas under settler farming. The northern parts of Kenya were neglected. Marginalization of these people took root then; and this has implications of how such people participated or not in future national processes including making the constitution.
By the 1944, there was some level of consciousness among Africans and some of them were elected to the Legislative Council (LEGCO). More representation in both the executive council and the LEGCO was fought for by the emerging African leaders.
Further, while there were some elements of constitutional law towards the end of the phase, especially through the Lyttleton and Lenox Boyd Constitutions (of 1954 and 1958 respectively).
4.2 Phase 2: The independence or decolonization constitutions
This can be traced back to the Lancaster House Conferences designed by the British Empire to prepare its colonies for independence between 1953 and 1979.
The Kenyan Conferences were 3 in number:
The first meeting in 1960 resulted in an interim constitution that failed to grant any substantial autonomy to Kenya.
The second conference in 1962 negotiated a framework for self government.
The third and final conference in 1963 resulted in the drafting and adoption of Kenya's first independent Constitution by the British Parliament in the form of the 1963 Constitution.
4.3.1 The 1963 Constitution
The 1963 Constitution, which was negotiated between the British government and representatives of Kenya's political parties, marked the end of colonial rule and transformed the colony into a dominion.
It established a parliamentary system with executive powers vested in a cabinet headed by a Prime Minister, who is appointed by the Queen of England from the majority party in Parliament.
The Queen of England remained Head of State and is represented by the Governor General who is also the Commander-in-Chief.
Legislative prerogative was vested in the Queen of England and a two-chamber Parliament called a National Assembly. The National Assembly consisted of a Senate, designed to represent regional interests, and a House of Representatives, designed to represent national interests.
The constitution also established a system of regional government which replaced the old provinces.
4.4 Phase 3: The Post independent (1964) Constitution
The Constitution was fundamentally changed in 1964 following a parliamentary amendment. Kenya became a republic and the executive became presidential.
The senate and regions were abolished and this ushered in a period of many minor constitutional amendments combined with repressive measures that, by the end beginning of the eighties, had effectively transformed Kenya into a de-facto one-party state led by the KANU.
4.5 Phase 4: The Development of the Post-independence or One-party State Constitution
A Constitutional amendment in June 1982 officially transformed Kenya into a one-party state. Subsequent parliamentary elections in 1983 and 1988 further reinforced the one-party system.
4.6 Phase 5: The Development of the Post Cold War or Multi-Party Constitution
By the end of the 1990s, institutional decay, economic and social breakdown, agitation from reform movements that date back to the 1980s combined with international pressure for good governance and the end of the Cold War ushered in a new wave of democratization in Kenya that pushed for fundamental institutional reforms.
This would later provoke the most comprehensive constitutional review process since the adoption of the independence constitution of 1963. A parliamentary Act in December 1991 repealed the one-party system provisions of the constitution and effectively established a multiparty system. Multiparty elections were held the following year in December.
4.7 Phase 6: The 1997-2005 Constitutional Review Process
Following the general elections of 1997, Parliament, on the initiative of the government, passed the Constitution of Kenya Review Act that set the pace for comprehensive constitutional reforms.
In furtherance of the Act's provisions, a constitutional review commission, called the Constitution of Kenya Review Commission (CKRC), was established to provide civic education, seek public input and prepare a draft constitution for consideration by an enlarged National Constitutional Conference (NCC).
The NCC, referred to as the Bomas is comprised of all Members of Parliament, 42 representatives from political parties, 3 delegates from each district, 125 representatives of religious groups, women's groups, youth groups, the disabled, trade unions and NGOs.
Unfortunately, the process was derailed by deep politicization. The draft constitution was ultimately rejected by Kenyans at the constitutional referendum in 2005 because of disagreements amongst various stakeholders.
4.8 The 2009 Constitutional Review Process
The 2009 constitutional process is a sequel to the 2000-2004 process. The rejection of the draft constitution by Kenyans in the referendum of 2005 meant that the 1963 constitution (as amended) remained the basic law of Kenya.
Elections organized in 2007 resulted in a political crisis that provoked an unprecedented wave of political violence and killing across Kenya. Under the Constitution of Kenya Review Act 2008, a Committee of Experts (CoE) was established as the main technical constitutional review organ to drive the process. The CoE was given 12 months to produce a draft to be submitted to referendum. The Kitonga-led Committee of Experts released a draft of the constitution on 17 November 2009. Kenyans were allowed to review the draft and submit their comments to the CoE.
4.8.1 Key issues during the constitution drafting process
Executive - In the wake of the violent elections of 2007, a power sharing deal was facilitated by former UN Secretary-General Kofi Annan between the incumbent President, Mwai Kibaki, and the opposition leader, Raila Odinga. Odinga was appointed Prime Minister, a position from which he could only be removed through a vote of no confidence by the Parliament. The balance of powers between the President and Prime Minister was a source of contention during the drafting process.
The options presented were to have
a purely presidential system,
a purely parliamentary system or
a mixed' system with a President and Prime Minister sharing power.
The CoE opted for a mixed, semi-presidential system. The draft constitution submitted by the CoE reduced the powers of the President and gives responsibility for the daily operations of government to the Prime Minister.
This was however rejected by Parliamentary Committee and instead a purely presidential system established.
Legislature - Discussions during the drafting phase regarding the legislature focused on the powers of the second chamber of the legislature in relation both to the first chamber and to the Executive. The COE draft proposes a bicameral Parliament, with the upper chamber being the Senate and the lower chamber, the National Assembly. Each county would elect one Senator. This was adopted and passed in the 2010 Constitution.
Judiciary - The draft proposes four superior courts: the Supreme Court, the Court of Appeal, the Constitutional Court and the High Court. Additionally, the draft proposes that current members of the judiciary may only retain their posts after going through a vetting process to clear them of misconduct and corruption. This was passed except without the creation of the Constitutional Court.
Devolution - During the drafting process there was a consensus that powers of government should be shared between a central government and one or more devolved levels of government. The draft proposes the devolution of state power to regions, which would replace provinces, as well as the regulation of the relationship between the central government and the regions. There is an additional lower level of power at the county level, which would replace the district level.
This was however rejected and a two-tier devolved system created with power divided between the central and county government. For the counties, 47 pre-1991 districts were adopted.
Dual citizenship - Prior to the 2009 draft Constitution, Kenyans could not hold dual citizenship. The draft constitution allowed Kenyan citizens to acquire the citizenship of a second country. Additionally, the draft allowed a person who lost their Kenyan citizenship as a result of acquiring the citizenship of another country to regain Kenyan citizenship by application. These provisions were passed during the referendum.
Transitional clauses - Transitional arrangements were also a point of contention, including how the adoption and implementation of the new constitution should affect elected and unelected political office holders and whether or not they should complete their terms.
Session 5
The Main Organs of State under the Constitution
5.1 The Judiciary
The primary judicial function is to determine disputed of fact and law in accordance with the law laid down by Parliament and expounded by the courts. This function is exercised mainly in the civil and criminal courts by professional judges. It should however be added that many disputes which arise out of the conduct of the government are entrusted to administrative tribunals. For example the rent tribunal which exercises a quasi judicial function in determining disputes between the landlord and the tenant.
But the judiciary primarily determines disputes that arise between individuals and disputes which arise between the individuals and the state and will protect the individuals, whether citizens or non citizens, against the excesses of the government and the arbitrary action of government officials. The judiciary tries criminal cases where the state prosecutes a person for an alleged crime. The sentence is, with few exceptions, entirely within the discretion of the court.
More importantly still, the judiciary acts as the guardian of the constitution. The constitution describes all the organs of the government, determines their composition, their powers and duties and sets out certain fundamental rights and freedoms of the individual. The constitution it can therefore be said lies at the base of all powers in Kenya. The judiciary will ensure that the executive action of officials are in accordance with the provision of the constitution and that the acts passed by parliament do not conflict with the constitution, in other words, that they are constitutional in the strict sense of the word.
As well as their primary function of settling legal disputes, the courts exercise certain legislative functions (for example, the making of rules of court procedures) and administrative functions (for example, the administration of the estate of a deceased person). Some functions of the courts (for example, the granting of uncontested divorce) involve no dispute or controversy. Other task (for example, the sentencing of criminals) are arguably not essential judicial functions, although they are traditionally the work if the judges.
Kenya is said to have an independent Judiciary. In other words, the judiciary in Kenya is independent of both the executive and the legislature and the provisions in the constitution assure this independence. A judge or magistrate can make a decision I the knowledge that he/she need not fear recrimination for his/her decision.
Section 6 of the Judicature Act gives protection to the judiciary. It says:
No judges or magistrate and no other person acting judicially shall be liable to be sued in civil court for acts done or ordered to be done in the discharge of his official duties, whether or not he acts within the limits of his jurisdiction, provided that he at the time; in good faith believed himself to have the jurisdiction to do or order the act complained off.
Judges and magistrates at times make decision which often may be embarrassing to the government of the day. In some of these decisions, the judiciary has been criticized. However, no criticism of the judiciary is allowed within the national assembly.
5.1.1 How far is the independence of the Judiciary achieved?
Nabudore, a renowned constitutional lawyer in Africa says:
“There is no such thing as an independent judiciary anywhere. The judiciary has always been created by the politics of the economic base and vice versa.
It is appropriate to examine the specific technique that have been utilized to secure such measure of independence, as is thought desirable.
The concept of judicial independence involves the freedom of the judge from all pressures and constraints in arriving at a decision save for the constraints of the law. The judicial oath required that a judge undertakes to decide all cases without fear or favour, affection or ill-will.
In order to achieve this desire protection of the judiciary, various devices both in law and administratively have been employed. These include;
Judges are appointed rather than elected in order to provide some safeguard against the pressure of political processes. Even though the power to appoint judges is vested on the president, he makes such appointments on the advice of the Judicial Service Commission as provided in the constitution. The Chief Justice is appointed by the President with approval of Parliament and other Puisne Judges (i.e. High Court judges) are appointed by the president on the advice of the Judicial Service Commission.
Judges enjoy security of tenure. The tenure of the office of judges is provided as 74 years by the Judicature Act. S.9 of the act provides that the age at which a person holding the office of a judge shall vacate his office shall be 74 years. Often, judges remain in office for life. Removal of judges from office is guarded jealously. The Constitution provides that a judge of the high court shall be removed from office by the President if the question of such removal has been referred to a tribunal and the tribunal has recommended to the president that the judge ought to be removed.
Their economic remuneration is well above the ordinary civil servant scale. The salaries of judges are a permanent charge in the consolidated fund.
Protection from criticism in the National Assembly is provided. It is possible to criticize a particular decision after judgment.
Special privileges for judges exist. Like members of the national assembly, judges may enjoy special privileges. Under the Judicature act, judges and magistrates are not to be sued in civil court for their decision if those decisions are made in good faith.
Judges have powers to punish for contempt of court- that is for disobeying an order of the court, or for the publication of an article which brings contempt, disrespect to the court or prejudices the fair trial of an accused person
5.2 The Legislature
The legislative function involves the enactment of general rules determining the structure and powers of public authorities and regulating the conduct of citizens and private organizations. The work of the national assembly may be divided into two sections: legislative, and financial.
5.2.1 Functions of the Legislature
Representative Functions
The Members of Parliament are elected representative of the people and serve as a link between the executive and the people.
Legislative
The legislative power of Parliament is exercisable by bills passed by the national assembly. Before an act of parliament becomes law, it is known as a bill. A bill is a draft proposed by parliament. When the national assembly has passes a bill, it is presented to the president for his assent. When this assent is given, it becomes law and by definition an Act of Parliament. The operative date of the act may be delayed to be brought into operation at a later date by ministerial order but it is now a source of law of Kenya. The actual procedure by which a bill becomes law is detailed and contained in the standing order of the National Assembly. In summary, a bill must receive 3 readings in the national assembly. The second and third readings are the occasion for wide debates on the main objects of the bill under discussion. Detailed consideration is left to a committee stage, which takes place in a select committee of the National Assembly by the National Assembly itself. Thereafter, the president must give his assent to the bill before it becomes a law. The effect of this new act is that it binds all the people in Kenya.
Financial Functions
Each year, estimates of expenditure of the government are prepared by the departments for the next financial year. These estimates are analyzed by the treasury/ministry of finance and then submitted to the cabinet for approval. After receiving the Cabinets approval, they are considered by a committee of the whole national assembly.
The 2010 Constitution now gives Parliament an overriding function with regards to all budgetary allocations in the country.
Supervisory Functions
According to Montesquieu, the three arms of government should act as a check on each other.
This is to a minimal extent done by Parliament as regards the executive through:
Parliamentary questions: According to parliaments standing orders, questions, relation to public affairs, may be put to ministers. However, if its a matter of touching on national security and the information is of a confidential nature, the minister is not obliged to answer.
Adjournment motions: they are provided in the following manner:
A backbencher, with the speakers permission, may move a motion on any respect on the conduct of the administration at the end of a normal sitting day.
Any M.P who desires a debate on a definite matter of national importance may introduce an adjournment motion with the speakers permission.
An opportunity to debate arises on occasion of a motion to adjourn for any relatively prolonged duration.
Points of order: tradition concerned with the conduct of members of the National Assembly inside the chamber. Occasionally, they are used to state a legal or official position against a particular matter concerning the government.
Private members motion: it may cover a wide range of topics including the desirability of an ombudsman, improvement of health facilities in prisons and misuse of public resources.
Controlling the finances: At the end of every financial year, the budget is read in parliament.
Passing a motion of no confidence: if a motion of no confidence is passed, the President may resign or call for fresh general elections and dissolve parliament.
The supervisory functions are now enhanced with the requirement of the approval of most of the presidential appointment by Parliament.
The President is required to address Parliament periodically to update the legislators on government policies.
5.2 The Executive
It is more difficult to give a simple account of the executive function than the legislative function. Broadly speaking the executive function comprises the whole corpus of authority to govern, other than that which is involved in the legislative function of Parliament and the judicial function of the court.
