Constitutional law course outline, Study Guides, Projects, Research of Constitutional Law

Download Constitutional law course outline and more Study Guides, Projects, Research Constitutional Law in PDF only on Docsity! 1 CONSTITUTIONAL LAW II LLB I Part 1 is taught by Prof Ben Sihanya; Part 2 by Dr Kiarie Mwaura (as indicated in the relevant sections) Prof Ben Sihanya, JSD (Stanford) Scholar, Intellectual Property, Constitutionalism, and Education. University of Nairobi Law School Parklands Law Campus, Room B10 Box 1313, Sarit Centre, 00606 Nairobi, Kenya Telefax (+254-20)2128272; +254 726020082 (O) Email: sihanya@innovativelawyering.com; sihanya@sihanyamentoring.com (use both) url: www.innovativelawyering.com 1. Title of Course: Constitutional Law II 2. Contact Hours: 45hrs 3. Objectives of the Unit: Constitutional Law II intends to impart skills, knowledge, attitudes and values (SKAV) in three major areas. These include: 1. Constitutional, social and political theory, values and principles with specific reference to Kenya; and the role of constitutional theory, principles, doctrines, and law or rules in political, social, cultural and economic organization, as well as in nationhood and development in Kenya. 2. Knowledge of the rules of law – especially constitutional and related judicial rules including the Bill of Rights; 3. Knowledge of the constitutional and related administrative law regarding the machinery of government- including the organization and operation of the Executive, Parliament, Judiciary; as well as Constitutional Commissions and independent offices; political parties; administrative agencies, quasi-judicial tribunals, relevant civil society organizations (CSO’s) and non governmental organizations (NGO’s)… 4. Expected Learning outcome(s) 1. That at the end of the semester students appreciate Constitutional, social and political theory, values and principles with specific reference to Kenya; 2. That the students acknowledge and appreciate the significance of the rules of law – especially constitutional rules; 3. That the students appreciate the role of constitutional theory, principles, doctrines, and law or rules in political, social, cultural and economic organization, as well as in nationhood and development in Kenya. 2 4. That students be in a position to critically analyze and interrogate the role of constitutional and related administrative law regarding the machinery of government (the organization and operation of the Executive, Parliament, Judiciary; as well as Constitutional Commissions and independent offices; political parties; administrative agencies, quasi-judicial tribunals, relevant civil society organizations (CSO’s) and non governmental organizations (NGO’s)… 5. Course content The following are some of the themes and topics that constitute the content of the Constitutional Process curriculum – 1. Defining constitutional process 2. Constitutional values, principles and safeguards in Kenya: issues in political analysis of constitutional systems: (a) What are constitutional values? Safeguards? (b) Democracy and constitutionalism (c) Representative government and democracy; (d) The basic division of powers: horizontal separation of powers; two-tier Parliament; devolution of powers; independence, impartiality, accountability, and competence of the Judiciary. (e) The rule of law; (f) Fundamental rights, liberties and freedoms (the Bill of Rights) (g) Equal protection: nationality and citizenship; race, ethnicity, class and gender. (h) Autochthony: What is an autochthonous Constitution? How can a constitution be home grown? Legitimate? The people, and their values; wananchi, “Wanjiku, Amina, Akinyi, Naliaka, Mwikali, Chemutai …,” The myth of Africanity, etc] (i) Law in development; law and rights; access to and control of resources: finance, land, technology (IP and innovation in constitutionalism); (j) Academic freedom: academics, students and the social and political process. Democracy: the politics of the constitution, and quest for (political and social) legitimacy and autochthony. 3. Separation or division of powers or functions, and checks and balances [limited or efficient/facilitative government?] 4. Machinery of Government; the machinery of governance; the formulation, interpretation and implementation (or execution) of law; service delivery; the administration & governmental process; separation of powers; checks and balances in practice 5. Executive power of the Kenyan State - The presidency - The premiership 5 2) B[enjamin] O[bi] Nwabueze (1993) Ideas and Facts in Constitution Making, Spectrum Books, Ibadan 3) Sammy Adelman & Abdul Paliwala (eds) (1993) Law and Crisis in the Third World, Hans Zell Publishers, London 4) Mary Adhiambo Mbeo & Oki Ooko Ombaka (eds) (1989, 1997) Women and Law in Kenya: Perspectives and Emerging Issues Public Law Institute, Nairobi (feminist perspectives on constitutional law, etc) 5) G.W. Kanyeihamba (1975) Constitutional Law and Government in Uganda, EALB, Nairobi. 6) Issa G. Shivji (ed) (1991) State and Constitutionalism: An African Debate on Democracy SAPES Books, Harare, Zimbabwe 7) Walter Oyugi, Peter Wanyande & C. Odhiambo Mbai (eds) (2003) The Politics of Transition in Kenya: From KANU to NARC Heinrich Boll Foundation, Nairobi. 8) H.B. Ndoria Gicheru and Kabuya Miano (1987) A Textbook of the Constitution and Government of Kenya for Secondary Schools Sterling Publishers Private Ltd., Nairobi. 9) E.S. Atieno Odhiambo & John Lonsdale (eds) (2003) Mau Mau and Nationalism: Authority, Arms, and Narration, James Currey, Oxford, EAEP, Nairobi, Ohio UP, Athens. 10) Sihanya, Ben and Duncan Okello (2010) “Mediating Kenya’s Post-Election Crises: The Politics and Limits of Power Sharing Agreement,” in Dr Karuti Kanyinga and Duncan Okello (eds) Tensions and Reversals in Democratic Transitions: The Kenya 2007 General Elections, Institute of Development Studies (IDS), University of Nairobi, and the Society for International Development (SID) Eastern & Central Africa, Nairobi. 11) Walter O. Oyugi, E.S. Atieno Odhiambo, Michael Chege & Afrifa K. Kitonga (eds) (1988) Democratic Theory and Practice in Africa, Portsmouth, NH, USA & Heinemann, London. 6 12) B.A. Ogot & William R. Ochieng (eds) (1995) Decolonization and Independence in Kenya, 1940-93, James Currey, London, EAEP, Nairobi, Ohio UP, Athens 13) William R. Ochieng (1989) (eds) A Modern History of Kenya, 1895-1980: in honour of B.A. Ogot, Evans Brothers Ltd, London and Nairobi 14) Goran Hyden, Dele Olowu, & H.W.O. Okoth-Ogendo (eds) (2000) African Perspectives on Governance Africa World Press, Inc., Trenton, NJ & Asmara, Eritrea 15) Goran Hyden & M. Bratton (eds) (1992) Governance and Politics in Africa Lynne Rienner Publishers, Boulder, Colorado. 16) Elone J. Nwabuzor & Martha Mueller (1985) An Introduction to Political Science for African Students Macmilllan Publishers Ltd, London (Low Price Edition, 1987) 17) Paul Jackson & Patricia Leopold (2001) O. Hood Phillips and Jackson’s Constitutional and Administrative Law, Sweet & Maxwell, London (8th ed). 18) A.V. Dicey (1959) An Introduction to the Study of the Constitution, (10th Edition). 19) Stanley A. de Smith (1989) Constitutional and Administrative Law, Penguin Books, London (Sixth Edition). 20) E.C.S. Wade & A.W. Bradley, (1985) Constitutional and Administrative Law, Longman, London and New York (Tenth Edition). 21) K.C. Wheare (1966) Modern Constitutions, OUP, London. 22) Charles A. Beard (1954) An Economic Interpretation of the Constitution of the United States, The MacMillan Company, New York. 23) Kathleen Sullivan & Gerald Gunther (2003) Constitutional Law Foundation Press, New York (This is a major text on American constitutional law. See also latest edition) 24) Laurence Tribe (1988) American Constitutional Law Foundation Press, Mineola, New York (2nd ed). 