TOPICS COVERED:
1. WHAT IS A CONSTITUTION
2. SUPREMACY OF THE CONSTITUTION
3. CONCEPT OF INDEPENDENT JUDICIARY
4. THE CONCEPT OF CONSTITUTIONALISM
5. REMEDIES FOR BREACH OF THE CONSTITUTION AND CONSTITUTIONAL RIGHTS
6. SYSTEM AND STRUCTURE OF GOVERNMENT; CONTEXT AND CONSTITUTIONAL FOUNDATIONS OF DEVOLVED GOVERNMENT OF KENYA
7. THE CONCEPT OF DECENTRALIZATION
The term constitution can be construed narrowly and broadly. From a limited perspective, Wade and Bradley define a constitution as;
a document having special legal sanctity which set outs the framework and the principal functions of the organs of government within the state and declares the principles by which those organs operate.[1]
This definition presupposes a written document known as a constitution. Accordingly, Kenya, South Africa, United States of America, just to mention are countries that have a document known as a constitution. Kenya promulgated its current constitution on 27 August 2010 which document fits the definition above; it has a legal sanctity that cannot be questioned, it creates Kenya as State, its organs and institutions and ascribes their values and principles.
By dint of this definition, one could easily argue that countries such as the United Kingdom and Northern Ireland do not have a constitution. As Wade and Bradley observe, it is because in UK, there is no single document from which is derived the authority of the main organs of government, no single document that lays down the relationship of the main organs of government with one another or with the people.
This then justifies the need to define and understand a constitution from the broader perspective. Bolingbroke broadly defines a constitution as follows;
By constitution, we mean, whenever we speak with propriety and exactness, that assemblage of laws, institutions and customs, derived from certain fixed principles of reason that compose the general system, according to which the community has agreed to be governed.[2]
Accordingly, the UK and Northern Ireland indeed do have constitutions. Their constitution is found not within a single document but from key Acts of parliament, judicial decisions, constitutional conventions, accepted rules of behavior, unwritten maxims of the constitution amongst other sources. The basic principle being that people have agreed to be governed in accordance to the said principles which also, diverse in their nature, create institutions of governance.
In the case of Rev Dr Timothy Njoya and 6 other v the Attorney General and 3 others, Ringera J as was then, described the constitution in the following words,
It is a living instrument with a soul and consciousness; it embodies certain fundamental values and principles and must be construed broadly, liberally and purposely or teleologically to give effect to those values and principles
Similarly, in the case of Crispus Karanja Njogu v Attorney General, the court that this to say about the constitution,
The court must appreciate throughout the constitution, of necessity, has principles and values embodied in it; that a constitution is a living piece of legislation. It is a living document.
Hilaire Barnett also describes a constitution broadly as, ‘a living, dynamic organism which at any point in time will reflect the moral and political values of the people it governs’.
Accordingly, whether written or not, it is the set of values and principles that people ascribe to and accept to be governed by that define a constitution. While we shall look at these values and principles latter on in this class, it is worth noting that the said values and principles are what the courts strive to give effect to while interpreting and enforcing the constitution and indeed every other person and organ of the state as we shall see.
FUNCTIONS OF A CONSTITUTION
From the definitions, it is obvious discernable that a basic function of a constitution is to constitute and define a State and the powers of organ of the state. Form the face vlue, it also regulates relationships between the organs of state it creates and the people as well as the outside world. It is worth remembering all through that the character of the functions of a constitution is not only descriptive but also normative. Where it palyes a normative function, then by and large it establishes a conduct which is considered correct or reasonable and is expected to be adhered to. This notwithstanding, a constitution can be said to perform various functions;
Constitutive or creative functions;
It constitutes or creates institutions and a society into a legal entity referred to as a State. It constitutes Kenya as a Republic and declares its territory, it establishes organs of government that include; the executive, legislature, the judiciary and devolved governments. By constituting, the constitution also creates ‘a people’ who live in the State. It is the people who occupy the institutions so created, execute the functions assigned to those institutions according to the values and principles enshrined in the constitution thereby contributing the welfare of the Kenyan State.
Organizational and Power management function
Through the constitution, people are able to determine how they would like government to be organized and how they would like to define, distribute and constrain use of state power. For instance, the Kenyan government is organized into two levels of government; national and 47 county governments, each level of government has an executive and a legislature, there are independent offices that perform checks and balances on each other, i.e independent commissions and the judiciary. The prosecutorial authorities as well as the investigating authorities are independent while the executive is detached from the legislature in order to ensure separation of powers.
Legitimation and value formation function
The constitution is the source of authority for any person wishing to execute any function or authority. Article 1 declares that all sovereign power belongs to the Kenyan people and is exercised in accordance with the constitution. Accordingly, any power exercised contrary to the constitution is not legitimate. When declaring itself as the supreme law in Article 2, the constitution also binds all persons and all state organs. Subsequently, all Kenyans and state officers must act in accordance with the constitution while relating with each other either vertically or horizontally.
Accordingly one of the main purposes of a constitution is to put in place a set of arrangements that enjoys popular legitimacy, which enables the people of a given country to be governed in a way that they regard as acceptable, and which thereby renders legitimate the exercise of power by the institutions of government. There are a number of practical ways in which a constitution may be imbued with this sort of legitimacy. The most obvious and transparent way is to have a genuinely inclusive national debate about what the constitution should say and then to hold a referendum on the terms of the new constitution. A process of this nature was followed in South Africa in the 1990s as it emerged from the shadow of apartheid. A similar exercise was done in Kenya in 2005 during which the proposed wako draft constitution was rejected after which, in 2010, a public dialogue as to the nature and contents of the constitution was done and approved through a referendum.
Constitutions establish rules and procedures to be followed. They perform functions of limiting government power thereby reflecting the theory of constitutionalism. Related to this is the function of creating values by which people want to be governed. Anybody who acts contrary to these values is said to act unconstitutional. These values may be concrete and or inspirational in nature. Murphy notes that in addition to structuring and limiting powers, a constitution can perform an inspirational function through its institutional arrangement about rights, commandments and duties; it can reflect a particular vision of a good and achieved life. For instance, the preamble of the USA Constitution enshrines an inspirational goal of forming a perfect union and in order to do so, establishes values that would help it achieve that perfect union, these include, justice, domestic tranquility, and general welfare.
Kenya’s constitution in its preamble reflects our aspirations of a government that is based on values of human rights, equality, freedom, democracy, social justice and the rule of law. Indeed these are values that as a society we aspire to live by and adhere to. Kenyans appreciate the importance of environment and as such through the constitution obligate themselves to respect and sustain the environment not only for their own benefit but for the benefit of future generations; are proud of their ethnic, cultural and religious diversity
Accountability function
A key purpose of a constitution is to ensure that those entrusted with power are required to exercise it responsibly and called to account when they do not. It is correctly observed that ‘power tends to corrupt, and absolute power corrupts absolutely. People with executive powers may chose to do as they please, they may exercise the power prudently and selflessly or due to incompetency, bad advice or corrupt values, they may make imprudent self serving decisions. It is for this reason that a constitution puts in place mechanisms of accountability of state officer by not only limiting their scope of powers but requiring them to adhere to certain levels of conduct and procedures. These mechanisms embodied in the constitution enable the citizenry to identify those responsible for acting contrary to the constitution, gives room for them to explain themselves and their actions, requires them to make things right where possible, enables both the citizenry and the state officers to learn lessons for the future and ultimately they provide redress in the event of unlawful as opposed to merely unwise government action.
Guarantor of human rights
Constitutions while constituting , creating and distributing powers among various institutions and organs, it also limits state power in order to secure and protect fundamental rights and freedoms of individuals and groups. This is done through the Bill of Rights. Most constitutions of the world indeed do have Bill of rights embodied within them.
However, modern constitutions through the Bill of rights also seek to secure economic and social rights and environmental rights. The Kenyan Constitution borrowed a leaf from the Constitution of South Africa and incorporated economic and social rights. It went further to protect group rights of the youth (Article 55), older members of society (Article 57) and persons with disability (Article 54). This novelty is further expanded by the protection of consumer rights (Article 46 (1)). Ordinarily, these rights law are hardly the domains of constitutional law.
Pillars of Democracy
Curie and Waal correctly opine that constitutions are vital for democracy. Ambani and Mbondenyi also observe that good constitutions generally anchor certain unanimous tenets that have garnered recognition as hallmarks of a democratic dispensation. These tenets include, a free press, multi-party politics, regular free and fair elections, freedom of expressions among others. Democracy is also enhanced by other ideals of constitutions such as that of rule of law; separation of power; limiting state power among others. The Kenyan Constitution embodies these ideals and is thus a pillar to democracy if it is well implemented.
Pillar of good governance
Good governance can only flourish if it is founded on constitutions. Good governance is ascertainable by the attributes such as, participation, accountability, transparent, responsive, effective and efficient, equitable and inclusive and sustainable development. These attributes are protected under Article 10 of our constitution while they also run through the entire of the constitution.
TYPES OF CONSTITUTIONS
Classifying constitutions has been argued may be an arbitrary and exercise in futility. This is because of a number of reasons, first, ‘it is because as Loewenstern argues, constitutions at the very basic, are a reflection of the main social, economic and political concerns of the particular countries’ and a compromise between the socio-economic, political and cultural forces that are responsible for their creation. Secondly, as Mbondenyi and Ambani observe, constitutions do not offer everything about the system of government it seeks to constitute. There exist other important rules in a legal system without which it would be difficult to classify or describe the system of government in question. This observation is supported by that of Fittingly who observes that;
A constitution itself is only a part of the rules that make up a system of government and any category into which a constitution may be placed may be rendered unreal or inadequate by the study of the actual working of the system of government.[3]
Despite this difficulty, constitutions do share some attributes which can be used to classify them. These classifications are;
Written and unwritten constitutions
All countries of the world with the exception of Israel, New Zealand and Britain have written constitutions. This method of claissifying constitutions has been faulted by Ojwang who has argued that this method is ‘stilted in so far as it places virtually all the countries of the world on one side of the scales and only three countries on the other side’[4]
Despite the fact that no single document can contain the totality of laws of a government, written constitutions represent the constitutional law of States. With respect to unwritten constitutions, in the three jurisdictions where these are found, there exists no single document that accounts for substantial constitutional law/order. Unwritten constitutions are to be found in different scattered legislative enactments that are often supplemented by a significant body of conventions and usages.[5] These supplementary legislations have to be within the ambits prescribed in the constitution and must be passed in the prescribed manner.[6]
Rigid v flexible Constitutions
Dicey defined 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.” While he defined rigid constitutions as “ those under which certain laws generally known as constitutional or fundamentals laws cannot be changed in same manner as ordinary laws.”[7]
A rigid constitution is one which requires a special method of amendment of any of its provisions[8]while flexible constitutions are those with flexible procedures of amendments as compared to rigid constitutions. In other words, the conditions required to amend flexible constitutions are much less than those in rigid constitutions. Most American and European Constitutions are rigid. The method of amending rigid constitutions varies: it may be a legislature sitting in a special way as in France or with a prescribed majority or prescribed quorum (as in Belgium), consultation of a special constituent body as in the United States), consultations of component members of a composite state (as in United States and Swiss Federations), or referendum of electorates as in Kenya, Australia, and Switzerland). For instance, the usual method of Amending the United States Constitution requires either initiation by two-thirds of both Houses of Congress and ratification by legislators of three-fourths of the states or initiation by two thirds of states and ratification by conventions in three-fourths of the states i.e the 18th Amendment on prohibition).
A distinction can be made among rigid constitutions depending on whether the special amending procedure is within the sole power of the legislature or whether some outside agency has to be brought in. In this latter case, such constitutions may be said to be supreme over the legislature.
Some parts of the Kenyan Constitution requires special majority in the legislative authorities and others require a referendum. Two kinds of amendments require special majorities in national or county legislative bodies;
1. Bills initiated by Parliament and which require two thirds majority in both houses to pass [Article 256 (1) (d)], and
2. a popular initiative supported by at least one million registered voters and approved by a majority of county assembles and passed by parliament (Article 257)
Amendments requiring a referendum to effect include those relating to: supremacy of the constitution, territory of Kenya, sovereignty of the people, bill of rights, national values and principles
At times a constitution or part of it may not be legally amenable, as certain articles of the Constitution of the German Federal Republic of 1949and the basic articles of the 1960 constitution of the Republic of Cyprus and the representation of a state in the United States Senate (unless that state consents) or it may be unalterable before a certain time, e.g. certain provisions of the United States Constitution before 1808. Hood Philips notes that in such cases, any amendment would legally amount to revolution.
Britain as observed which has an unwritten constitution has the most flexible constitution. However, written constitutions are not necessarily rigid; the Constitutions of Australian states are written and are largely flexible.
Parliamentary v presidential
This is based on the mode of distribution/separation of powers. Constitutions may exemplify either of the two systems of distribution of power. Britain and India best exemplifies a parliamentary system while USA represents a presidential system. In a parliamentary system government is operated from within the legislature. Members of cabinet and key government officials are drawn from the legislature from where they operate from to respond to questions and expectations of peoples’ representatives. Though policy development is by the executive, parliamentarians normally make regular input and scrutinize them. Pandey in describing India’s parliamentary constitution had this to say,
The constitution of India establishes a parliamentary form of government both at the centre and the states.The essence if the parliamentary form of government is its responsibility to the legislature. The president is the constitutional head of the State. The real executive power is vested in the Council of Ministers whose head is the Prime Minister. The Council of Ministers is collectively responsible to the Lower House, that is Lok Sabha. [9]
In presidential system, there is clear separation of power between the executive and the legislature. For instance, in the USA, executive powers are exercised by a President popularly elected for a period of 4 years. The executive is not part of the legislature neither is there any fusion of power. Kenya Constitution is also a presidential form of government where the president is popularly elected for a period of 5 years. The president exercise executive powers together with his cabinet whose members are not drawn from nor do they sit in parliament.
Unitary v Federal v confederal constitutions
In Many countries there exists separation of powers between central government and states or provinces which make up federations. These include USA, Canada, Australia and Malaysia. Hilaire correctly observes that the powers divided between the states, provinces and the federal governments are normally clearly laid down in a constituent document. The key characteristic of these kinds of governments is separation and sharing of power between the central government and independent states and or provinces. In cases where the central government is almost co-ordinate with the state authorities, as in the USA, such systems qualify as proper federations. Where the central government is more powerful than territorial authorities, such systems are referred to as quasi-federal. Examples of these systems include Canada and India. Confederations are characterized by territorial governments that more power concentrated in them than at the central government.
Unitary constitutions on the other hand create powerful central governments which in most cases do not have replica sub-national authorities in the hinterlands. Such constitutions distribute power between the legislature, executive and the judiciary. However, as Mbondenyi and Ambani observe, the quest for democracy in the third world has tallied with the rejection of overly concentrated forms of governments. This observation is supported by Oyugi, who notes that,
The popular demand for power sharing between the centre and the sub-units in th national territorial system has in the recent years reached a crescendo, thereby constituting the quest for decentralized governance virtually into a movement. The decentralization movement in these societies is one about the need for the disengagement of the sub-national units of government from many years of central control.[10]
This quest for democracy was quenched by the 2010 constitution which has decentralized power to 47 county governments. Kenya is therefore a quasi-federal system in which only certain powers/functions have been shared with the county authorities. (schedule four of the constitution)
Supreme v subordinate constitutions
A supreme constitution refers to state in which the legislative powers of the governing body are limited while a subordinate constitution is one in which the legislative powers of the governing body is not limited. The constitution is subordinate to the legislature which can amend the constitution without much complex procedures as compared to those that obtain in a supreme constitution which has complex procedures for amending it.
Supreme also has the import of hierarchy of norms in the legal system. In systems with supreme constitutions, the constitution ranks top in the hierarchy of legal norms. Any other norms have to conform to the constitution in order for them to be considered valid even if they are passed by parliament. Indeed the Kenya’s constitution is the Supreme legal norm to which all other norms derive their validity from by conforming to its requirements. (Article 2), the constitution declares itself the supreme law of Kenya and binds all persons and all state organs at both levels of government; the legality of the supreme law is not to be challenged before any court or any other state organ.
Republican v monarchial
This classification is to be found in the architecture and design of constitutions. In this respect, a Republic is state that has a figure head usually a President who is democratically elected by the people of that State. The sovereignty of these states rests with the people who donate it to the organs of government and government officials through elections. The essence of replicanism was conceptualized by Madison as such;
We ay define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior. It is essential to such a government that it be derived from the great body of the society, not from any inconsiderable proportion, or a favoured class of it; otherwise a handful of tyrannical nobles, exercising their aggressions by a delegation of their powers, might aspire to the rank of republican and claim for their government that the persons administering it be appointed, either directly or indirectly, by the people; and that they hold appointments by either of the tenures just specified.
A monarchy is a state in which the people have a limited role in deciding their leaders and instead, power is inherited among a section of the few privileged class. Monarchical governments have declined and those which have remained have been reduced to being symbolic and ceremonial. Between 12 December 1963 and 12 december 1964, Kenya was a monarchy in theory since the Queen played a governance role through the Governor General who was then the Head of State. He exercised his powers in the name of the Queen. The 2010 Constitution establishes a republic in which the people are sovereign and exercise their sovereign power either directly or indirectly through their democratically elected representatives.