The general direction of policy includes the initiation of legislation, the maintenance of order, the promotion of social and economic welfare, administration of public services and the conduct of the external relations to the state. The executive functions have therefore a residual character, its techniques ranging from the formation of broad policy to the detail management of routine services. The executive consist of the President, the vice president, and ministers, who are all members of the National Assembly and other autonomous offices such as the office of the Director of Public Prosecutions (DPP).
The executive carries out all the laws by Parliament and other things which are necessarily for the smooth administration of the country.
Although the legislative, executive and judicial functions are normally distinct, it is not the case that the executive functions are exclusively performed by the executive or that the executive does not engage in functions which would normally be described as legislative of judicial in character.
Executive functions are incapable of comprehensive definition, for they are merely the residue of functions of government after legislative and judicial functions have been taken away. They may, however, be said to entail the formulation or application of general policy in relation to particular situation or cases or the making or execution of individual discretionary decision. More specifically, they include the execution of law and policy, the maintenance of public order etc.
In the performance of these functions, public authorities may be empowered by statutes to exercise functions which are strictly speaking legislative, e.g. making, rules, regulations, orders and other forms of subordinate legislation or strictly judicial in character in addition to certain discretionary actions of the executive which are not far removed from legislation.
5.2.1 The President
5.2.1.1 Roles of a head of state:
Under the repealed Constitution, Section 23 provided that:
The executive authority of the government of Kenya shall vest in the president and, subject to this constitution may be exercised by him either directly or through officers subordinates to him.
Nothing in this section shall prevent parliament from conferring functions on persons or authorities other than the president.
Thus, the executive was effectively predominated by the President every other state official served at the pleasure of the President.
The roles of presidency have now been defined with more clarity under the new Constitution in article 131 most of which is regulated by Parliament which is given an oversight role to ensure that there are no excesses in their exercise.
Some of the roles include:
1. Chief diplomatic officer
As the chief diplomatic officer he is responsible for:
Sending ambassadors through letter of credence; and
Signing international treaties.
2. Chief Executive Officer
Executive authority is vested at least notionally in the head of state. In a presidential system, the head of state is the de facto chief executive but in a parliamentary system, the head of state is the theoretical chief executive officer. In Kenya the head of state and therefore the CEO is the President.
3. Chief Appointment Officer
Under the repealed Constitution Section 24 provided that:
Subject to this constitution and any other law, the powers of constituting and abolishing offices of the republic of Kenya, of making appointments to any such office and terminating any such appointment, shall vest in the president.
Even under the 2010 Constitution, subject to the approval of Parliament, he appoints all the key officials of a state including members of the cabinet, key judicial officers and all major office holders in the republic.
4. Signing Bills into Law
The signing of a bill into law is formally known as promulgation. The head of state as has to give assent to legislation passed by Parliament.
5. Supreme Commander of the Military
The president holds the highest office in the military and he is the literal commander in chief of the armed forces.
6. Symbolic role
The President is a symbol national unity and that an icon of the nation. This may explain why there are photographs of the president in government offices and business enterprises.
5.2.2 The Cabinet
The Cabinet consists of the President, the Vice/Deputy President and other ministers/cabinet secretaries. The function of the cabinet is to aid and advise the President in governing.
Although the cabinet is part of the executive, its mainly a deliberative body. Its main function includes:
Considering and formulating government policy. It is influenced in its deliberation not only by the ministers but by debates in the national assembly, reports of commissions, the views of permanent civil servants, different associations, the press etc.
Determining inter-departmental disputes which can arise over the implementation of some policy decision.
It gives the final approval to the budget prepared by the ministers before Parliament is seized of it.
The ministers are responsible to the national assembly for the works of the departments and this is normally witnessed during question time in parliament.
The cabinet has the assistance of certain officials in the discharge of its functions.
Collective responsibility (art 153 of the Constitution)
The cabinet is also collectively responsible to the national assembly for all things done by or under the authority of the president or vice president or any other minister in the execution of his office.
All cabinet decisions are made by consensus and a vote is never taken in cabinet meetings. All ministers whether senior or junior are required to support government policy regardless of their personal reservations.
The president has the power to hire and fire the cabinet.
Ministerial Responsibility
A cabinet minister bears the ultimate responsibility for the actions of their ministry whether the minister had knowledge of those actions or not. The minister is expected to resign if there are misdeeds within his ministry.
This is a principle considered to be essential because it is a guarantee that an elected official is answerable for every government action.
Types of Cabinets
a) Shadow cabinet
These are created under the leader of opposition with corresponding number of ministers offering themselves as an alternative cabinet. They often criticize the existing cabinet and provide an alternative view as to how government should be run.
b) Kitchen Cabinet:
This is an informal group of unofficial advisers that the president consults in place of his official cabinet. These are trusted associates of the president.
5.2.3 The Attorney General
Section 26 of the repealed Constitution provided the office of the Attorney General with immense powers including the power of directing of public prosecutions.
Now article 156 of the 2010 Constitution provides for this office with reduced mandate.
The AG is the principal legal advisor of the government.
He represents and advises government departments in courts or in any other legal proceedings to which the national government is a party, other than criminal proceedings.
The Attorney-General has authority, with the leave of the court, to appear as a friend of the court in any civil proceedings to which the Government is not a party.
He is tasked with the mandate to promote, protect and uphold the rule of law and defend the public interest.
The powers of the Attorney-General may be exercised in person or by subordinate officers acting in accordance with general or special instructions. In practice, the Solicitor general provides the lawyers who actually appear in court.
He can participate in parliamentary proceedings but cannot vote.
He is a member of the judicial serve commission.
5.2.4 The Director of Public Prosecutions
This has now been created as a new independent office that is divorced from the office of the Attorney General.
Criminal prosecutions are the responsibility of the director of public prosecutions. He has supervisory powers over criminal proceedings but may not personally be involved with prosecutions. Some prosecution such as those like murder requires his consent before they can be commenced.
He has the power to halt prosecutions generally but this power is now regulated under the Constitution and he may need the consent of the court to withdraw a mater.
Session 6
The Doctrine of Sovereignty and Supremacy of the Constitution
6.1 Introduction
The Doctrine of Sovereignty has given rise to much spirited debate among lawyers and political theorists over the years. It has played a central role in law and government and has increasingly become a fundamental issue in international law and relations as well.
Sovereignty, though its meanings have varied across history, also has a core meaning, supreme authority within a territory. It is a modern notion of political authority. Historical variants can be understood along three dimensions
The holder of sovereignty,
The absoluteness of sovereignty, and
The internal and external dimensions of sovereignty.
The state is the political institution in which sovereignty is embodied. An assemblage of states forms a sovereign states system.
The history of sovereignty can be understood through two broad movements, manifested in both practical institutions and political thought:
The development of a system of sovereign states, culminating at the Peace of Westphalia in 1648. Contemporaneously, sovereignty became prominent in political thought through the writings of Machiavelli, Luther, Bodin, and Hobbes. The doctrine of sovereignty has also been the focus of a number of major political theorists, including Jean-Jacques Rousseau and John Austin.
The circumscription of the sovereign state, which began in practice after World War II and has since continued through European integration and the growth and strengthening of laws and practices to protect human rights. The most prominent corresponding political thought occurs in the writings of critics of sovereignty like Bertrand de Jouvenel and Jacques Maritain.
Sovereignty was a key issue in early debates on the structure of American government as well as nineteenth-century debates on the legitimacy of nullification and secession by individual states.
6.2 The essential nature of the concept of sovereignty
The concept of sovereignty is that of status and power, both de jure and de facto, which gives its possessor both internal and external autonomy.
A sovereign is not subject to the control of any other individual or entity and has the right to control all those who fall within its power and jurisdiction. A holder of sovereignty possesses authority. That is to say, the person or entity does not merely wield coercive power, defined as A's ability to cause B to do what he would otherwise not do. Authority is rather the right to command and correlatively the right to be obeyed.
What is most important is the term right, connoting legitimacy. A holder of sovereignty derives authority from some mutually acknowledged source of legitimacy natural law, a divine mandate, hereditary law, a constitution, even international law. In the contemporary era, some body of law is ubiquitously the source of sovereignty.
But if sovereignty is a matter of authority, it is not a matter of mere authority, but of supreme authority. Supremacy is what makes the constitution of the Kenyan Government superior to the government of a registered society or any holder of sovereignty different from a police chief or corporate executive. The holder of sovereignty is superior to all authorities under its purview. Supremacy, too, is endemic to modernity. During the Middle Ages, manifold authorities held some sort of legal warrant for their authority, whether feudal, canonical, or otherwise, but very rarely did such warrant confer supremacy.
Another ingredient of sovereignty is territoriality, also a feature of political authority in modernity. Territoriality is a principle by which members of a community are to be defined. It specifies that their membership derives from their residence within borders. It is a powerful principle, for it defines membership in a way that may not correspond with identity. The borders of a sovereign state may not at all circumscribe a people or a nation, and may in fact encompass several of these identities, as national self-determination and irredentist movements make evident. It is rather by simple virtue of their location within geographic borders that people belong to a state and fall under the authority of its ruler. It is within a geographic territory that modern sovereigns are supremely authoritative.
Territoriality is now deeply taken for granted. It is a feature of authority all across the globe. Even supranational and international institutions like the European Union and the United Nations are composed of states whose membership is in turn defined territorially. This universality of form is distinctive of modernity and underlines sovereignty's connection with modernity. Though territoriality has existed in different eras and locales, other principles of membership like family kinship, religion, tribe, and feudal ties have also held great prestige. Most vividly contrasting with territoriality is a wandering tribe, whose authority structure is completely disassociated with a particular piece of land. Territoriality specifies by what quality citizens are subject to authority their geographic location within a set of boundaries. International relations theorists have indeed pointed out the similarity between sovereignty and another institution in which lines demarcate land private property. Indeed, the two prominently rose together in the thought of Thomas Hobbes.
Supreme authority within a territory this is the general definition of sovereignty. Historical manifestations of sovereignty are almost always specific instances of this general definition. It is in fact the instances of which philosophers and the politically motivated have spoken most often, making their claim for the sovereignty of this person or that body of law. Understanding sovereignty, then, involves understanding claims to it, or at least some of the most important of these claims.
Over the past half millennium, these claims have taken extraordinarily diverse forms nations asserting independence from mother states, communists seeking freedom from colonialists, the vox populi (voice of the people) contending with ancient regimes, theocracies who reject the authority of secular states, and sundry others.
It is indeed a mark of the resilience and flexibility of the sovereign state that it has accommodated such diverse sorts of authority. Though a catalogue of these authorities is not possible here, three dimensions along which they may be understood will help to categorize them: the holders of sovereignty, the absolute or non-absolute nature of sovereignty, and the relationship between the internal and external dimensions of sovereignty.
As suggested, diverse authorities have held sovereignty kings, dictators, peoples ruling through constitutions, and the like. The character of the holder of supreme authority within a territory is probably the most important dimension of sovereignty.
In early modern times, French theorist Jean Bodin thought that sovereignty must reside in a single individual. Both he and English philosopher Thomas Hobbes conceived the sovereign as being above the law. Later thinkers differed, coming to envision new loci for sovereignty, but remaining committed to the principle.
6.3 Classification of Sovereignty
6.3.1 Absolute or non-absolute
Scholars like Alan James argue that sovereignty can only be either present or absent, and cannot exist partially. But here, absoluteness refers not to the extent or character of sovereignty, which must always be supreme, but rather to the scope of matters over which a holder of authority is sovereign.
Bodin and Hobbes envisioned sovereignty as absolute, extending to all matters within the territory, unconditionally. It is possible for an authority to be sovereign over some matters within a territory, but not all.
Today, many European Union (EU) member states exhibit non-absoluteness. They are sovereign in governing defence, but not in governing their currencies, trade policies, and many social welfare policies, which they administer in cooperation with EU authorities as set forth in EU law. Absolute sovereignty is quintessential modern sovereignty. But in recent decades, it has begun to be circumscribed by institutions like the EU, the UN's practices of sanctioning intervention, and the international criminal court.
6.3.2 Internal and external Sovereignty
The word does not describe exclusive sorts of sovereignty, but different aspects of sovereignty that are coexistent and omnipresent. Sovereign authority is exercised within borders, but also, by definition, with respect to outsiders, who may not interfere with the sovereign's governance.
The state has been the chief holder of external sovereignty since the Peace of Westphalia in 1648, after which interference in other states governing prerogatives became illegitimate. The concept of sovereignty in international law most often connotes external sovereignty.
Alan James similarly conceives of external sovereignty as constitutional independence a state's freedom from outside influence upon its basic prerogatives (James 1999, 460462). Significantly, external sovereignty depends on recognition by outsiders.
To states, this recognition is what a no-trespassing law is to private property a set of mutual understandings that give property, or the state, immunity from outside interference. It is also external sovereignty that establishes the basic condition of international relations anarchy, meaning the lack of a higher authority that makes claims on lower authorities. An assemblage of states, both internally and externally sovereign, makes up an international system, where sovereign entities make allies, trade, makes war, and make peace.
6.3.3 Popular Sovereignty
The doctrine is that sovereign power is vested in the people and that those chosen by election to govern or to represent must conform to the will of the people.
In the Kenya it is generally held that the ultimate sovereign is the people and that no individual or government entity is sovereign in its own right.
6.3.4 Dual sovereignty
Is a legal doctrine holding that more than one sovereign (e.g. a state government and the Federal government) may prosecute an individual without violating the prohibition against double jeopardy if the individual's act breaks the laws of each sovereignty.
The United States
The notion of sovereignty and the sometimes competing claims of individual states and the federal government for sovereign powers has been a continuing source of debate and uncertainty in the United States.
These issues were a primary focus during the formative period of American government and were specifically treated in the Tenth Amendment to the U.S. Constitution, often referred to as the reserved powers clause.
The Tenth Amendment provides that "powers not delegated to the United States by the Constitution are reserved to the States respectively, or to the people." In adopting this amendment to the Constitution, the founders attempted to clarify the system of bifurcated sovereignty between the states and the federal government and to create a system of divided practical sovereignties, recognizing that the states, which had originally joined to form the federal union, retained certain aspects of sovereignty.
