CONSTITUTIONAL THEORY CLASS notes, Lecture notes of Law

Download CONSTITUTIONAL THEORY CLASS notes and more Lecture notes Law in PDF only on Docsity! CONSTITUTIONAL THEORY CLASS IRUNGU KANGATA LESSON ONE The jurisprudential foundations of constitutional law i. Defining law Law is commonly understood as a system of rules that are created and enforced through social or governmental institutions to regulate conduct, although its precise definition is a matter of longstanding debate.[3][4][5] It has been variously described as a science[ and the art of justice.State-enforced laws can be made by a collective legislature or by a single legislator, resulting in statutes, by the executive through decrees and regulations, or established by judges through precedent, normally in common law jurisdictions. Private individuals can create legally binding contracts, including arbitration agreements that may elect to accept alternative arbitration to the normal court process. The formation of laws themselves may be influenced by a constitution, written or tacit, and the rights encoded therein. The law shapes politics, economics, history and society in various ways and serves as a mediator of relations between people. Legal systems vary between countries, with their differences analysed in comparative law. In civil law jurisdictions, a legislature or other central body codifies and consolidates the law. In common law systems, judges make binding case law through precedent, although on occasion case law may be overturned by a higher court or the legislature. Historically, religious law influenced secular matters,and is still used in some religious communities. Sharia law based on Islamic principles is used as the primary legal system in several countries, including Iran and Saudi Arabia. Law provides a source of scholarly inquiry into legal history,philosophy, economic analysis and sociology.Law also raises important and complex issues concerning equality, fairness, and justice. ii. Classification of law Law's scope can be divided into two domains. Public law concerns government and society, including constitutional law, administrative law, and criminal law. Private law deals with legal disputes between individuals and/or organisations in areas such as contracts, property, torts/delicts and commercial law.[18] This distinction is stronger in civil law countries, particularly those with a separate system of administrative courts; by contrast, the public-private law divide is less pronounced in common law jurisdictions. KENYAN LEGAL SYSTEM The Kenyan Legal System is based on English Common Law. The Kenyan Constitution is the supreme law of the land, and any other law that is inconsistent with the Constitution, shall, to the extent of the inconsistency, be null and void. The Constitution of Kenya is divided into eleven parts. The independence Constitution was enacted on the 12th of December 1963. There have been several amendments to the Constitution since then, and a failed attempt to have the whole constitution amended The Government The Government is divided into 3 functions: executive function, legislative function and the judicial function. The Executive The Executive consists of the President, the vice-President, Prime Minister and two Deputy Prime Ministers, Ministers and the Assistant Ministers, who are all members of the National assembly (Parliament). The Executive implements all the laws made by parliament. The Executive authority is vested in the President. Kenya has a Parliamentary system, where the president is both the Head of State and Government, and also a member of parliament. The Prime Minister is tasked with the responsibility of coordination of the executive functions of government. At the same time, the whole government can, by law, be dismissed from office by a vote of no confidence in parliament. The Cabinet consists of the president, vice-president, prime minister, two Deputy Prime ministers and ministers. Its function is to aid and advice the president. The Ministers are appointed by the President and are charged with responsibility over a ministry, over which they are to exercise general direction and control. The President has power to dissolve and prorogue parliament, but he has to summon it into session not later than 12 months from the end of the preceding session, if parliament has been prorogued, or three months from the end of that session if parliament is dissolved. VI. Case law (decisions of higher courts-supreme court, court of appeal and high court ) and The Substance of Common Law and Doctrines of Equity. VII. African Customary Law-for specific matters . VIII. Islamic Law -for specific matters . IX. International Instruments iii. Theories of law Philosophy of law or jurisprudence , is a branch of philosophy that examines the nature of law and law's relationship to other systems of norms, especially ethics and political philosophy[ It asks questions like "What is law?", "What are the criteria for legal validity?", and "What is the relationship between law and morality?" Philosophy of law and jurisprudence are often used interchangeably, though jurisprudence sometimes encompasses forms of reasoning that fit into economics or sociology. Philosophy of law can be sub-divided into analytical jurisprudence and normative jurisprudence. Analytical jurisprudence aims to define what law is and what it is not by identifying law's essential features. Normative jurisprudence investigates both the non-legal norms that shape law and the legal norms that are generated by law and guide human action. Several schools of thought have developed around the nature of law, the most influential of which are: • Natural law theory, which asserts that law is inherent in nature and constitutive of morality, at least in part.