Secular v religious
A secular constitution recognizes no religion as its own while the opposite is true for religious constitutions. By dint of Article 8, it arguable that Kenya’s constitution is a secular constitution since it declares that there shall be no State religion. However, despite this express declaration, the constitution does make specific reference to God. For instance, in its preamble, it acknowledges the supremacy of God same as in the national anthem. This may be used to put across an argument that the State is not aesthetic.
2.0 SUPREMACY OF THE CONSTITUTION
The principle of constitutional supremacy presupposes a hierarchy of legal norms in which the constitution is at the apex. Accordingly, the constitution in this hierarchy is the most important piece of law in the legal system and ranks above all other legislations, customs, conventions and principles. It gives legitimacy to all other legal norms, thus in the event of a conflict between it and other legal norms, then the constitution prevails.
There are various justifications for this principle. These include:
1. Express constitutional provisions
Article VI, clause 2, of the USA Constitution provides:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding
From the above, it is clear that there are only three sources of supreme federal law. The first is the Constitution itself. Pursuant to this, section 10 of Article 1 expressly limits the powers of States as thus;
1. No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
2. No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Control of the Congress.
3. No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
The second source is federal laws that are made “pursuant to the constitution of USA” meaning laws enacted through the bicameralism and presentment clauses of Article 1, section 7 and otherwise in accord with constitutional limitations.
The third source is the U.S treaties including treaties that pre-existed the Constitution and those made through Article II, section 2.
This already presents a hierarchy of the legal norms in U.S.A where the Constitution ranks first, federal laws second, treaties as the third in line and there after State laws. From the USA perspective, we have Federal laws being supreme to State laws. It is also worth observing that Federal laws must arise with the consent of the Senate and that it also requires formal consent of the not only the President but also a majority of two separately elected Houses; a super majority of each of the two houses or the President plus a super majority of one House in the case of treaties.
This difficulty in enacting supreme federal law is designed to protect states. Originally, state legislatures controlled the mechanism of electing senators thus they exercised control over senators and as such in theory and design, it meant that supreme federal law had to be made with the consent of a body chosen by states. This position was amended by the 17th Amendment of 193.
The South African Constitution in terms of supremacy provides in Article 2 that;
This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.
Kenya’s Constitution expressly provides in Article 2 under the heading ‘Supremacy of this Constitution’ a similar heading to that of the South African Constitution, that;
This Constitution is the supreme law of the Republic and binds all persons and all state organs at both levels of government.
Article 2 (2) grounds the centrality of the Constitution by stating that state authority is to be claimed and exercised by an person in accordance with the Constitution. The Constitution is the source of any authority of a state organ; by this clause, it legitimizes the claim and execution of any state function by a state organ or persons holding such offices.
Supremacy of the Constitution of Kenya is also to be found in Article 2 (3) which safeguards the constitution from being challenged as to its validity or legality by any person before any court or other state organ.
The previous constitutional order faced validity threats before the court of laws. First it was in the Njoya case the Court fell short of declaring some sections of the Constitution invalid. While decrying the various amendments that the former constitution had been put through, J Ringera had this to say;
The effect of all those amendments was to substantially alter the constitution. Some of them could not be described as anything other than an alteration of the basic structure or features of the Constitution.. All I can say in that respect is that, fortunately or unfortunately, the changes were not challenged in the courts and so they are now part of the constitution.
What the judge was alluding to the purportedly power of the courts to challenge some parts of the constitution as being invalid. The analysis of this judgement can be pushed further to explore as to whether the court was seeking to usurp the power of the people then, to change the constitution through their representatives!?
Though the court in the Njoya case never declared some sections of the constitution invalid, the court in the case of Jesse Kamau where sections 66 of the former constitution (established the Kadhis Court) were challenged in the High Court. The ground of the challenge was that the section was inconsistent with the secular nature of the Republic. The court while impugning section 66 stated as follows;
As between state and religion each had its own sphere, the power of law making for the public good and the latter of religious teaching observance and practice. To the extent that section 66 sought to give to religious principles and commandments the force and character of law, religion stepped out of its own sphere and encroached on that of law making in the sense that it was made to coerce the state into enacting religious principles and commandments into law.
The court went ahead and declared section 66 invalid. However, this situation is not possible under the current constitution by virtue of Article 2(3).
In terms of hierarchy in the order of legal norms, Article 2 (4) saves the apex position to the constitution as the grundnorm from which all other laws derive their validity from. It provides that,
Any law, including customary law, that is inconsistent with this Constitution, is void to the extent of the inconsistency, and ant act or omission in contravention of this constitution is invalid.
The power to declare other legal norms invalid based on the constitution is judicial and is vested in the high court by virtue of Article 165 (3) (d) which states as follows;
The high court has jurisdiction to hear any question respecting the interpretation of this constitution including the determination of -(i) the question whether any law is inconsistent with or in contravention of this constitution; (ii) the question whether anything said to be done under the authority of this constitution or of any law is inconsistent with, or in contravention of, this constitution; (iii) any matter relating to constitutional powers of state organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government and (iv) a question relating to conflict of laws under Article 191.
The Constitution also provides for appeals of matters challenging the constitution to the Court of Appeal and Supreme Court. Article 164 (3) gives jurisdiction to court of appeal to hear appeals from the High Court while Article 163 gives jurisdiction to the Supreme Court to hear and determine appeals from the Court of Appeal.
Further, Article 20(1) with respect to the Bill of Rights postulates that the ‘Bill of rights applies to all law and binds all state organs and all persons’. This Article has the effect of ranking the Constitution and in particular the Bill of rights at the core of other laws and state functions. By conduct, state organs are required to be mindful of the Bill of rights and give them effect through their policy and decisions.
2. The judicature Act
The Judicature Act, though to be read, interpreted and applied within the current constitution which introduces new sources of law, it does offer a list of sources of law in Kenya. From the Act, the Constitution is at the very top. From the order of the list, there is a presumption that the constitution is supreme and as such it ought to prevail in the event there is a contradiction between it and other laws.
3. Judicial Precedents
Constitutional supremacy as a doctrine traces its origin from the famous case of Marbury v Madison where the Supreme Court held that;
Supremacy of the constitution is pertinent to the tradition of written constitutions as opposed to the unwritten tradition as is the case in Britain and it would amount to an absurdity or ‘solemn mockery’ if this hallowed status is not accorded the constitution. Failure to uphold constitutional supremacy, the court further observed, flies in the face of the judicial oath as judges swear allegiance to the written constitution. It is therefore logical that a document of this character ought to override all other norms.
The rationality of the doctrine was emphasized by CJ Marshall as thus;
The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgiven, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.
Our courts through judicial precedents have recognized the doctrine of the supremacy constitution. In the case of Okunda v Republic, the court while considering section 3 of the former constitution stated that;
If a constitutional lawyer were to write about in the strain as Dicey did about England, he would, to be accurate, have to emphasize the supremacy of the constitution rather than one organ of government. The constitution and any Acts amending it must in the nature of things override all other laws.
Section 3 of the former constitution provided that,
This constitution is the constitution of the Republic of Kenya and shall have the force of law throughout Kenya and, subject to section 47, if any other law is inconsistent with this constitution, this constitution shall prevail and the law shall, to the extent of the inconsistency, be void.
In the case of Stephen Mwai Gachieng and Albert Muthee Kahuhia v Republic of Kenya, the court invalidated the Kenya Anti Corruption Authority (KACA) on grounds that the constituting Act was not unconstitutional for giving enormous prosecutorial powers to KACA thereby usurping the AG who had the constitutional powers of prosecutorial.
4. Basic Norm theory
Kelsen in his basic norm theory conceptualizes a legal system as composing a number of norms which are hierarchy in order. In this order, each norm extracts its validity from the norm immediately above it. All other laws, thus according to Kelsen, owe their validity to the basic norm which constitutes the plurality of all norms forming a system. A plurality of norms creates a unity, a system, an order and as such, the validity of the norms can be traced back to a single norm (basic norm) as the ultimate basis of validity. The constitution can be said to be the basic norm in a legal system that creates and validates all the other legal norms below it.
5. Social contract theory
The concept of supremacy of the constitution also finds grounding in the philosophy of law. Thomas Hobbes argues that the modern system of government owes its existence to the excesses of an initial primitive society operating without any form of common administration. Man therefore conducted business under the dictates of their unlimited instincts and did not have to conform to any organized system of rules imposed by, say, government. Society in this state of nature was in a condition of war of everyone against every one because would be governed his or her own reason. There were notions of justice, right or wrong. Hobbes in reference to this state of nature states that, where there is no common power, there is no law; where no law, no justice.
Hobbes extrapolates the process of social contract and justifies it as such,
A man can lay aside a right either by simply renouncing it or by transferring it to someone else. He RENOUNCES it when he doesn’t care who gets the benefit. He TRANSFERS it when he intends the benefit to go to some particular person or persons. And when a man has deprived himself of a right in either of those ways—abandoning it or giving it away—he is said to be OBLIGED or BOUND not to hinder those to whom such right is given or abandoned from having the benefit of it; and ·it is said· that he ought, and that it is his DUTY, not to deprive that voluntary act of his of its effectiveness; and ·if he does so·, that hindrance is ·what we call· INJUSTICE and INJURY
In social contract, the benefit is intended to go to all persons in the society. A constitution is the social contract that contains all the natural rights which the people have transferred to particular institutions (the government) in exchange of security and guarantee of human rights.
Features and Characteristic of the Constitutional supremacy:
Some intrinsic features of constitutional supremacy are given below.
1. The condition of the constitutional supremacy is that, the constitution must be written.
2. The constitution must be rigid and maintain procedure.
3. In constitutional supremacy, there has distinction between constitutional law and ordinary law.
4. Parliament is created by the constitution itself.
5. Parliament can exercise its function being only within the bounds of the constitution.
6. In constitutional supremacy, there has judicial review.
7. If any contradiction between constitutional law and ordinary law of the republic, the constitution shall get prevail and get priority.
3.0 CONCEPT OF INDEPENDENT JUDICIARY
Judicial independence is widely considered to be a foundation for the rule of law. It is also an essential component of separation of powers. It is therefore imperative for us to have an understanding in the meaning of this concept.
In the previous topic on separation of powers, we clearly saw that state power cannot all be concentrated in one institution to be exercised by the very institution on behalf of the people. Instead, we ought to deposit the governing power in the hands of representatives, basically who are agents of the people. It is based on this notion that concept of separation of powers as a tool, is used to disperse power into different divisions each having unique functions to be exercised by different branches of government. Each of the branches has different representation structures that can check and balance each other.
One of these branches is the judiciary. Following the Montesquieu concept of separation of powers, the judiciary should be independent from interference by all the other organs or branches of government, thus on the one hand, structural independence of the judiciary. On the other hand, there is also substantive independence of the judiciary. It is from this background that one seeks to understand the concept of independent judiciary.
Defining the concept Judicial Independence
This is a concept that can be defined in various ways.[11] Some scholars have produced long lists of criteria the judiciary must meet; others focus on more narrow aspects of judicial institutions.[12] Despite which definition is adopted, it agreed that an independent judiciary has three characteristics;
1. Impartiality
This means that judicial decisions are not influenced by the judge’s personal interests in the outcomes of a case. This also implies that judges are not appointed because of their political views but are appointed on merit.
In terms of being impartial, judges are required to recues themselves whenever there is conflict of interest between them and the parties before them. The test of determing the imaprtilaity of judges was expounded in the American case, Perry v. Schwarzenegger, 671 F. 3d 1052 (9th Circ. February 7, 2012) where it was held that the test for establishing a Judge’s impartiality is the perception of a reasonable person, this being a “well-informed, thoughtful observer who understands all the facts”, and who has “examined the record and the law”; and thus, “unsubstantiated suspicion of personal bias or prejudice” will not suffice.
In R. v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No.1) [2000] 1 A.C. 6, the English House of Lords [now the Supreme Court] had just rendered a judgment when it became known that a member of the collegiate Bench involved, was an unpaid director and chairman of Amnesty International Charity Limited, an organization set up and controlled by Amnesty International; and the same member’s wife was also employed by Amnesty International. In the said judgment, it had been held that General Pinochet, the former Chilean Head of State, was not immune from arrest and extradition, in relation to crimes against humanity which he was alleged to have committed while in office. The House of Lords, at the commencement of the hearing, had given permission for Amnesty International to join in as intervener. A newly constituted Bench of five Judges held unanimously that the earlier judgment must be set aside, because one of the members of the Bench should have been disqualified from hearing the case; as that member had had an interest in the outcome of the proceedings.
Each judicial officer takes an oath to be fair and impartial. This responsibility to be fair and impartial is the foundation of confidence in the decision making process. Judges are expected to bring an impartial mind to the case before them hence what disqualifies a judge is the presence of some factor which could prevent the bringing of an objective judgment to bear which could distort judge’s decision. There must be also an appearance of being free from any influence as stated in the oft cited aphorism by Lord Hewart CJ in R v Sussex, ex parte McCarthy [1924] 1 KB 256, “it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.
1a. Duty of judges to Disclose
The duty of the judge to disclose was dealt with in Trust Bank Limited v Midco International Limited, HCCC 366 of 2001 (Unreported) where the court considered an application to set aside judgment on the ground that the judge who heard the application for summary judgment and allowed it had acted for the bank while in private practice. This fact was not disclosed at the hearing of the application for summary judgment. In setting aside the judgement, Hon. Justice Ibrahim (as he then was) held that as it is the judge who had knowledge and information about his past relationships in private practice, he was duty bound to disclose this fact. The learned judge observed, “A party cannot be expected to know the clients of a Judge who has come to the bench from private practice. It is the Judge presiding who ought to have known and also in this case, the Respondent. It was their duty and obligation to have disclosed or declared the existence of a past relationship. It does not matter now as to who may be to blame because there is a possibility that the Judge and the Respondent did not remember and that they considered it not to be significant. Judges also deem such matters would not affect their impartiality due to their oath and their own sense of fairness, justice and conviction. But as seen in the case law, it is not for the Judge to decide in his mind without declaring or disclosing the fact to the parties and for them to consider and decide what is good for them or the implications……. [A]s a result of the aforesaid non-disclosure of the past relationship between the Judge and the Respondent, the applicant was denied the opportunity to raise the issue or apply for disqualification on the grounds of prejudice and/or bias…”
The judge went on to say that, ‘I do not think that the extent of disclosure can be closed or itemised but in light of the test of disqualification for apparent bias, I think a proper approach for a judicial officer would be to disclose any facts or interest which may cause a reasonable apprehension of bias.’
2. Recognition and respecting judicial decisions
Decisions once rendered by judges, should either voluntarily or through forced compliance be recognised and respected by parties to the case. Those with the powers to coerce compliance must be willing to use their power if voluntary compliance is not forthcoming. This may be argued that it is not an inherent aspect of judicial independence but it is not lost that if the enforcement agents were to ignore judicial decisions, the effectiveness of the judicial arm of government would be watered down.
In Econet Wireless Kenya Ltd vs. Minister for Information & Communication of Kenya & Another [2005] 1 KLR 828 Ibrahim, J (as he then was) stated:
It is essential for the maintenance of the rule of law and order that the authority and the dignity of our Courts are upheld at all times. The Court will not condone deliberate disobedience of its orders and will not shy away from its responsibility to deal firmly with proved contemnors. It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a Court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or void.
The court holds precious the element of respect and obedience to its order. This was futher extrapolated in Wildlife Lodges Ltd vs. County Council of Narok and Another [2005] 2 EA 344 (HCK) where the Court expressed itself thus:
“It was the plain and unqualified obligation of every person against or in respect of whom an order was made by a Court of competent jurisdiction to obey it until that order was discharged, and disobedience of such an order would, as a general rule, result in the person disobeying it being in contempt and punishable by committal or attachment and in an application to the court by him not being entertained until he had purged his contempt. A party who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it…It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null or valid – whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such a question. That the course of a party knowing of an order which was null or irregular, and who might be affected by it, was plain. He should apply to the court that it might be discharged. As long as it existed it must not be disobeyed…If there is a misapprehension in the minds of the defendants as to the reasonable meaning of the order, then the expectation of them is that they would have made an application to the court for the resolution of any misunderstanding and this would have been the lawful course…In cases of alleged contempt, the breach for which the alleged contemnor is cited must not only be precisely defined but also proved to the standard which is higher than proof on a balance of probabilities but not as high as proof beyond reasonable doubt…The inherent social limitations afflicting most people in a developing country such as Kenya have the tendency to restrict access to the modern institutions of governance, and more particularly to the judiciary which is professionally run, on the basis of complex procedures and rules of law. Yet, this same Judiciary is generally viewed as the impartial purveyor of justice, and the guarantor of an even playing ground for all, a perception which ought to be strengthened, through genuine respect for the courts of justice, and through compliance with their orders. Consistent obedience to court orders is required, and parties should not take it upon themselves to decide on their own which court orders are to be obeyed and which ones overlooked, in the supposition that this oversight will not impede the process of justice…Justice dictates even-handedness between the claims of parties; and if it be the case that the plaintiff/applicant has not been accorded a level playing ground for the realisation of its economic activities, a matter that of course can only be established through evidence in the main suit, then the court ought to provide relief, by applying the established principles of law, one of these being the law of contempt
3. Free from interference
This means that Parties to a case, or others with an interest in its outcome, cannot influence the judge’s decision. In practice, protecting judges from private persons with an interest in the case means preventing judicial corruption and coercion. Insulating judges from officials of other branches of government is often taken to be the most important aspect of judicial independence. Government poses perhaps the most serious threat to judicial independence for two reasons: it has a potential interest in the outcome of myriad cases, and it has so much potential power over judges.