At the same time, the Constitution recognized that in the act of forming the United States, each individual state had given up certain sovereign aspects to the federal government. Thus, after the ratification of the Tenth Amendment, the United States consisted of both a sovereign federal government as well as sovereign states, each possessing certain sovereign powers. Both state and federal governments retained the right to tax their citizens, for instance, but only the federal government had the sovereign right to deal with foreign countries to sign treaties.
During the antebellum period, the extent to which states possessed full sovereignty and rights against the federal government became the subject of national debate and eventually became one of the ideological underpinnings of the conflict between the North and the South.
6.4 Delegation of Sovereign Power
Sovereign powers are delegated to both the national and the county government by grants from the Kenyan people.
6.5 Sovereignty and Immunity
Sovereignty has a connection with the notion of immunity.
The only way a sovereign can be subject to the legal process is if the sovereign agrees to submit itself to such process.
The doctrine fit well both with then-current notions of government and with the conservative jurisprudence of the times favouring governmental over individual rights.
As political and legal opinion began to favour individual rights, the doctrine of sovereign immunity came into some disfavour. During the latter part of the twentieth century, with the rise of a new theory of federalism among conservative jurists, the doctrine began to experience a revival in regard to states.
6.7 Sovereignty and International law
Historically, the main obstacle to armed intervention -humanitarian or otherwise- has been the doctrine of sovereignty, which prohibits violating the territorial integrity of another state. One of the striking developments of the past decade has been an erosion of this non-intervention norm and the rise of a nascent doctrine of contingent sovereignty.
This school of thought holds that sovereign rights and immunities are not absolute. They depend on the observance of fundamental state obligations. These include the responsibility to protect the citizens of the state. When a regime makes war on its people or cannot prevent atrocities against them, it risks forfeiting its claim to non-intervention. In such circumstances, the responsibility to protect may devolve to the international community.
This emerging consensus reflects the traumas of the twentieth century. The seminal event was the Holocaust, but it was hardly the last to shock the conscience of humankind. From the killing fields of Cambodia to the bloody hills of Rwanda, a litany of atrocities has mocked our earnest, repeated pledges of 'Never Again.'
Following the NATO intervention in Kosovo in 1999, UN Secretary General Kofi Annan described what he termed a "developing international norm ... that massive and systematic violations of human rights wherever they may take place ... should not be allowed to stand." No longer should frontiers be considered an absolute defence behind which states can commit crimes against humanity with "sovereign impunity."
6.7.1 Sovereignty and State Recognition
In the international arena, the doctrine of sovereignty is closely tied to recognition of political entities by other sovereign nations. Throughout the twentieth century, a number of nations experienced political transitions caused by war and revolution that resulted in successor states that were not always recognized as sovereign by other nations. The denial of sovereign status and the concomitant denial of official recognition by other states and international organizations carried with it serious implications for these states and, among other things, often meant that they were unable to join international organizations, be signatories to international agreements, or receive international aid.
6.7.2 Westphalian doctrine of sovereignty
The Westphalian conception of nation-state sovereignty is based on two things: territoriality and the absence of a role for external agents in domestic structures.
In this regard, scholars of international relations have identified the modern international system of states as having begun at the Peace of Westphalia in 1648 in which the major European countries agreed to respect the principle of territorial integrity, as the basis of international view on sovereignty. In the Westphalian system, the national interests and goals of states (and later nation-states) were widely assumed to go beyond those of any citizen or any ruler. States became the primary institutional agents in an interstate system of relations.
International relations theorists have identified several key principles of the Peace of Westphalia, which explain the Peace's significance and its impact on the world today:
The principle of the sovereignty of states and the fundamental right of political self determination
The principle of (legal) equality between states
The principle of non-intervention of one state in the internal affairs of another state
6.8.2 The Circumscription/Curtailment of the Sovereign State
The two most prominent curtailments are conventions on human rights and State integration (e.g. in Europe).
It was in 1948 that the vast majority of states signed the Universal Declaration of Human Rights, committing themselves to respect over 30 separate rights for individuals. As it was not a legally binding declaration and contained no enforcement provisions, the declaration left states sovereignty intact, but it was a first step towards tethering them to international, universal obligations regarding their internal affairs.
Over decades, these human rights would come to enjoy ever stronger legal status. One of the most robust human rights conventions, one that indeed curtails sovereignty, even if mildly, through its arbitration mechanisms, is the European Convention for the Protection of Human Rights and Fundamental Freedoms, formed in 1950.
Roughly contemporaneous, signed on December 9, 1948, was the Genocide Convention, committing signing states to refrain from and punish genocide. Then, in the mid-1960s, two covenants the Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights legally bound most of the world's states to respecting the human rights of their people.
Again, the signatories constitutional authority remained largely intact, since they would not allow any of these commitments to infringe upon their sovereignty. Subsequent human rights covenants, also signed by the vast majority of the world's states, contained similar reservations.
Only a practice of human rights backed up by military enforcement or robust judicial procedures would circumscribe sovereignty in a serious way. Progress in this direction began to occur after the Cold War through a historic revision of the Peace of Westphalia, one that curtails a norm strongly advanced by its treaties non-intervention.
In a series of several episodes beginning in 1990, the United Nations or another international organization has endorsed a political action, usually involving military force, that the broad consensus of states would have previously regarded as illegitimate interference in internal affairs. The episodes have involved the approval of military operations to remedy an injustice within the boundaries of a state or the outside administration of domestic matters like police operations.
Unlike peacekeeping operations during the Cold War, the operations have usually lacked the consent of the government of the target state. They have occurred in Iraq, the former Yugoslavia, Bosnia, Kosovo, Somalia, Rwanda, Haiti, Cambodia, Liberia, and elsewhere.
Although the legitimacy and wisdom of individual interventions is often contested among states the U.S. bombing of Iraq in December 1999 and NATO's intervention in Kosovo, for instance, failed to elicit U.N. Security Council endorsement, as did the U.S. invasion of Iraq in 2003 the broad practice of intervention is likely to continue to enjoy broad endorsement within the U.N. Security Council and other international organizations.
An explicit call to revise the concept of sovereignty so as to allow for internationally sanctioned intervention arose with The Responsibility to Protect, a document written and produced in 2001 by the International Commission on Intervention and State Sovereignty, a commission that the Government of Canada convened at the behest of U.N. Secretary General Kofi Annan.
The document proposes a strong revision of the classical conception by which sovereignty involves a responsibility to protect on the part of a state towards its own citizens, a responsibility that outsiders may assume when a state perpetrates massive injustice or cannot protect its own citizens. Responsibility to Protect has garnered wide international attention and serves as a manifesto for a concept of sovereignty that is non-absolute and conditional upon outside obligations.
The other way in which sovereignty is being circumscribed is through regional integration. This idea arose in Europe in reaction to the Holocaust, a calamity that many European leaders attributed at least in part to the sovereign state's lack of accountability. European integration began in 1950, when six states formed the European Coal and Steel Community in the Treaty of Paris. The community established joint international authority over the coal and steel industries of these six countries, entailing executive control through a permanent bureaucracy and a decision-making Council of Ministers composed of foreign ministers of each state.
This same model was expanded to a general economic zone in the Treaty of Rome in 1957. It was enhanced by a judicial body, the European Court of Justice, and a legislature, the European Parliament, a directly elected Europe-wide body. Over time, European integration has widened, as the institution now consists of twenty-seven members, and deepened, as it did in the 1991 Maastricht Treaty, which expanded the institution's powers and reconfigured it as the European Union.
In East Africa, regional integration is in the form of the revived East African Community which aims to ultimately achieve political integration of the member States.
6.6 Sovereignty and Supremacy of the Constitution: Kenya
Under Article 2, the Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of government and no person may claim or exercise State authority except as authorised under the Constitution.
The validity or legality of the Constitution is not subject to challenge by or before any court or other State organ.
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. Thus, in Samuel G. Momanyi v. The Hon. Attorney General & Another, the High Court declared section 45(3) of the Employment Act unconstitutional for contravening Articles 27 and 48 of the Constitution. That section allowed only persons who had worked more than one year and one month to access the Industrial Court claiming that they had been subjected to unfair industrial practices. It was held that such a provision was against the guarantees of equality and freedom from discrimination and the right to access to justice. The Court found that there was obvious discrimination against the Petitioner Samuel who had been denied equal protection and equal benefit of the law.
Session 7
Democracy and Constitutionalism
7.0 Introduction
Constitutionalism and democracy have been interpreted as both intimately related and intrinsically opposed. On the one hand constitutions are said to set out the rules of the democratic game, on the other as constraining the power of the demos and their representatives to rule themselves - including by reforming the very processes of democracy itself. Meanwhile, constitutionalists themselves differ on how far any constitution derives its authority from, and should itself be subject to democratic endorsement and interpretation. They also dispute whether constitutions should refer solely to democratic processes, or also define and limit democratic goals.
Each of these positions produces a different view of judicial review, the content and advisability of a Bill of Rights and the nature of constitutional politics. These differences are not simply academic positions, but are reflected in the different types of constitutional democracy found in the United States, continental Europe, Britain and many commonwealth countries.
7.1 Democracy
Democracy literally means rule by the people. The term is derived from the Greek demokratia, which was coined from demos (people) and kratos (rule) to denote the political systems then existing in some Greek city-states, notably Athens.
Democracy may generally defined as a form of government in which all the people have an equal say in the decisions that affect their lives. This involves direct both and indirect participation in the proposal, development and passage of legislation into law and also encompass social, economic and cultural conditions that enable the free and equal practice of political self-determination.
The two main criteria for a democracy are, firstly that the officials exercising power have legitimate authority because they have been elected, as opposed to inheriting that authority or holding it by force; and secondly, the mechanism for changing the government is through peaceful and regular elections, as opposed to revolts, coups, or civil war.
Democracy is not a theory about what the aims or content of government or law should be, only that those aims should be guided by the opinion of the majority, as opposed to a single ruler (as with an absolute monarchy, dictatorship, or oligarchy). Just because a government has been democratically elected does not mean it will be a good, just, or competent government. Thus, some polities have used the democratic process to secure liberty while others have used it to promote equality, nationalism, or other values.
Democracy is also a peaceful way for a group of any size to settle arguments or make decisions. Everyone has a vote and is committed to respecting the decision that wins. This does not mean the decision will be the best one, or even a good one. It is simply a mechanism for enabling everyone to be involved in the decision making process, which gives the decisions binding legitimacy.
Most of the procedures used by modern democracies are very old. Almost all cultures have at some time had their new leaders approved, or at least accepted, by the people; and have changed the laws only after consultation with the assembly of the people or their leaders. Such institutions existed since before written records, as well as being referred to in ancient texts, and modern democracies are often derived or inspired by them.
Democracy in the modern world evolved in Britain and France and then spread to other nations. The main reason for the development of democracy was dissatisfaction with the corruption, incompetence, abuse of power, and lack of accountability of the existing polity, which was often an absolute monarchy whose legitimacy was based on the doctrine of the divine right of kings. Instead of defending their country, kings were often engaging in ruinously expensive wars against other countries. Instead of using their power to enforce the rule of law and justice, they were often using this power to oppress their subjects and stifle opposition. People thought that if they could have a say in how they were governed, these abuses could come to an end.
There is a tension in democracy between the rule of law limiting government and protecting individual liberties, and the rule of the people being able to override individual liberties. In modern history this has led to two competing versions of democracy. One emphasizes the purpose of the whole, but when it became atheistic has tended to slip into totalitarianism and the suppression of individual liberty. The other emphasizes individual liberty, but with the decline of its Christian underpinnings has tended to slide into social disintegration.
7.1.1 Types/ Forms of Democracy
There are many different types of democracy, from the minimalist direct democracy of Switzerland to the totalitarian democracy of communist states such as North Korea, as well as mixed systems such as the blending of monarchy, oligarchy, and democracy in the United Kingdom.
As democracy is now regarded by many as the highest, or even only, form of legitimate authority, many states claim to be democratic even if they do not appear to be. One of the most damaging accusations in today's international arena is that a group or process is "undemocratic."
In the Islamic world, there are democracies such as Turkey, Egypt, Iran, and Pakistan, although there are also Muslims who believe democracy is un-Islamic.
Though the term democracy is typically used in the context of a political state, the principles are also applicable to other groups and organizations.
Some of the major classifications of Democracy include:
Representative democracy
Representative democracy involves the selection of the legislature and executive by a popular election. Representatives are to make make decisions on behalf of those they represent. They retain the freedom to exercise their own judgment. Their constituents can communicate with them on important issues and choose a new representative in the next election if they are dissatisfied.
There are a number of systems of varying degrees of complexity for choosing representatives. They may be elected by a particular district (or constituency), or represent the electorate as a whole as in many proportional systems.
Liberal democracy
Classical liberal democracy is normally a representative democracy along with the protection of minorities, the rule of law, a separation of powers, and protection of liberties (thus the name "liberal") of speech, assembly, religion, and property.
Since the 1960s the term "liberal" has been used, often pejoratively, towards those legislatures that are liberal with state money and redistribute it to create a welfare state. However, this would be an illiberal democracy in classical terms, because it does not protect the property its citizens acquire.
Direct democracy
Direct democracy is a political system in which the citizens vote on major policy decisions and laws. Issues are resolved by popular vote, or referenda. Many people think direct democracy is the purest form of democracy. Direct democracies function better in small communities or in areas where people have a high degree of independence and self-sufficiency. Switzerland is a direct democracy where new laws often need a referendum in order to be passed. As it is a very stable and prosperous country, few people see any urgent need for change and so few new laws are passed. The system is also very decentralized, with few policies decided on a national level. This means that the French, Italian, and Romance language speaking minorities can order their affairs the way they choose and the large Swiss-German-speaking majority cannot over rule the local level, even if it wanted to.
Socialist democracy
Socialism, where the state economy is shaped by the government, has some forms that are based on democracy. Social democracy, democratic socialism, and the dictatorship of the proletariat are some examples of names applied to the ideal of a socialist democracy. Many democratic socialists and social democrats believe in a form of welfare state and workplace democracy produced by legislation by a representative democracy.