[8] On this view, while legislators can enact and even successfully enforce immoral laws, such laws are legally invalid. The view is captured by the maxim: an unjust law is not a true law, where 'unjust' means 'contrary to the natural law.' Natural law theory has medieval origins in the philosophy of Thomas Aquinas. In late 20th century, John Finnis revived interest in the theory and provided a modern reworking of it. • Legal positivism, which is the view that law depends primarily on social facts.Legal positivism has traditionally been associated with three doctrines: the pedigree thesis, the separability thesis, and the discretion thesis.[2] The pedigree thesis says that the right way to determine whether a directive is law is to look at the directive's source. The thesis claims that it is the fact that the directive was issued by the proper official within a legitimate government, for example, that determines the directive's legal validity—not the directive's moral or practical merits. The separability thesis states that law is conceptually distinct from morality.[2] While law might contain morality, the separability thesis states that "it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have often done so."[11] Legal positivists disagree about the extent of the separability thesis. Exclusive legal positivists, notably Joseph Raz, go further than the standard thesis and deny that it is possible for morality to be a part of law at all. The discretion thesis states that judges create new law when they are given discretion to adjudicate cases where existing law underdetermines the result. The earliest proponent of legal positivism was John Austin who was influenced by the writings of Jeremy Bentham in the early 19th century. Austin held that the law is the command of the sovereign backed by the threat of punishment. Contemporary legal positivism has long abandoned this view. In the twentieth century, two positivists had a profound influence on the field: Hans Kelsen and H. L. A. Hart. Kelsen is most influential for his notion of 'grundnorm,' an ultimate and basic legal norm, which some scholars, especially in Europe, accept today.In the Anglophone world, Hart has been the most influential scholar.[13] Hart rejected the earlier claim that sanctions are essential to law and instead argued that law is rule-based. According to Hart, law is a system of primary rules that guide the conduct of law's subjects, and secondary rules that regulate how the primary rules may be changed, identified, and adjudicated. Hart's theory, although widely admired, sparked vigorous debate among late twentieth century philosophers of law including Ronald Dworkin, John Rawls, Joseph Raz, and John Finnis. • Legal realism, which asserts that law is the product of decisions made by courts, law enforcement, and attorneys, which are often decided on contradictory or arbitrary grounds. According to legal realism, law is not a rational system of rules and norms. Legal realism is critical of the idea that law has a nature that can be analyzed in the abstract. Instead, legal realists advocate an empirical approach to jurisprudence founded in social sciences and the actual practice of law in the world. For this reason, legal realism has often been associated with the sociology of law. In the United States, legal realism gained prominence in the late 19th century with Oliver Wendell Holmes and John Chipman Grey.]Legal realism became influential in Scandinavia in the 20th century with Axel Hägerström. Other theories include radical theories of law, like Marxism . iv. Legal systems The contemporary national legal systems are generally based on one of following basic systems: civil law, common law and religious law or combinations of these. However, the legal system of each country is shaped by its unique history and so incorporates individual variations. The science that studies law at the level of legal systems is called comparative law. Both civil (today heavily influenced by the Napoleonic Code) and common law (Common Law from Britain) systems can be considered the most widespread in the world: civil law because it is the most widespread by landmass and by population overall, and common law because it is employed by the greatest number of people compared to any single civil law system. The Napoleonic Code is one of the few documents that have influenced the whole world.[2] More than two centuries after its promulgation, the Napoleonic Code is still living law in all of the world. Considered to be the first successful universal codification since Justinian, it has influenced the civil law systems of countries around the world. Even today the French Civil Code of 1804 has not been significantly changed and in many ways it is the most enduring legacy of the French Revolution. The source of law that is recognized as authoritative is codifications in a constitution or statute passed by legislature, to amend a code. While the concept of codification dates back to the Code of Hammurabi in Babylon ca. 1790 BC, civil law systems derive from the Roman Empire and, more particularly, the Corpus Juris Civilis issued by the Emperor Justinian ca. AD 529. This was an extensive reform of the law in the Byzantine Empire, bringing it together into codified documents. Civil law was also partly influenced by religious laws such as Canon law and Islamic law.Civil law today, in theory, is interpreted rather than developed or made by judges. Only legislative enactments (rather than legal precedents, as in common law) are