7 25) Jack N. Rakove (1996) Original Meanings: Politics and Ideas in the Making of the Constitution Vintage Books, New York (US constitutional history and law) 26) Clinton Rossiter (ed) (1961, 1999) The Federalist Papers: Alexander Hamilton, James Madison & John Jay New American Library (Penguin Putman), New York. 27) CC Thach (1969) The Creation of the President, 1775-1789 Johns Hopkins University Press, Baltimore, Md. 28) L.D. Duchacek (1973) Power Maps: Comparative Politics of Constitutions Clio Press, London. 29) G. Marshall (1971) Constitutional Theory, Clarendon Press, Oxford. 30) Douglas Greenberg, Stanley N. Katz, Melanie Beth Oliviero, & Steven C. Whealey (eds) (1993) Constitutionalism and Democracy: Transitions in the Contemporary World Oxford University Press, New York. 31) J. Elster & R. Slagstad (1988) Constitutionalism and Democracy Cambridge University Press, Cambridge. 32) S. E. Finer (1979) Five Constitutions Penguin, Harmondsworth (UK) 33) S.E. Finer, V. Bogdanor, & B. Rudden (eds) (1995) Comparing Constitutions Clarendon, Oxford. 34) Jan-Erik Lane (1996) Constitutions and Political Theory Manchester University Press, Manchester. 35) Henc Van Marseveen & Ger Van der Tang (1978) Written Constitutions: A Computerised Comparative Perspective Oceania Publications, Dobbs Ferry, New York. 36) C.M. Zoethout, Carla M. Zoethout, Marlies E. Pettermaat-Kros, & P.S. Akkermans (eds) 1996) Constitutionalism in Africa: A Quest for Autochthonous Principles Quint, Gouda. 37) H.J. Spiro (1959) Government by Constitution: The Political System of Democracy Random House, New York. 10 TABLE OF CONTENTS Course Description (summary) A. Lectures B. Basic Course work and sample questions B. 1 Preparation of Coursework Essays B. 1.1 Rules of Law B.1.2 Identifying Relevant Issues B.1.3 Depth of Analysis B.1.4 Use of the Works of Others B.1.5 Format of Essays C. BASIC READING MATERIALS D. BASIC WORKS OF REFERENCE D1 Basic Books D2 Constitutional and statutory materials D3 International and regional instruments with constitutional significance in Kenya, the UK and the US D 4 UK constitutional instruments D 5 Political party and other constitutions D 6 Constitutional instruments from other countries D 7 Coalition Government instruments- Kenya D 8 Constitutions of pressure groups and relevant social welfare groups 11 UNIVERSITY OF NAIROBI LAW SCHOOL CONSTITUTIONAL PROCESS: COURSE OUTLINE AND TEACHING MATERIALS, LLB March 2012 (Semester II) 1. COURSE DESCRIPTION (summary) This course focuses on Constitutional Process. In the first semester you studied Constitutional Theory. The two are closely linked, and the articles cited or distributed in the First semester are still very relevant. We intend to impart skills in four major areas. These include: 5. Constitutional, social and political theory, values and principles with specific reference to Kenya; 6. The significance of the rules of law – especially constitutional rules; 7. The role of constitutional theory, principles, doctrines, and law or rules in political, social, cultural and economic organisation, as well as in nationhood and development in Kenya. 8. The constitutional and related administrative law regarding the machinery of government (the organisation and operation of the executive, legislature, judiciary; political parties; as well as CSOs, NGOs, administrative agencies, quasi-judicial tribunals, relevant civil society organizations, etc) In drafting this Course Outline and Reading List I have benefited from the work of Justice (Prof) J.B. Ojwang who for long taught the subject and who now sits on the Supreme Court Bench. Abbreviations and Acronyms (some common ones) A-G Attorney-General CAJ Commission on Administrative Justice 12 CEO Chief Executive Officer CIC Commission for Implementation of the Constitution CIOC Constitutional Implementation Oversight Committee CJ Chief Justice CKRC Constitution of Kenya Review Commission COMESA Common Market for Eastern and Southern Africa CRA Commission for Revenue Allocation CS(O) Civil Society (Organisation) DPP Deputy Public Prosecutor DPP Director of Public Prosecutions EACC Ethics and Anticorruption Commission EALS East African Law Society E-LSRCC Expanded Legal Sector Reform Coordinating Committee GJLOS Governance, Justice, Law and Order Sector GNP Gross National Product ICJ Kenya Kenyan Section of the International Commission of Jurists IEBC Independent Electoral Boundaries Commission IPPG Inter Parties Parliamentary Group (Kenya) J Judge JA Justice of Appeal JSC Judicial Service Commission KACA Kenya Anti Corruption Authority (defunct) KACC Kenya Anti-Corruption Commission (defunct) KANU Kenya African National Union KLRC Kenya Law Reform Commission 15 analysis, because it would be saying little about the constitutional or legal question to which one is expected to address oneself. B.1.2 Identifying relevant issues Whenever a problem-type question is to be answered, or an essay is to be written, the first task is to identify the main issues which must have been contemplated by the examiner. If a question would entail some remarkable ambiguity or absurdity, this must also be identified, before an answer is attempted. The answer, in a situation where ambivalence, an ambiguity or absurdity exists, should respond in a manner that suits the situation posed by the ambiguity or absurdity. In carrying out the discussion, one should follow some systematic (or “natural”) course. For example, something that falls before another in historical sequence should be discussed in the order – unless some other mode of classification has consciously been adopted. Discussion could also follow an arrangement by logical themes; or it could follow the order of importance – in terms of the ultimate argument of the study. At any rate, the more fundamental matters should be discussed before the relatively minor ones. Once a clear framework of discussion has been conceived, it is desirable to commit oneself to it, and to avoid wandering tendencies. An effective presentation centres on the more eminent ideas and situations, as nobody wants to spend long periods perusing a whole lot of inconsequential details which have usurped the place of the real issues. It is desirable, therefore, to be selective on examples, once a uniform framework and background have been laid. The definitely trifling facts and details should be overlooked and those which may have some significance, albeit marginal, should be footnoted. The logical flow of the argument should not be interrupted by ill-planned graftings, nor by abrupt downgrading of important material from text to footnote. B.1.3 Depth of analysis As far as possible, each issue, once identified, should be exhaustively dealt with. It is desirable that all ideas should be expressed simply and clearly, but with imagination and originality. All general principles and all reflections should be brought down to specific illustration, using concrete case law, fact-situations or anecdotes in the context of the three key types or methodology of authorities: Constitutional or statutory text, case law or judicial decisions or authority, and academic or juristic authority. In case analyses, it is instructive to use the methodology of Issues, Facts, Law, Analysis and Conclusion approach (IFLAC). B.1.4 Use of the works of others It is expected that students will make it their most basic scholastic duty to familiarise themselves with all the authoritative works in the discipline in general, and on the specific topic involved in their subject. If they do not do