Marxist-Leninists, Stalinists, Maoists, and other "orthodox Marxists" generally promote democratic centralism, but they have never formed actual societies which were not ruled by elites who had acquired government power. Libertarian socialists generally believe in direct democracy and Libertarian Marxists often believe in a consociational state that combines consensus democracy with representative democracy. Such consensus democracy has existed in local-level community groups in rural communist China.
Anarchist democracy
The only form of democracy considered acceptable to many anarchists is direct democracy, which historically discriminates against minorities. However, some anarchists oppose direct democracy. Pierre-Joseph Proudhon argued that the only acceptable form of direct democracy is one in which it is recognized that majority decisions are not binding on the minority, even when unanimous.[18] However, anarcho-communist Murray Bookchin criticized individualist anarchists for opposing democracy,[19] and says "majority rule" is consistent with anarchism.
Sortition
Sortition (or allotment) has formed the basis of systems randomly selecting officers from the population. A much noted classical example would be the ancient Athenian democracy. Drawing by lot from a pool of qualified people elected by the citizens would be a democratic variation on sortition. Such a process would reduce the ability of wealthy contributors or election rigging to guarantee an outcome, and the problems associated with incumbent advantages would be eliminated.
Tribal and consensus democracy
Certain ethnic tribes organized themselves using different forms of participatory democracy or consensus democracy. However, these are generally face-to-face communities, and it is difficult to develop consensus in a large impersonal modern bureaucratic state. Consensus democracy and deliberative democracy seek consensus among the people.
7.1.2 Elements of liberal democracy
Certain elements are considered to be essential hallmarks of liberal democracy:
Free, regular elections with a secret ballot. People can stand for election either as independent candidates or as members of a political party. Voters can cast their votes freely and secretly without fear of intimidation.
A separation of powers or functions which is set out in a constitution so that there are checks and balances and no one person, group, or institution can attain or exercise unlimited power. The job of the legislature is to codify laws, passing new ones if necessary. Within this framework, the executive implements the policies that have been elected. The judiciary upholds the laws.
An independent judiciary which interprets the law without fear or favour.
A free and independent media able to report, discuss, and comment on events, public persons, and expose corruption and the abuse of power without fear.
The rule of law which protects people's liberties.
Freedom of association, to form political, religious, civic, and charitable groups free from government control.
Freedom of religion, and an ecumenical civic consensus that values all legitimate forms of religion as promoting values supportive of the public welfare.
Freedom of speechthe right to hold and espouse any opinion without violating the laws of libel or inciting a breach of the peace.
Private property is very important, so that a person can be independent of the state.
Education and literacy, which encourages people to think for themselves.
7.1.2 Criticism of Democracy
In the past, philosophers from Plato and Aristotle to Thomas Aquinas and Hobbes have considered democracy to be among the worst forms of government because it could easily be corrupted and result in injustice. The chief danger is that a majority can impose its will upon a minority in a way that violates their liberties. Thus during the twentieth century, besides liberal democracies, there were also dictators such as Hitler who came to power through the democratic process and totalitarian democracies like the Soviet Union, where the populace gave strong support to the regime at various times.
To function properly, democracies require a high level of education and maturity among the people who vote. If not, the process can be captured by demagogues if too many vote in a self-centred way, as happened in Wiemar Germany. It can also be very claustrophobic or oppressive as majorities can use their position to intimidate minority opinions. Modern democracy has benefited from the mass education of citizens, the free press, and most especially the Protestant Reformation, which encouraged self-restraint and public-mindedness and trained people in self-government.
In the twenty-first century a number of problems with democracy have emerged. They include:
The eclipse of limited government - The aim of constitutional democracy was to limit government. The separation of powers was developed to prevent the arbitrary exercise of power, along with the rule of law, due process, and the distinction between public and private law. However, with the appearance of a universal franchise, it has seemed unnecessary to limit government. It is commonly asserted that if a government is elected by the majority of the people, it should have the right to pass any measure and enact any policy. Limiting the power of a legitimately elected government has come to appear undemocratic, thwarting of the will of the people, which is one of the problems originally identified by Socrates.
The rising influence of special interest groups - Modern elected governments often do not serve the agreed opinion of the majority, but instead serve numerous special interest groups who lobby for special treatment from the government. Such a relatively small group greatly benefits from legislation passed in its favor, whereas the impact on the rest of the population is so small that it may not seem worthwhile to oppose it (or, the general population may simply be unaware of detrimental provisions in bills offered by special interest groups). Thus there is an increasing prevalence of bargaining democracy as opposed to representative democracy. Coalitions are formed of a multitude of special interests, each of which consents to the special benefits granted to other groups only at the price of their own special interests being equally considered. Group selfishness is thus a greater threat to democracy than individual selfishness. In many respects, Western democracy has come to be manipulated by lobbyists, or group interests, while the wishes of the majority are ignored. Worse, policies the majority would actively disapprove of, which further the interests only of elite minorities, are the ones enacted.
Government above the law - Although constitutionalists sought to limit government by the separation of powers, they did not separate the functions sufficiently. Thus, legislatures pass not only laws but are concerned with the business of government. They often pass legislation only suited to achieve the purposes of the moment. In a sense, they change the rules of the game so as to never lose. Thus there is no longer government under the law, since the government makes the law, often excluding itself and its representatives from that law. Placing the power of legislation proper and of governmental measures in the same hands has effectively brought a return to unlimited government. In this sense, the danger is that government exists for the maintenance of the ruling elite, regardless of party and country. Moreover, as with the U.S. Supreme Court, there is the problem of the judiciary evolving into a de facto legislative organ beyond which there is no appeal, by overturning laws approved by the legislative and executive branches.
Excessive partisanship and the politics of envy - In the past, when the political culture was still essentially Christian-based, politicians tended to behave in a relatively responsible way. With the decline of the Christian political culture and the rise of the politics of envy, the system is open to great abuse. Politicians promise to deal with social and economic problems, unaware that government cannot solve them and indeed is often the cause. They are tempted to bribe the electorate, pandering to their baser instincts, and sometimes to misplaced idealism, in order to be elected to solve such problems. The disconnect between campaign promises and actual policies enacted once elected is often wide.
7.2 Constitutionalism
Constitutionalism is the idea, often associated with the political theories of John Locke and the "founders" of the American republic, and equated with the concept of the "Rule of Law", that government can and should be legally limited in its powers, and that its authority depends on enforcing these limitations.
For genuine democracies, constitutions consist of overarching arrangements that determine the political, legal and social structures by which society is to be governed. Constitutional provisions are therefore considered to be paramount or fundamental law. All other laws within a country must abide by and follow the principles of the constitution. Under these circumstances, if constitutional law itself is inadequate, the nature of democracy and rule of law within a country is affected. This will affect citizens' human rights, which can only be realized and protected under a rule of law framework.
The structure of modern nations has been shaped with government being divided into executive, legislative and judicial bodies, with the commonly accepted notion that these bodies and their powers must be separated. This is one of the most fundamental tenets of modern governance, and as such is a key characteristic of any constitution. Of course, the separation of powers does not mean these bodies function alone, rather they work interdependently, but maintain their autonomy. Other tenets include the idea of limited government and the supremacy of law. Together, these can be termed the concept of constitutionalism.
In other words, constitutionalism is the idea that government should be limited in its powers and that its authority depends on its observation of these limitations. In particular, these limitations relate to legislative, executive and judicial powers. A constitution is the legal and moral framework setting out these powers and their limitations. This framework must represent the will of the people, and should therefore have been arrived at through consensus.
If these are taken to be the basic tenets of constitutionalism, then not all states with constitutions will have embraced constitutionalism; authoritarian governments or military dictatorships do not fulfil the tenets of the supremacy of law or the separation of powers. The judiciary in Cambodia for instance, is highly subordinate to the executive, blurring boundaries between the two arms of government. The huge number of disappearances of alleged political activists in Pakistan is a clear violation of the rule of law. The message sent to society in these cases is clear: it is not the constitution that reigns supreme, but those in power. It is therefore important to distinguish between adopting a constitution and genuine constitutionalism. This distinction becomes particularly important when constitutions are adopted to protect the interests of the ruling regime. A constitution is not merely a document introduced by the state with the title of 'constitution'. Many authoritarian regimes introduce such documents to justify arbitrary rule. Thailand for instance, has had a new constitution virtually every time there is a change of power. A genuine constitution however, is an attempt to limit and reverse all forms of arbitrariness.
The core elements of Constitutionalism include:
The recognition and protection of fundamental rights and freedoms;
Separation of power;
An independent judiciary;
The review of constitutionality of law; and
The control of the amendment of the Constitution.
7.3 Democracy and constitutionalism
Authoritarian governments are by their very nature unconstitutional. Such governments think of themselves as above the law, and therefore see no necessity for the separation of powers or representative governance. Constitutionalism however, is primarily based on the notion of people's sovereignty, which is to be exercised--in a limited manner--by a representative government. The only consensual and representative form of governance in existence today, is democratic government consisting of multiple political parties, fair elections, freedom of opinion and expression, and the rule of law. In this way, there is a very important and basic link between democracy and constitutionalism.
Just as mere constitutions do not make countries constitutional, political parties and elections do not make governments democratic. Several Asian countries have been termed 'illiberal democracies', for while they have periodic elections, they are not governed by the rule of law and do not protect the rights and liberties of their citizens. India and Sri Lanka are both examples of such countries, where the politicization of public institutions is common, where politicians and government officials are deemed above the law and where there is significant violence against minorities and marginalized groups. Genuine democracies rest on the sovereignty of the people, not the rulers. Elected representatives are to exercise authority on behalf of the people, based on the will of the people. Without genuine democracy, there can be no constitutionalism.
7.4 Rule of law and Constitutionalism
Rule of law refers to the supremacy of law: that society is governed by law and this law applies equally to all persons, including government and state officials [See Lesson Series 40 for a detailed study of the rule of law and human rights in Asia]. There are two aspects to the relationship between constitutionalism and rule of law: not only is constitutionalism the institutional basis for rule of law in any society, it is also safeguarded by the rule of law. Following basic principles of constitutionalism, common institutional provisions used to maintain the rule of law include the separation of powers, judicial review, the prohibition of retroactive legislation and habeas corpus. The independence of law making bodies is established, as is independence for judges in articulating and interpreting laws. Genuine constitutionalism therefore provides a minimal guarantee of the justice of both the content and the form of law.
On the other hand, constitutionalism is safeguarded by the rule of law. Only when the supremacy of the rule of law is established, can supremacy of the constitution exist. Constitutionalism additionally requires effective laws and their enforcement to provide structure to its framework.
7.5 Process of constitution making
It is now clear that the constitution is an essential document, laying out the framework of a nation's political, economic and social structure. How should such an important document come into being? First, it is necessary to note that not all constitutions are written documents. The greatest example of a constitution that cannot be found in a written format is the British constitution, which has however, existed for many centuries. Modern constitutions though, tend to be found in written documents.
A framework for a country's governance and structure cannot be laid out without deep intellectual and societal agreements on political, legal and moral issues. In order to arrive at such agreements, there must be considerable public debate and discussion prior to the adoption of any constitution. Such discussion must take into account that all societies will have conflicting interests. While certain interests will inevitably predominate, the impartial protection of rights and liberties should ensure that such dominant interests do not harm others. Drafting a constitution is therefore very much related to democracy and the rule of law.
Modern constitutions have tended to be written in the aftermath of colonial or military repression. They therefore learn from the mistakes of history, and write into new constitutions numerous limits and obligations of government. The 1947 Constitution of India for instance, paid much attention to the rights of individuals to participate in political affairs, as well as the duties of the government in protecting these rights, in particular by limiting the powers of arrest and detention. This was a direct consequence of colonial history, which saw hundreds of political activists taken away and tortured.
Session 8
Separation of Powers and the Doctrine of Checks and Balances
8.2 Introduction
Separation of powers, together with the rule of law and sovereignty of the Constitution, runs like a thread throughout our Constitution.
The separation of powers is a constitutional principle designed to ensure that the functions, personnel and powers of the major institutions of the state are not concentrated in any one body. It ensures diffusion rather than a concentration of power within the state.
There is no strict separation of powers under our Constitution. Instead, while some separation of powers exists, it is more accurate to speak of a system of checks and balances which ensures that powers are not abused.
The fundamental purpose of the separation of powers is to avoid the abuse of power and thereby to protect the rights and liberties of citizens.
The concept itself is of great antiquity and can be attributed to Aristotle (384322 BC); however, the clearest exposition of the doctrine can be found in the French writer Charles- Louis de Montesquieus De lesprit des lois (1748) . In essence, Montesquieu states that the three organs of government the executive, legislature and judiciary should each have a discrete and defined area of power and that there should be a clear demarcation of functions between them: this is true separation of powers.
Under a written constitution, the powers allocated to various institutions will be clearly defined. It should however be noted that even under a written constitution a complete separation of powers is not possible, and that without some degree of interaction between the institutions there would be constitutional deadlock. For the purpose of analysis, the subject may thus be broken down by considering the extent to which the executive and legislature, executive and judiciary, and judiciary and legislature overlap and interact.
8.1 The major institutions of State
The principal institutions are the Executive, the Legislature and the Judiciary. Each of these bodies exercises its role under the Constitution.
8.1.1 The executive
The executive comprises the President, the Vice-President/Deputy President, and Cabinet Ministers/Secretaries as well as other Constitutional offices that are created to support it. In the transition period, until the next General election, under the repealed Constitution (s. 15A) and the National Accord and Reconciliation Act, the Executive includes the Prime Minister and two Deputy Prime Ministers.
Under the new Constitution, executive power is also vested in the Governors who preside over the Counties.
Ancillary to these offices is the civil service which runs the administration of the state, and the armed forces and the police which uphold executive power.
The role of the executive is to formulate and implement government policy across all governmental activities. The elected government of the day is accountable to Parliament, which has the ultimate power to dismiss a government and force a general election through which the people will decide on who will run the next government.
Under the repealed Constitution, Members of government were primarily elected Members of Parliament.