considered legally binding. Common law and equity (legal concept) are systems of law whose sources are the decisions in cases by judges. In addition, every system will have a legislature that passes new laws and statutes. The relationships between statutes and judicial decisions can be complex. In some jurisdictions, such statutes may overrule judicial decisions or codify the topic covered by several contradictory or ambiguous decisions. In some jurisdictions, judicial decisions may decide whether the jurisdiction's constitution allowed a particular statute or statutory provision to be made or what meaning is contained within the statutory provisions. Statutes were allowed to be made by the government. Common law developed in England, influenced by Anglo-Saxon law and to a much lesser extent by the Norman conquest of England, which introduced legal concepts from Norman law, which, in turn, had its origins in Salic law. Common law was later inherited by the Commonwealth of Nations, and almost every former colony of the British Empire has adopted it (Malta being an exception). The doctrine of stare decisis, also known as case law or precedent by courts, is the major difference to codified civil law systems. Constitutionalism is "a compound of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law". Political organizations are constitutional to the extent that they "contain institutionalized mechanisms of power control for the protection of the interests and liberties of the citizenry, including those that may be in the minority". As described by political scientist and constitutional scholar David Fellman: Constitutionalism is descriptive of a complicated concept, deeply embedded in historical experience, which subjects the officials who exercise governmental powers to the limitations of a higher law. Constitutionalism proclaims the desirability of the rule of law as opposed to rule by the arbitrary judgment or mere fiat of public officials ... Throughout the literature dealing with modern public law and the foundations of statecraft the central element of the concept of constitutionalism is that in political society government officials are not free to do anything they please in any manner they choose; they are bound to observe both the limitations on power and the procedures which are set out in the supreme, constitutional law of the community. It may therefore be said that the touchstone of constitutionalism is the concept of limited government under a higher law. (David Fellman, "Constitutionalism"), vol 1, pp. 485, 491–92 (1973–74) iii. Functions of a constitution Defines the role, powers, and structure of different entities within a state, namely, the executive, the parliament or legislature, and the judiciary; as well as the basic rights of citizens and, in federal countries such as the United States and Canada, the relationship between the central government and state, provincial, or territorial governments. iv. Characteristics of a good constitution 1.Reflects social and historical experiences The framers of a constitution should learn from their experiences as a country . A single ruler was unfair and would often result in tyranny. To combat this threat, they should design a Constitution so this could never happen again. 2.Good Constitutional Design The Constitution contains several principles that have enabled it to survive. Often constitutions have been destroyed because an individual or small group of people has taken over the government. Principle of Separation of Powers for example is key to this . This divides government into three branches with equal power. The three branches are the Executive, Judicial and Legislative. The principle of Checks and Balances is good to ensure just in case one branch of government tried to take over the government. Each branch can control the other branches. 3. Democratic credentials The people have the power to control what the government in doing. If the government is not meeting the needs of the people, the people can vote for other representatives who hopefully will do what the people want. This goes back to the principle of Popular Sovereignty. 4.Amendments Amendments or changes can be made to the Constitution. This allows for changes to be made as situations in the country changes. This allows for the Constitution to change as times change without having to be rewritten. 5.Vagueness of the Constitution The Constitution set out the principles of the government. It should not make many specific laws. It should set up the system to create laws that are necessary for that time period. The three branches if government can create laws to deal with current situations. If specific laws were created say in 1787, many would be obsolete by now and we would need a new Constitution. Constitutional crisis :In political science, a constitutional crisis is a problem or conflict in the function of a government that the political constitution or other fundamental governing law is perceived to be unable to resolve. There are several variations to this definition. For instance, one describes it as the crisis that arises out of the failure, or at least a strong risk of failure, of a constitution to perform its central functions.[1] The crisis may arise from a variety of possible causes. For example, a government may want to pass a law contrary to its constitution; the constitution may fail to provide a clear answer for a specific situation; the constitution may be clear but it may be politically infeasible to follow it; the government institutions themselves may falter or fail to live up to what the law prescribes them to be; or officials in the government may justify avoiding dealing with a serious problem based on narrow interpretations of the law.