this, their “knowledge” will be only insecure and general; the relevant material which sets the art will not have formed part of them, and they will be unable to relate to it. 16 It follows that students, in the course of preparing their written work, will have to make reference to the important works that address their subject and their topic of research. It is tempting, and indeed is a common pitfall among students, to use a writer’s work without having the modesty or decency to cite the source, or to acknowledge the intellectual indebtedness. Such conduct is known as plagiarism and is the most serious scholastic offence a person can ever commit. It also constitutes copyright infringement, which is a civil wrong and a criminal offence. Not only does it take away the validity of the study being offered; it also shows the person concerned as intellectually inept, dishonest and parasitic. Students should adopt the culture of intellectual honesty and courtesy. When you use someone else’s work, for example by extracting a part of it, or paraphrasing from it, you have a duty to cite the source of your facts, or of the inspiration for the argument you are proffering. It should also be noted that long quotations of other people’s works will not make an effective essay. Any quoted source must be used only as an aid to your independent assessment and commentary. As a related point you should note that, since the question formulated for you will presuppose original thinking, chunks of a text-book or other material which will not adjust to suit the expectation of the examiner are unlikely to furnish an effective answer. Hence quotations, in their length, must be as sparing as possible. B.1.5 Format of essays The question must be answered in all its parts. Presentation must be clear and concise, not exceeding the indicated pages in length. This may include your reference section (i.e.) footnotes), which can be as detailed as may be necessary. All sources of references used must be fully documented in footnotes with all citations in standard form. Careful preparation must precede the writing-up. The essay must be neatly planned. Writing must be legible. And presentation must be in good grammatical form. C. Basic reading materials (see also course outline and readings prepared for Comparative Constitutional Law, revised 28/2/2012) The following are essential materials which all students should acquire for their own use, or have ready access to – (a) Constitution of Kenya 2010 (b) 1969 Constitution of Kenya with all amendments to date. (c) Constitution of Kenya (Amendment) Act 2008 (d) National Accord and Reconciliation Act, 2008 (e) Constitutions of the registered political parties. 17 (f) National Assembly Booklet. (g) Statutes relating to National and Civic elections. (h) Statutes relating to Political Parties, e.g. Political Parties Act 2011(also 2009), Societies Act, etc. (cf. Political Parties Bill, 1995 ….) (i) Elections Act, 2011; IEBC Act 2011; National Assembly and Presidential Elections Act, Cap. 7 (repealed and replaced) (j) Constitution of Kenya Review Act, Cap. 3A D. Basic works of reference Certain works of reference have a relevance to the basic core of the course, which requires that students should have ready access to them. The following list (which does not pretend to be exhaustive) may serve as a guide: D1. Basic books and Articles No single textbook adequately addresses the issues in this course. Students should consult those in the following list, and especially Ghai & McAuslan (1970), Ojwang (1990), Nwabueze (1973), Nwabueze (1974), Nwabueze (1977), Paul Craig (2008; 2010) and Paul Jackson & Patricia Leopold (2001) (No. 20 below). Some important readings, including those cited in the various sections, are available in the Law Library, as well as in the boxes and files bearing the following names: Okoth-Ogendo, J.B. Ojwang, Githu Muigai, Ben Sihanya (see Ben Sihanya: Constitutional Studies), etc. Below we cite some of the key materials. We have cited other materials and indicated in the Course Outline where some of these books are absolutely important. 9. Y.P. Ghai and J.P.W.B. McAuslan (1970, 2001) Public Law and Political Change in Kenya, OUP, Nairobi. 10. Vicki C. Jackson and Mark Tushnet (2006) Comparative Constitutional Law, Foundation Press, New York (2nd ed.). 11. Ben[jamin] O[bi] Nwabueze (1973) Constitutionalism in the Emergent States, C. Hurst & Co., London 12. Ben[jamin] O[bi] Nwabueze (1974) Presidentialism in Commonwealth Africa St. Martin’s Press, New York. 13. Lawrence Lessig & Cass R. Sunstein (1994) “The President and the Administration,” 94 Columbia Law Review pp. 1-123. 14. Ben Sihanya (2011) The Presidency and Public Authority in Kenya’s New Constitutional Order, Constitution Working Paper series No. 2 Society for International Development (SID) Eastern & Central Africa, Nairobi 20 72) L.D. Duchacek (1973) Power Maps: Comparative Politics of Constitutions Clio Press, London. 73) G. Marshall (1971) Constitutional Theory, Clarendon Press, Oxford. 74) Douglas Greenberg, Stanley N. Katz, Melanie Beth Oliviero, & Steven C. Whealey (eds) (1993) Constitutionalism and Democracy: Transitions in the Contemporary World Oxford University Press, New York. 75) J. Elster & R. Slagstad (1988) Constitutionalism and Democracy Cambridge University Press, Cambridge. 76) S. E. Finer (1979) Five Constitutions Penguin, Harmondsworth (UK) 77) S.E. Finer, V. Bogdanor, & B. Rudden (eds) (1995) Comparing Constitutions Clarendon, Oxford. 78) Jan-Erik Lane (1996) Constitutions and Political Theory Manchester University Press, Manchester. 79) Henc Van Marseveen & Ger Van der Tang (1978) Written Constitutions: A Computerised Comparative Perspective Oceania Publications, Dobbs Ferry, New York. 80) C.M. Zoethout, Carla M. Zoethout, Marlies E. Pettermaat-Kros, & P.S. Akkermans (eds) 1996) Constitutionalism in Africa: A Quest for Autochthonous Principles Quint, Gouda. 81) H.J. Spiro (1959) Government by Constitution: The Political System of Democracy Random House, New York. 82) J.S. Wunsch & Dele Olowu (eds) (1990) The Failure of the Centralised State: Institutions and Self Governance in Africa ICS Press, San Francisco 83) I.W. Zartman (ed) (1995) Collapsed States: The Disintegration and Restoration of Legitimate Authority Lynne Rienner Publishers, Boulder, Colorado (USA). 84) Evgeny B. Pashukanis (1989) Law and Marxism: A General Theory Pluto Press, London (3rd impression) 85) Max Weber (1954) Max Weber on Law in Economy and Society Harvard U.P., Cambridge, MA (Max Rheinstein, ed; translated by Edward Shils & Max Rheinstein). 