In Africa, as Udombana[13] observes, the judiciary has been subjected to all forms of intimidation and persecution during its execution of its functions. This has had serious negative implications, more so during political transitions, where the harassment of judges ‘makes them look over their shoulders in the dispensation of justice’ and therefore decide in favour of the incumbent authorities. Taking cue from this observation, Ambani notes that the ultimate effect of the interference has been the sacrificial of democracy, good governance and human rights at the altar of political expediency.
Judicial independence is thus a very significant pillar of democracy and more so for negotiations of political transitions. During the 2007 general elections, Kenya was at brink of collapsing because the judiciary then could not be trusted to adjudicate the electoral/political quagmire the ensued after the elections.
Unlike Kenya, South Africa adopted a constitution that emphasized on judicial independence and has through practice, enforced this concept. For instance, in the Certification case of the the South African Constitution, the judiciary through the constitutional court refused to certify the new constitution on among other grounds including that it restricted individual employers from engaging in collective bargaining and that it shielded statutes from constitutional review. The court while rendering the decision recognised its restricted mandate in terms of separation of powers by stating that;
The court has a judicial and not a political mandate. Its function is clearly spelt out in IC 71(2): to certify whether all the provisions of the NT comply with the CPs. That is a judicial function, a legal exercise. Admittedly a constitution, by its very nature, deals with the extent, limitations and exercise of political power as also with the relationship between political entities and with the relationship between the state and persons. But this Court has no power, no mandate and no right to express any view on the political choices made by the CA in drafting the NT, save to the extent that such choices may be relevant either to compliance or non-compliance with the CPs.
From the onset, South Africa judicial system has been independent and empowered to perform its functions without interference. Its success has also been based on the fact that the court has largely restrained itself from interfering with the other arms of government and in particular the executive.
Justice J.B. Ojwang while penning on the concept of independence of judiciary, paints its significance in relation to executive power in the following terms;
Such powers (executive powers) by their very nature, are not only ill-defined, but also far-reaching; and while in motion are so easily abused, or annexed for partisan, or personal ends! And whenever that happens, the resulting damage falls upon either the public interest, or the individual. Where the public interest is the sufferer, and it lacks the legal personality to seek specific redress, it becomes a diffuse public claim, to be resolved by the electorate at periodic elections, or to be scrutinized by the elected Parliament during its sittings. But on many occasions, the victim of abuse of public power is the citizen. The citizen has no capacity to move the nebulous electorate, or the cumbersome Parliament, to solve his or her grievance. It is the judiciary that comes in handy, as a structured institution, at which a claim can be lodged at the registry, and set for hearing before a court, within a determinable period; and the court is invested with jurisdiction and power to determine the question, and issue binding decrees. The exercise of public power is accountable to the electorate and the legislature only in the long and medium terms; but in the short term, within the constitutional set-up, the individual can only look to the judiciary, for redress.
While giving justifications as to why the citizens can only look up to the judiciary, as an institution of safeguard, Ojwang goes on to say this,
Firstly, the citizen has to trust that the court’s judgment has a finality, and is entitled to obedience, as a matter of constitutional obligation. Then the citizen has to trust that the Judiciary shall be guided by rules, principles and discretions not influenced by the very power-wielders who cause oppression, or other harm. That is to say, the citizen expects the Judiciary to be independent, in its decision-making. And lastly, the citizen expects the Judiciary to be fair, in its decision-making. All these attributes underline one theme, independence, as the hallmark of the Judiciary, in a constitutional set-up that protects the citizen, as an individual, even as the nation’s broad social goals are pursued by the relevant public agencies, which are driven by a political-cum-administrative mandate.
In order to ensure judicial independence, Ojwang therefore argues that the judiciary must be well-anchored upon a foundation that does not flinch at pangs inflicted by the public power, nor pander to attractions of things allied to such power. He also observes that this concept is not only limited to the protection of citizens from abuse of power but that it also feeds into the general quality of governance, and of the interplays of the different organs of government.
R.W.M. Dias[14] while discussing judicial control in his works, Jurisprudence, noted in regards to judicial independence that;
The success or failure of judicial control of the abuse of power, whatever form such control may assume, depends on the judges being independent of those wielding the power. Independence means far more than immunity from interference; it means that they are free to bring their own sense of values to bear in considering legislation and do not simply reflect the values of government. For there can be no protection against abuse of power, even when safeguards are enshrined in the Constitution, if the judges who have to interpret these whenever the government is challenged are only puppets of the government.
Judicial independence as perceived, faces threats more from the executive than any other branch of government. In fact, as compared to other arms of government, the judiciary cannot be able to compete with an executive which has its roots in the legislature. To this end, Alexander Hamilton[15] says this of the American constitution,
Whoever considers the different departments of power must perceive that..the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution...the executive not only dispenses the honours but holds the sword of the community. The legislature not only commands the purse but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over the sword or the purse; no direction either of the strength or the wealth of the society and can take no active resolution whatever. It may truly be said to have neither Force nor Will but mere judgement.
Safeguarding judicial independence
In order to achieve and safeguard judicial independence, various safeguard approaches have been agreed which form part of the characteristics of the concept of independent judiciary.
i) The mode of appointment of judges;
ii) Providing for security of tenure for the judge;
iii) Collective concurrence on a candidate for appointment as judge;
iv) Commitment to the governing ethos of judicial independence;
v) Absolute care in the regulation of terms of service and promotion, for judges
Lord Lloyd of Hampstead considered the application of these several criteria, in relation to his country, Great Britain. He noted the following in relation to each of the foregoing five points:[16]
i) Experience shows that Great Britain has achieved the “development of a strong tradition in favour of ignoring political considerations when making judicial appointments;
ii) Judges hold office until retirement;
iii) Appointment of judges is the outcome of concurring opinions;
iv) Operation of a governing ethos of judicial independence;
v) A judicious approach to terms of service and to promotion;
and on this point, of promotion and terms of service, the learned author writes:
The question of promotion is almost as important as that of initial appointments in regard to judicial independence. For if the judiciary has to look for its future prospects to the politicians they may be unwilling to incur executive displeasure and so mar the chances of later promotion, even though they are secure in their posts. In England this difficulty has been largely overcome by avoiding too hierarchical a pattern in regard to the higher judiciary. A certain uniformity of status has been retained in regard to all the higher judiciary from the High Court level to the House of Lords, particularly by keeping salaries on almost the same level throughout and by avoiding any form of promotion on the basis of seniority. This system has been greatly aided by the historical antecedents of the English judiciary and its exceptionally strong traditions and long-established status
1. The mode of appointment of judges
An independent judiciary, as Ambani correctly observes is a ‘watertights’ system that provides equal employment opportunities to all qualified persons without regard to one’s status, age, sex, race or political affiliation. The criteria for appointment of judicial officers should be objective and not subjective.
Judges including the chief and deputy chief justice are appointed by the appointed by the President (Article 166) in accordance with the recommendations of the judicial service commission and subject to approval by National Assembly. Their appointment is therefore an outcome of concurring opinions of the judicial service commission and the national assembly.
1a. education and experience qualification
The qualifications for appointment as a judge are set out in Article 166 (2), (3), (4) and (5). Further, the judicial service commission while recruiting judges is guided by the principle of competitiveness and transparency [Article 172 (2)]. Therefore, the process of appointment of judicial members is based on merit and not on political considerations as it were.
Educational requirements must be sufficient to assure that judges are able to perform their jobs effectively. On an elementary level, a legal system based on writings demands literate judges. Judges who cannot read the documents upon which the legal system operates would have to rely upon other individuals, inside or outside the court system, for information about their cases. Illiterate judges in essence would be delegating some of their decision making function to these third parties without the ability to review their work thereby compromising the independence of their mind which is required for dispensation of justice that is fair and just.
In any legal system, judges must also have sufficient education and knowledge to discern the law and to articulate the bases for a decision. In addition, an educational requirement allows the judges to command the respect of litigants and society.
Finally, the judges' education should inculcate them with many of the values of the society and of the judicial system.[17] A perception by society of too great a deviation from accepted bases for decision making will generate pressure for greater control of the judiciary[18] and result in diminished judicial independence.
2. Security of tenure
This is to the effect that judicial officers stay in official during the period of their good behavior and cannot be hounded out of office except for good cause. Removal from office should be based on stipulated procedures that afford protection to the judges. Judges who can easily be removed from office are susceptible to internal or external pressures in execution of their duties.
Judges have security of tenure that spans to seventy years while the Chief justice has a tenure in that capacity of five years. Article 167 (1) & (2). If the term of the Chief Justice expires before he/she attains he age of 70 years, he/she can elect to continue serving as a judge of the Supreme court. Article 167 (3).
In terms of their removal from office, judges can only be removed from office based on the clearly laid down constitutional grounds in Article 168 which include, inability to perform the functions of a judge due to mental or physical incapacity, breach of code of conduct prescribed for judges by an Act of parliament, bankruptcy, gross misconduct or misbehavior or incompetency.
2a. Removal of judge from office- Article 168
The process of removing judges from office is by way of a petition by any person to the judicial service commission or by a motion of the judicial service commission.
The petition must be writing and must set out the alleged facts constituting grounds for removal of the judge.
The judicial service commission upon consideration of the petition and if satisfied that the petition discloses grounds for removal, it shall send the petition to the president. However, if it is not satisfied, it shall dismiss the petition.
The president on receiving the petition, shall within 14 days of receipt of the petition suspend the judge and appoint a seven member tribunal consisting of;
1. Chairperson and three members who hold or have held the office of a judge or are qualified to hold the office of a superior judge and have not been members of the judicial service commission within three years preceding the appointment
2. One advocate of 15 years o experience
3. Two persons with experience in public affairs
If the removal relates to the Chief justice, the president shall appoint a 7 member tribunal consisting of;
1. Speaker of the national assembly who shall be the chairperson
2. Three superior judges from common law jurisdictions;
3. One advocate of 15 years standing experience
4. Two persons with experience in public affairs
3. Financial independence
Financial independence relates both to financial terms and benefits that accrue to judicial officers on the one hand and on the other, as to institutional financial independence required by the judiciary in order for it to function effectively.
As relates to emoluments, judges may be compromised for fear of reduction of their salaries or for promise of better salaries and benefits if they are not well paid and their benefits not very befitting and sustainable. This from the perspective of our constitution as seen previously has been adequately addressed.
On the second aspect, if one arm of the government controls the funds needed by the judiciary for its operations, it means that the judiciary operates at the call of that arm of government, thus no functional independence of the judiciary.
Functional independence as relates to finance, the constitution establishes a judiciary fund which is to be administered by the Chief registrar of the judiciary-an appointee of the judicial service commission.
The Chief registrar is supposed to prepare financial expenditure estimates for the judiciary and submit them to the national assembly for approval. Once approved, the expenditure shall be a direct charge to the consolidated fund which shall be paid directly into the judiciary fund.
It is worth noting that the national assembly may vary the proposal of the chief registrar thus the legislature has some financial control into the financial independence of the judiciary. On the other hand, parliament by dint of Article 173 (5) may through an Act of parliament, control the operations of the Judiciary fund. This can be argued to be some of the doors through which the legislature either exercises a check on the judiciary or may indeed interfere with the financial independence of the judiciary as an institution.
4. Immunity
Immunity of judges from civil liability during their tenure is necessary for judicial independence. In Bradley v. Fisher, 80 U.S. (13 Wall.) 335 (1871), the Court noted, Liability to answer to every one who might feel himself aggrieved by the action of the judge, would be inconsistent with the possession of this freedom [to act upon the judge's conviction][19] and destroy that independence without which no judiciary can be either respectable or useful. As observed by a distinguished English judge, it would establish the weakness of judicial authority in a degrading responsibility.
The United States Supreme Court and several commentators on immunity from civil liability have opined that it is only necessary to a limited extent. First, civil, or even criminal, liability imposed on judges for reasons other than their judicial decision making would not interfere with judicial independence.
Second, civil liability even for their judicial decision making may not interfere with their independence. Potential civil liability only subjects a judge's decisions to peer review rather than to the judgment of political bodies.[20]
Third, in many cases, a judge knows that any ruling will displease at least one party. In other cases, she can foresee displeasing all participants. In either case, however, a judge without immunity can expect to be sued regardless of how she rules. For that reason, the threat of civil liability might not influence a judge's decision on which party prevails; it would affect only her decision making process.[21]
In these circumstances, broad protection against civil liability for the judiciary may be more important for the efficient administration of justice than for protecting judicial independence.[22]Immunity frees judges from the need to devote their time and resources to defending lawsuits or engaging in "defensive" judging.[23]
Article 160 (5) grants immunity to judges from any liability in respect of anything done or omitted to be done in good faith in the lawful performance of a judicial function. It is notable that, the acts or omission must be in good faith, thus if one can establish malice, then he/she can be able sustain a suit against a judge. Secondly, the immunity is only as relates to judges actions in performance of their duties, thus immunity is circumscribed to acts or omission that during the execution of judicial functions.
This immunity brings to question the element of professional negligence on the part of the judges. What recourse does a person who suffers from a decision rendered on the basis of a negligent judge? If she sustains a petition for the removal of the judge on grounds of incompetence, would she then be open for compensation from the judge or from the judiciary?
4.0 THE CONCEPT OF CONSTITUTIONALISM
The concept of constitutionalism entails the idea of limitation of power. It refers to the idea of limited government power. Within the context of a constitution, it implies a system of limited constitutional governance. Rosenfeld describes constitutionalism as “a three faceted concept” that, requires imposing limits on governmental powers, adherence to the rule of law, and the protection of human rights.[24] Mcllwain on the other hand describes constitutionalism as the antithesis of arbitrary rule, the opposite of despotic government, as the government of will instead of laws.[25]
However, there is a distinction between constitution and constitutionalism. Schochet in relation to this distinction points out that, “there is a closeness between constitutionalism per se and the having of a constitution, closeness that is behind the easy and frequent slippage from one to the other.[26] This closeness must be distinguished in order to prevent the slippage. Constitution refers to the form, the document itself, the body of laws, legislation and resolutions, defining, authorizing and regulating state power. It is the juridical framework supporting functioning of state power. Constitution is focused on the order based on the statute, along with organizing of state power and ensuring its stability. It also regulates the form of the state, the order of establishing institutions representing state power and area of their authority, along with the administratively territorial system, persons' legal status and their interrelation with state power while constitutionalism relates to the substance, values embedded in the constitutional provisions. Constitutionalism presupposes the existence of a constitution, whether written or unwritten.[27]
According to Okoth Ogendo, the opposite is not true. Most African countries based on their constitutional history, they adopted new ‘constitutions’ amended or replaced old ones with new ones in order to consolidate their personal powers, with countries such as DRC beating the world record of one constitution per year in 46 years of independence; hence the reference of these constitutions by Ogendo as constitutions without constitutionalism.[28]
Many of the constitutions instead of limiting powers of the government, establishing the rule of law, protecting human and people’s rights and fostering democracy, they were enacted instead to remove any checks on government power, to limit the power of the sovereign people, to subject them to the will of the president and his government, and to restrict or deny them most fundamental rights. Andre observes that in the process, “From the sovereign citizens they are supposed to be in a democratic regime, the people were reduced to the status of subjects and the rule of law was replaced with the rule of the will and wish of the strong man – a military or civilian ruler – who acceded to power in an undemocratic manner, that is by coups d’état, political assassinations or vote-rigging.”[29]
In this regard therefore, constitutionalism implies a governance of laws as opposed to governance of men. It recognises the rule of law. It deals more with rationalization of the institutions of state power than setting up their structure, besides; it deals also with issues of their reasonable regulation and restriction.
The concept of constitutionalism can be said to encompass the idea that a government should not only be sufficiently limited in a way that protects its citizenry from arbitrary rule but also that such a government should be able to operate efficiently and in a way that it can be effectively compelled to operate within its constitutional limits. Put differently, constitutionalism refers to a government limited in its actions and accountable to its citizens for its actions. In this sense therefore, the concept rests mainly on two pillars;
1. Existence of limitations imposed on the state particularly in its relations with the citizens based on certain clearly defined set of core values.
2. Existence of a clearly defined mechanism for ensuring that limitations on the government are legally enforceable.
In this respect, constitutionalism has certain core, irreducible and possibly minimum content of values with a well defined process and procedural mechanisms to hold government accountable. According to recent literature, constitutionalism has five core elements:
1. Recognition and protection of fundamental rights and freedoms
2. Separation of powers
3. Independent judiciary
4. Review of constitutionality of laws and
5. Control of the amendment of the constitution.
Charles Manga argues that the respect for human worth and dignity is the static principle of constitutionalism, the other core elements, he posits, are bound to change as better ways of limiting the government and protecting its citizens are devised.[30]
JUSTIFICATION FOR CONSTITUTIONALISM
Why is it necessary to infuse constitutionalism in systems of governance?