8.1.2 Parliament
Parliament comprises of the Bicameral Chambers, the National Assembly and the Senate. National Assembly under the 2010 Constitution bears the vast majority of law-making powers, while the senate is responsible for Bill and law affecting the Counties, which role it shares also with the National Assembly. In the transition period, the National Assembly plays the role of both the National Assembly and the Senate.
The new Constitution also creates County Assemblies as part of the devolved government Structure with members elected to them during the General Election.
Members of Parliament represent their individual areas (Constituencies for MPs and Counties for Senators). A general election must by law be held every five years to elect Member of Parliament and the President along other officials.
8.1.3 The judiciary
The Judiciary includes all the judges, magistrates and Kadhis who preside in the courts of law, and also those who hold judicial office in tribunals, who staff the magistrates courts.
Senior judicial appointments are made by the President with the Approval of Parliament while the lower judiciary is appointed by an independent Judicial Service Commission headed by the Chief Justice.
It is the function of the judges to interpret legislation in line with the intention of Parliament and to develop the common law (judge-made law).
Constitutionally, judges have the power to challenge the validity of Acts of Parliament for being unconstitutional. Judges are prohibited from standing for election to Parliament.
Judicial independence
Judges in the higher courts High Court and above have tenure under the Constitution, which protects their independence from both the Executive and Parliament.
Superior judges can only be dismissed through a procedure established under the Constitution.
To protect the judiciary, Judges enjoy immunity from legal action in relation to their judicial functions. The public interest in the administration of justice requires that judges possess absolute privilege in relation to court proceedings, even where they make statements that might be defamatory.
In the exercise of their judicial functions, judges must demonstrate that they are impartial. Any words or actions which are capable of raising a suspicion that a judge is biased give rise to criticism. Bias may take several forms; it may be:
political bias
bias due to an affiliation with a person or organization
personal bias against persons or groups because of their identities or characteristics.
Financial dealings may also give rise to a suspicion of bias.
In their judicial role, judges must disqualify themselves if there is a suspicion of bias: justice must not only be done but must manifestly be seen to be done.
Two English cases illustrate this aspect of judicial independence:
In Dimes v Grand Junction Canal Proprietors (1852) 3 HL Cas 759, the Lord Chancellor held shares in a canal company which was involved in litigation. The House of Lords ruled that the Lord Chancellor should have disqualified himself from sitting. Even though it was accepted that he was not influenced by the interest, the court ruled that it was of the utmost importance that the maxim that no man is to be judge in his own cause should be held sacred [p. 793].
In R v Bow Street Stipendiary Magistrate ex parte Pinochet (No 2) [1999] 2 WLR 272, the House of Lords overturned its own previous decision relating to the extradition of General Pinochet to face allegations of human rights violations during his period as Head of State in Chile. Lord Hoffmann, who had participated in the earlier decision, held office as a Director of Amnesty International which had been allowed to present evidence. The earlier decision was set aside because it gave rise to an appearance of bias.
8.2 The relationships between the institutions
8.2.1 The Executive and the Legislature
The government proposes legislation - Only Parliament may enact laws which give legal effect to these proposals.
Under the repealed Constitution, the President and his ministers were Members of Parliament and sat in the House. The executive was therefore present at the heart of Parliament. By contrast, under the 2010 Constitution, the President and Cabinet Secretaries may not be a member of the legislature. This may result in the President being a member of a different political party from the majority of MP. This cannot happen in the UK. There the Prime Minister will always be the leader of the political party that won a majority of seats at a general election. Where a government has a large majority of seats in the Commons, the crucial issue is whether the government can dominate Parliament and ensure that its proposed legislation is enacted, or whether there are sufficient procedures in place to ensure that proposals are sufficiently scrutinised and either endorsed or rejected by Parliament.
Parliament may delegate law-making powers to the government through powers to draft subordinate or delegated legislation. The purpose of this is to free Parliament from the need to scrutinise every technical rule contained in legislation and to enable the government to draft the detailed rules. Such legislation is subject to the ultimate approval of Parliament. Delegated legislation, however, does raise questions about the separation of powers between the executive and legislature.
8.2.2 The executive and judiciary
Judicial independence from government is a key requirement of the separation of powers. Judges must be seen to be politically impartial. The judicial function is to interpret Parliaments intentions as expressed in legislation and to ensure through judicial review that any delegated legislation is consistent with the scope of power granted by Parliament.
The rule of law also requires that judges ensure the legality of government action; this function could not be fulfilled if the judges independence was in doubt.
In the English case of M v Home Office [1994] 1 AC 377 (See also Re M [1993] 3 WLR 433) an example of judicial control can be seen.
The judges exercise self-restraint in the areas of power that they regard themselves as competent to review. Many exercises of the royal prerogative, for example, involve issues of high policy: such diverse matters as the appointment of ministers, the allocation of financial resources, national security, signing of treaties and defence matters. In order to protect judicial independence and the appropriate separation of powers, judges will rule that such matters are for the executive to decide.
An example of this is seen in the case of Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (the GCHQ case) in England where the Prime Minister had ordered that workers at the Governments Communication Headquarters (the signals intelligence body) should no longer be allowed to be members of trade unions, a right which had been enjoyed for several decades. The Union challenged the legality of the ban. The Court of Appeal and House of Lords ruled that where national security was in issue, the courts would not interfere.
8.2.3 Legislature and judiciary
Parliament is the supreme law-making body within the. Judges interpret legislation using the rules of statutory interpretation.
Constitutionally, judges have the power to question the validity of legislation unlike the UK (see Pickin v British Railways Board [1974] AC 765).
Within the constraints imposed by the general rule that Parliament legislates and courts interpret, there is a leeway for the judges to give new meaning to statutory language, and thus essentially the judges make law.
This aspect of the judicial role is enhanced under the Constitution which imposes a duty on the judges to interpret legislation in a manner to enforce human rights, rule of law and to develop the law (Art 259).
The development of common law also raises the issue of judicial law-making. You will realise when you study the doctrine of precedent that judges are able to develop the law in line with contemporary requirements. While all of common law is judge-made law, it must be remembered that Parliament may at any time overturn a judicial decision through legislation as long as it does not impugn the Constitution.
8.3 Limitations on the separation of powers
There is probably no country in the world in which the doctrine of separation of powers is applied strictly and absolutely. There are not always clear dividing lines between administrative, legislative and judicial functions jurists have wasted oceans of ink and mountains of paper in trying to define those terms precisely and in a modern State there must be a great deal of co-operation and interaction between the Executive and the Legislature, in particular, if the States business is to be efficiently conducted.
8.3.1 Appointment to Government
Logically, the doctrine of separation of powers should extend to the appointment of the members of each branch. For example, according to the strict doctrine of separation of powers the Legislature should not appoint members of the Executive [i.e. Parliament should not elect the President or the Prime Minister]; and for the same reason the Executive should not have a role in electing members of the Legislature.
Neither the Executive nor the Legislature should appoint members of the Judiciary, for if they do the Judiciary will lose its independence. And it goes without saying that judges should not appoint the Executive though that is what may have happened in the United States when the Supreme Court decided the result of the 2000 presidential election.
Who then, according to the doctrine of separation of powers, should appoint members to the three branches of government?
The Constitution in Art 1 provides that all legal and political authority derives from the people, so logically the people should elect the President as well as all members of Parliament. And judges and other judicial officers should also be directly elected by the people. However, this is not possible. Judges for the higher Judiciary are appointed by the Executive with the approval of the Legislature. For the lower judiciary, an independent Judicial Service Commission is established.
8.3.2 Financing of Each Branch
It would be impractical to expect each branch of government to raise its own finances. The financing of all the branches must therefore come from the central government fiscus, and may limit their independence because whichever branch controls the fiscus can starve the other branches of funds.
In order to maintain the independence of the different branches, the Constitution makes it obligatory for each branch to be provided with adequate funding to enable it to carry out its functions.
8.3.3 Overlapping of Functions
Legislation has become so far-reaching and complex that Parliament cannot enact all of it. Acts of Parliament must leave details to be filled in by regulations made by other authorities, usually Ministers. Hence the Executive branch must be given some law-making powers. At present all subsidiary legislation must be laid before Parliament, but Parliament has no power to repeal it. It would be closer to the ideal of separation of powers if Parliament did have such a power.
Executive branch is increasingly given judicial powers The role of government has expanded so greatly that many decisions which affect peoples lives must be made quickly, and some of these decisions require specialised knowledge which is not possessed by judges or magistrates. Many of these decisions are made by administrative tribunals established by and answerable to Ministers. This is not necessarily undesirable so long as the tribunal obey the basic standards of fairness laid down by the law and so long as the courts are able to review their decisions.
It is generally recognised that in a legal system such as ours, judges do not just interpret the law. They develop and adapt the law to take account of changing circumstances, and in that way they actually make law. Hence the judicial branch has some law-making or legislative powers, but this power should not go beyond refining and developing existing law.
In some countries the Head of State is elected by Parliament, not by the people. This is usually the case where the Head of State is non-executive, but in South Africa the executive President is elected by the National Assembly. While this violates the strict doctrine of separation of powers it has the advantage of ensuring that the Executive does not get too powerful and is ultimately answerable to Parliament.
Few modern constitutions provide for the direct election of judges and magistrates. They are usually appointed, subject to safeguards to ensure their independence, by the Executive or the Legislative branch, or by both branches.
Because there cannot be a complete separation between the different branches of government, the doctrine of separation of powers can best be defined as a governmental system of separated institutions sharing power fairly between them. Relative powers of each branch should be balanced.
8.4 Value of the doctrine of separation of powers
Even though the doctrine of separation of powers cannot be applied absolutely, it retains considerable value.
It emphasises the need for a State to have strong independent institutions in order to check arbitrary rule by the Executive. This is particularly important in a country such as ours which does not have a long history of democratic rule. The Executive will always try to increase its powers by encroaching on the functions of the other branches of Government, sometimes for the best of motives. Without strong institutions to oppose it these encroachments by the Executive will continue until the other branches lose their power to check it.
The doctrine provides a yardstick against which constitutional proposals can be assessed in order to determine whether or not there will be adequate checks and balances within the governmental system to ensure that individual rights are protected.
8.5 Separation of powers not the only test
As a test for determining whether a constitution or governmental system is good or bad, the doctrine of separation of powers must be applied with caution. It is fair to say that constitutions which completely ignore the doctrine are usually bad ones one of the branches of government will be found to overshadow the others or liable to do so. But constitutions in which the doctrine is observed are not necessarily good ones.
If the doctrine is observed so strictly that the different branches do not co-operate with each other, there may be governmental gridlock. And the doctrine has nothing to say about the nature of the powers that can be exercised by each of the branches within its own sphere.
If, for example, all the powers of the Executive are vested in one individual and there are no limits on his or her power, then the State will be a dictatorship or nearly so; and if the Legislature, though completely independent, is not elected by universal suffrage, then the State will be undemocratic; and if judges, though completely independent and irremovable from office, are ignorant and corrupt, then there will be no rule of law.
So the doctrine of separation of powers has its limits in determining whether or not a State is well governed. It is only one of several tests to be applied.
8.6 Checks and Balances
Our constitutional system includes a notion of checks and balances where the powers of one branch can be challenged by another branch. This is what the system of checks and balances is all about.
Each branch has an effect on the other. Examples (Not Exhaustive)
8.6.1 Legislative Branch
Checks on the Executive
Impeachment power Both the National Assembly and the Senate participate in the removal of the President and the Deputy President (art 145). Trial of impeachments is done by the Senate while the resolution is by the National Assembly.
National Assembly approves departmental appointments by the President The Chief Justice, Diplomats, and cabinet Secretaries etc.
National Assembly approves treaties
National Assembly approves the exercise of the power to declare war
President must deliver annual address to Parliament
Checks on the Judiciary
National Assembly approves the appointment of the Chief Justice and Supreme Court Judges;
National Assembly has power to set jurisdiction of courts;
Checks on the Legislature
Because it is bicameral, the Legislative branch has a degree of self-checking.
Bills must be passed by both houses of Congress;
House must originate revenue bills;
8.6.2 Executive Branch
Checks on the Legislature
President can veto a Bill passed by Parliament;
Checks on the Judiciary
Power to appoint Chief Justice and Judges of the Supreme Court;
Pardon power;
8.6.3 Judicial Branch
Checks on the Legislature
Declaration of Statutes as unconstitutional;
Decide on election petition
Decide on vacation of office.
Checks on the Executive
Judicial review;
Supreme Court settles presidential election disputes.
Session 9
The Rule of Law
9.0 Introduction
The principle is based on the notion that all people and institutions are subject to and accountable to law that is fairly applied and enforced. That is that government should be by law. In its most basic form, the principle is that no one is above the law.
The rule follows logically from the idea that truth, and therefore law, is based upon fundamental principles which can be discovered, but which cannot be created through an act of will.
The most important application of the rule of law is the principle that governmental authority is legitimately exercised only in accordance with written, publicly disclosed laws adopted and enforced in accordance with established procedural steps that are referred to as due process. The principle is intended to be a safeguard against arbitrary governance, whether by a totalitarian leader or by mob rule. Thus, the rule of law is hostile both to dictatorship and to anarchy.
9.1 Diceys Conception of Rule of Law
Professor A. V. Dicey in his 1885 book 'Introduction To The Study Of Law Of The Constitution,' first expounded on the notion of rule of law based on three principles that
Legal duties, and liability to punishment, of all citizens, is determined by the ordinary (regular) law and not by any arbitrary official fiat, government decree, or wide discretionary-powers,
Disputes between citizens and government officials are to be determined by the ordinary courts applying ordinary law, and
Fundamental rights of the citizens (freedom of the person, freedom of association, freedom of speech) are rooted in the natural law, and are not dependent on any abstract constitutional concept, declaration, or guaranty.
9.2 Essential Principles of the Rule of Law
While there is no set definition of the rule of law encompassing all its practices, there is a basic realm of common principles as to what the rule of law entails. For example, Rachel Kleinfeld Belton identifies five common principles of the rule of law:
A government bound by and ruled by law;
Equality before the law;
The establishment of law and order;
The efficient and predictable application of justice; and
The protection of human rights.