[2][3] Specific examples include the South African Coloured vote constitutional crisis in the 1950s, the secession of the southern U.S. states in 1860 and 1861, the controversial dismissal of the Australian Federal government in 1975 and the 2007 Ukrainian crisis. Constitutional crises may arise from conflicts between different branches of government, conflicts between central and local governments, or simply conflicts among various factions within society. In the course of government, the crisis results when one or more of the parties to a political dispute willfully chooses to violate a law of the constitution; or to flout an unwritten constitutional convention; or to dispute the correct, legal interpretation of the violated constitutional law or of the flouted political custom. This was demonstrated by the so-called XYZ Affair, which involved the bribery of French officials by a contingent of American commissioners who were sent to preserve peace between France and the United States.[4] The incident was published in the American press and created a foreign policy crisis, which precipitated the passage of the Alien and Sedition Acts. Opposition to these acts in the form of the Virginia and Kentucky Resolutions cited that they violated freedom of speech and exhorted states to refuse their enforcement since they violated the Constitution.[4] Moreover, if the crisis arises because the constitution is legally ambiguous, the ultimate resolution usually establishes the legal precedent to resolve future crises of constitutional administration. Such was the case in the United States presidential succession of John Tyler, which established that a successor to the presidency assumes the office without any limitation. Politically, a constitutional crisis can lead to administrative paralysis and eventual collapse of the government, the loss of political legitimacy, or to civil war. A constitutional crisis is distinct from a rebellion, which occurs when political factions outside a government challenge the government's sovereignty, as in a coup d'état or a revolution led by the military or by civilians. v. Types of constitutions Codified, Uncodified, Flexible and Inflexible Constitutions That difference between a codified and uncodified constitution is also reflected on the fact that what is written in the constitutional document becomes a superior law that can only be judged by a Constitutional Court. This brings us to another classification of constitutions as "flexible", such as the British constitution that can be amended with ease, and "inflexible", such as the US constitution, which contains entrenchments that make it very difficult to make constitutional changes. In constitutions of the inflexible type, it is the constitution, not the legislature that is supreme. Arguably, codified constitutions provide mechanisms to effect constitutional changes. However, making those changes is not necessarily easy. In the Canadian Constitution of 1982, the whole of Part V of the constitutional document lays down the procedures for constitutional amendment, and as a consequence, the constitution is criticised for being at a standstill. to protect fundamental rights which were not considered to be protected by common law in a sufficient manner or to have proper judicial articulation. Critics may argue that this is a sign that the British political constitution is beginning to show tendencies towards becoming a legal constitution, and that both the ECA and the HRA have created entrenchments. However, it could also be argued that this is merely the effect of Britain being part of a global economy, and that because it remains uncodified, the British constitution remains flexible, and able to change with the times. LESSON THREE –Grundnorm Kelsen’s theory of the Grundnorm Basic norm (German: Grundnorm) is a concept in the Pure Theory of Law created by Hans Kelsen, a jurist and legal philosopher. Kelsen used this word to denote the basic norm, order, or rule that forms an underlying basis for a legal system. The theory is based on a need to find a point of origin for all law, on which basic law and the constitution can gain their legitimacy (akin to the concept of first principles). This "basic norm", however, is often described as hypothetical. The reception of the term has fallen into three broad areas of discernment including (i) Kelsen's original introduction of the term, (ii) the Neo- Kantian reception of the term by Kelsen's critics and followers, and (iii) the hypothetical and symbolic use of the term through the history of its application. Pure Theory of Law:- Grundnorm is a German work which basically means foundation of norm or basic norm. This denotes as the ultimate norm that confer validity upon norms. Pure Theory means that description of law is different from what the law to be, even though it has an ought proposition with it. The pure theory recommends that all positive law should be viewed as a system of norms stipulating that, under certain conditions. Norms are generally action-directing means duty imposing by power or permission. This is different than moral norms which are the subjective preferences for behaviour. Sanctions by Officials:- Kelsen said that there were two things universally true of law: firstly, that it was coercive, and secondly, that it was a system of norms. For a legal norm to be described as 'valid' it must be a member of a system. According to Kelsen, moral judgments are irrational. He also says that Fact cannot gather norm. Legal norms are coercion by systematic use of