Justification of this concept lies in the very understanding the state power and hence government power is open to abuse and its oppressive if it is not limited. The temptations to abuse state power and divert it from the objectives for which it was introduced and instead direct towards personal ends of those entrusted with state power is a constant reality. It is this reality that necessitates constitutionalism as a concept of limiting state power. James Madison in his federal paper No 51 justifies constitutionalism in terms of human nature in the following terms;
But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.[31]
Indeed Charles Managa in describing this nature of human beings in relation to African governments says that, ‘the 1990’s appear to have marked a critical high point for constitutionalism, rule of law and democracy in Africa. As the third wave of democratisation swept across Africa, it generated expectations of a new dawn and the end of an era of corrupt, authoritarian and incompetent dictatorship that had earned the continent the notoriety for political instability, civil wars, famine, diseases and similar ills’.[32]
Manga goes on ahead to observe that many of the continents problems have been caused, not by the absence of constitutions per se, but rather by the ease with which constitutional provisions were abrogated, subverted, suspended or brazenly ignored. Indeed this is the abuse of power that James Madison refers to as the human nature and which constitutionalism aims at curbing or nabbing at the bud thereby saving the people from the arbitrary power of the government when it is abused. This is achieved by limiting the power of the government.
Noel B. Roynolds in his article, Political power and the American Constitutionalism, also justifies constitutionalism in terms of human weakness. He argues that, alongside the recognition of the need for rulers, there should be recognition of the need to control rulers. It is unthinkable to imagine a society without rulers, thus the search for the best mechanism to control them.
CONSTITUTIONALISM AND RULE OF LAW
Constitutionalism and the rule of law are closely linked. However, the latter has been defined differently by different authors and is somewhat ambiguous. Its contemporary definitions refer to it as a cluster of ideas including the following; principle of legality, separation of powers, promotion of material justice and individual rights, maintenance of public order and prescription of procedural standards in the administration of justice. Accordingly, most of the core elements of constitutionalism are necessary for the existence of rule of law but as concept, the Rule of law is much narrower in scope than constitutionalism. Respects for the rule of law may itself not lead to constitutionalism albeit, constitutionalism is safeguarded by the rule of law and without the rule of law, there can be no constitutionalism.
CONSTITUTIONALISM AND DEMOCRACY
There is a tendency to equate the two concepts. However, they are different; just like the existence of a constitution does not guarantee constitutionalism, existence of democratic values, principles or institutions is not an indicator of constitutionalism. It is important to note at this point that there is no contradiction between the two concepts; this is because some constitutions promote both concepts. There are however instances where democracy has been used to subvert constitutionalism.
Democracy, just like constitutionalism is also a fuzzy word that has been subjected to different interpretations. However, Abraham Lincoln defined democracy as a government of the people, by the people for the people. Thus, democracy is a rule by the popular will. This indeed can be achieved with or without a constitution.
Experience has shown that even where there is democracy based on a constitution, constitutionalism is not always a by product. This can be exemplified by the reigns of dictators such as Mobutu Sese Seko, Marcias Nguema and Jean Bedel Bukasa who staged elections in order to legitimise their stay in power. Popular will is capable and has indeed resulted to a tyranny of the majority or of the minority or of one man, examples include the injustices of classical Greek democracy and the terrors of the French revolution.
Charles Manga correctly observes that neither constitutional governance nor democracy governance is synonymous with constitutionalism. But the two can be reconciled as Ulrich points out; modern constitutionalism involves the reconciliation of the democratic rule of men with the constitutional rule of law.
NORMATIVE FOUNDATION OF CONSTITUTIONALISM
Constitutionalism has both substantive and procedural elements. It limits not only the procedures to be followed by the government in performing its functions but also the objectives to which the power is directed. In this sense, constitutionalism identifies the basis of its limitation effect upon certain normative value and standards that become a force that gives legitimacy to running of state affairs.
Limitation of government is informed by a certain normative framework that provides the beacons which demarcate a legitimate operational sphere. It is informed by a normative yardstick against which to evaluate government as well as private actions. Ulrich argues that normative foundation should with normative function of constitutions and not just an over focus on the amount of power. He premises his arguments that, ‘in a somewhat pointed manner we may say that the idea of constitutionalism is neutral vis a vis the amount of power. Whereas, it is very much concerned about the mediation, civilisation and nationalisation of political power which does not necessarily mean to minimise it. The criteria by which distinguish constitutionalism from absolute authoritarian state is not the amount of power but its quality. The property of a constitutional state consists in the subjection of its political power to rules which claim validity as legal norms and which are enforced by specialised law enforcement agencies particularly constitutional courts. Constitutionalism therefore embraces the idea of normative penetration of the body polity to that effect that its institutions continue and operate irrespective of the changing majorities and of the facilitation of polities in general to its idea of normative supremacy and continuity.
This means that political decisions making and processing of social conflicts including conflicts between individuals and government are subjected to a class of legal rules which claim supreme legal validity- the constitution constitutionalism which means that the authority of government is not willed according to will and arbitrariness’s of men but according to legal rules, rule of law rather than rule of men. Thus a constitution is an embodiment of a legally enforceable normative programme which generates obligations both for rules and the ruled.
According to Ulrich, the importance of constitutionalism lies not so much in the limitation or minimising of power but in insisting of right quality of power. Normative principle in this regard comes in to provide the correct quality standards to be used in assessing the quality of power. It is therefore correct to argue that it is possible to have a constitution that limits powers of government without necessarily amounting to constitutionalism in the sense of normative legitimacy in terms of quality. Thus the argument by Ulrich that in feudal catholic, the legitimacy power of rulers was traced in religious divine agreements and foundations, power in modern states requires secular justification thus perspective of political theory, people and their sovereign power have replaced a god as legitimising force of power. It is the constitution which has supplemented the Holy Scripture.
The people are the ultimate force and source of authority and constitutions the source of force that provides legitimacy to all activities, it is in this legitimacy sense that constitutionalism is seen as a system of normative principles. The basic basis for conceptualizing a government is the service to the welfare of the people which is an objective basis. It is this objective standard that inform norms upon which constitutionalism should be founded. Power should not be limited for the sack of it but as a means of normative objective of serving the welfare of the people. It is from this perspective that quality of power should be evaluated from.
Power which the people created by consolidating their individual strengths which power is now delegated to a few to administer on their behalf and for their benefit cannot latter be put to any other use or be put against their own interest.
1. Recognition and protection of fundamental rights and freedoms
Protection of fundamental human rights and freedoms has become a standard of constitutionalism recognised and accepted by all African countries. The manner and scope of recognition and protection of these rights in constitutions of African states varies from country to country. In South Africa, they are found in the Bill of Rights[33] whilst in other countries it is done through a section titled, ‘protection of fundamental rights and freedoms.’
As regards scope, most of the old constitutions cover first and second generation rights while most of the recent constitution cover up to third generation rights taking a cue from the African Charter on Human and Peoples’ Rights. Article 21(2) of the Angolan Constitution provides that, “the fundamental rights provided for i the present law shall not preclude other stemming from the laws and the applicable rules of international law.” This is important when it comes to interpretation of rights.
Similarly, the South African Constitution has an expansive provision on interpretation of its Bill of Rights. Article 39 provides that, “when interpreting the Bill of Rights, the court must promote the values that underlie an open and democratic society based on human dignity, equality and freedom” and must also consider international law as well foreign law.
Kenya has taken cue from the African Charter as well as the South African Constitution by recognising and protetcting fundamental rights and freedoms through a Bill of Rights which forms Chapter four of our constitution. In terms o scope, it goes a step further by recognising and proecting all the three generation rights. It recognises and protects Economic and social rights in Article 43. It recognises and protects group rights such as those of women, youth, older members of society, and persons with disability.[34] It also recognises novel rights such as those of consumer rights.[35]
Article 20 (1) of the Kenyan Constitution requires the courts while applying the Bill of Rights to adopt an interpretation that most favours the enforcement of a right or fundamental freedom, to promote values that underlie an open and democratic society based on human dignity, equality, equity and freedom and the spirit, purport and objects of the Bill of Rights.
To underlie the importance of human rights protections, most of the African constitutions provide for special procedures for their enforcement by allowing by allowing any person aggrieved by any violation of any of these rights to seek redress from the courts. These procedures are found in Article 22 of our constitution which gives the right of standing to any person who claims a right has been infringed or is threatened.
2. separation of powers
Separation of powers is one of the preoccupations of constitutionalism. It is a concept driven by suspicion and distrust of power and in particular its concentration. Lord Acton said in reference to over concentration of power, “all power corrupts but absolute power corrupts absolutely.” Africa has been a classic example of abuse of power which its leader abrogated to themselves in excess. Out f the woes it has undergone through, just like in other democracies, Africa has tried to remedy this by adopting constitutions that provide for separation of power thereby limiting its concentration on one institution or person.
Though this concept will be analysed in detail in the next class, it simply entails the creation of three institutions, that is, the executive, judiciary and the legislature which are separated from each other in terms of composition and function.
There are three models of separation of powers to choose from and indeed an analysis of African constitution will show that most of the constitutions are based on these three models. First is the semi rigid presidential system that is applied in the USA constitution, second is the Westminster model though it recognises the three branches of government, it provides for an overlap between the powers of the executive and the legislature and the third one being the French Model which is a mix of the first two and provides for collaboration rather than strict separation of powers with its peculiarity being the dominance of the executive and the subordinate position of the judiciary.
Whichever method is adopted, the objective is to have a system in which the risks of concentration of power and the attendant consequences that go with it can be forestalled through interference by each of the three powers in each other’s domain.
3. The independent judiciary
An independent judiciary is a necessary and logical corollary to the doctrine of separation of powers. A constitutionally entrenched independent judiciary is an essential and necessary precondition to functional and substantive judiciary. An independent judiciary can be defined as one that is free to render justice in all issues of substantial legal and constitutional importance, fairly, impartially, in accordance with the law, without threat, fear of reprisal, intimidation or any other undue influence or consideration. Like of separation of powers, it is not an absolute concept. It does not refer to a single kind of relationship or something that a judicial system has, or does not have but rather what it may have more of it or less of it.
Determinates of constitutional independence include vesting of judicial functions exculisvely to the judiciary, qualifications for prospective judges, the independence of the appointment process, the independence of the judicial service commission, security of tenure, judicial remuneration, promotion and disciplinary processes and immunity from criminal and civil suits.
4. Review of constitutionality of laws
A constitution is only as good as the mechanism provided within it for ensuring that its provisions are properly implemented and that any violations of it are promptly sanctioned. Therefore an important bulwark of constitutionalism is the existence of an effective and efficient mechanism of for controlling and compelling compliance with the letter and spirit of the constitution. Without this, the constitution is not worth the paper on which it is written. On the other hand, this the only way through which the supremacy of constitutions is revealed and upheld. Article 2 (4) invalidates any law or act that is contrary to the constitution based on Article 2 (1) which declares the constitution as the supreme law of the Land that binds all person and all state organs at both levels of government.
Review of constitutionality of laws is done through the courts by way of petitions or judicial review. Article 165 gives the High original jurisdiction to hear and determine matter regarding interpretation of the constitution, protection of fundamental rights and freedom. While determining such matters, by dint of Article 23 (3) the court may grant appropriate reliefs, declaration of rights, injunctions, conservatory orders, declaration of invalidity of law, orders of compensation and orders of judicial review.
5. The control of constitutional amendments
A constitution should be an enduring document. It is the supreme law based on the sovereign will of the people. If it can altered easily, it will lose its vale as the supreme law and the alterations are more likely to subvert the will of the people. Constitutionalism implies that a constitution should not be suspended, circumvented or disregarded arbitrary by political organs of government. And that if is it is to be amended; it should be through a clearly laid down procedure that guarantees that the will of the people is not defeated in the process.
The existence of a constitution that is not overtly vulnerable to governmental or transient majoritarian manipulations through arbitrary amendments provides a sense of certainty and predictability that enhances the prospects of constitutionalism.
5.0 REMEDIES FOR BREACH OF THE CONSTITUTION AND CONSTITUTIONAL RIGHTS
Introduction
Every legal system recognizes the fact that for every breach of law and or a right, whether constitutional or not, there ought to be a remedy. Indeed the failure of a system to provide an effective system of remedies has been decried all over the world.[36] This is the very foundation of the concept of rule of law as was enunciated by John Marshall who said that:
The essence of civil liberty consists of the right of every individual to claim the protection of the laws whenever he receives an injury. One of the first duties of government is to afford that protection. The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this appellation if the laws furnish no remedy for the violation of a vested right.[37]
For every violation of a right, therefore, there has to be an adequate system of remediation. A right will be meaningless if it cannot be vindicated by way of adequate remediation. For this reason many areas of law are buttressed by system of remedies for the victims who suffer violation of their rights under this system.
As is the case in these other areas of law, there is a need for remedies even in the field of constitutional law. A breach of the constitution and a violation of constitutional rights ideally ought to be followed by a system of remedies. According to Richard Fallonn and Daniel Melzer, there is need for “a general structure of constitutional remedies adequate to keep government within the bounds of law”.[38] This truism however, is one of the areas that are often neglected in both constitutional theory and constitutional architecture and design. Many constitutions hardly make any or adequate provision for a system of remedies for breach of constitutional rights. Chucks Okpaluba[39] holds the view that in these very unfortunate circumstances. It normally falls upon the judiciary to fashion appropriate remedies for the victims of violation of constitutional rights. This in most cases leaves the effectiveness of constitutional remedies to the discretion of the courts and where the courts are not innovative enough victims go without an effective system of remedies.[40]
This chapter seeks to subject to scrutiny, this issue of remedies for breach and or violation of constitutional rights. At the level of constitutional theory, it seeks to investigate and establish a concept and general principle of constitutional remedies distinct from the concept of remedies in any other situations. The foundation of this concept of remedies is the constitutional supremacy. It posits that the success of any constitutional system with an entrenched bill of rights depends on the recognition and enforcement of a clear system of remedies for violation of constitutional rights. On the other hand, at the level of constitutional architecture and design, the chapter seeks to investigate the different approaches adopted in different constitutions to give effect to the concept of remedies. These approaches will be evaluated and a case will be made that certain approaches may be more effective than others. The chapter then seeks to identify and discuss what are considered as the different types of remedies available to victims of breach of rights.
In discussing the concept of remedies for breach of rights, two broad areas can be identified. First, there are a category of rights which can be identified as emanating from the concept of the supremacy of the constitution and the supremacy clause of the constitution. Secondly, there are those rights which can be identified as stemming from the enforcement constitution.
The Concept of Remedies in Constitutional Law
As already noted above, there is need for a concept of remedies in the field of constitutional law. A breach of the constitution and a violation of constitutional rights ideally ought to be followed by a system of remedies. The foundation of the concept of remedies in constitutional law is the supremacy of the constitution. The essence of a supreme constitution is that the constitution is the fundamental norm which is predominant and has primacy and precedence over all other norms and actions in a given polity.[41] The practical impact of this predominance and primacy was well set out and explained by John Marshall in the seminal case of Mortuary v Madson, as being the fact that in the event of a choice having to be made, the constitution has to take precedence and be enforced over any other norm or conduct.[42] The effective enforcement of constitutional supremacy therefore demands that anything else that is inconsistent with the constitution be denied validity; by being declared null and void.
Consequently, the foundation of constitutional remedies is this concept and process of denial of validity. The declaration of nullity and invalidity becomes the starting point of remediation in constitutional law. Anything inconsistent with the constitution is a violation of the constitution must be vindicated by a system of remedies.
The importance of remedies law was emphasized by South African constitutional court in which Ackerman J stated that:
Given the historical context in which interim constitution was adopted and the extensive violation of fundamental rights which had preceded it, I have no doubt that this court has a particular duty to ensure that, within the bounds of the constitution, effective relief be granted for the infringement of any of the rights entrenched in it. In our context an appropriate remedy must mean and effective remedy, for without effective remedies for breach, the values underlying and the rights entrenched in the constitution cannot properly be upheld or enhanced. Particularly in a county where so few have the means to enforce their rights trough the courts, it is essential that on those occasions when the legal process does establish that an infringement of an entrenched right has occurred, it be effectively vindicated. The courts have a particular responsibility in this regard and are obliged to “forge new tools” and shape innovative remedies, if needs be, to achieve this goal.[43]
At the level of constitutional architecture and design, this supremacy idea is normally enacted into many written constitutions by ways of supremacy clause included in the constitution. For example, the former constitution of the Republic of Kenya housed the supremacy of the constitution in section 3 which provided as follows:
This constitution is the constitution of the republic of Kenya and shall have the force of law throughout Kenya and, subject to section 47, if any other law is inconsistent with this constitution, this constitution shall prevail and the other law shall, to extent of the incontinency be void.[44]
The current constitution also has well phrased supremacy clause that reads as follows;
This Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of government. 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[45]
The effect of this constitutional supremacy is to invalidate any law or conduct which is inconsistent with the constitution. A supreme constitution is based on the concept of the constitution as the most fundamental norm in the polity which has primacy and takes precedence over any other norm, conduct or action by any state organ or even individuals. A reading of many of these supremacy clauses indicates that they are phrased in language that gives effect to the practical impact of supremacy mentioned above. They are phrased in such manner as to invalidate anything that is inconsistent with the constitution. It is therefore expected that all state organs and private individuals have to conduct all their affairs, showing respect to the supremacy and primacy of the constitution. However, in the event that this is not done, the remedy availed to an aggrieved party is a declaration of nullity and invalidity by the judiciary.