Belton also identifies a second definition for the rule of law that is based on the institutions or instruments by which the ends of rule of law are achieved. These include:
The existence of comprehensive laws or a constitution based on popular consent;
A functioning judicial system;
Established law enforcement agencies with well-trained officers.
The influential political theorist Joseph Raz, for his part, in his work The Rule of Law and Its Virtue, (The Law Quarterly Review, volume 93, 1977 pg. 195) identified several principles that may be associated with the rule of law:
That laws should be prospective rather than retroactive;
Laws should be stable and not changed too frequently, as lack of awareness of the law prevents one from being guided by it;
There should be clear rules and procedures for making laws;
The independence of the judiciary has to be guaranteed;
The principles of natural justice should be observed, particularly those concerning the right to a fair hearing;
The courts should have the power of judicial review over the way in which the other principles are implemented;
The courts should be accessible; no man may be denied justice;
The discretion of law enforcement and crime prevention agencies should not be allowed to pervert the law.
According to Raz, the validity of these principles depends upon the particular circumstances of different societies, whereas the rule of law generally is not to be confused with democracy, justice, equality (before the law or otherwise), human rights of any kind or respect for persons or for the dignity of man.
9.2.1 The supremacy of law
As Dicey postulated, the rule of law presupposes the absence of wide discretionary authority in the rulers, so that they cannot make their own laws but must govern according to the established laws.
The rule of law requires both citizens and governments to be subject to known and standing laws.
The supremacy of law also requires generality in the law.
This principle is a further development of the principle of equality before the law.
Laws should not be made in respect of particular persons.
Those laws ought not to be too easily changeable. Stable laws are a prerequisite of the certainty and confidence which form an essential part of individual freedom and security.
Laws ought to be rooted in moral principles, which cannot be achieved if they are framed in too detailed a manner.
The idea of the supremacy of law requires a distinction between law and executive administration and prerogative decree. A failure to maintain the formal differences between these things must lead to a conception of law as nothing more than authorisation for power, rather than the guarantee of liberty, equally to all.
The rule of law ensures that individuals have a secure area of autonomy and have settled expectations by having their rights and duties pre-established and enforced by law.
9.2.2 Access to Justice and Due process of the Law
Individuals can suffer or perpetrate wrong. Thus, the law provides for punishment of wrong-doers and protects individual besides offering an avenue for restitution.
Justice consists in upholding right behaviour and the courts can adjudicate between persons. Resort to the courts is only considered when a problem (a conflict) exists. The role of the judicial process is, therefore, the resolution of conflicts. Perfect justice cannot be dispensed by the state. The role of the courts is to deal with injustice once it has already occurred.
Justice consists in upholding that which is right and due as between persons. For this to be possible, a person should not be disadvantaged or punished except for fault (intentional, reckless or negligent wrong doing, strict liability applying in exceptional circumstances).
The idea of fault is the golden thread that runs through the fabric of the legal order. The whole of the common law relating to crimes, civil obligations and property rights is characterised by the notion that fault underlies punishment or deprivation. A system of sanctions based on fault presupposes known and pre-existing standards of conduct which bind the community.
The concept of justice also entails social justice which involves society and groups and requires the upholding of social welfare rights. For example, industrial relations system is fundamentally structured on notions of distributive justice. Consumer protection laws similarly disregard contractual rights and obligations in compensating losses incurred by consumers. In the field of family law, social justice pervades the annulment of marriages, grant of custody, award of maintenance and the settlement of property.
Due process as a facet of the rule of law emphasises on procedures. This is in acknowledgment that achieving equality, democracy, justice, the public good and other ideals through legislative and prescriptive action may be impossible. It is thus viewed that an emphasis on procedural justice will facilitate this to a large extent. Procedures provide for limitations on power.
It is the essence of due process that before judicial, legislative or executive decisions are taken, a series of checks and balances are in place to mitigate the possibility that the decisions will not be hasty, ill-conceived or based on corruption, passion, ideology or eccentricity.
Individuals therefore have rights which ensure that they are not disadvantaged except according to rules of procedure and evidence established by law, which ensure a fair trial.
These institutional safeguards give protection to the cluster of personal liberties associated with the criminal process, such as the right not to be imprisoned or held without trial, the right to be informed of charges and the right to be presumed innocent until proven guilty.
The rules of procedure, evidence and natural justice protect individuals from arbitrary governmental action and illegal deprivation of private rights. They are essential to the protection of individual rights of personal freedom and private property.
9.2.3 Restrictions on the Exercise of Discretionary Power
The keystone of the rule of law is the idea of the government of laws rather than the government of men. Hence, it requires legal control over human discretion in the exercise of governmental/public powers.
The existence of widespread discretion is directly inimical to the existence of a liberal order. Discretions need to be exercised on the basis of justice or some real justification or even of mere reason.
An unfettered discretion is an opportunity for temptation and for arbitrary, insolent, discriminatory, intrusive, socially engineering and corrupt, government.
Where there are fixed laws there is (more or less) certainty, there is certainly impartiality (equality before the law) and consistency. A person may stand upon his legal rights without fear or favour. Discretion, on the other hand, undermines justice.
Nonetheless, it is also essential for governance that some discretionary authority is given to some persons exercising state authority in order to ensure that governance is possible. Discretion may exist in the context of executive, judicial and legislative branches of the modern state.
9.2.4 Prospective Legislation
Laws should apply prospectively and not retrospectively. A person should never be made to suffer in law (criminal or civil) for an act which was not unlawful when he committed it. Retrospective legislation destroys the certainty of law, is arbitrary and is vindictive, (being invariably directed against identifiable persons or groups). Such laws undermine many characteristics of the rule of law.
9.2.5 Independent of the Judiciary
Independence of the judiciary was inextricably linked to the system of formal courts.
The most elaborate system of rights, remedies and procedures would be of little use when there is no independent, impartial and competent judiciary. Without jurisdiction to administer, the law is purely academic and without a proper judiciary, the jurisdiction to administer is purely oppressive.
In order to have a proper judiciary, properly exercising its jurisdiction, several things are necessary. They fall into three broad groups which generally overlap to a certain extent. These include:
(a) Technical competence;
(b) Commitment to sound ideals; and
(c) Institutional (and therefore, personal) independence.
The independence of the judiciary has been ensured by the judges' security of tenure as well as the judiciary's own distinguished traditions of learning, integrity and technique and the law of contempt.
Although formal courts may be largely independent, the proliferation of a vast array of tribunals which are administrative in nature may challenge the notion of independence in adjudication. These administrative tribunals, which determine countless privileges and deprivations, are incidents of the modern welfare state. But the tribunals are structurally prone to ideological manipulation and many of them are in fact directed by law to make decisions based on ideologically determined criteria. Thus, judicial control may also be required in the exercise of these judicial powers by organs that are not purely judicial.
9.2.7 An underlying moral basis for all law
Analyses of the rule of law will not generally refer to the moral dimension.
There is in education, media, politics and even from within the church and its agencies an attack on traditional morality. The conflict is not between traditional morality and values neutrality. It is between one moral order and another the values of the new moral order include: autonomy for the individual, equality and social justice. If law is not based on morality on what can it be based?
9.3 The Bases for Rule of Law in the Kenyan Constitution
Preamble - Recognises the aspirations of all Kenyans for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law.
Sovereignty of the People Article 1, the power belongs to the people of Kenya and shall be exercised only in accordance with the Constitution.
Supremacy of the Constitution Article 2 makes the constitution binding to all individuals and state organs.
National values and principles of governance The national values in article 11 includes the rule of law.
Protection of human rights Chapter V of the Constitution.
Responsibilities of leadership Article 73 vests in the State officer the responsibility to serve the people, rather than the power to rule them.
Independence of the Judiciary Article 160 provides for the independence of the Judiciary.
National Security - Chapter Fourteen of the Constitution provides for national security organs to maintain both internal security and external defence.
Access to justice Art 258(1) supplies every person with the right to institute court proceedings, claiming that this Constitution has been contravened, or is threatened with contravention. Similar provision are found with regard to protection of human rights in chapter 5.
Construing this Constitution Article 259 supplies that the Constitution shall be interpreted in a manner that advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights.
Session 10
Protection of Fundamental Rights and Freedoms in Kenya
10.1 Introduction
Human rights, otherwise referred to as fundamental rights or freedom of individuals, are a set of universal entitlement that each individual enjoys by virtue of being human. They are universal, indivisible and inalienable norms. The rights are shared equally by everyone regardless of sex, race, nationality and economic background.
Although their universality, indivisibility and inalienability may be questioned on account of the wide violations of recognised values of human rights around the world, the truth is that mere non-compliance and indeed derogation from the law can never invalidate a law, and therefore, however much they are violated, these rights remain the pillar upon which the orderly existence of all civilised societies is hinged.
These guarantees of human rights are normally articulated in legal instruments and enshrined in constitutional documents, but even the absence of this does not negate their existence. It is this that gives the study of constitutional law broader connotation than the mere analysis of the particular provision of the Constitution of any country. There is a far broader material source from which to tap if constitutional protection of human rights will have the essence it bears.
10.2 The Material Sources of the Constitutional Protection of Human Right in Kenya
10.2.1 The Constitution
The primary material source of the human right is, of course, the Constitution. Nonetheless, the current Kenya Constitution itself bases its authority on the people and Article 19(3)(a) makes it abundantly clear that the rights and fundamental freedoms in the Bill of Rights belong to each individual and are not granted by the State. It can, therefore be validly argue that the constitutional regime in Kenya follows the truism that human rights are not man-made or granted by the law but are inherent in all human beings by virtue of them being human.
After a successful referendum in 2010, a new Constitution was adopted in Kenya, repealing the old dispensation that had existed since independence from Britain in 1963; albeit with a large number of amendments.
Although the repealed Constitution contained a Bill of rights which, as we shall see shortly, enshrined Fundamental Rights and Freedoms, the adoption of a new Constitution in 2010 was hailed as a success to the human rights cause that Kenyans had long fought for. It was deemed that the new law would ensure greater protection not just for the law abiding citizens, but also for those that the society deemed to have infracted on societal values thereby warranting criminal sanction, as well as in the process of determination of whether such individuals were actually guilty of the wrong they had been accused of.
It is quite interesting that the repealed Constitution which was formulated outside the country during the Lancaster House negotiations contained quite a progressive and vibrant Bill of rights. An impetus for this may have been found in the international protection that had come to the fore after the II World War and it was not surprising that the Bill of right was adopted at a time when negotiations were underway at the United Nations Organisation for the adoption of binding international instrument for the protection of human rights in line with the provisions of the Universal Declaration of Human Rights (UDHR).
Chapter V of the repealed Constitution was aimed at ensuring protection of human rights in general with Section 70 therein providing the basis for protecting fundamental freedoms in the following terms:
Whereas every person in Kenya is entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever his race, tribe, place of origin or residence or other local connection, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely -life, liberty, security of the person and the protection of the law all of the following...
(a) Life, liberty, security of the person and the protection of the law;
(b) Freedom of conscience, of expression and of assembly and association; and
(c) Protection for the privacy of his home and other property and from deprivation of property without compensation,
We shall return to these protections in a shortly, but other sources of the human rights protection beside the constitution need to be considered.
10.2.2 International and Regional Legal Systems
Besides the Constitution, another source of human rights from which Kenyan judges can tap is international and regional human rights instruments. As a feature of the system under the repealed Constitution, Kenya was a dualist State. Thus, it was the case that for international law to form part of the body of national law to be applied by the Kenyan courts, Parliament had to expressly adopt the instrument entrenching values of international law into the municipal system. This was done either by a direct annexation of the Treaty through a statute. International humanitarian law was, for example, incorporated into the national law by annexing the four Geneva Conventions of 1948 to the Geneva Convention Act. Under this Act, one could, for instance, appeal to the values contained in international humanitarian law treaties that even in time of armed conflict, the State should not derogate from implementing its obligations relating to ensuring that individuals enjoy the rights to a fair trial.
Another way of incorporating treaty provisions to the municipal system was through the re-enactment of the contents of an international instrument into the national law. In this mode, Parliament would not specifically adopt the international instrument, but would enact its own statute taking into account the principles contained in the relevant international treaty. Hence, the long title of the Childrens Act indicates that the law was adopted to give effect to the principles of the Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child and for connected purposes. Children in conflict with the law could, therefore, appeal to the Act in times of trial to ensure that they were not incarcerated in intimidating conditions that could prevent them from adequately defending themselves.
The 2010 Constitution now expressly provides that international law binding upon Kenya automatically becomes the law a part of Kenyan law. But even before this direct incorporation of provisions of international treaties to Kenyan law, international law had had great values to the countrys justice system. Developments in international law regarding the protection of human rights were quite instrumental to the adoption of the Bill of rights at the Lancaster House Conferences that ushered in Kenyans independence. Moreover, even within the dualist scheme, Court could, for example, actually utilise their provisions of these treaties where there were ambiguities in the law regarding the protection to be accorded to individuals.
Further acknowledgement of the relevance of international law to the protection of human rights in general in Kenya was evidenced by the adoption of various instruments containing provisions on human right by an independent Kenya. Three examples may be illustrative with regard to the right to a fair trial. The first one is the international Covenant on Civil and Political rights (ICCPR) to which Kenya acceded on 1 May 1972. Article 14 of the ICCPR provides that:
All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.
This instrument goes on to elaborate how accused individual ought to be safeguarded by member States when they appear before a court along with some limitation in a manner quite similar to the constitutional provisions in Kenya highlighted above. As a mechanism of enforcing the ICCPR, member States are obliged to submit periodical reports on the progress they have made in ensuring the enjoyment of human rights in their country to the Human Rights Committee and are questioned where an issue of concern comes up. When Kenya submitted her second periodic report in 2004 which was considered on 14 March 2005, the commission sought additional information regarding the constitutional or legal provisions underpinning the decision to remove more than 60 judges from office in what came to be known as the radical surgery of the Judiciary, underscoring the need for independence of the Judiciary, which is one of the tenets of the rights to a fair trial.