sanctions, applied by agents or officials. Unique about law is coercion & offialdom. Kelsen introduced another German idea that is Delicto which means in the act of committing an offence, officials can impose sanction which is not immoral. According to Kelsen, secondary norms are as genuine as primary norm, for example, sanctions by officials. The mythology & obscurity in Kelsen:- It says that the Transcendental-Logical condition of this normative interpretation, does not perform an ethical-political but it do perform an epistemological function. According to Kelsen, Transcendental means outside and independent from experience of facts with which we cannot agree because if any law is outside than facts, then that would be unrealistic. He describes Normativity as a matter of rules. Performing an ethical-political function means for Kelsen that it is making an evaluative statement of morality or politics. So, the Epistemological means making clear how we can know something. Pure Theory of Law:- Grundnorm is a German work which basically means foundation of norm or basic norm. This denotes as the ultimate norm that confer validity upon norms. Pure Theory means that description of law is different from what the law to be, even though it has an ought proposition with it. The pure theory recommends that all positive law should be viewed as a system of norms stipulating that, under certain conditions. Norms are generally action-directing means duty imposing by power or permission. This is different than moral norms which are the subjective preferences for behaviour. Sanctions by Officials:- Kelsen said that there were two things universally true of law: firstly, that it was coercive, and secondly, that it was a system of norms. For a legal norm to be described as 'valid' it must be a member of a system. According to Kelsen, moral judgments are irrational. He also says that Fact cannot gather norm. Legal norms are coercion by systematic use of sanctions, applied by agents or officials. Unique about law is coercion & offialdom. Kelsen introduced another German idea that is Delicto which means in the act of committing an offence, officials can impose sanction which is not immoral. According to Kelsen, secondary norms are as genuine as primary norm, for example, sanctions by officials. The mythology & obscurity in Kelsen:- It says that the Transcendental-Logical condition of this normative interpretation, does not perform an ethical-political but it do perform an epistemological function. According to Kelsen, Transcendental means outside and independent from experience of facts with which we cannot agree because if any law is outside than facts, then that would be unrealistic. He describes Normativity as a matter of rules. Performing an ethical-political function means for Kelsen that it is making an evaluative statement of morality or politics. So, the Epistemological means making clear how we can know something. Hans Kelsen's Pure Theory of Law and its doctrine of the Grundnorm has achieved a certain notoriety rather removed from its contribution to jurisprudence as such. This notoriety arises from its use by Commonwealth courts in analyzing the difficult political and constitutional situations created in the aftermath of revolutions, such as those in Pakistan in 1958 and Uganda in 1966. However, its most complex and controversial application to date occurred in Rhodesia following the Unilateral Declaration of Independence (U.D.I.) of 1965. There the courts moved towards acceptance of the Smith regime and its new Constitution in a series of decisions of major political significance. Since these decisions purported to derive their validity from Kelsen's theory, that theory becomes the legitimate object of scrutiny. Prior to U.D.I. (11 Nov. 1965), the Rhodesian courts were sitting under the 1961 Constitution granted by Britain which reserved certain residual powers to the British Government but at the same time limited the right of the United Kingdom Parliament to legislate for Rhodesia to cases where the Constitution was being breached by local legislation. Entrenched therein was a Declaration of Rights which guaranteed basic human rights and freedoms, such as observance of proper legal procedure and protection from discrimination by laws or administrative action; it also provided a right of appeal to the Privy Council. In addition, the Colonial Laws Validity Act of 186 denied the right of a colonial legislature to alter a constitution except in the manner stipulated in that constitution. At the time of U.D.I. the Smith regime promulgated a new constitution which, while retaining some provisions of the 1961 law, introduced certain fundamental changes. The new Constitution provided for the appointment of an official to serve as the Queen's representative, replacing the Governor. The Rhodesian legislature took all power to make laws, denying any such power to the United Kingdom Parliament, and made the previously entrenched clauses of the 1961 Constitution subject to a majority decision of the legislature. It also abolished the right of appeal to the Privy Council, while providing for the continuing in office of the sitting judges, subject to an oath of loyalty. The 1965 Constitution did not present itself as deriving validity from its predecessor; it declared its own validity. In response to U.D.I. and the new Constitution, the Governor issued statements dismissing the Ministers forming the government and calling on the people to refrain from supporting the new regime. However, the people were asked to carry on their normal tasks and maintain law and order, the judiciary being specifically included