The effect of supremacy has been explained variously by both scholars and courts. According to Kriegler, J. in the South African case of Fose v Minister of Safety and security[46] the supremacy clause automatically made any unconstitutional law or conduct a nullity. Johan Dee Waal[47] explains this view of judge Kriegler saying that when courts award a remedy in constitutional cases, they attempt to synchronize the real world with the ideal construct of constitutional world created in the image of the supremacy clause. He notes that a further observation by the judge is that, “as is the case at common law, constitutional rights and remedies are complementary. However, the harm caused by violating constitutional rights is harm to society as a whole: the violation impedes the realization of the constitutional project of creating a just and democratic society. Therefore, the object in awarding a remedy should be, at least, to vindicate the constitution and deter future infringements. Vindication is necessary because harm to constitutional rights, if not addressed, will diminish the public’s faith in the constitution. The judiciary bears the burden of vindicating rights by striking effectively at the source of their infringement. On the other hand Peter W Hogg comments on the effect and practicum implication of the Canadian supremacy clause as follows:
This supremacy clause gives to the charter overriding effect. Since the charter is part of the constitution of Canada any law which is inconsistent with the Charter is “of no force or effect”. Since it inevitably falls to the courts to determine whether or not a law a is inconsistent with the Charter with the charter’s 52(1) provides an explicit basis for judicial review of legislation in Canada.[48]
Quite apart from the supremacy of the constitution as the foundation of the concept of remediation, it is notable that the concept of fundamental rights and freedoms normality forms part and parcel of the constitution. Many constitutions incorporate what is normally called a Bill or Rights as forming part of supreme constitution. In the conceptualization of human rights, it may be recalled, an observation was made, that, in nature human rights ought to be practicable and enforceable. Practicability means that the rights are not mere aspirations but attainable practical claims that can be enforced by a legal system. Lous Henkin clearly explains this practicability nature of human rights as follows:
Human rights are rights; they are not merely aspirations, or assertions of the good. To call them rights is not to assert, merely that the benefits indicated are desirable or necessary or merely that it is right that the individual shall enjoy these goods or even, merely it is the duty of society to respect the immunity or provide the benefits. To call them rights implies that they are claims as of right, not by appeal to grace or charity, or brotherhood, or love; they need not be earned or deserved. The idea of rights implies entitlement on the part of the holder in some order under some applicable norm; the idea of human rights implies entitlement in a moral order under a moral law, to be translated into and confirmed as legal entitlement in the legal order of a political society. When a society recognizes that a person has a right it affirms legitimates and justificies that entitlement, and incorporates and establishes it in the society’s system of values, giving it important weight in completion with other societal values[49]
The practicability of human rights therefore imposes an obligation on society to satisfy these claims. The state must develop institutions and procedures: put in place plans and mobilize resources that will enable the citizens to access these rights. Enforceability on the other hand means that the rights are not mere paper rights but effect practical claims that can benefit the claimants. MacFarlane explains this issue of enforceability in the following manner:
Human rights as enforceable domestic legal rights require a domestic legal system based on the rule of law, affording protection to individuals in the enjoyment of rights under the law with no punishment except for established breaches of the law.[50]
To be able to give effect to this practicability and enforceability nature of human rights the concept of remediation becomes imperative. Consequently, in addition to the supremacy clause most constitutions that have entrenched Bills of Rights normally make further and more specific provision for the remediation of rights. This is normally done by what of what have come to be known as enforcement clauses. The best example in this regard is the Canadian charter of Rights and Freedoms, sections 24 (1) of which provides that:
Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstance.[51]
Although both the enforcement and the supremacy clauses address the question of remediation in constitutional law, Peter W. Hogg identifies a number of differences between them. Most important among these differences is the fact that whereas the supremacy clause is applicable to the entire constitution, the enforcement clause is only applicable to the Charter of rights and freedoms.[52] Section 24(2) of the Canadian Charter of rights and freedoms is another remediation clause. The section is addressed to the specific question of the violation of procedural charter rights such as the rights to a fair trial. In this case the charter provides for the remedy of exclusion of any evidence obtained in breach of the charter.[53] Both the South African interim constitution of 1993[54] and the final constitution of 1996[55] also made provision for the specific enforcement clauses. Both sections 7(4) of the interim constitution and section 38 of the final constitution address the question of remediation by conferring very wide discretion on the courts to determine what would constitute an appropriate relief to be granted to an aggrieved party in the circumstances of every given case. Following the example of the Canadian Charter of Rights and Freedoms, the South African final constitution has several other clauses that emphasize the concept of remediation. When conferring jurisdiction upon the courts, section 172(1) empowers the courts to grant remedies in the form of orders of invalidity and any other orders that are just and equitable.[56]
In Kenya, section 84 of the repealed constitution was generally regarded as the enforcement clause through which parties sought the enforcement of his right under the bill of rights. Subsections (1) and (2) were very specific in terms of remediation of infringed rights.[57] For a long time this clause had been criticized as being poorly phrased and therefore inadequate in terms of enforcement of rights and granting of remedies for breach of rights.[58]
The current constitution in Article 23 (1) grants the high court jurisdiction to hear and determine applications of denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. In terms of supremacy clause, the current constitution provides in Article 2(4) that; “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.”
Although the supremacy clauses and the enforcement clauses from the foundation of remediation for breach of constitutional rights, the exact nature of the remedies under these clauses are in most cases not made clear and may not be easily determinable. This therefore leaves a lot of discretion on the part of the courts to determine the exact remedies to be granted in the cases of law or conduct inconsistent with the constitution on the one hand, and breach of violation of constitutional rights, on the other hand. In exercising this discretion, the courts have to be flexible. But the overall aim should be to protect the supremacy of the constitution by ensuring the protection and enforcement of the constitution.[59] The courts have discretion to determine the particular relief appropriate in the circumstances of each case. The need to give effect to the supremacy of the constitution and to protect the constitution is emphasized by Johan De Wall who urges the courts to choose relieves that can vindicate the Constitution and deter future violations.[60] In the South African case of Sanderson v Attorney –General –Eastern Cape[61], Krigler J once again emphasized the need for flexibility by the courts in their approach to remedies. He points out that the approach does not dictate any particular remedy for violation of a constitutional right. The remedy must be appropriate which means that it must be suitable. This suitability is measured by the extent to which form of relief vindicated the constitution and acts as an errant against further violation of right enshrined in the bill of rights.
Remedies under the supremacy
(a) Declaration of invalidity
As already noted above, the foundation of remediation in constitutional law is the supremacy clause of the constitution. Generally, this clause provides for a declaration of nullity or invalidy of any law or conduct which is inconsistent with the constitution. According to Johan De Waal, the usual remedy following a finding that a law or provision of a law is inconsistent with the constitution is to declare the law or the provision invalid to the extent of the inconsistency. The same applies to conduct of a person or an institution bound by constitution.[62]
The South African constitution is specific in invalidating not only law but also conduct which is inconsistent with the constitution.[63] However, both the Canadian constitution and the constitution of Kenya use a more or less restrictive phraseology.[64] They seem to refer only to law that is inconsistent with the constitution being invalid. This has a misleading effect in suggesting that conduct which does not amount to law may not be invalidated by the supremacy clause. The general understanding of supremacy is that it binds not only law but also conduct of a state organ or even a private individual. For this reason, the modern trend is to phrase the supremacy clause in a manner that invalidates both any law and conduct that may be inconsistent with the constitution. It is for this reason that the South African clause that in the cause of the development of the draft constitutions of Kenya the need to go for this South African modern phraseology as opposed to the phraseology of the Canadian Clause was along the way realized.[65] Whereas the Draft Constitution of 2002[66] followed the old restrictive approach of the content constitution of Kenya and the Canadian constitution, both the draft constitution of 2004[67] and the proposed constitution of 2005[68] followed the modern approach along the lines of the South African supremacy clause. The choice to abandon the phraseology of the 2002 draft was an appreciation of the modern theory of constitutional supremacy and the modern trend in constitutional architecture and design.
But sometimes a statute may contain both provisions that are constitutional and those that are unconstitutional. In this case constitutional supremacy does not require and insist on the invalidation of provision in a statute that are constitutional along with the unconstitutional provisions if these unconstitutional ones can be severed from the constitutional ones. Nor does it require invalidation if the resulting situation would be more unconstitutional than the existing one. For these reasons, the exact nature of the specific remedies capable of being granted under this clause, it was noted, is left to the discretion of the court. The courts are granted discretion to determine the exact remedies to grant each case. In some constitutions they are granted power to regulate by severing unconstitutional provisions from a state: by controlling the retrospective effects of a declaration of invalidity, and by temporarily suspecting a declaration of invalidity. A party to litigation may therefore agitate for the granting of a remedy other a straightforward declaration of invalidity to be granted.[69]
The Concept of Severance and Reading Down
The concept of severance recognizes the fact that certain provisions of legislation may be unconstitutional while others may be constitutional. The consequences of this are that only the unconstitutional provision or parts of provisions should be declared invalid. The constitutional provisions or parts of the provisions must not go with the unconstitutional clauses recognize these and are phrased in the language of “to the extent of the inconsistency”. Section 172(1) (a) of the South Africa constitution for instance, provides that a law or conduct must be declared invalid “to the extent of its inconsistency” with the constitution. Section 52(1) of the Canadian constitution on the other hand provides that “any law that is inconsistent with the provisions of the constitution is, to extent of the inconsistency, of no force or effect.” And section 3 of the repealed constitution of the republic of Kenya rendered void, to the extent of the inconsistency”, any other that was inconsistent with the constitution. Article 2(4) of the current constitution is phrased in similar terms that, “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.” This phraseology requires a court to declare invalid only those parts of a law that are unconstitutional. It is this concept and process of separating unconstitutional parts of legislation from constitutional ones that is referred to a severance. Ordinarily this involves striking down a particular section or subsection of a law and leaving the rest of the law intact.
Ge Devenish comments on this matter saying that the effect of section 172 (1) (a) of the South African constitution amounts to severance, since this requires a court to declare invalid only those parts of a law that are unconstitutional. Justice Kriegler explained the concept of severance in the South African case of Coetzee v Government of the republic of South Africa[70] as follows:
Although severability in the context of constitutional law may often require special treatment, in the present case the trite test can be properly applied: if the good is not dependent on the bad and can be separated if it still gives effect to the main objective of the statute. The test has two parts: first, is it possible to sever the invalid provisions and second, if so, is what remains effect to the purpose of the legislative scheme?
Exclusion of Evidence
In addition to the other rights mentioned above, there are certain rights the remedy for whose breach is exclusion of evidence. These are mostly procedural rights in criminal trials. If for instance evidence was obtained in breach in a manner that breaches the constitutional right of a criminal defendant, one of the remedies such as defendant may have is exclusion of such evidence from being adduced in court against him in many constitutions this remedy is implied by the nature of the right. However, in some other countries, there is express provision of such remedy in the constitution. For example, section 24(2) of the Canadian Charter of Rights and Freedom specifically provides that:
Where in proceedings under subsection (1) a court concludes that evidence was obtained in a manner that infringed or denied any rights of freedoms guaranteed by the Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in proceedings would bring the administration of justice in to disrepute.
According to Peter W. Hogg, the Canadian exclusionary rule seems to be based on the good reputation of the administration of justice, rather than the deterrence of official misconduct. The fallacy of this approach is that if the admission of evidence obtained in breach of the charter would bring the administration of justice in to disrepute, then the evidence must be excluded. But if the admission of the evidence would not bring the administration of justice into disrepute, then the general rule of admissibility will apply.
Kenya’s constitution in seeking to do away with this fallacy provides in Article 50 (4) provides that, “ Evidence obtained in a manner that violates any right or fundamental freedom in the Bill of Rights shall be excluded if the admission of that evidence would render the trial unfair, or would otherwise be detrimental to the administration of justice.” This means that such evidence in either of the two circumstances, of rendering a trial unfair or bringing disrepute to the administration of justice, such evidence shall not be admissible.
Remedies under the Enforcement Clause
The High court has the first original jurisdiction to hear and determine applications for redress of a denial, violation or infringement to a right of fundamental freedom in the Bill of Rights.[71] in hearing such disputes, the High court may grant appropriate relief including; a declaration of rights; 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.[72] The wording of this Article is such that the courts may grant any other remedies that they may deem appropriate other than those listed in Article 23 (3).
6.0 SYSTEM AND STRUCTURE OF GOVERNMENT
CONTEXT AND CONSTITUTIONAL FOUNDATIONS OF DEVOLVED GOVERNMENT OF KENYA
Introduction
The post independence governance system was a highly centralized one with a lot of inefficiencies. It highly borrowed from the centralized colonial government. It was characterized by poor governance, evidenced in corruption, poor service delivery, ethnic conflict, poverty, insecurity among others deficiencies. This system of governance resulted to alienation of the majority from mainstream economy, wasteful public investment, extreme poverty, ethnic animosity and cut throat political competition and intolerance.
This system of governance can be traced back to post independence constitutional and legal amendments that recentralized power to the executive. The result of these amendments was the monopolization of power through frustration and finally outlawing of political parties. This led to emergence of a small political cum- economic elite that accumulated both political and economic wealth. This elite group protected the centralized system that captured state power. Democratic governance was thrown to the periphery as personal rule took over governance of the country. National goals of independent government of fighting poverty, disease and ignorance were distorted.
Brief History of the Centralized Colonial State
Discriminatory development in Kenya has its origin in the exclusive colonial system which was primarily established to serve the interests of the minority white community. The system did not allow representation for the majority Africans in the Legislative Council. The exclusion of Africans was wrongly premised on the argument that they could not be able to articulate their issues and, also, did not understand their best interests. The first African to the Legislative Council was only nominated in 1944. Power was centralized in the Governor who represented the imperial government. There was no separation of powers as the Executive exercised immense power over both the Legislature and the Judiciary. The Governor was president of both the Executive and the Legislative Council and was supported by a powerful administrative system, namely, the provincial administration. The system was based on central command and control.
The economy of the colonial state was organized and managed along racial lines and geared towards exploiting the Africans for the benefit of the Colonial State. Through legislation, including the Crown Lands Ordinances (1902 and 1915), Africans were deprived of most of their productive land which was allocated to the white settlers. Africans were restricted to occupying marginal land reserved for them known as African reserves designed as reservoirs for cheap labour extracted through coercion by way of legislation and taxation. Africans were reduced to squatters, a problem that has persisted to date.
Various policies and legislation were developed to give whites economic advantage and undermine the non – white economy. For example, non-whites were not allowed to grow certain crops including coffee. Marketing of produce was highly controlled by the state. Through policy and legislative measures, therefore, the State determined the pace of economic development of the areas occupied by Whites and Africans. Over time, this created regional economic disparities that persist to this day.
For about seventy years, the colonial government and its officials abused human rights with impunity. They engaged in forced labour; communal punishment; extra-judicial killings (of those who resisted colonial rule); detention without trial; rape, war crimes and the grabbing of African land for white settlement, among other violations. The independence struggle was informed by the need to confront and address these wrongs.
THE Post-Independence Quasi-Federal System
At independence in 1963 the Majimbo Constitution that Kenya adopted provided for devolution of government to regional assemblies in the context of a bicameral, Westminster-type parliament with a Senate and National Assembly – the Lower and Upper Houses, respectively. It had a clear extensive Bill of Rights and separation of powers between the arms of government; judicial independence and multi party system. These constitutional provisions were premised on the need to secure the rights of ethnic minorities grouped in the Kenya African Democratic Union (KADU) party, against domination by the ‘big tribes’ grouped in the Kenya African National Union (KANU) party. These constitutional compromise encompassed guarantees of regional autonomy and a Bill of Rights that protected property and the right of the individual to reside and work anywhere in the Republic. The Bill of Rights was also influenced by the need to secure the future of the British settlers that would remain in the ex-colony after independence.
The regions were constitutionally empowered to make laws through an elected regional assembly. The regional assemblies had legislative competences (both exclusive and concurrent) on most of the local service delivery matters including agriculture, education, and community development, housing, and health services. There was, also, a system of local government to facilitate popular participation in governance.
The design of the independence constitution was informed by the experience and the desire to deconstruct the colonial state that had systematically discriminated against non-whites; divided society along racial and ethnic lines; impoverished large sections of the population; and denied the people, particularly the Africans, a chance to be responsible for their affairs. Regional autonomy sought to empower the local communities to be responsible for local governance.
This was to be achieved through devolution of political and economic power to the regions. It was envisaged that the fears of the ethnically minority communities would be assuaged.