Furthermore, as a way of promoting compliance, the Human Rights Committee also publishes its interpretation of the content of human rights provisions, known as general comments on thematic issues or its methods of work. Under article 14, the Human Rights Committee has published General Comment on the Right to equality before courts and tribunals and to a fair trial, a source that was available to the Kenyan judges during criminal trials.
The second important instrument which contains provisions for the protection of the rights of accused individuals to a fair trial, to which Kenya is a party, is the African [Banjul] Charter on Human and Peoples' Rights adopted in Nairobi on 27 June 1981. Under article 7, every individual shall have the right to have his cause heard, comprising of the right to be presumed innocent until proved guilty by a competent court or tribunal; the right to defence, including the right to be defended by counsel of his choice; and the right to be tried within a reasonable time by an impartial court or tribunal among others.
For the enforcement of rights under it, the Banjul Charter has established the African Commission on Human and Peoples' Rights which, like the Human Rights Commission, has also published interpretation on the content of the right to a fair trial in the form of Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa to ensure the right to a fair trial are enjoyed by individuals. The Commission similarly receives periodic reports from member States and gives Concluding Observations. Kenya submitted her first report under the African Charter in June 2006 which was considered during the Committees ordinary session held between 16 and 30 May 2007.
Notable of the African system, a protocol to the Charter has now established the African Court on Human and Peoples' Rights to complement the protective mandate of the African Commission. In the exercise of its mandate, this Court is empowered to not only apply the Charters provisions, but to also look at any other relevant human rights instruments ratified by the States concerned in a particular case. With this is the Courts jurisdiction to make final and binding decisions on human rights violations.
Only at its inception, so far, no case has been brought before this Court where the right to a fair trial was in question. It is however arguable that when fully operational, the Court will play an important role in the protection of accused individuals especially in light of its extended mandate to apply all instrument that the State is party to.
A third international instrument of relevance to Kenya in the protection of the right to a fair trial worth noting is the Rome Statute of the International Criminal Court. The relevance of this instrument has been underscored by the commencement of two cases by the Prosecutor of the Court it establishes against six individuals suspected to be most responsible for the post-election violence following the turmoil that rocked Kenya at the end of 2007 and in the beginning of 2008. Kenya ratified the Rome Statute on 15 March 2005 and, pursuant to article 126(1), the Statute entered into force for that State on 1 June 2005 giving the International Criminal Court jurisdiction over international crimes that were committed in Kenya after that time. During the post election period, after the failure of the national Judicial system to address the large-scale violence, international assistance in the form of the Panel of Imminent African Personalities chaired by Koffi Annan (the former UN Secretary General) backed by the African Union (AU) and supported by the UN was called in ultimately leading to the intervention by the ICC.
The Rome Statute contains elaborate provisions to afford fair trial to accused individuals. Article 68 stipulates the rights of the accused. It supplies that, In the determination of any charge, the accused shall be entitled to a public hearing, having regard to the provisions of this Statute, to a fair hearing conducted impartially, and goes on to enumerate the minimum guarantees that the accused persons ought to enjoy in full equality. Thus, at the initial hearing of the Kenyan cases by the ICC, on the request of the defence for all evidence by the prosecution against the defendants, it was held that this was part of the right that defendants have and requires that those materials be supplied as soon as possible even prior to formal indictments against the suspects.
From the foregoing, it is clear that international law has had great relevance to the development of the jurisprudence of the right to a fair trial that is binding upon Kenya. It may even be argued that even before the adoption of the new Constitution, individuals in Kenya had further recourses to international law when the municipal system fell short of the adequate protection meeting international standard. It is, however, surprising that not many people actually resorted to either the regional or international structures when their rights were violated.
10.2.3 Statutes
In addition to and supplementing the Constitution and international treaties, statutory provisions have been central to the protection human rights. Under the repealed Constitution, section 84 (5) gave Parliament authority to confer upon the High Court additional powers necessary or desirable for the purpose of enabling that Court, more effectively, to exercise the enforcement of human rights jurisdiction. These powers were essentially conferred by the Evidence Act the Civil Procedure Act, and Criminal Procedure Act, among others. These statutes are still in force even under the new Constitution although it is anticipated that they will, in due course be amended to make them conform to the new dispensation.
Again using the example of the right to a fair trial, the Evidence Act contains protection against self incrimination by providing that confessions or admissions of a fact tending to the proof of guilt made by an accused persons are not admissible and cannot be proved as against such person unless it is made in court, before a judge; a magistrate or before a police officer (other than the investigating officer) of a rank not bellow the Chief Inspector of Police, and a third party of the person's choice. However, under section 156, a co-accused called as a defence witness may be asked any question in cross-examination notwithstanding that the answer may incriminate him.
Further, the Evidence (Out of Court Confessions) Rules, 2009 made under this section 25A of the Act clarifies the safeguard against self incrimination by ensuring that information is available both to the accused and the police officers that there exist rules to protect the accused during confession, and makes it clear that confession shall be without coercion, and in a language that the accused is comfortable with, with a legal representation available, and provides the form in with such confession shall be made and recorded to avoid intimidation of the accused.
The protection against self incrimination extends to the calling of a wife to give evidence against a husband in certain circumstances, and also to witnesses, whose evidences in one case cannot be used against them in other trials. This right also grants advocates the privilege against being compelled to disclose communications with their client and vice versa.
On the presumption of innocence, section 111 puts the burden of proof on the prosecution, save where the law creating the offence reverses this position. And an accused is entitled to immediate acquittal if the court is satisfied that the evidence given by either the prosecution or the defence creates a reasonable doubt as to the guilt of the accused person in respect of that offence.
The Criminal Procedure Code also stipulates for a number of procedural protections to the accused person. Section 77 provides for trials to be conducted in an open court to which the public generally may have access, but the presiding judge or magistrate may the public generally or any particular person access to court. Further, for certain offences, the section provides for private hearing.
Right to adequate information of accusation is provided. Every charge, under the Act, has to contain sufficient information including a statement of the specific offence with which the accused person is charged and necessary particulars as to the nature of the offence, and except as otherwise expressly provided, all evidence under the Code has to be taken in the presence of the accused, or, when his personal attendance has been dispensed with, in the presence of his advocate, and the evidence has to be interpreted to the accused and/or his/her advocate.
Judgments, under the Act have to be explained in open court either immediately after the termination of the trial or at some subsequent time, of which notice shall be given to the parties and their advocates. The whole judgment may be read out by the presiding judge or magistrate if he is requested so to do either by the prosecution or the defence, in the presence of the accused, except where his personal attendance during the trial has been dispensed with and the sentence is one of a fine only or he is acquitted, and a copy of the judgment, or, when he so desires, a translation in his own language, if practicable, shall be given to the accused without delay.
Section 138 protects an individual from double jeopardy, but a person may nevertheless be tried again for a separate offence.
Right to adversarial proceeding is provided for in section 155 and the parties to a proceeding may forward interrogatories in writing which the court may examine the witness upon those interrogatories, and the parties may appear by advocate, or in person, to examine, cross-examine and re-examine the witnesses.
An accused is granted the right be defended by an advocate under section 193; and Part XI provides for the right to appeal. There is also a right of second appeal from the decision of a High Court to the Court of Appeal on a point of law.
Beside the Acts, there exist a number of subsidiary legislations which impact directly on the right to a fair trial. Of great relevance are the Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) High Court Practice and Procedure Rules, 2006; the High Court (Practice and Procedure) Rules; and the Court of Appeal Rules.
Indeed, section 84 (6) of the repealed Constitution gave the Chief Justice power to make rules with respect to the practice and procedure of the High Court in relation to the jurisdiction and powers conferred on it by or under this section (including rules with respect to the time within which applications may be brought and references shall be made to the High Court). In this regard, the Chief Justice made the Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) High Court Practice and Procedure Rules, 2006, which replaced the earlier Rule in Legal Notice. These Rules have been saved by the new Constitution until others are made to supersede it.
Moreover, the High Court (Practice and Procedure) Rules made under Section 10 of the judicature, among other things, provides for the time and sitting of the High Court and access to the achieves of the Court by the parties to a matters, as relevant facts in establishment of fairness in trial procedures. These are indeed relevant to the expediency of determinations by the court and also affect the right of one to appeal as shall be seen shortly. And the appeals to the Court of Appeal are made under the Court of Appeal Rules, under the Appellate Jurisdiction Act. Various Rules in this subsidiary legislation are directly aimed at protection of the rights to a fair trial. Rule 24 grants the Chief Justice or the presiding judge power to assign an advocate to represent an applicant or appellant if it appears desirable in the interests of justice. Rule 28 provides for an open hearing where all members of the public have access. But the presiding judge may, in exceptional circumstances, direct that the public be excluded, if he is satisfied that national security or the interest of justice so require.
Rule 38 is also relevant to the fair trial process in criminal matters. In appeal cases, the trial court is normally required to give a certificate that the case is a fit case of appeal, and unless an appeal lies as of right, leave of the Court has to be sought before it is lodged.
The procedure of setting an appeal is also provided. Under Rule 58, a person desiring to lodge an appeal to the Court of Appeal shall give notice in writing to the registrar of the superior court at the place where the decision against which it is desired to appeal was given, within fourteen days of the date of that decision, and the notice of appeal shall institute the appeal. The notice of appeal has to state the nature of the acquittal, conviction, sentence or finding against which it is desired to appeal, and gives an essence that in original trials, the right of appeal ought to entail that copies of the judgment be expediently provided to the parties for use in the appeal process.
Altogether, these legislations were aimed at giving effect to the Constitutional provisions on the right to a fair trial that individuals could resort to during criminal proceedings and sometimes even added to the constitutional provisions for the protection of this right.
10.2.4 Common Law and Doctrine of Equity
Further, even before the commencement of the new Constitution, human rights found a firm grounding on the principles of common law and doctrine of equity. Under the Judicature Act, it was provided that insofar as those written laws do not extend or apply, courts shall be guided by the substance of the common law and the doctrines of equity.
Noteworthy in this provision, the Act in the same vein as common law and equity also provides that statutes of general application in force in England and the procedure and practice observed in courts of justice in England on the 12 August 1897 are to guide the courts in their determination of disputes. In this light, it may be argued that principles adopted by common law from its formative years, for example, to protect accused individuals during trial may be applied by the courts to fill in on any ambiguity that may exist in the written law. It follows that Kenya courts could tap not only from the English system, but also from other common law jurisdictions in case of inadequacy in the written law to offer effective protection to individuals accused of criminal offences.
It is therefore informative that principles within the general body of norms of fair trial have a firm grounding in the common law which has articulated them from very early times. Procedural rights have, for example, been discussed under the common law doctrine of natural justice as well as in the American constitutional doctrine of due process.
Historically in England, the bulk of legal principles by which the exercise of public power may be qualified were supplied by the common law. Here, most of the procedural protections were accorded to individuals under the principle of Natural Justice as part of the constitutional order, although these rights have now been expressly incorporated into system by the Human Rights Act, 1998, which makes the European Convention on Human Rights part of English law.
On fair trial, natural justice requires that decision-makers act without bias (nemo judex in causa sua), and allows those affected by the decision to be heard (audi alteram partem). This is in order to secure the procedural rights of an individual involved in any judicial or quasi-judicial process. It would thus offend natural justice if a decision-maker had some interest in the matter in question, since justice must not only be done, but must also be seen to be done. A real possibility of bias from the view-point of a fair-minded and informed observer would invalidate a decision rendered by an interested party even if no actual bias was shown. This underpins the fair trial tenets that judgement ought to be made in public, and be open to scrutiny.
In the US, fair trial rights for persons accused of criminal offences were encapsulated under the due process doctrine. In Chambers v. Florida, Justice Black construed fair trial to prohibit the punishment of persons in criminal cases until there [had] been a charge fairly made and fairly tried. The Supreme Court then used the due process clause of the fourteenth amendment to elaborate on the constitutional essence of the fair trial rights in the sixth amendment which provided that:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favour, and to have the Assistance of Counsel for his defence.
Within this provision therefore, convictions have to be made within the law; which has to be well applied, in good faith and within the confines of the constitution and conventions. Convictions based on vague statutes, no evidence, perjured testimony, suppressed evidence, or false evidence would clearly violate due process in the US.
Thus, under the scheme of common law and doctrine of equity, the right to a fair trial has finds ample articulation capable of supplementing written law provisions.
10.3 The Constitutional Rights
At the drafting of the Universal Declaration of human Rights, one of its architects Rene Cassin from France identified the central tenets of human right. Drawing from the example of the French revolution, he identified the four pillars of the declaration as dignity, liberty, equality and brotherhood. It is from these pillars that the twenty seven articles of the Declaration were drawn and still exemplify how human rights are currently protected universally.
Some of the rights contained in the 2010 Kenyan Constitution include:
10.3.1 Human dignity
It has been argued that it is the value of human dignity that anchors the enjoyment of human rights. Although the repealed Constitution had no express provision, article 28 now directly enshrines this value. It provides that, Every person has inherent dignity and the right to have that dignity respected and protected.
10.3.2 The Right to Life
Article 26 of the 2010 Constitution provides that every person has the right to life. This is similar to section 71 of the old law that provided that, No person shall be deprived of his life intentionally save in execution of the sentence of a court in respect of a criminal offence under the law of Kenya of which he has been convicted.
Under the 2010 Constitution, the life of a person begins at conception and therefore, the protection of this right commences when a child is conceived. This clause was included in the text of the Constitution on the insistence of religious leaders and other persons who were worried that non-clarification could imply permissiveness for abortion a thing that is abhorred in a country which is quite religiously inclined. This was emphasise further by sub-clause (4) which supplies that Abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law.
Just like the old Constitution, article 26 further provided that a person shall not be deprived of life intentionally, except to the extent authorised by this Constitution or other written law.
10.3.3 Equality and freedom from discrimination
A fundamental provision that is aimed at the protection of every other right is the freedom of individual from discrimination. It envisages the full and equal enjoyment of all rights and fundamental freedoms by every person.