86) David H. Rosenbloom, Robert S. Kravchuk, & Richard M. Clerkin (2009) Public Administration: Understanding Management, Politics, and Law in the Public Sector, McGraw-Hill, New York. 21 87) Muna Ndulo (ed) (2006) Democratic Reform in Africa: Its Impact on Governance & Poverty Alleviation James Currey, Oxford 88) Willy Mutunga (1999) Constitution Making from the Middle: Civil Society and Transition Politics in Kenya, 1992-1997, Mwengo, Harare See also materials and statutory instruments cited in Ben Sihanya, “The quest for legality, validity, and legitimacy in Kenya’s constitutional review, 1964-2010,” working paper presented at the Kenyan Section of International Commission of Jurist’s (ICJ’s) Public Lecturer on Constitutional Review March 14, 2004, The Grand Regency Hotel, Nairobi, etc. D 2 Constitutional and statutory materials (endeavour to study them) Constitutions and Constitutional Instruments Constitution of Kenya, 1963 (Independence Constitution) (Kenya Independence Order in Council, 1963, Extraordinary Issue, Kenya Gazette Supplement No. 105, 10/12/1963, Legal Notice No. 718, Statutory Instruments, 1963 No. 1968, Kenya’s Independence Order in Council 1963 (made 4/12/1963; to be laid before Parliament 4/12/1963; Coming into operation 12/12/1963); At the Court at Buckingham Palace, the 4th day of December 1963, Queens’s Most Excellent Majesty in Council…) Constitution of Kenya, Act No. 5 of 1969 (Consolidating amendments from 1964) Constitution of Kenya 2010 (Ratified in a referendum, 4/8/2010; promulgated 27/8/2010) Constitution of Kenya (Amendment) Act No. 1 of 2008 National Accord and Reconciliation Act, 2008 (NARA) Judicature Act, 1967, Cap 8 Statutory materials Commissions of Inquiry Act, Cap 102 Constitution of Kenya (Amendment) Bill, 2004, Kenya Gazette Supplement, Bills, 2004, (Nairobi, 9th March, 2004) (Special Issue, Kenya Gazette Supplement No. 9 (Bills No. 1) Constitution of Kenya Review Act, Cap 3A (as amended) Constitution of Kenya, 1963 (the Independence of Constitution) Constitution of Kenya Review (Amendment) Bill, 2004, Kenya Gazette Supplement Bills, 2004, Nairobi, 9th March, 2004 (Special Issue, Kenya Gazette Supplement No. 10 (Bills No. 2) (one of the two “Kiraitu Bills”) 22 Draft Constitution by the Law Society of Kenya, launched March 16, 2004 Draft Constitution by the Ufungamano Group, January 2004 Draft Constitution of Kenya, 2002 (drafted by the Constitution of Kenya Review Commission (CKRC), October 2002) Draft Constitution of Kenya, 2004 (adopted by the National Constitutional Conference at Bomas of Kenya, March 15, 2004) (edition dated March 22, 2004, etc,) Election Offences Act, Cap. 66 (repealed and replaced) Interpretation and General Provisions Act, Cap 2 Judicature Act, Cap 8 Kenya Law Reform Commission Bill, 2002 Law Reform Commission Act, 1982, Cap 3 National Assembly Standing Orders (Kenya) (Revised Edition 1998) (as amended up to and including November 10, 1997) National Assembly Remuneration Act, Cap. 5 National Assembly (Powers and Privileges) Act, Cap. 6 National Assembly and Presidential Elections Act, Cap 7 (repealed and replaced) Parliamentary Pensions Act, Cap. 196 Presidential Retirement Benefits Act, 2003 (Act No. 11 of 2003) (commencement 9/1/2004) Statutes of the University of Nairobi, and Rules and Regulations of the Faculty of Law – especially relating to admission, registration, examinations, and discipline (suspension, expulsion, disciplinary proceedings…) University of Nairobi Act, Cap 210 Zero Draft of the Constitution of Kenya, February 11, 2004 (as revised February 27, 2004) See also the integrity or anti corruption legislation (which regulate the exercise of public power) Public Officer Ethics Act, 2003 Anti Corruption and Economic Crimes Act, 2003; 2011 National Cohesion and Integration Act 2008 Truth, Justice and Reconciliation Act 2008 Anti-Counterfeit Act 2008 Kenya Communication Act 2008 Political Parties Act (2011) (replaced PPA 2007) Constitutional amendments and reform 2008-2012 Constitution of Kenya Amendment Act 2008 National Accord and Reconciliation Act 2008 Constitution of Kenya Review Act 2008 Any other? Consider proposed amendments to the 2010 Constitution on election date; on the one third gender rule. D 3 International and regional instruments (with constitutional significance in Kenya, the UK and the US) Amsterdam Treaty (European integration) AU Charter (formerly AU; and other AU instruments) 25 The unitisation of the Constitutional Law Course has broken it into two separate (but interdependent) units for purposes of instruction. These are: (i) Constitutional Theory, and (ii) Constitutional Process The first unit is intended to introduce students to the theory of constitutions, i.e. the coherent sets of propositions and fundamental principles that go into the making and operationalisation of the various types of constitutions in use. The second unit, that is Constitutional Process, is intended to familiarise students with the operational institutions and structures of the constitutional order, and their modes of operation. The following are some of the themes that constitute the content of the Constitutional Process curriculum – 13. Defining Constitutional process 14. Constitutional values and safeguards 15. Constitutional Founding of the Kenyan State 16. Separation or division of powers or functions, and checks and balances [limited or efficient/facilitative government?) 17. Machinery of Government; the machinery of governance; the formulation, interpretation and implementation (or execution) of law; the administration & governmental process; separation of powers; checks and balances in practice 18. Executive Power of the State 19. Decentralisation of Executive, Administrative and Parliamentary powers under the Constitution 2010 20. Legislative Power of the State 21. Judicial Power. 22. Bill of Rights, Constitutional applications and references, judicial review, ordinary litigation, and prosecution(s); original and appellate jurisdiction, etc 23. Constitutional breakdown; cf. failed states 24. Control of Public Powers: interagency checks and balances; CIOC; Commissions: (CIC, PSC, JSC, TSC, KACA/KACC, EACC) 25. Prospects for a wider institutional base in governance – parties – coalitions – NGOs etc 26. Constitutional values and safeguards: issues in political analysis of constitutional systems: (g) What are constitutional values? Safeguards? (h) Democracy and constitutionalism (i) Representative government and democracy; (j) The basic division of powers: horizontal separation of powers; two-tier Parliament; devolution of powers Independence, impartiality, accountability, and competence of the Judiciary (k) The rule of law; (l) Fundamental rights, liberties and freedoms (the Bill of Rights) (g) Equal protection: nationality and citizenship; race, ethnicity, class and gender. 26 (h) Autochthony: What is an autochthonous Constitution? How can a constitution be home grown? Legitimate? The people, and their values; wananchi, “Wanjiku, Amina, Akinyi, Naliaka, Mwikali, Chemutai …,” The myth of Africanity, etc] (k) Law in development; law and rights; access to and control of resources: finance, land, technology (IP and innovation in constitutionalism); (l) Academic freedom: academics, students and the social and political process. Democracy: the politics of the constitution, and quest for (political and social) legitimacy and autochthony 1. INTRODUCTION Lecturer’s and Students’ expectations; Syllabus of issues; readings: books; articles; Constitution; constitutional instruments; statutes and regulations; case law: anecdotes, policy 2. INTRODUCING CONSTITUTIONAL PROCESS IN KENYA  Conceptualizing and theorizing Kenyan constitutional process:  Constitutional concepts & doctrines e.g. constitution, state, society, community, nation, nation State, state nation, nationalism, government, executive, parliament, judiciary, President, PM, V-P, DP, cabinet  Administration bureaucracy… (Under the relevant Kenyan constitutional provisions & laws). Readings Walter Murphy (1993) “Constitutions, constitutionalism and democracy,” in Douglas Greenberg, Stanley N. Katz, Steven C. Wheatley, & Melanie Beth Oliviero (1993) Constitutionalism and Democracy: Transitions in the Contemporary World, Oxford University Press New York, pp. 3- 7. H.W.O. Okoth-Ogendo (1999) “The quest for constitutional government,” in Goran Hyden, Dele Olowu & H.W.O. Okoth-Ogendo (1999) African Perspectives on Governance, Africa World Press, Trenton, pp. 33-60. Jackton B. Ojwang (1990) Constitutional Development in Kenya: Institutional Adaptation and Social Change African Centre for Technology Studies (ACTS), Nairobi. Ghai & McAuslan (1970, 2001) Public Law and Political Change in Kenya, q.v. 3. CONSTITUTIONAL FOUNDING OF THE KENYAN STATE:  The conquest state; the protectorate; the colony (Constitutional & legal provisions…) 27  Kenya under colonialism (including the boundary changes under colonialism, the Maasai agreements: constitutional & legal provisions; Ole Njogo case).  