Unfortunately, the quasi federal independence constitution was not allowed to consolidate and flourish. Barely a year later, the 1964 dissolution of the opposition KADU rendered devolution moribund as its very championing party integrated itself into KANU, which had demanded a unitary government during the constitutional talks at Lancaster House in London. Not only had the KANU government hardly undertaken any substantive devolution of administrative functions and attendant budget and personnel resources to sub-national agencies by the time of KADU’s dissolution, but KANU soon even usurped functions – such as social service delivery – that the colonial government had allocated to local authorities. In the 1960s and 1970s, the Government of Kenya (GOK) argued about its superior service delivery capacity – reflected in the aspirations of the development blueprint, Sessional Paper Number 10 of 1965 on African Socialism and Its Application to Planning in Kenya. This led inevitably to various constitutional reforms that created an almighty ‘imperial presidency’.
Between 1963 and 1990, the independence Constitution was amended through more than 30 constitutional amendments. Historical analysis points out that these were primarily geared towards securing monopolization of power by the ruling party and the centralization of power around the Executive personified by the President. During this period, political competition was muzzled and civil society withered as it was increasingly intimidated, co-opted or banned by the state. Over time, the state occupied the entire public sphere crowding out both political actors and the civil society. Apart from political and social control, the state also restated the discriminatory policies of colonial government.
It favoured certain sectors of the economy while undermining others through policy and legislation. In keeping with dominant centralized development model of the time, the state situated itself as the main agent of development. Through the Sessional Paper no. 10 of 1965, the government advocated for the focusing of development and investment on the high potential areas on the understanding that the economy would experience rapid growth due to the higher returns on investment in those areas. The policy zoned the country into high, medium and low potential areas.
The zoning was primarily based on the needs of the settler economy which were anchored on the British needs at the time. Though well meaning, the policy on centralized planning reinforced the marginalization of the areas that had suffered neglect during the colonial period. There was no appreciation of the need to correct the imbalances created by the discriminatory practices of the colonial government.
The independence government also adopted the policy of ‘Africanisation’ of commercial enterprises in order to give Africans the ‘commanding heights of the economy’. This policy was founded on the understanding that political independence without economic power was meaningless. It sought to give Africans a foothold in the national economy which they had been denied by years of discriminative colonial policies and legislation. This well-intended policy was unfortunately subverted by political biases that existed at the time. The political elite ensured that the ‘Africanised’ businesses went only to those in the patronage system of friends, colleagues or ethnic political supporters.
From 1964 to 1973, economic growth performance was very impressive, achieving rates in excess of 6 percent per annum. During this period, industry expanded annually by about 10 percent with the Import Substitution strategy yielding good results. Agriculture on the other hand, grew by about 5 percent per annum, showing positive responses to expansion of African cash crop farming and increases in extension services. However, the benefits of this growth and improved performance in the economy were not equitably shared as anticipated under Sessional Paper No. 10 of 1965. The instruments for ensuring such distribution, the regional governments and other measures, were removed, curtailed or ignored. Thus, in its execution Sessional Paper No. 10 of 1965 had the effect of creating an economic elite and also compounded economic differences between the regions. This elite, sought to exercise unlimited control over state resources through centralizing and monopolising power. This allowed them to dispense patronage to both individuals and ethnic communities and it inevitably led to massive abuses of power
The Concept of Decentralization
As a governance tool, decentralization is based on the principle of subsidiarity, which assigns specific functions hitherto conducted by the centre (of an entity) to the lowest feasible subcentres on the periphery.[73] In government, such distribution of responsibilities could involve any one or more (among many) responsibilities, including problem identification, policy making, planning, revenue generation, budget execution, accounting and auditing, and monitoring and evaluation.
An underlying logic behind decentralization is that it enlarges sub-national participation in decision making over interventions, and consequently enhances their local relevance and citizen participation in implementation. These measures should then expand the scope for efficiency and cost-effectiveness. The various types of decentralization are historical realities of management generated by theory and practice: the clearer the structure of decentralization, the greater the scope for efficiency.
Decentralization has three fundamental dimensions, which may occur independently or jointly: the administrative, the political and the fiscal.[74]Administrative decentralization transfers responsibility of functions from a central agency to one or more of its lower levels internally, or to peripheral agencies, such as a state corporation – which may itself also transfer responsibilities to subordinate agencies.
Political decentralization separates powers and responsibilities horizontally or vertically. In these instances, decentralization is between or among agencies of comparable status, such as the executive, legislature and judiciary, or vertically to agencies that relate hierarchically, such as local authorities.
Finally, fiscal decentralization involves changing the locus of revenue generation, primarily, but also offers expenditure autonomy. Through this dimension, the central agency assigns some revenue generation responsibilities to sub-national agencies, whether the product enters the central kitty or is retained at the collecting agency for local spending. Beyond the foregoing dimensions, there are also several types of decentralization, including deconcentration, delegation and devolution, which are not necessarily mutually exclusive.
Deconcentration involves assigning responsibilities to regional or peripheral agencies within the same institution, such as the central government assigning policy implementation (oversight) to sub-national levels, which might not have originating (policy making) authority.
Delegation transfers responsibility to substantive and potentially independent institutions, such
as state corporations or local authorities. Delegation could also target entities in the nongovernment sector. Whereas deconcentration and delegation perpetuate the central place of the originating authority, devolution – also referred to as democratic decentralization – is an internal arrangement that gives target entities near-autonomous rights, ideally embedded in a legislative framework specifying relations among the periphery entities, as well as between them and the centre.
Closely related to devolution is the concept of federation: While devolution involves the centre
ceding authority to the periphery – even if in response to the latter’s demands – federation can be the initiative of initially independent entities willing to cede some autonomy for an anticipated greater collective good, as with the five independent countries of the East African Community initiative. Thus, whereas a federation recognizes a centre of authority, the component states are self-contained entities in as many respects as the instruments of federation provide.
Into the third independence decade, however, deteriorating government service delivery raised questions about the efficacy of an excessively centralized government, leading to minimal and eclectic decentralizing measures, such as President Daniel arap Moi’s weakly-implemented District Focus for Rural Development (DFRD) planning and budgeting framework. Persisting demands by a heavily repressed political opposition and a robust civil society for a return to political pluralism as a means of fostering greater government accountability, along with global liberalizing pressure, bore fruit in 1991 when Kenya returned to plural party politics. The demands for extensive constitutional reforms, however, notably incorporating the devolution of government to subnational agencies, were eventually only met in the new millennium. After a two-decade gestation, August 2010 saw Kenya adopt a new constitution with far-reaching provisions for democratization, including the devolution of government to 47 counties.
Devolution: Concept and Rationale
Devolution is one among several forms of decentralization, which is a characteristic of all governments globally. One analyst distinguishes vertical decentralization, which offers a vote, from horizontal decentralization, which also offers voice.[75] Thus, it is not whether governments decentralize, but rather, how and why they do – considerations that are significant for the choice between alternative modes of decentralization. Indeed, a study of decentralization in 30 African countries concluded that:[76]
It is significant to note that in no country was the claim to centralization as a preferred organizational model made or implied, nor was decentralization considered undesirable, only difficult to effect and sustain.
Devolution is based on the multi-dimensional approach of organisation and management of state power. Therefore, a devolved system involves the creation of two or more levels of government that are co-ordinate, but not subordinate to each other. None of the levels of government is a mere agent of the other. Each level is created and protected by the constitution, with the functions and resources to be used for their discharge being set out and defined by the constitution.
The system combines self-governance and shared governance at the local and national levels, respectively. The essence of this is that at the local level the people are allowed a certain flexibility within which they can make decisions that are unique to themselves and their locality. They are allowed a measure of self-governance at this level but at the national level, decision-making is shared. The people of Kenya organized in their different counties share in the making of the decisions that affect the whole country and the whole population. Therefore, the laws, which are made at the national level, are applicable to and enforceable in the whole country. Because of this, there must as of necessity be some shared institutions through which shared decisions can be made.
The national government is an infrastructure through which Kenyans in their 47 counties are able to share and participate in making decisions that affect the whole country. Most of the institutions at the national level of government provide infrastructure for cooperation, consultation and consensus building in the process of making decision on what constitutes the common good of the people of Kenya. Institutions, however, can also be perceived as shared not because they participate in shared decision-making but because they serve and render services to both levels of government. Some of the shared institutions are not necessarily national government institutions but independent state organs such as commissions.
One of the most important shared institutions in the architecture and design of a good devolved system of government is the Bicameral Parliament. It is conceptualized and structured in a manner that draws membership from electoral units determined more on the basis of population. But because this can easily tilt the scales in favour of the counties that have higher populations and thereby undermine effective shared decision making; the other house is conceptualized and structured in a manner that ensures a measure of equality of the counties in decision making. This second house is conceptualized as representing the counties with the votes belonging to the counties rather than the individual senators.
The CoK 2010 recognizes this and provides for a Senate in which the 47 counties are equal in terms of their participation in decision making in matters that concern counties although some counties will have more members in the sense of having more votes.[77] After elections, such Senators shall be collapsed into a single delegation representing the county and having only one vote just like the other counties that may have few Senators. Article 123(1) of the constitution provides that upon election, all the members of the Senate who were registered as voters in a particular county shall collectively constitute a single delegation for purposes of voting under clause (4), with the member elected under Article 98(1)(a) being the head of the delegation. On the other hand, Article 123(4) provides that “except as provided otherwise in this Constitution, in any matter in the Senate affecting counties—
a) each county delegation shall have one vote to be cast on behalf of the county by the head of the county delegation or, in the absence of the head of delegation, by another member of the delegation designated by the head of the delegation;
b) the person who votes on behalf of the delegation shall determine whether or not to vote in support of, or against, the matter, after consulting the other members of the delegation; and
c) the matter is carried only if it is supported by a majority of all the delegations”
The design gives the Senate a very fundamental role in the entire system of devolution making it part and parcel of the devolution system.
The Role of the Senate in Kenya’s Devolution
An analysis of the is important for two reasons; First and foremost, it is important to have a proper conceptualization of the Senate as part and parcel of the devolution system and to clearly understand its role, if implementation of devolution is to be properly and successfully undertaken. Secondly, there is the need to demystify the myth that as conceptualized and designed, the senate is a very weak institution playing a very minimal- almost ceremonial role. A close analysis of the constitutional provisions on Parliament and its two houses reveals evidence to the contrary.[78]
Article 93 of the constitution establishes a bicameral Parliament comprised of the National Assembly and the Senate. In setting out and defining the roles of Parliament and the two houses of Parliament, articles 94, 95 and 96 indicate that parliament is conceptualized as a shared institution through which the people of Kenya organized in their separate counties share in legislation making at the national level.
The National Assembly is conceptualized and designed as representing the broad national interests and the people of Kenya generally. On the other hand, the Senate is conceptualized and designed as representing the counties, their governments and interests. Article 96(1) provides in this regard that “the Senate represents the counties, and serves to protect the interests of the counties and their governments”. Sub-article (2) adds “the Senate participates in the law-making function of Parliament by considering, debating and approving Bills concerning counties, as provided in Articles 109 t0 113.” Sub-article (3) confers upon the Senate the power to determine the allocation of national revenue among counties, as provided in Article 217 and the power of oversight over the use of resources by the counties.
The extent of the legislative role of the Senate can only be fully appreciated if the meaning of the phrase “concerning counties”, is examined. Article 110 of the constitution defines bills concerning counties as being bills which contain provisions that affect the functions and powers of the county governments as set out in the fourth schedule; bills which relate to the election of members of the county assembly or county executive; and bills referred to in chapter twelve as affecting the finances of the county governments.
This is a very broad definition which creates room for the Senate to participate in the passing of bills in the exclusive functional areas of the national level of government for as long as it can be shown that such bills have provisions affecting the functional areas of the county governments. For instance, it may be argued that although security and policing are national functions, how security and policing services are provided affects how county governments discharge their agriculture functions. As such, a bill on security and policing would be a bill concerning counties.
Similarly, it may be argued that training in the fields of agriculture and health to produce agricultural extension officers, livestock extension officer and nurses affects how counties discharge their functions in these areas. Bills in these areas would therefore be bills concerning counties. With a good Speaker, the Senate should be able to find something that affects the functions of the counties in almost every bill that comes to Parliament, making it a bill that must be considered and passed by both houses.
In the area of finances, a distinction must be drawn between the role of the senate in the determination of the five/ three year formula for the allocation of revenue among counties as provided for by articles 96(3) and 217; and the role of the Senate in the annual vertical and horizontal sharing of revenue between national and county levels of government and among the counties, respectively, as provided for by articles 96(2) and 218. Article 96(3) confers powers and functions on the Senate in the field of horizontal allocation of revenues among counties. The Senate is conferred with power to determine the allocation of national revenue among counties, as provided in article 217, and also power to exercise oversight over national revenue allocated to the county governments. At a first glance and read a lone, article 96(3) may mislead one to think that it precludes the Senate from the annual vertical sharing of revenue between national and county levels of government. But read together with article 217 the article yields a different meaning. Article 217 which, stems from article 96(3), only deals with the determination of the five year and or three year formula for the sharing of revenue among the counties for that period. The article does not deal with annual division of revenue and annual allocation of revenue and does not exclude the Senate from playing a role. Articles 96(3) and 217 therefore only confer exclusive powers and functions on the Senate to determine the five year and or three year formula for allocation among counties, of the share of revenue raised nationally allocated to the county level of government.
The role of the Senate in the vertical and horizontal sharing of revenue is provided for by article 218 as read together with article 96(2). Article 218 provides for both the Division of Revenue Bill and the County Allocation of Revenue Bill, which are required to be introduced in Parliament at least two months before the end of each financial year. It is notable that the article provides for the introduction of the two bills in Parliament and not just in one of the two houses of Parliament. This may mean that the bills should be introduced and processed in parliament as a joint seating of the two houses or that they should be introduced and processed in each of the two houses of parliament separately.
Furthermore, these being bills to be passed into Acts of Parliament, they must be read within the context of the provisions of article 96(2) which requires that bills concerning counties be considered, debated and approved by the Senate. Bills which deal with the equitable sharing of revenue both vertically and horizontally within the meaning of articles 202, 203 and 204 are definitely bills that affect the functions of county governments and therefore, bills concerning counties in whose consideration, debate and approval the Senate has a role to play.
In addition to these roles, article 96(4), confers a very important role in the process of determining impeachment proceedings against the President. The Senate is empowered to participate in the oversight of State officers by considering and determining resolutions to remove from office the President or Deputy President.
When all these is added to the fact that majority of the Senators are to be elected directly by the voters of geographic constituencies, which are far larger than those which elect members of the National Assembly, one comes to the conclusion that the Senate created by the constitution plays not only a very important role in devolution but that it is a powerful house that could easily develop into the upper and superior house as compared to the National Assembly.
Share Institutions in Kenya’s Devolution
Apart from the bicameral parliament, the constitution of Kenya is designed with a number of other institutions which are conceptualised as shared in nature. These include independent commissions and offices.
The operationalization of this concept of shared governance ought to ensure that the national government as infrastructure for shared governance and all other shared institutions are not captured by sectarian interests that make them serve the interests of a few counties or communities. Granted that the top leadership of national government may come from a particular community and county, national government must not become the property of only one community, county or group of communities of counties.
Even the other shared independent state organs must not fall under the capture of a few. Both national government and independent state organs must serve the whole country, all counties and the all the people of Kenya and must not be unduly controlled by only one county or community or a group of counties or communities to the exclusion of others. Their organization and discharge of functions should be decentralized to ensure that their services are accessible to all, in terms of Articles 6 and 174 of the constitution. These needs should inform the development of policy, legal and institutional infrastructure for intergovernmental relations.
7.0 The Concept of Decentralization
As a governance tool, decentralization is based on the principle of subsidiarity, which assigns specific functions hitherto conducted by the centre (of an entity) to the lowest feasible sub centres on the periphery.[79] In government, such distribution of responsibilities could involve any one or more (among many) responsibilities, including problem identification, policy making, planning, revenue generation, budget execution, accounting and auditing, and monitoring and evaluation.
An underlying logic behind decentralization is that it enlarges sub-national participation in decision making over interventions, and consequently enhances their local relevance and citizen participation in implementation. These measures should then expand the scope for efficiency and cost-effectiveness. The various types of decentralization are historical realities of management generated by theory and practice: the clearer the structure of decentralization, the greater the scope for efficiency.
Decentralization has three fundamental dimensions, which may occur independently or jointly: the administrative, the political and the fiscal.[80]Administrative decentralization transfers responsibility of functions from a central agency to one or more of its lower levels internally, or to peripheral agencies, such as a state corporation – which may itself also transfer responsibilities to subordinate agencies.
Political decentralization separates powers and responsibilities horizontally or vertically. In these instances, decentralization is between or among agencies of comparable status, such as the executive, legislature and judiciary, or vertically to agencies that relate hierarchically, such as local authorities.
Finally, fiscal decentralization involves changing the locus of revenue generation, primarily, but also offers expenditure autonomy. Through this dimension, the central agency assigns some revenue generation responsibilities to sub-national agencies, whether the product enters the central kitty or is retained at the collecting agency for local spending. Beyond the foregoing dimensions, there are also several types of decentralization, including deconcentration, delegation and devolution, which are not necessarily mutually exclusive.
Deconcentration involves assigning responsibilities to regional or peripheral agencies within the same institution, such as the central government assigning policy implementation (oversight) to sub-national levels, which might not have originating (policy making) authority.