in that request. A few days later the British Government replied with the Southern Rhodesia Act 19658 and the Southern Rhodesian Constitutional Order, 1965.9 These were made retrospectively effective from the date of U.D.I. and denied legality to the acts of the Rhodesian legislature, placing authority in Her Majesty in Council.'" During this period, the United Nations passed a resolution (5 Nov. 1965) 1 " calling upon Britain to resolve the situation by the use of force. This was followed by a Security Council resolution (12 Nov. 1965)12 calling on member states not to recognize the Smith regime and to enforce sanctions against it. This has led to criticism from noted authors such as H. L. A. Hart, who refers to the theory as a `needless duplication' of the `living reality' of the courts and officials actually identifying the law in accordance with the constitution's rules. It is mystifying to posit a rule beyond these rules, which adds, superfluously in Hart's view, that the constitution is to be obeyed. Kelsen also attempted to explain International Law by applying the concept of there being a Grundnorm superior to all the Grundnorms of the state. This theory has been severely criticised by theorists like Hart and Lord Lloyd, though others, such as followers of various schools of the future development of the United Nations, including Grenville Clark and Louis B. Sohn of Harvard, who have strongly endorsed it. LESSON FOUR –constitutional making i. The concept of the constituent power of the people This concept means ‘the power of the people to constitute’. Constituent power is the truth of modern democracy. For two main reasons, a historical and an analytical one. First, the birth of the modern doctrine of popular sovereignty coincides with the conceptual advent of constituent power. They are co-original and coeval.1 The political supremacy of the multitude over princes, kings, emperors, and popes was initially formulated in terms of the originary power of a community to determine the political forms of its collective existence. It is during the volatile period between the late middle ages and early modernity that the multitude was identified as the sovereign constituent subject. It is during the volatile period between the late middle ages and early modernity that the multitude was identified as the sovereign constituent subject and, respectively, democracy was re- imagined as the politics of popular foundings. From a historical point of view then, constituent power and modern democracy are intrinsically associated from their beginnings in the idiom of popular sovereignty. Secondly, there is a profound systematic and conceptual analogy between constituent power and democracy, insofar as they both describe collective acts of self-legislation and public events of self-alteration. From this elective affinity, democratic constituent politics evokes the principle of liberty as political autonomy, whereby the members of a collectivity deliberately constitute the political forms of authority in order to organize and institutionalize their common life.2 The addressees of the law become its authors. Hence, formulating popular sovereignty as constituent power is to affirm the basic democratic value of self-government. This mutual historical and conceptual articulation of constituent power and democracy must be emphasized. Sovereignty, as the power to constitute, is misrecognized by contemporary democratic discourses, and for this reason lacks a place in our political vocabulary. Often it is regarded as elusive and indeterminate, barely a concept, bordering on the ideological: either a pure fact or a metaphysical fiction, and thus of minor theoretical interest and political significance.3 Ever since Carré de Malberg identified sovereignty as “the capital problem in public law,” it has been treated as a legal anomaly, a disturbing irregularity, and a political threat.4 In fact, over the long history of modern political thought in the Western world, sovereignty as constituent power was systematically overshadowed by the competing doctrine of sovereignty as “the highest power of command,” proudly pronounced in 1576 by Jean Bodin in his celebrated treatise.5 His new absolutist and unitary definition spread quickly across various political and juridical discourses, appearing in diverse historical contexts and the distinct theoretical systems of several canonical thinkers. Thomas Hobbes, for example, concurred that “Sovereign Power” is “this Right to give Commands,” a view also propagated by Samuel Pufendorf and later inherited by Jeremy Bentham, John Austin, and Max Weber. This view was even adopted by Baruch Spinoza who—while discussing absolute democracy, like many others— formulated the question of sovereignty in light of whoever “has the sovereign right of imposing any commands he pleases.”6 This paradigm of sovereignty, which transverses both natural jurisprudence and legal positivism (albeit in diverse ways) identifies the sovereign as the one who commands without being subject to the commands of another, that is, to a superior.7 Bodin’s sovereign is an ‘uncommanded commander’. The essential political relationship is vertical, between “him who commands” and “him who owns obedience,” that is, between sovereigns and subjects, rulers and ruled.8 This power to command is absolute, inalienable, and perpetual, grounded in divine right. It remains subordinated to natural and divine law; it is hierarchical, unitary, and personified; and it is often identified with executive prerogatives. Internally, it cannot be divided or shared; externally, it should not be surpassed or downgraded. ii. The making of