Kenya’s independence struggle (The radicals v. constitutionalists or liberals):  Various revolts and movements against colonialism (Nandi resistance, Dini ya Msambwa, Piny Owacho etc); some arguments on Mau Mau.  The Lancaster process. Kenya as post or neo-colonial state;  Various constitutions since 1895; statutes: case law. Readings J.B. Ojwang (1990) “Constitutionalism in classical terms and in African nationhood,” Lesotho Law Journal, 1990, Vol. 6 No. 1, pp. 57-74. Okoth-Ogendo, H.W.O. (1996) “Governance beyond government: a rejoinder to Justice Breyer (U.S. Supreme Court) and Professor Frank Michelman (Harvard Law School),” Comment on “Constitutionalism, Privatization and Globalization” made at Roundtable on “Constitutionalism, Constitutional Rights and Challenging Civil Society” organized by the U.S. Association of Constitutional Law in conjunction with Cardozo, Columbia and NYU Law Schools, November 19-21, 1998, New York. Okoth-Ogendo, H.W.O. (1999) “Constitutions without constitutionalism: reflections on an African political paradox,” in Issa Shivji (ed) (1991) State and Constitutionalism: An African Debate on Democracy, Southern Africa Political Economy Series (SAPES) Trust, Harare, pp. 3- 26 (also in Douglas Greenberg, et al. q.v.; Jackson & Tushnet, q.v.) Okoth-Ogendo H.W.O. (1999) “The quest for constitutional government,” in Goran Hyden, Dele Olowu & H.W.O. Okoth-Ogendo (1999) African Perspectives on Governance, Africa World Press, Trenton, pp. 33-59. Ben Sihanya (2011) “Reconstructing the Kenyan Constitution and State, 1963-2011: lessons from British, American, German and African constitutionalism,” thoroughly revised version of the article published in Law Society of Kenya Journal in 2010. Carlos S. Nino (1992) “The complexity of constitutional democracy,” in Carlos S. Nino (1996) The Constitution of Deliberative Democracy, Yale University Press, New Haven. 4A. Executive I  Government Structure, system & processes  Constitutional values, principles and safeguards under Constitution 2010  Values and principles in general  Values and principles on Executive; values on public services & resource(s) e.g. public finance; values on admin justice 30 Readings  B.O. Nwabueze (1974), Presidentialism in Commonwealth Africa C. Hurst & Nwamife, London & Enugu  R.W. Muhoho (1986), The Concepts of State, Government, Nation in the Kenyan Experience University of Nairobi, LL.B. Dissertation  Lawrence Lessig & Cass R. Sunstein (1994) “The President and the Administration,” 94 Columbia Law Review 1-123  J.B. Ojwang (1983) “The nature and scope of executive power in English and French- speaking Africa: A comparative perspective” 13 Verfassung und Recht in Ubersee, pp. 319- 337  Ben Sihanya (2011) The Presidency and Public Authority in Kenya’s New Constitutional Order, Constitution Working Paper series No. 2 Society for International Development (SID) Eastern & Central Africa, Nairobi  Y.P. Ghai and JPWB McAuslan, Public Law and Political Change in Kenya OUP, Nairobi, 1970, Chap. 6 5A. Executive III  President; presidential elections; election date; assumption of office; powers, rights, privileges, immunity  PM, Presidential and premier politics in constitutional process, 1963-2012  Key themes and trends on presidency; Kenyatta, Moi, Kibaki assumption of office, powers, functions and performance, record (?); life, liberty & land (property)  Structure of government  The quest for ethnic, class, youth and gender inclusion in the Kenyan political economy  Historical injustices under Agenda 4 and the Constitution 2010 Readings P. Anyang’ Nyong’o “State and Society in Kenya: The Disintegration of the Nationalist Coalition and the rise of Presidential Authoritarianism 1963-78” J.B. Ojwang (1990) Constitutional Development in Kenya ACTS Press, Nairobi, pp. 75-107. B.H. Selassie (1974) The Executive in African Governments Heinemann, London S.A. de Smith, Constitutional and Administrative Law Penguin Books, Harmondsworth. 31 B.O. Nwabueze (1974) Presidentialism in Commonwealth Africa C. Hurst & Nwamife, London & Enugu R.W. Muhoho (1986) The Concepts of State, Government, Nation in the Kenyan Experience University of Nairobi, LL.B. Dissertation J.B. Ojwang (1980) “The nature and scope of executive power in English and French-speaking Africa: a comparative perspective” 13 Verfasung and Recht in Uversee, 319-337 J.B. Ojwang (1976) Executive Power in Independent Kenya’s Constitutional Context, University of Nairobi, LL.M. dissertation Andrew Morton (1998) Moi: the Making of an African Statesman Michael O’mara Books Ltd, London Maranya (1984) Presidential Powers/Directives and Fundamental Human Rights – A Conflict? University of Nairobi, LL.B. dissertation Lawrence Lessig & Cass R. Sunstein (1994) “The President and the Administration,” 94 Columbia Law Review 1-123 J.B. Ojwang (1983) “The nature and scope of executive power in English and French-speaking Africa: A comparative perspective” 13 Verfassung und Recht in Ubersee, pp. 319-337 Sihanya, Ben (2011) “The Presidency and Public Authority in Kenya’s New Constitutional Order,” Constitution Working Paper series No. 2 Society for International Development (SID) Eastern & Central Africa, Nairobi Printed by The Regal Press Ltd, Nairobi. Sihanya, Ben and Duncan Okello (2010) “Mediating Kenya’s Post-Election Crises: The Politics and Limits of Power Sharing Agreement,” in Karuti Kanyinga and Duncan Okello (eds) Tensions and Reversals in Democratic Transitions: The Kenya 2007 General Elections, Institute of Development Studies (IDS), University of Nairobi, and the Society for International Development (SID) Eastern & Central Africa, Nairobi. Winnie V. Mitullah (2005) “Exercise of executive powers in Kenya: the case of the prerogative of mercy,” in Morris Odhiambo, Osogo Ambani, and Winnie V. Mitullah (eds) Informing a Constitutional Moment: Essays on Constitution Reform in Kenya Claripress, Nairobi The White House, Office of the Press Secretary (2011) “Fact Sheet: The President’s Regulatory Strategy,” at http://www.whitehouse.gov/the-press-office/2011/01/18/fact-sheet-presidents- regulatory-strategy (accessed 29/4/2011) Nic Borain (2007) “SA Presidential Transition: Who can pass through the eye of the needle?” Essential cases John Harun Mwau & Others v. A-G and Others HC Constitutional Petition No. 65 of 2011 consolidated with Petition No. 123 of 2011 and 185 of 2011 (per Lenaola, Ngugi & Mjanja JJ; delivered 13/1/2012) 32 Morrison v. Olson 487 US 654 (1988) William Jefferson Clinton v. Paula Corbin Jones U.S. Supreme Court (1997) George W. Bush, et al., v. Albert Gore, Jr., et al. Supreme Court of the United States (2000) United States v. Nixon 418 U.S. 683 (1974) Moi v. Mwau (2008) 2 KLR (EP); Imanyara v. Moi & 12 others (2008) 1 KLR (EP) Nyamai & Another v. Moi & Others (2008) 1 KLR (EP); Akweya v. Moi & 8 others (2008) 1 KLR (EP); Orengo v. Moi & 12 others; Matiba v. Moi 1 KLR (EP); Kibaki v. Moi, etc. Mwangi Stephen Muriithi v. AG 1983 KLR 1-50 Mwangi Stephen Muriithi v. Daniel Toroitich Arap Moi [2011] eKLR. (1 & 2) Muslims for Human Rights (Muhuri) & 2 others v. Attorney General & 2 others [2011 EKLR High Court at Mombasa Petition 7 of 2011. Centre for Rights Education and Awareness (CREAW) & 7 Others v. Attorney General [2011] EKLR High Court at Nairobi (Nairobi Law Courts) Petition 16 Of 2011 Republic v. Chief Justice of Kenya & 6 others Ex-parte Moijo Mataiya Ole Keiwua [2010] eKLR. Lewanika and Others v. Frederick Jacob Titus Chiluba (Constitutional Jurisdiction) (S.C.Z. Judgment No. 14 of 1998) [1998] ZMSC 11 (10 November 1998) Azanian Peoples Organization (AZAPO) and others v. President of the Republic of South Africa and Others (CCT17/96) [1996] ZACC 16; 1996 (8) BCLR 1015; 1996 (4) SA 672 (25 July 1996) Executive Council of the Western Cape Legislature v. President of the Republic of South Africa 1995 (4) SA 877 (CC), 1995 (10) BCLR 1289. Hugo v. President of the Republic of South Africa & another 1996 S. v Zuma and Others (CCT5/94) [1995] ZACC 1; 1995 (2) SA 642; 1995 (4) BCLR 401 (SA); 1995 (1) SACR 568; [1996] 2 CHRLD 244 (5 April 1995) National Director of Public Prosecutions v. Zuma (573/08) [2009] ZASCA 1; 2009 (2) SA 277 (SCA); 2009 (1) SACR 361 (SCA); 2009 (4) BCLR 393 (SCA) (12 January 2009) Samuel Kaunda and Others v. The President of the Republic of South Africa and others (2004) 35 Deterioration of public confidence in security system  The role of the government in provision of security services.  