Delegation transfers responsibility to substantive and potentially independent institutions, such
as state corporations or local authorities. Delegation could also target entities in the nongovernment sector. Whereas deconcentration and delegation perpetuate the central place of the originating authority, devolution – also referred to as democratic decentralization – is an internal arrangement that gives target entities near-autonomous rights, ideally embedded in a legislative framework specifying relations among the periphery entities, as well as between them and the centre.
Closely related to devolution is the concept of federation: While devolution involves the centre
ceding authority to the periphery – even if in response to the latter’s demands – federation can be the initiative of initially independent entities willing to cede some autonomy for an anticipated greater collective good, as with the five independent countries of the East African Community initiative. Thus, whereas a federation recognizes a centre of authority, the component states are self-contained entities in as many respects as the instruments of federation provide.
Devolution: Concept and Rationale
Devolution is one among several forms of decentralization, which is a characteristic of all governments globally. One analyst distinguishes vertical decentralization, which offers a vote, from horizontal decentralization, which also offers voice.[81] Thus, it is not whether governments decentralize, but rather, how and why they do – considerations that are significant for the choice between alternative modes of decentralization. Indeed, a study of decentralization in 30 African countries concluded that:[82]
It is significant to note that in no country was the claim to centralization as a preferred organizational model made or implied, nor was decentralization considered undesirable, only difficult to effect and sustain.
Devolution is based on the multi-dimensional approach of organisation and management of state power. Therefore, a devolved system involves the creation of two or more levels of government that are co-ordinate, but not subordinate to each other. None of the levels of government is a mere agent of the other. Each level is created and protected by the constitution, with the functions and resources to be used for their discharge being set out and defined by the constitution.
The system combines self-governance and shared governance at the local and national levels, respectively. The essence of this is that at the local level the people are allowed a certain flexibility within which they can make decisions that are unique to themselves and their locality. They are allowed a measure of self-governance at this level but at the national level, decision-making is shared. The people of Kenya organized in their different counties share in the making of the decisions that affect the whole country and the whole population. Therefore, the laws, which are made at the national level, are applicable to and enforceable in the whole country. Because of this, there must as of necessity be some shared institutions through which shared decisions can be made.
The national government is an infrastructure through which Kenyans in their 47 counties are able to share and participate in making decisions that affect the whole country. Most of the institutions at the national level of government provide infrastructure for cooperation, consultation and consensus building in the process of making decision on what constitutes the common good of the people of Kenya. Institutions, however, can also be perceived as shared not because they participate in shared decision-making but because they serve and render services to both levels of government. Some of the shared institutions are not necessarily national government institutions but independent state organs such as commissions.
One of the most important shared institutions in the architecture and design of a good devolved system of government is the Bicameral Parliament. It is conceptualized and structured in a manner that draws membership from electoral units determined more on the basis of population. But because this can easily tilt the scales in favour of the counties that have higher populations and thereby undermine effective shared decision making; the other house is conceptualized and structured in a manner that ensures a measure of equality of the counties in decision making. This second house is conceptualized as representing the counties with the votes belonging to the counties rather than the individual senators.
The CoK 2010 recognizes this and provides for a Senate in which the 47 counties are equal in terms of their participation in decision making in matters that concern counties although some counties will have more members in the sense of having more votes.[83] After elections, such Senators shall be collapsed into a single delegation representing the county and having only one vote just like the other counties that may have few Senators. Article 123(1) of the constitution provides that upon election, all the members of the Senate who were registered as voters in a particular county shall collectively constitute a single delegation for purposes of voting under clause (4), with the member elected under Article 98(1)(a) being the head of the delegation. On the other hand, Article 123(4) provides that “except as provided otherwise in this Constitution, in any matter in the Senate affecting counties—
a) each county delegation shall have one vote to be cast on behalf of the county by the head of the county delegation or, in the absence of the head of delegation, by another member of the delegation designated by the head of the delegation;
b) the person who votes on behalf of the delegation shall determine whether or not to vote in support of, or against, the matter, after consulting the other members of the delegation; and
c) the matter is carried only if it is supported by a majority of all the delegations”
The design gives the Senate a very fundamental role in the entire system of devolution making it part and parcel of the devolution system.
The Role of the Senate in Kenya’s Devolution
An analysis of the is important for two reasons; First and foremost, it is important to have a proper conceptualization of the Senate as part and parcel of the devolution system and to clearly understand its role, if implementation of devolution is to be properly and successfully undertaken. Secondly, there is the need to demystify the myth that as conceptualized and designed, the senate is a very weak institution playing a very minimal- almost ceremonial role. A close analysis of the constitutional provisions on Parliament and its two houses reveals evidence to the contrary.[84]
Article 93 of the constitution establishes a bicameral Parliament comprised of the National Assembly and the Senate. In setting out and defining the roles of Parliament and the two houses of Parliament, articles 94, 95 and 96 indicate that parliament is conceptualized as a shared institution through which the people of Kenya organized in their separate counties share in legislation making at the national level.
The National Assembly is conceptualized and designed as representing the broad national interests and the people of Kenya generally. On the other hand, the Senate is conceptualized and designed as representing the counties, their governments and interests. Article 96(1) provides in this regard that “the Senate represents the counties, and serves to protect the interests of the counties and their governments”. Sub-article (2) adds “the Senate participates in the law-making function of Parliament by considering, debating and approving Bills concerning counties, as provided in Articles 109 to 113.” Sub-article (3) confers upon the Senate the power to determine the allocation of national revenue among counties, as provided in Article 217 and the power of oversight over the use of resources by the counties.
The extent of the legislative role of the Senate can only be fully appreciated if the meaning of the phrase “concerning counties”, is examined. Article 110 of the constitution defines bills concerning counties as being bills which contain provisions that affect the functions and powers of the county governments as set out in the fourth schedule; bills which relate to the election of members of the county assembly or county executive; and bills referred to in chapter twelve as affecting the finances of the county governments.
This is a very broad definition which creates room for the Senate to participate in the passing of bills in the exclusive functional areas of the national level of government for as long as it can be shown that such bills have provisions affecting the functional areas of the county governments. For instance, it may be argued that although security and policing are national functions, how security and policing services are provided affects how county governments discharge their agriculture functions. As such, a bill on security and policing would be a bill concerning counties.
Similarly, it may be argued that training in the fields of agriculture and health to produce agricultural extension officers, livestock extension officer and nurses affects how counties discharge their functions in these areas. Bills in these areas would therefore be bills concerning counties. With a good Speaker, the Senate should be able to find something that affects the functions of the counties in almost every bill that comes to Parliament, making it a bill that must be considered and passed by both houses.
In the area of finances, a distinction must be drawn between the role of the senate in the determination of the five/ three year formula for the allocation of revenue among counties as provided for by articles 96(3) and 217; and the role of the Senate in the annual vertical and horizontal sharing of revenue between national and county levels of government and among the counties, respectively, as provided for by articles 96(2) and 218. Article 96(3) confers powers and functions on the Senate in the field of horizontal allocation of revenues among counties. The Senate is conferred with power to determine the allocation of national revenue among counties, as provided in article 217, and also power to exercise oversight over national revenue allocated to the county governments. At a first glance and read a lone, article 96(3) may mislead one to think that it precludes the Senate from the annual vertical sharing of revenue between national and county levels of government. But read together with article 217 the article yields a different meaning. Article 217 which, stems from article 96(3), only deals with the determination of the five year and or three year formula for the sharing of revenue among the counties for that period. The article does not deal with annual division of revenue and annual allocation of revenue and does not exclude the Senate from playing a role. Articles 96(3) and 217 therefore only confer exclusive powers and functions on the Senate to determine the five year and or three year formula for allocation among counties, of the share of revenue raised nationally allocated to the county level of government.
The role of the Senate in the vertical and horizontal sharing of revenue is provided for by article 218 as read together with article 96(2). Article 218 provides for both the Division of Revenue Bill and the County Allocation of Revenue Bill, which are required to be introduced in Parliament at least two months before the end of each financial year. It is notable that the article provides for the introduction of the two bills in Parliament and not just in one of the two houses of Parliament. This may mean that the bills should be introduced and processed in parliament as a joint seating of the two houses or that they should be introduced and processed in each of the two houses of parliament separately.
Furthermore, these being bills to be passed into Acts of Parliament, they must be read within the context of the provisions of article 96(2) which requires that bills concerning counties be considered, debated and approved by the Senate. Bills which deal with the equitable sharing of revenue both vertically and horizontally within the meaning of articles 202, 203 and 204 are definitely bills that affect the functions of county governments and therefore, bills concerning counties in whose consideration, debate and approval the Senate has a role to play.
In addition to these roles, article 96(4), confers a very important role in the process of determining impeachment proceedings against the President. The Senate is empowered to participate in the oversight of State officers by considering and determining resolutions to remove from office the President or Deputy President.
When all these is added to the fact that majority of the Senators are to be elected directly by the voters of geographic constituencies, which are far larger than those which elect members of the National Assembly, one comes to the conclusion that the Senate created by the constitution plays not only a very important role in devolution but that it is a powerful house that could easily develop into the upper and superior house as compared to the National Assembly.
Doctrine of shared Institutions
The operationalization of this concept of shared governance ought to ensure that the national government as infrastructure for shared governance and all other shared institutions are not captured by sectarian interests that make them serve the interests of a few counties or communities. Granted that the top leadership of national government may come from a particular community and county, national government must not become the property of only one community, county or group of communities of counties.
Even the other shared independent state organs must not fall under the capture of a few. Both national government and independent state organs must serve the whole country, all counties and the all the people of Kenya and must not be unduly controlled by only one county or community or a group of counties or communities to the exclusion of others. Their organization and discharge of functions should be decentralized to ensure that their services are accessible to all, in terms of Articles 6 and 174 of the constitution. These needs should inform the development of policy, legal and institutional infrastructure for intergovernmental relations.
SHARED INSTITUTIONS
|
Constitutional Provision |
Institution |
Remarks |
|
Article 93 |
Parliament |
Comprises the National Assembly and Senate. Provides a forum through which counties share in legislation making at the national level |
|
Article 215 |
Commission on Revenue Allocation |
Recommends the vertical and horizontal sharing of revenue raised nationally |
|
Article 79 |
Ethics and Anti-Corruption Commission |
Enforces the constitutional integrity standards at both levels of government |
|
Article 59 |
Human Rights and Equality Commission |
Enforces human rights at both levels of government and in all counties. |
|
Article 67 |
The National Land Commission |
Manages public land at both levels of government and in all counties. |
|
Article 233 |
Public Service Commission |
In addition to its duties to national government, hears appeals of public servants of all county governments. |
|
Article 230 |
Salaries and Remuneration Commission |
Sets salaries for certain categories of public servants at both levels of government and recommends salaries for other categories of public servants at both levels of government and in all counties. |
|
Article 88 |
The Independent Electoral and Boundaries Commission |
Manages elections at both levels of government and in all counties |
|
Article 228 |
The Controller of Budget |
Controls expenditure by both levels of government and in all counties. |
|
Article 229 |
The Auditor General |
Audits and reports on the accounts of both levels of government and in all counties. |
Cooperative system of Kenya’s Devolution
Devolution in Kenya’s architect and design is distributed between two levels, national and county level. At the inception, the Kenyan people delegate their sovereign power at national and county level. Article 1(4) of the constitution provides that the sovereign power of the people shall be exercised at National and County level. Subsequently, Article 6 (1) divides the national territory of Kenya into 47 counties as specified in schedule 1 of the constitution.
These counties and their governments as per Article 6 (2) are distinct and inter-dependent and are required as a constitutional obligation to conduct their mutual relations on the basis of consultation and cooperation. They are further required to ensure reasonable access by the people of the services that they provide.[85]
This introduces a principle of cooperative system of devolved government in our constitution and which ought to be applied and respect in the devolution process. This is not based on the principle of absolute autonomy but instead, on that of inter-dependence and cooperation. The system combines a measure of autonomy and inter-dependence leading to a Cooperative System of Devolved Government. Cooperative devolved government is founded upon three relational principles; namely, the principle of distinctness; the principle of inter-dependence; and the principle of consultation and cooperation.
The two levels of government are and should be distinct in their constitutional functions, institutions, resources and legal frameworks. They are coordinate and not subordinate to each other. None is a mere agent of the other and neither can be abolished by the other. Distinctness in this sense rules out the concept of hierarchy as a relational principle. In effect, the levels of government must have the freedom to make decisions in the functional areas assigned to them by the CoK 2010 without undue interference from the other. On the other hand, it should be made clear that distinctness is not aimed at reintroducing the independence “Majimbo” system.
Indeed the principle of interdependence requires a certain measure of mutual respect between the two levels of government. Article 189(1)(a) in this regard requires government at either level to perform its functions, and exercise its powers, in a manner that respects the functional and institutional integrity of government at the other level, and respects the constitutional status and institutions of government at the other level and in the case of county government, within the county level.
The two levels of government are also inter-dependent since devolution combines self-government at the local level and shared government at the national level. Inter-dependence is necessitated by the facts that the consumers of the services rendered by the two levels of government are the same citizens of Kenya, although located in different parts of the country. In the distribution of functions, quite a number of functions are concurrent in nature; and others are assigned on the basis of national government formulating national policy and setting national standards while the county level is assigned the implementation functions. Policy formulation and national standard setting functions of national government include a monitoring and evaluation aspect that creates a limited measure of oversight. Such oversight cannot therefore be intrusive, but rather facilitative. Inter-dependence then becomes the foundation of the concept of cooperative government.
According to Articles 6(2) and 189(1)(b) and (c), inter-dependence requires that the two levels of government not only cooperate with, assist, support and consult each other and, as appropriate, implement the legislation of the other level of government; but also liaise with each other for the purposes of exchanging information, coordinating policies and administration and enhancing policy. At the relational level, cooperative government therefore requires that there be intergovernmental dialogue on the basis of consultation and cooperation which may even lead to the setting up of joint committees and joint authorities.
Cooperative devolved government requires that as a country, we move away from our usual adversarial approach to issues and embrace a system of consultation, negotiation and consensus building in running of state affairs. This ties in hand-in-glove with the expectations for a shift to issue based politics espoused under Vision 2030. Both vertical and horizontal intergovernmental relationships between national and county levels of government; and among county governments respectively, should be based on and informed by these principles of cooperative government.
[1] AW Bradley & KEwing (eds) Constitutional and administrative law (1994) (11ed)4.
[2] A Bolingbroke dissertation upon parties (1733) quoted in Bradley & Ewing.
[3] KC Wheare, Modern Constitutions (2nd edn) 1966, cited in N Parpworth Constitutional and Administrative law (3rd edn)236
[4] JB Ojwang Constitutional development in Kenya: Institutional adaptation and social change (1990) 221.
[5] Ibid.
[6] Hood Phillips&Paul Jackson, Constitutional and Administrative Law (eds) (2001)
[7] Dicey, law of Constitution (10th ed), pp. 126 and 146-150
[8] JN Pandey, Constitutional law of India (1997) 299
[9] Ibid.
[10] W Oyugi, Search for an appropriate decentralization design in Kenya: Historiacal and comparative perspectives’ in K Kindiki and O Ambani (eds) The anatomy of Bomas: selected analysis of the 2004 Draft Constitution of Kenya (2005) 58.
[11] Council of Europe "The Council of Europe and the Independence of the
Judiciary," Thematic Report prepared by the Council of Europe at the request
of the OSCE Office for Democratic Institutions and Human Rights, September
1998.
[12] Landes, William M. and Richard A. Posner "The Independent Judiciary in
an Interest-Group Perspective" Journal of Law and Economics 18:875-901
(1975)
[13] N Udombana ‘ the African Commission on Human and Peoples’ Rights and the development of fair trial norms in Africa’ (2006) 6 African Human Rights law journal 312.
[14] Dias, RWM., (Ed) (1976) Jurisprudence London: Butterworths 4th Edn p 128
[15] Hamilton, A., (1788) Federalist: Judiciary Department New York: McLeans No 78
[16] Dennis Lloyd, D., (Ed) (1973) Idea of Law London: Penguin Books, pp 257-258
[17] See generally Charles Nesson, The Evidence or the Event? On Judicial Proof and The Acceptability of Verdicts, 98 HARV. L. REV. 1357, 1361-68, 1391-92 (1985) (discussing the role of a judge and a jury in evaluating societal values).
[18] at 573-80 (summarizing the many-and mostly unsuccessful-
attempts by Congress over the past 200 years to intimidate the Supreme
Court because of its unpopular judicial decisions, including President Roosevelt's 1937
court-packing proposal).
[19] In terms of conviction, the court held thus, ‘lt is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself.’
[20] In re Certain Complaints Under Investigation, 783 F.2d 1488, 1508 (11th Cir. 1986) (allowing judicial colleagues to investigate and decide disciplinary actions "makes it likely that the rightful independence of the complained-against judge, especially in the area of decision making, will be accorded maximum respect").
[21] The threat of monetary liability may cause judges to proceed more cautiously and to take more time in justifying their results.