Article 27 of the 2010 Constitution stipulates that Every person is equal before the law and has the right to equal protection and equal benefit of the law. Under the old Constitution, non-discrimination was protected by section 82 inserted by section 9 of Act 9 of 1977.
The State cannot discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. Equally individuals are prohibited from discriminating others directly or indirectly on these grounds. Thus, in Madhwa v. City Council of Nairobi it was held that discrimination made between Africans and non-Africans was unconstitutional. However, in Fernandes v. Kericho Liquor Licensing Court, the High Court held that citizenship could not have been contemplated as the ground for nullification of the grant of liquor license.
With regard to gender, equality implies that women and men have to be treated equally, including being accorded equal opportunities in political, economic, cultural and social spheres. This may dictate affirmative action to ensure that equality is achieved where historically one group has been favoured. The Constitution itself, for example, provides for women-only constituencies in the form of the county for representatives to the National Assembly and for the nomination of women to the Senate.
Non-discrimination provision under the repealed Constitution was applicable only against the State or State officials and public organs. Individuals were thus not directly prohibited in their personal capacities from discriminating others. Laws that discriminated against foreigners were permitted by the repealed Constitution. Discrimination with respect to adoption, marriage, divorce, and burial, devolution of property on death or other matters of personal law was and other items of customary law was also allowed.
10.3.4 Right to Liberty, Security of the Person and Freedom from Torture
Section 72 of the repealed Constitution provided the right to liberty to individuals, while section 74 accorded protection from inhuman treatment. In Republic v. Danson Mgunya, for example, it was held that:
Liberty is precious and no ones liberty should be denied without lawful reasons and in accordance with the law. Liberty should not be taken for granted... We must interpret the Constitution in enhancing the rights and freedoms granted and enshrined, rather than in any manner that curtails them. Each case must be decided in its own circumstances touch and context.
One of the ways in which to ensure that liberty is not limited is by the grant of bail pending trial. Since a correlated right is that the accused is presumed innocent until proved guilty, then, even for suspected offenders liberty should be guaranteed. Under the old constitutional system, every accused person was entitled to bail except those accused of capital offenses including murder, robbery with violence and treason. In Republic v. Muneer Harron Ismail & 4 Others (H.C. Criminal Revision No. 51 of 2009), Warsame J. Held that:
In deciding whether or not to grant bail, the basic factor or denominator is to secure the attendance of the accused person to answer the charges brought against him. The court has to take into consideration various factors and circumstances; and one paramount consideration is whether the release of the individual will endanger public security, safety and the overall interest of the wider public.
However, these rights were, under the old Constitution were subjected to a lot of restrictions. In Kioko v. Republic, for example, it was held that a statute is not void for taking away the individuals liberty in the interest of public order. Kioko had been charged under a statute controlling the movement of tramps, loiterers and vagabonds. Arguably, such a statute cannot stand under the new Constitution which now under article 29 broadens this right and provides that:
Every person has the right to freedom and security of the person, which includes the right not to be
deprived of freedom arbitrarily or without just cause;
detained without trial, except during a state of emergency, in which case the detention is subject to Article 58;
subjected to any form of violence from either public or private sources;
subjected to torture in any manner, whether physical or psychological;
subjected to corporal punishment; or
treated or punished in a cruel, inhuman or degrading manner.
Further, Article 49(1)(h) of the 2010 Constitution provides that, an arrested or detained person has the right to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released. And pursuant to the provisions of Article 24 (1) (d) of the Constitution;
A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including
...
(d)The need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others.
It is in this light that in Aboud Rogo Mohamed & another v Republic,the High Court was willing to grant persons suspected of being members of the Al Shabab terrorist organisation bail.
10.3.5 Freedom from Slavery, servitude and forced labour
To be a slave is to be controlled by another person or persons so that your will does not determine your life's course, and rewards for your work and sacrifices are not yours to claim. According to Kevin Bales, one of the world's leading experts on contemporary slavery, "people are enslaved by violence and held against their wills for purposes of exploitation." While people today most likely believe that slavery is a thing of the past, the practice is still thriving wherever poverty, social conditions, and gullability can be exploited. Bale estimates that there are 27 million slaves in the world today.
The International Labour Organisations Slavery Convention of 1926 in Article 1.1 defined slavery as, the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised. The convention defined slave trade as:
All acts involved in the capture, acquisition or disposal of a person with intent to reduce him to slavery; all acts involved in the acquisition of a slave with a view to selling or exchanging him; all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged, and, in general, every act of trade or transport in slaves by whatever means of conveyance.
In 1930, the 1926 Convention's definition of slavery was broadened to include forced or compulsory labour by the ILO Convention No. 29 Concerning Forced or Compulsory Labour.
10.3.6 Rights of arrested persons
Section 72 of the repealed Constitution also offered procedural protections to ensure that individuals were not deprived of their personal liberty except as the law had authorized. Thus, it provided that arrested or detained persons were to be informed as soon as reasonably practicable and in the language they understood, of the reasons for arrest or detention. Further and closely related to the trial within reasonable time, such persons also had the right to be brought to a court as soon as it was reasonably practicable. This was normally within twenty-four hours of arrest or detention (or within fourteen days in case of suspicion of capital offence). Any delays had to be justified by the arresting authority. In Anne Njogu & & 5 others v. Republic, the applicants were arrested and no attempt was made to bring them before any court, until three days later when they were taken to the Chief Magistrates Court in Nairobi. In the meanwhile, they applied to the High Court under sections 72 and 77 of the repealed Constitution claiming that their rights to be brought before the court and tried within a reasonable time had been violated. It was held that the constitutional rights of the applicants had indeed been violated by their continued stay in detention and orders for their immediate release made.
Jurisprudence developed that a violation of the of the accused persons rights to be brought to court within reasonable time would automatically lead to an acquittal. In Albanus Mwasia Mutua v. Republic, and in Republic v. James Njuguna Nyaga, it was held that upon determination that the applicants rights had been violated, and prosecution against them would be null and void; that there is as yet NO known cure for the nullity that results from attempted prosecution of any person, whose rights had been violated.
10.3.7 The Right to a Fair Trial
Article 50, titled Fair hearing, provides that Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body. Sub-clause (2) then goes to deal specifically with the rights of an accused individual in a criminal suit which largely emphasise similar rights as those found it the repealed Constitution with a distinction that, firstly, the accused persons are now entitled to have an advocate assigned to them by the State and at State expense, if substantial injustice would otherwise result.
Under the repealed Constitution, the substantive protections of the right to a fair trial were contained in section 77 which provided for legal protection in both civil and criminal trials. In criminal trial, it was provided that the accused persons had to be afforded a fair hearing within a reasonable time by an independent and impartial court established by law unless the charge was withdrawn. The entails of these provisions were further extrapolated in subsequent parts of that section including specifically:
The essence of an open trial;
The presumption of innocence until one was proved or had pleaded guilty;
The right to all information, from the time one was arrested until the end of the proceedings;
Individuals right to effectively defend themselves including the rights to be given adequate time and facilities for the preparation of defence, and the choice whether to lodge personal defences or to use a legal representative of ones own choice;
The right of the accused individuals to confront the accusation against them through examination and cross-examine witnesses;
The right to an interpreter if one could not understand the language used at the trial of the charge;
The rights against ex-post facto application of legal provisions;
The right against double jeopardy;
The right against self-incrimination; and
The right of appeal.
10.3.8 Freedom of conscience, religion, belief and opinion
Article 32 of the 2010 Constitution establishes that every person has the right to freedom of conscience, religion, thought, belief and opinion. This right is to be enjoyed by each person either individually or in community with others; in public or in private. According to this provision, it may be manifested, through worship, practice, teaching or observance, including observance of a day of worship. A person cannot be denied access to any institution, employment or facility, or the enjoyment of any right, because of the persons belief or religion and cannot also be compelled to act, or engage in any act, that is contrary to the persons belief or religion.
Similarly, section 78 of the repealed Constitution provided for the freedom of conscience and sought to preclude the courts and other public organs from interfering with the freedom of conscience including the freedom of religion, freedom to change belief and freedom to exercise and propagate ones religious belief in public. The freedom included the right to belong to a religious denomination if it did not breach the law. Thus, formation of religious organisations requires registration under the Societies Act. Such societies cannot be allowed if their aim includes defrauding the public by illegal solicitation for funds, to practice magic or otherwise harm the public. It is in this light that Bishop Deyas denomination that was embroiled in the miracle babies saga, the Finger of God sect and the Mungiki were banned. Parliament has now passed the Prevention of Organised Crimes Act, Act No. 5 of 2010 to proscribe certain organisation among them those that masquerade as religious groups.
10.3.9 Right to Property
Article 40 of the 2010 Constitution secures every persons the right, either individually or in association with others, to acquire and own property of any description in any part of Kenya. Parliament cannot enact a law that permits the State or any person to arbitrarily deprive a person of property or to limit or restrict the enjoyment of the right to property on the general grounds of discrimination.
The State cannot deprive a person of property unless the deprivation results from an acquisition of land in accordance with the provisions of Chapter Five; or is for a public purpose or in the public interest and is carried out in accordance with this Constitution and any Act of Parliament that requires prompt payment in full, of just compensation to the person; and allows access to a court of law in case of discontentment.
Property that has been found to have been unlawfully acquired is not however protected. Under the repealed Constitution, the Protection from deprivation of property was contained in section 75 that was modified by amendment done by s. 3 of Act 13 of 1977.
10.3.10 Economic and social rights
In most jurisdictions, economic, social and cultural rights are not litigable. They are considered as directive principles of State policies that are aimed at progressive realisation of these rights.
The old Constitution of Kenya did not directly recognise these set of rights, but now, article 43 of the 2010 Constitution provides that every person has the right to the highest attainable standard of health, which includes the right to health care services, including reproductive health care; to accessible and adequate housing, and to reasonable standards of sanitation; to be free from hunger, and to have adequate food of acceptable quality; to clean and safe water in adequate quantities; to social security; and to education.
A person cannot be denied emergency medical treatment under this provision.
Further, the State is obligated to provide appropriate social security to persons who are unable to support themselves and their dependants.
10.3.11 Other Rights
Right to Privacy (and the Protection against arbitrary search or entry under the old Constitution);
Freedom of expression;
Freedom of the media;
Right to access to information;
Freedom of association;
Freedom of assembly, demonstration, picketing and petition and labour relations (arts 37 & 41);
Political rights;
Freedom of movement and residence;
Right to language and culture;
Right to found a family; and
Right of access to justice.
10.4 Specific application of rights
One invention of the new Constitution is the clarification of right of special categories and groups of persons that have normally been disadvantaged or vulnerable. These includes Children, Persons with disabilities, Youth, Minorities and marginalised groups; and Older members of society.
10.5 Enforcement of Human Rights
During court proceedings one can demand for the upholding of their fundamental rights. E.g. during criminal trial, through application for bail to facilitate the preparation of effective defence (Aboud Rogo Mohamed & another v Republic Criminal Case No 793 of 2010 [2011] eKLR);
By an application for the enforcement of fundamental freedom under article 22 of the 2010 Constitution. Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened. In the repealed Constitution, this was possible under s. 84;
By constitutional references to the High Court;
Through Public interest litigation - Under article 22(2), In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by either (i) a person acting on behalf of another person who cannot act in their own name; (ii) a person acting as a member of, or in the interest of, a group or class of persons; (iii) a person acting in the public interest;
Through appeals to the superior courts in case of dissatisfaction with the ruling of the trial court on issues related to human rights.
Through a complaint to the Responsible Constitutional Commission e.g. the Kenya National Human Rights and Equality Commission, the Ombudsman, the Gender Commission, The Civilian Police Oversight Commission etc. Currently, these Commissions exist under the Constitution.
Enforcement through Specialised Tribunals - It has been held that the Industrial Court has jurisdiction to determine applications for enforcement of rights and fundamental freedoms. United States International University v. Attorney General & 2 Others, the Constitutional Court held that the Industrial Court had jurisdiction to enforce not only labour rights in Article 41, but also all fundamental rights ancillary and incidental to the employment and labour relations including interpretation of the Constitution within a matter before it. Thus, Justice Majanja ruled that all employment and labour relations matters that raised constitutional issues filed in the High Court prior to the establishment of the Industrial Court should be transferred to the Industrial Court. The Judge was of the view that it was important to consider the Constitution as a whole and that all provisions bearing upon a specific issue should be considered together. In his view the jurisdiction of the High Court was not governed by Article 23 but by Article 165 and the conferring of the Industrial Court the Status of the High Court as superior courts was covered by Article 165 to the extent of labour and employment rights. The
High Court further observed that to exclude the jurisdiction of the Industrial Court from dealing with any other rights and fundamental freedoms howsoever arising from the relationships defined in section 12 of the Industrial Court Act, 2011, or to interpret the Constitution, would lead to a situation where there would be parallel jurisdiction between the High Court and the Industrial Court. According to the Judge, that would give rise to forum shopping thereby undermining a stable and consistent application of employment and labour law. In view of the aforesaid the High Court adopted the position of the Constitutional Court of South Africa in Gcaba v Minister of Safety and Security and Others, where it was held that the Industrial Court was a specialist court to deal with employment and labour relations matters. The High Court therefore held that, the Industrial Court as constituted under the Industrial Court Act, 2011 as court with the status of the High Court was competent to interpret the Constitution and enforce matters relating to breach of fundamental rights and freedoms in matters arising from disputes falling within the provisions of section 12 of the Industrial Court Act, 2011.
Furthermore, justice Majanja was of the view that since the Industrial Court had been established to deal with employment and labour matters, the High Court lacked jurisdiction to deal with matters of employment and labour relations matters whether filed in the High Court before or after the establishment of the Industrial Court.
In any proceedings brought under Article 22, the High Court may grant the following reliefs where appropriate.
a declaration of rights;
an injunction;
a conservatory order;
a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24;
an order for compensation; and
an order of judicial review.
This is under the writ jurisdiction of the court which may give a writ of:
Habeas Corpus;
Certiorari;
Mandamus; and
Prohibition.