National Security Administration and Regulation under the 2010 Constitution.  Constitutional Reforms  Administrative reforms  Security Administration and Regulation at the County  Relationship between county security system and National security system.  Security administration and regulation during transition and elections  Security issues during presidential, parliamentary and civic elections - Electoral fraud, manipulation and related electoral offences - Political violence before, during and after elections  Role of the Kenyan state in electoral violence and insecurity  Who has been responsible for security in during transition?  Reforming administration of security in elections  History, present and future of Kenya’s security system, administration and regulation  under Kenyatta  under Moi  under Kibaki  upon progressive and full implementation of 2010 Constitution Essential readings Kagwanja, Peter Mwangi (2005) “Power to Uhuru: Youth identity and generational politics in Kenya’s 2002 elections,” 105 African Affairs 418. Kagwanja, Peter Mwangi (2003) “Facing Mount Kenya of facing Mecca? The Mungiki, ethnic violence and politics of the Moi succession in Kenya, 1987-2002,” African Affairs 25-24. Katumanga, Musambayi (2010) “Militarized spaces and the post-2007 election violence,” in Karuti Kanyinga and Duncan Okelo (eds) Tension and Reversals in Democratic Transition; The Kenya 2007 General Elections. (Publisher, city) Kagari, Michele, “The Kenya Police Service Strategic Plan 2003-2007: A commentary,” Commonwealth Human Rights Initiative (CHRI), at http://www.humanrightsinitiative.org/programs/aj/police/ea/articles/strategic_plan_analysis.pdf (accessed 29/2/2012). Bonn International Center for Conversion (2005) “Security Sector Reform in Kenya,” Inventory of security sector reform (SSR) efforts in partner countries of German development assistance, 36 Bonn International Center for Conversion, Bonn, at htttp://www.ssrnetwork.net/document (accessed 1/2/2012). Ghai, Yash (1993) “Constitution and governance in Africa: A prolegomenon,” in Sammy Adelman & Abdul Paliwala (eds) Law and Crisis in the Third World, Hans Zell Publishers, London, 51-75. Kagwanja, Peter Mwangi (2001) “Politics of marionettes: extra-legal violence and the 1997 elections in Kenya,” in Marcel Rutten, Alamin Mazrui & Francois Grignon (eds) Out for the Count: The 1997 General Elections and Prospects for Democracy in Kenya. Sihanya, Ben (2012) “Review of the National Government Function and Coordination Bill,” Presentation to the Society for International Development (SID) on Devolving State Power: Kenya’s Prospects and Challenges at the Intercontinental Hotel, Thursday, February 23, 2012. Sihanya, Ben (2012) “Administering and regulating security,” Presentation to the Society for International Development (SID) on Keeping the Promise of Democratically Controlled and Accountable Security Sector, Intercontinental Hotel, Nairobi, February 2, 2012 KNCHR (2008) On the Brink of Precipice: A Human Rights Account of Kenya’s Post Election Violence KNCHR, Nairobi Margaret Gathoni Gecaga (2007) “Religious movements and democratisation in Kenya: Between the sacred and the profane,” in Godwin R. Murunga & Shadrack W. Nasong’o (eds) The Struggle for Democracy, Zed Books, London & NY, 58-89 (Chap.3) Mutahi, Patrick (2005) “Political violence in the elections,” in Herve Maupeu, Katumanga, Musambayi & Winnie Mitullah (eds) The Moi Succession Elections 2002, q.v.… Norrie, Alan W. (1993) “Criminal justice, the rule of law and human emancipation: a historical comparative survey,” in Sammy Adelman & Abdul Paliwala (eds) Law and Crisis in the Third World, ” Hans Zell Publishers, London, 76-101 (chap.4) NEMU (1992) The Report of the National Election Monitoring Unit on The Multi-Party General Elections in Kenya, 29 December 1992. E.S. Atieno Odhiambo (2004) “Ethnic cleansing and civil society in Kenya 1969-1992,” 22:1 Journal of Contemporary African Studies, 29-42 “Security sector reform in Kenya” at http;//www.ssrnetwork.net/document (accessed 1/2/2012) Throup, David & Charles Hornsby (1998) Multy-party Politics in Kenya: The Kenya & Moi States and the Triumph of the System in the 1992. Wamue, Grace Nyatugah (2001) “Revisiting our indigenous shrines through Mungiki,” African Affairs 453-467. 37 Essential cases Biwott’s case regarding Akiwumi Commission ICC Pre-trial Chamber II (2012) The Decision on the Confirmation of Charges Pursuant to Article 61(7) (a) and (b) of the Rome Statute. Government reports Republic of Kenya, The Kenya Police Service: Strategic Plan 2003-2007, Draft 2, at http://www.humanrightsinitiative.org/program/a/police/ea/articles/draft (accessed 28/2/2012). Republic of Kenya (2009) Report of the National Task Force on Police Reforms, Government Printers, Nairobi (Philip Ransley Report) Republic of Kenya (1999) The Commission of Inquiry Report of the Judicial Commission Appointed to Inquire into Tribal Clashes in Kenya Government Printers, Nairobi (The Justice A.M. Akiwumi Report). Republic of Kenya (2008) Report of the Commission of Inquiry into the Post Election Violence, October 2008, Government Printer, Nairobi (Waki Report). Republic of Kenya (2007) Report of the Independent Review on Election Committee on General Elections of the December 27, 2007 Government Printers, Nairobi (Kriegler Report). Republic of Kenya (2003) Report of the Committee to Recommend(?) the establishment of the Truth Justice and Reconciliation Commission (TJRC) Government Printer (26/8/2008) (Makau Mutua Report) 6B. Executive VIII  Power arrangements in the National Accord  Transition in the executive (presidency & administration) under the Constitution 2010 and NARA. 6C. Executive IX (see also class 4A&B)  Constitutional Commissions under Constitution 2010  Constitutional implementation (key issues, key institutions, key timelines (especially relating to executive)) Readings Jackton B. Ojwang (1990) Constitutional Development in Kenya: Institutional Adaptation and Social Change African Centre for Technology Studies (ACTS), Nairobi, Chapter 5. Jelvas Musau (2005) “Limitation of executive powers: delinking the civil service from the 40 Kibaki and coalition politics, or is it political paralysis and atrophy of parties? Back to Kenyatta/Moi era, cooptation and personal rule to kill parties and organised politics; “parties obsolete”; “Government of National Unity.” Outstanding party questions: regulating internal democracy, accountability, and funding; clubs? Constitutionality of nomination rules; regulating and managing party coalitions …. Elections:  Gubernatorial, MPs, Senate, County Assembly, Womens’ Representative  Qualifications for nomination; nomination