[22] See, J. Randolph Block, Stump v. Sparkman and the History of Judicial Immunity, 1980 DUKE L.J. 879 (identifying finality of court decisions by channelling requests for review through a hierarchy of higher courts as an important policy reason for judicial immunity); Michael Robert King, Note, Judicial Immunity and Judicial
Misconduct: A Proposal for Limited Liability, 20 ARIz. L. REv. 549 (1978) (identifying nine policies for judicial immunity and arguing that they do not justify absolute immunity); Note, Liability of Judicial Officers Under Section 1983, 79 YALE L.J. 322 (1969) (arguing that the several policies supporting judicial immunity do not justify absolute immunity).
[23] The Supreme Court's lengthy discussion of judicial immunity in Bradley presents more of a rationale that judicial immunity promotes the efficient administration of the judicial system by protecting judges from "vexatious litigation." Bradley, 80 U.S. (13 Wall.) at 347-49, 354. The discussion seems to assume as self-evident that civil immunity is necessary to protect volitional decision making.
[24] Rosenfeld, M. (1994) “Modern Constitutionalism as Interplay between Identity and Diversity”, in Rosenfeld, M. (ed) Constitutionalism, Identity, Difference, and Legitimacy. Theoretical Perspectives, Durham & London: Duke University Press, pp 27-28
[25] McIlwain, C.H. (1947) Constitutionalism: Ancient and Modern, Ithaca, New York: Cornell University Press (revised edition), pp 21-22.
[26] Schochet, D.J. (1979) “Introduction: Constitutionalism, Liberalism, and the Study of Politics”, in Pennock, J.R. & Chapman J.W. (eds) Constitutionalism, New York: New York University Press, p 11.
[27] André Mbata Mangu, Constitutional democracy and constitutionalism in Africa, p 3.
[28] Okoth-Ogendo, H.W.O. (1996) “Constitutions without Constitutionalism: Reflections on an African Paradox”, in Zoethout, C.M. et al (eds), Constitutionalism in Africa. A quest for autochthonous principles, Gouda: Quint Deventer , pp 3-25
[29] André, ibid, p 4.
[30] Charles Manga Fombab, Challenges to Constitutionalism and Constitutional Rights in Africa and the Enabling Role of Political Parties: Lessons and Perspectives from Southern Africa, a paper presented at a seminar at the South African Institute for Advanced Constitutional, Public, Human Rights and International Law, (SAIFAC), Johannesburg on 21 July 2005
[31] James Madison, The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments, Federal Paper No. 51, New York Packet. Friday, February 8, 1788
[32] Charles Manga Fombab, Challenges to Constitutionalism and Constitutional Rights in Africa and the Enabling Role of Political Parties: Lessons and Perspectives from Southern Africa, a paper presented at a seminar at the South African Institute for Advanced Constitutional, Public, Human Rights and International Law, (SAIFAC), Johannesburg on 21 July 2005.
[33] See Chapter 2 of the Constitution of South Africa.
[34] Article 21 (3), 27 (7)
[35] Article 46
[36] See John C. Jeffries “The Right-Remedy Gap in Constitutional Law” (1999) 109 the Yale law journal 87, 87 who laments that “Ever since John Marshall insisted that for every violation of right there must be a remedy. American constitutionalist has decried the right remedy gap in constitutional law. Everyone agrees that victims of constitutional violations should have effective redress. So when Akhil Amar declares that governments acting unconstitutionally must in some way undo the violation by ensuring that victims are made whole, he voices a proposition commanding nearly universal assent. At least, as an ideal. When pressed most of us recognize that the law of remedies is, in the words of Paul Gewirtz, inevitably “a jurisprudence of deficiency, of what is lost between declaring a right and implementing a remedy”. The distance between the ideal and the real means that will always be some shortfall between the aspirations we call rights and the mechanisms we call remedies.
[37] Marbury – Madison, S.U.S (1 Cranc) 137, 163 (1803) John Marshall also quoted Blackstone’s more familiar formulation which says that: “ it is a general and indisputable rule, that where there is a legal right, there is a legal remedy, by suit or action at law, whenever that right is invaded “ WILLIAM BLACKSTONE, COMMENTARIES.
[38] Richard Fallon & Daniel Metzer Law, Non-Retroactivity, and constitutional remedies” (1991) 104 HARVLREV 1731, 1736
[39] Chucks Okpaluba “Extraordinary Remedies for Breach of Fundamental Rights: Recent Developments” (2002) SA Public Law Vol 17 No 1&2 pp 98, 102 where he observes the following. “in most constituents of commonwealth countries with enforceable bills of rights, except that of India (where the judicial remedies for breach of fundamental rights are meticulously listed) and Namibian (where the judicial remedies for breach fundamental rights are meticulously listed) and Namibian (where some remedies specifically mentioned) the founders (including those of Canada have left the determination of what amounts to appropriate relief to judicial interpretation. Appropriate relief is a relative term with a declaratory judgment may be appropriate in a challenge of unconstitutionality strict sensor and, indeed the starting point in the entire exercise, may not be the appropriate remedy in all cases. For instance, where an applicant complains of an unfair labour practice against the circumstances where what he/she seeks is a judgment sounding in money, a dilatory judgment would not be proper where the events occurred in the past. Otherwise it would be artificial, hypothetical or academic to make such an order, Appropriate must therefore mean such remedy as would settle the rights of parties in sufficiently precise manner”.
[40] See Gibson Kamau Kuria “Litigating Kenya’s bill of rights” in Kivutha Kibwana (ed) human rights and democracy in east African law society, 1997) 67 in which he discusses the situation in Kenya at time when the courts were reluctant to enforce rights and refused to be innovative to create remedies such as had been done in India.
[41] See Francois Venter “constitutional comparison: Japan Germany, Canada and South Africa as constitutional states (Juta &co. ltd, 2000) 53. Who uses the terminology of predominance and primacy in reference to the concept of a supreme constitution?
[42] Murbury v Madison US, 2 led 60 (1803) John Marshall explained this practical impact in the following manner. “so if a law be in opposition to the constitution, if both the law and the constitution apply to a particular case, so that the court must decide the case conformably to the law, disregarding the constitution, or conformably to the law, disregarding the constitution and the constitution id superior to any ordinary act of the legislature, the constitution and not such ordinary act must govern the case to which they both apply. Those then who controvert the principle that the constitution is to be considered in court as a paramount law, are reduced to the necessity of maintaining that the courts must close tier eyes to the constitution and see only the law. This doctrine would subvert the foundation of all written constitutions. It would declare that an act which according to the principles and theory of our government is entirely void is yet in practice completely obligatory.
[43] Fose v minister of safety and security 1997 (7) BCLR 85 (ce)
[44] Constitution of the republic of Kenya, revised edition (1998) see also section 2 of the constitution of the republic of south Africa, :996 which provides that “The constitution is the supreme law of the Republic law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled” Similarly section two of the constitution of the republic of Uganda, 1995 also provides for constitutional supremacy in the following manner: ‘(1) This constitution is the supreme law of Uganda and shall have binding force on all authorities and persons throughout Uganda, (2) if any other custom is inconsistent with any of the provisions of this constitution, the constitution shall prevail and that other law or custom shall, to the extent of the inconsistency, be void. In almost similar terms is also section 52(1) of constitution of Canada which states that “the constitution of Canada is the supreme law of Canada and any law that is inconsistent with the provision of the provisions of the constitution is, to the extent of the inconsistency, of no force or effect.
[45] Article 2(1)&(4), Cok, 2010.
[46] Fose v Minister of safety and security 1997 (7) BCLR 851 (CC)
[47] Johan De wall et al “The bill of rights Handbooks, 1982 (Juta & co. Ltd, 1998 131-132)
[48] Peter W. Hogg “constitutional law of Canada” 3rd ed (carwell, Thomson Professional Publishing, 1992)904
[49] Louis Henkin “The Age of Rights”
[50] LJ Macfarlane “The theory and practice of human rights
[51] Constitution act, 1982 schedule B to Canadian Act 1982 (UK)
[52] Peter W. Hogg (note 12 above) 905 where he sets out the differences as follows: “The differences between s. 24 (1) and s. 52(1) which will be elaborated as the chapter progresses, may be briefly noted at this point. First, s. 24(1) is available only to a person whose rights have been infringed & 52(1) may be applied only by a court of competent jurisdiction” 52(1) may be applied by any court or tribunal with power to decide questions of law. Fourthly, s. 24(1) authorizes the award of a wide range of remedies; s. 52(1) authorizes only a holding of invalidity, leaving it to the general law to authorize the particular remedy. Fifthly, s. 24(1) confers a discretion on the courts as to whether any remedy should awarded s. 52(1) confers no discretion on the court, which must make a holding of invalidity if it concludes that a law or act is inconsistent with the constitution.
[53] Section 24(2) states that “Where in proceedings under subsection (1) a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute
[54] Constitution of the Republic of South Africa, act 200 of 1993 section 7(4) of which provides that “7(4) when an infringement of or threat to any right entrenched in this chapter is alleged, any person referred to in paragraph (b) shall be entitled to apply to a competent court of law for appropriate relief, which may include a declaration of rights (b). The relief referred to in paragraph (a) may be sought by ...(1) a person acting in his or her own interest (iii) a person acting on behalf of another person who is not in a position to seek such relief in his or her own name (iv) a person acting as a member of or in the interest of a group or class of persons or (v) a person acting in the public interest.
[55] Constitution of the republic of south Africa, 1996 section 38 of which provides as follows: “anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights. The person who may approach a court are__ (a) anyone acting in their own interest, (b) anyone acting on behalf of another person who cannot act in their own name, (c) anyone acting as a member of or in the interest of a group or class of persons (d) anyone acting in the public interest, and (e) an association acting in the interest of its members.
[56] The section provides for those matters in the following manner. 72(1) when deciding a constitutional matter within its powers, a court- (a) must declare that any law or conduct that is inconsistent with the constitution is invalid to the extent of the inconsistency, and (b)may make any order that is just and equitable, including – (i) an order limiting the retrospective effect of the declaration of invalidity, and (ii) an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect”
[57] The constitution of the Republic of Kenya, section 84(1) of which provides that: “Subject to subsection (6) if a person alleges that any of the provisions of actions 70 to 83 (inclusive) has been is being or is likely to be contravened in relation to him (or, in the case of a person who is detained, if another person alleges a contravention in relation to the detained person), then, without prejudice to any other action with respect to the same matter which is lawfully available, that person (or that other person) may apply to the high court for redress (2) the high court shall have original jurisdiction – (a) to hear and determine and application made by a person in pursuance of subsection (3), and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provision of sections 70 to 83 (inclusive)
[58] See Kivutha Kibwana “Kenya’s bill of physiological and Historical origins and structure in Kivutha Kibwana “Kenya Bill of Rights and democracy in east Africa. The constitutional implication of east African co-operation (East African law society, 1997) 49, 35 where he observes that: “There are also gloring omissions in Kenya’s bill of rights. Some of there are: lack of explicit recognition of minority rights, constitutional silence on sex discrimination absence of economic social cultural and third generation rights: lack of clear institutional rights e.g non-existence of independent judiciary commission, ombudsman etc…”
[59] See Fose -v- Minister of safety and security (note 7 above) in which the court stated that “it is left to the courts to decide what would be appropriate relief in any particular case… appropriate relief will in essence be relief that is required to protect and enforce the constitution. Depending on the circumstances of each particular case the relief may be a declaration of rights, an interdict, a mandamus or such other relief as may be required to ensure that the rights enshrined in the constitution are protected and enforced. If it is necessary to do so, the courts may even have to fashion new remedies to secure the protection and enforcement of these all important rights”.
[60] Johan De Waal (note 11 above) 132 where he observes that: “On this argument, a particular form of relief will be appropriate if, in the circumstances of the ease, it vindicates the constitution and acts as a deterrent against future violations. In assessing the appropriateness of a particular remedy, the nature of the infringement, and the probable impact of a particular remedy must be considered.
[61] Sanderson v Attorney General Eastern Cape (CC 2 December 1997, unreported) quoted in Johan De Waal (note 10 above) 132
[62] Johan De Waal (note 11 above) 133
[63] Section 2 of the South African Constitution talks of “law or conduct inconsistent with it is invalid”.
[64] Section 2 of the constitution of the Republic of Canada which says that “any law that is inconsistent with the provision of the constitution is, to the extent of the inconsistency, of no force or effect”. Also see section 3 of the constitution of the republic of Kenya which says that “if any other law is inconsistent with this constitution, this constitution shall prevail and the other law shall, to the extent of the inconsistency, be void.
[65] Kenya has for a long time been trying to formulate a new constitution, the general consensus being that the current constitution is not good. A statutory review process culminated in to national referendum which was held on the 21st November 2005 in which the people of Kenya voted rejecting a proposed constitution. This process has left Kenya with three draft constitutions as forming part of constitutional development in Kenya. 2002, which was prepared by the constitution of Kenya review commission. The second was the Draft constitution of Kenya. 2004 (Bomas Draft), which was prepared the National Constitutional conference following debate and adoption of the commissions draft with amendments. The third was proposed constitution of Kenya, 2005, which was a result of controversial amendments effected on the Bomas Draft by parliament which was rejected by the people at the referendum.
[66] Section 2(4) of the Draft constitution provides that: “A law that is inconsistent with this constitution is void to the extent of the inconsistency.
[67] Section 2(3) of the Draft constitution of Kenya of 2004 provides that” “A law that is inconsistent with this constitution is void to the extent and any action or omission in contravention of the constitution is invalid.
[68] Section 2(3) of the proposed constitution of Kenya of 2005 is in exact terms as those of the 2004 draft. The section states that: “A law that is inconsistent with the constitution is void to the extent of the inconsistency and any action or omission in the contravention of this constitution is invalid.
[69] Johan De Waal (note 11 above)33
[70] Coetzee v Government of the Republic of south Africa (1995)4 SA 631 (CC)
[71] Article 23 (1), CoK, 2010.
[72] Article 23 (3) CoK, 2010.
[73] See http://www1.worldbank.org/publicsector/decentralization/what. htm. Accessed 15 February 2013.
[74] For a discussion on decentralization, see, Omolo, A. (2010) ‘Devolution in Kenya: A critical review of past and present frameworks’, in IEA Devolution in Kenya: Prospects, challenges and the future, IEA Research Paper Series No. 24, Institute of Economic Affairs, Nairobi, also see, Kauzya, J–M. (2007) Political Decentralisation in Africa: Experiences of Uganda, Rwanda and South Africa, UN Department of Economic and
Social Affairs, New York, December.
[75] Kauzya, J–M. (2007) Political Decentralisation in Africa: Experiences of Uganda, Rwanda and South Africa, UN Department of Economic and Social Affairs, New York, December.
[76] Ndegwa, S.N. (2002) ‘Decentralization in Africa: A stock-taking survey’, Africa Working Paper Series No. 40, the World Bank, Washington, D.C. p. 17.
[77] Article 98 (1) Membership to Senate is made up of 47 elected members from each county, two youth representatives, 2 members representing members living with disability and the Speaker who is an ex official. For purposes of election, each county is considered a single constituency. However, in nominating the women representatives, the youth and persons living with disabilities, some counties may have more than one senator and it for this reason that counties that have more than one senator, for purposes of voting, are collapsed into a single vote with the elected member being the head of the delegation.
One may want to ask a fundamental question, that what happens to the special interests that are represented in by the non elected members in matters that affect counties since their votes are not single but rather a single vote to be decided by the head of the delegation upon consultation with the other members? During these consultations, it is expected that all interests shall be canvassed and the vote shall be influenced by all the considerations.
[78] The Supreme Court demystified this view in the case….
[79] See http://www1.worldbank.org/publicsector/decentralization/what. htm. Accessed 15 February 2013.
[80] For a discussion on decentralization, see, Omolo, A. (2010) ‘Devolution in Kenya: A critical review of past and present frameworks’, in IEA Devolution in Kenya: Prospects, challenges and the future, IEA Research Paper Series No. 24, Institute of Economic Affairs, Nairobi, also see, Kauzya, J–M. (2007) Political Decentralisation in Africa: Experiences of Uganda, Rwanda and South Africa, UN Department of Economic and
Social Affairs, New York, December.
[81] Kauzya, J–M. (2007) Political Decentralisation in Africa: Experiences of Uganda, Rwanda and South Africa, UN Department of Economic and Social Affairs, New York, December.
[82] Ndegwa, S.N. (2002) ‘Decentralization in Africa: A stock-taking survey’, Africa Working Paper Series No. 40, the World Bank, Washington, D.C. p. 17.
[83] Article 98 (1) Membership to Senate is made up of 47 elected members from each county, two youth representatives, 2 members representing members living with disability and the Speaker who is an ex official. For purposes of election, each county is considered a single constituency. However, in nominating the women representatives, the youth and persons living with disabilities, some counties may have more than one senator and it for this reason that counties that have more than one senator, for purposes of voting, are collapsed into a single vote with the elected member being the head of the delegation.
One may want to ask a fundamental question, that what happens to the special interests that are represented in by the non elected members in matters that affect counties since their votes are not single but rather a single vote to be decided by the head of the delegation upon consultation with the other members? During these consultations, it is expected that all interests shall be canvassed and the vote shall be influenced by all the considerations.
[84] The Supreme Court demystified this view in the case….
[85] Article 6 (3) A national State organ shall ensure reasonable access to its services in all parts of the Republic, so far as it is appropriate to do so having regard to the nature of the service.
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