procedures and process  Election: process and who is elected  Administration of elections: IEBC, returning officers, poll clerks, security, transport  Electoral disputes and petitions  Electoral violence (cf. Class on Administering Safety, Security and Criminal Justice)  Closure in elections Electoral Law, regulations, processes and procedures Political parties Act 2007 (repealed), 2011 IEBC Act 2011 Constitution of Kenya 2010 Readings J.B. Ojwang (1990) Constitutional Development in Kenya ACTS Press, Nairobi, pp. 41-107. J.B. Ojwang & P.N. Okowa (1989) “The one-party state and due process of law: the Kenya case in comparative perspective” 1 African Journal of International and Comparative Law 177-205 K.I. Laibuta (1986), Constitutionalism, Parties and Government in Post-Independent Kenya University of Nairobi, LLB dissertation Sihanya, Ben and Duncan Okello (2010) “Mediating Kenya’s Post-Election Crises: The Politics and Limits of Power Sharing Agreement,” in Karuti Kanyinga & Duncan Okello (eds) Tensions and Reversals in Democratic Transitions: The Kenya 2007 General Elections, Institute of Development Studies (IDS), University of Nairobi, and the Society for International Development (SID), Eastern & Central Africa, Nairobi. J.B. Ojwang (1984) “State and party: interdependence of the two constitutions,” Nairobi University Law Journal – Journal of KLSS, 60-68 41 B.O. Nwabueze (1974) Presidentialism in Commonwealth Africa, op. cit. S.A. de Smith, Constitutional and Administrative Law, 3rd ed., pp. 130-136. Nicolas van de Walle (2003) “Presidentialism and clientelism in Africa’s emerging party systems,” Vol. 41 No. 2 The Journal of Modern African Studies pp. 297-321 J.B. Ojwang & P.N. Okowa (1989) “The one-party state and due process of law: the Kenya case in comparative perspective,” 1 African Journal of International and Comparative Law, pp. 177- 205. J.B. Ojwang (1984) “State and party: interdependence of the two constitutions,” Nairobi University Law Journal, pp. 60-68 Ingrid van Biezen and Petr Kopecký (2007) “The State and the parties: public funding, public regulation and rent-seeking in contemporary democracies,” Journal of Party Politics Vol. 13. No.2 pp. 235–254. Rodney Smith & Anika Gauja (2010) “Understanding party constitutions as responses to specific challenges,” Journal of Party Politics Vol. 16. No. 6, 755–775 Matthijs Bogaards (2004) “Counting parties and identifying dominant party systems in Africa,” European Journal of Political Research Vol. 43, 173–197 Joseph Lapalombara & Jeffrey Anderson (1992) “Political parties,” in Mary Hawkesworth and Maurice Kogan (eds) Encyclopedia of Government and Politics Vol. I Chap. 25 pp. 393 – 412 Routledge, London Vicky Randall and Lars Svåsand (2001) “Political parties and democratic consolidation in Africa,” Paper for ECPR Joint Sessions of Workshops, Grenoble, April 6-11, 2001: Workshop on Parties, party systems and democratic consolidation in the Third World Alan Ware (1996) “Parties in government,” in Alan Ware Political Parties and Party Systems, Chapter 12, Oxford University Press. 8. A NOTE ON THE READINGS (a) Although these readings are as comprehensive as possible, they do not claim to be exhaustive; they do not include all that is relevant, and students should feel free to look outside them. (b) The readings, however, offer a framework for independent work by students, and a good grasp of the material, within the framework, should give a fair direction capable of leading to a good understanding of the subject. (c) Some of the materials included in the readings, which are not primarily legal in character, will be found in the main University Library, on the open shelves, or in the East African Collections, in the periodicals Section, or on reserve. Students should adopt the habit of using the main Library (The Jomo Kenyatta Memorial Library) as much as possible. 42 (d) Some of the materials listed in the readings will be found in the Law Library, or through the library system. (e) For materials published in International Journals, for which the Law Library has no subscription, it is likely that the reserve will be holding several special copies. Students should confirm this with the Law Librarians. (f) It is not expected that students will be able to read each and all of the materials listed; but they should endeavour to read as many of them as possible. I will indicate mandatory readings. (g) I will provide the essential readings which are not available in the Library(ies). 17. REVISION OR TRIAL QUESTIONS, OR ASSIGNMENTS 1. Define the term “Executive” and identify its operational form in Kenya’s constitutional set-up. 2. Discuss, in a historical perspective, the law relating to the election of a President in Kenya. 3. Critically discuss presidential powers under the 2010 Constitution. 4. Consider, in a historical perspective, the place of political party constitutions in the general operation of Kenyan constitutional law. 5. Critically discuss some of the key presidential liberties, rights, privileges and immunity under the 2010 Constitution. 6. What are prerogatives, and to what extent are they part of the constitutional law of Kenya? 7. Compare and contrast the general profile of executive power in the colonial and the post- colonial period in Kenya. 8. Compare and contrast the general profile of executive power under the Constitution of Kenya 1969 vis-a-vis the Constitution of Kenya 2010. 9. Describe the machinery of implementation of the Executive’s decisions in Kenya. 10. What powers facilitate the functioning of such machinery, and to what extent are such powers subject to control (rationalisation, legitimation, limitation) 45 30. Compare and contrast the presidencies of Daniel T. Arap Moi and Mwai Kibaki with regard to freedoms of assembly and association as well as the relationship between the State and religious organizations. 31. Critically analyze how the Constitution of Kenya 2010 has reconstructed the powers and functions of the President vis-a-vis the other organs or officials of the Government. 32. “Ethnic and regional inequality in Kenya have reached crisis proportions. Kenya’s post- colonial Governments of Presidents Jomo Kenyatta, Daniel Arap Moi, and Mwai Kibaki are responsible for this, albeit to varying degrees of responsibility. Briefly discuss appropriate constitutional and legal measures for securing ethnic and regional equity in the allocation of, and access to, public resources, appointments, and tenders or contracts in Kenya. 33. How has the Constitution of Kenya 2010 addressed the previously existing limits to judicial power? 34. What is the role of political parties in Kenya’s constitutional process under the 2010 Constitution and the relevant law? 35. How can Kenya ensure safety and internal security of the person, the home, the work place, and public places under the Constitution of Kenya 2010? 36. “Electoral insecurity has been a major challenge since 1969, or before.” Critically assess how the Constitution of Kenya 2010 has guaranteed or reformed security in the electoral process. How does the Constitution of Kenya 2010 guarantee criminal justice for victims, the general public, and the four suspects in the International Criminal Court cases? What is the role of the Government of Kenya? *** FINIS*** Thu tinda!2 ***Wish U Success*** ....the discourse continues.... Prof Ben Sihanya, JSD (Stanford), revised June 29, 2012 Email: sihanya@sihanyamentoring.com; sihanya@innovativelawyering.com URL: www.innovativelawyering.com 2 In “USA” this means I have told my story; may you grow tall (in wisdom) like the trees at my uncles’ 46 Constitutional Process Dr Kiarie Mwaura School of Law University of Nairobi TITLE OF THE COURSE: CONSTITUTIONAL LAW II Course Code: GPR 110 Lecture Hours: 45 Pre-requisites: Constitutional Law 1 Purpose of the Course: To gain an understanding of basic constitutional principles and their relationship with government, to develop an appreciation of the process of constitution making and constitutional change, to understand how public power is exercised and the controls and limits imposed upon it by law and political practice. Learning Outcomes: By the end of the course, the learner should be able to: 1. Critically examine the different modes of constitutional design processes, their foundational assumptions, actors involved and activities engaged in; 2. Identify the conceptual issues involved in understanding constitution-making and how outcomes relate to process, including the concept of public participation and its linkage to outcomes; 3. Explain the concept of due process, amendment and ratification processes; 47 4. Assess constitutional practices in the various constitutional models (Parliamentary and Presidential); 5. Understand the different electoral systems as well as the role of Parliament and the judiciary. 6. Understand the nature of judicial review and human rights law and some of their limitations. 7. Develop an awareness of key themes of democratic control, transparency, and accountability Course Content: Origins and nature of the modern state; process of constitution making and constitutional change; machinery of government; separation of powers; executive power of the state; legislative power of the state; judicial power and judicial review; judicial and constitutional breakdown; control of public powers; prospects for a wider constitutional base in governance; human rights; Constitutional Law I is a prerequisite. Mode of Delivery: Lectures, Group discussions, Tutorials and student-centered practical exercises that involve written work, group discussion and role play alongside audio and visual presentations. Institutional Materials and Equipment: Text books, journal articles, handouts, bills, law reports, official gazettes, government reports, parliamentary reports, e-journals (LexisNexis, heinonline, JSTOR). White boards, flip charts, LCD projector and screen, laptop, LAN, DVDs, CDs Assessment: Type: Weighting Continuous assessment. 30% 50  YP Ghai and JC Ghai, Kenya’s Constitution: An Instrument for Change, (Nairobi: Katiba Institute, 2011), Chapter 2 on “Overview of the Constitution” pp 16-30; Chapter 7 on “The Executive and the Legislature” pp 91-107; Chapter 11 on “Electoral Democracy” pp 155-164.  PLO Lumumba et al, The Constitution of Kenya: Contemporary Readings, (Nairobi: Law Africa, 2011), pp 181-201.  Hilaire Barnett, Constitutional and Administrative Law, (Routledge Publishing, 2011), Chapter on Parliament (Electoral System). Class 9 Judiciary This session will reflect on the issues of judges and the judicial role, independence of the judiciary, rationale of the criteria for appointment of judges, the suitability of judges taking political decisions, judicial activism, general principles of judicial review, and judicial review in action. Practical exercise Discuss the problem below and come to class prepared with arguments supporting Wekesa and others supporting the Nairobi City Council. All arguments should be supported with solid legal authorities. The lecturer will pick groups at random and assign them to present opposing arguments in the case. Problem Nairobi City Council has certain licensing powers under the (fictitious) Street Traders Licensing Act 2007 (‘the Act’). Under s. 12 of the Act, Nairobi City Council can licence a ‘street trader’ to ‘sell goods’ in ‘pedestrianised areas delineated by the Council’. The Act also sets out certain types of permissible ‘street trader’ in s. 13(a), which are: ‘purveyors of fruit and vegetables; meat; haberdashery items; artistic products; books and other written materials’. S. 13(b) states that the list in s. 13(a) is ‘non-exhaustive’. By s. 14(a) of the Act the licences are valid for one year only and renewable at the discretion of the Council. There is no appeal process built into the Act. 51 Additionally, under the (fictitious) Tourist Promotion Act 2010, Nairobi City Council has a duty under s. 1(a), ‘to promote tourism within its jurisdiction’. S.2 (a) permits the council to promote activities that, ‘draw attention to the particular artistic and historical attractions of the area’. Under s. 2(a), Nairobi City Council launches a campaign to make Nairobi an ‘African Town of Culture’ in 2013. Wekesa has run a bookstall within Nairobi for the last 3 years, the licence being renewed annually. Last year, Wekesa started specialising in the works of John Mutembei. On 2nd January 2012, Nairobi City Council refused Wekesa’s application to renew his licence on the grounds that he had been engaged in activities that undermine the Council’s bid to make Nairobi an ‘African Town of Culture’, drawing particular attention to the special offer Wekesa was offering on copies of Mutembei’s poem ‘Nairobi’, which starts: Come fiery bombs and fall on Nairobi! It isn't fit for humans now, There isn't grass to graze a cow. Swarm over, Death! Advise Wekesa. Questions 1. How are judges appointed in Kenya? 2. What criteria should guide the selection of judges? Should the judiciary be representative of society? 3. Is it possible to have a completely independent judiciary? 4. Carl Schmitt once quipped that in the “politicisation of law, politics had nothing to gain and law had everything to lose”. Would Brice Dickson agree? 5. To what extent should judges have the power to make law or shape constitutions? 6. Debate the proposition that “In cases of national security, the judiciary should defer to the democratically accountable branches of government.” 7. Critically assess the various factors affecting the independence of the judiciary. 8. What is judicial review? 52 9. What do we mean when we say that judicial review is a review not an appeal? What are the consequences of this? 10. Why do you think it is necessary to limit the scope of judicial review in such a way? 11. Who can bring an application for judicial review? What is the test for bringing an action? Do you agree with this? 12. What bodies are amenable to judicial review? What is the test? 13. What were the grounds for review outlined by Lord Diplock in the ‘GCHQ’ case? Was this an open or closed list? Required Reading  Order 53 Civil Procedure Code.  Dickson, Brice "The Role of Judges in the Development of Constitutions" (2006) 57 Northern Ireland Legal Quarterly 332-351.  B. Hale ‘Equality and the Judiciary: Why should we want more women judges?’ Public Law (2002) 489-504.  Le Sueur, A. "Judicial Power in the Changing Constitution" in J. Jowell and Dawn Oliver (ed.) The Changing Constitution (Oxford: Oxford University Press, 2007)  Council of Civil Service Unions v Minister for the Civil Service [1985] A.C. 374 ‘GCHQ’ (Speech of Lord Diplock).  Associated Provincial Picturehouses v Wednesbury Corporation [1948] 1 K.B. 223  Wheeler v Leicester City Council [1985] 2 All E.R. 1106.  The sections on judicial review (grounds for review), from any Public Law or Administrative Law textbook, (Barnett, O. Hood Phillips and Jackson; de Smith; Craig; Wade & Bradley; Turpin etc.). Class 10 Human Rights One of the predominant features of the rash of constitution-making around the world in the last two decades of the twentieth century (especially in Africa, Asia and Eastern Europe) has been a stress on including fundamental human rights protections in the constitution. Most countries have come to the conclusion that human rights cannot be left entirely to the actions of