the constitution and History of our constitution a.Precolonial and colonial era Pre-colonial Kenya lacked both centralised authority responsible for the administrative machinery and a formal judicial institution. Judicial powers were exercised by informal tribunals that were binding only within specific communities. Kenya was transformed into a colony in 1920. The coastal strip was retained as a protectorate. In 1897, a Commissioner appointed by the Queen was the chief executive of the protectorate; he had wide powers including setting up the necessary administrative machinery, making of laws and establishing courts of law. The Commissioner was not accountable to any local official or body. The Commissioner was, however, subject to the instructions of the Secretary of State for the Colonies. The 1902 East African Order in Council divided the country into provinces and districts for administrative purposes. The Commissioner was also granted the power to exercise the prerogative of mercy. In the 1905 East African Order in Council, the title of the Commissioner was changed to Governor and Commander in Chief. He was empowered to appoint all judicial officers, including High Court judges. The Legislative Council was empowered to make ordinances. The Governor served as the Speaker of the Legislative Council until 1948. In this capacity, the Governor made all the necessary regulations and Standing Orders to guide the operation of the Legislative Council. The British government retained the right to legislate directly for the territory. The Governor could veto any proposed ordinance. The Executive Council was established to advice the Governor on matters of administration. This introduced the concept of collective participation in the administration. In 1939, considerable powers were granted to the Executive Council. The first African was appointed to the Legislative Council in 1944. The Lyttelton Constitution introduced policy measures intended to give Africans a limited degree of participation in constitutional machinery. The reforms created a limited franchise of Africans who were to elect eight Members to the Legislative Council. The ministers were required to exercise collective responsibility for decisions on Government policy. This collective responsibility required the ministers to support and vote with the Government in the Legislative Council and to support that policy of the government. This form of collective responsibility was limited since most ministers were government officials. Further, the Legislative Council was neither independent nor representative. The Lennox Boyd Constitution14 abolished the Executive Council and replaced it with a Council of Ministers. The Constitution increased African membership in the Legislative Council to 14 members. It further provided for Specially Elected Members who would be elected by the Legislative Council sitting as an electoral college. The Council of Ministers was enlarged to 16, with half of the membership being appointed from elected Members of the Legislative Council. The Constitution also established a Council of State comprising 10 members and a chairman. The Council was appointed by the Governor and served at the pleasure of the Monarch. The Council scrutinised intended legislation. African leaders protested that they were not consulted at the conception and formulation stages of the Lyttelton and the Lennox Boyd Constitutions15. The Colonial Government had adopted a strategy of imposing non-negotiated constitutions on Kenya. and not the Prime Minister and the Cabinet. The Constitution ensured that a politically organised government supported by a popularly elected legislature was in power. In the ensuing elections, Kanu won with an impressive margin. Its party leader, Kenyatta, became the fi rst Prime Minister. T h e I n d e p e n d e n c e Constitution The Independence Constitution was a long, detailed and highly complex document that sought to balance the positions of the negotiating parties. It sought to capture the fragile compromise that parties thrashed out at the Lancaster House conferences21. The protagonists showed little faith in the resulting Constitution22. While Kanu was not satisfi ed with the entrenchment of regionalism in the Constitution, Kadu felt that the regional governments were not adequately protected from the vagaries of the central government23. The Constitution was a symbol of independence of the State and the creation of a new State. It provided a measure of legitimacy for the new rulers and was proof of national unity since it had been endorsed by a majority of the political leaders. It served as a vehicle for introducing new values, including the notion of constitutionalism24. The Constitution was based on the principles of parliamentary government based on the Westminster model and protection of minorities25. Protection of minorities created a contradiction in the Constitution since a parliamentary system is in essence a centralised and unitary system while a regional system is fragmented and federated system. The main features of the Independent Constitution can be summarised as:- a. The Constitution was a written constitution vested with special legal sanctity. It was the basic law and any other laws inconsistent with it were void to the extent of such inconsistency. b. The Constitution established a Westminster form of Government where a Prime Minister was appointed by the Governor General from amongst the Members of the House of Representatives from the political party with the highest majority of members. The Executive power reposed in the Monarch who delegated it to the Governor General. The Governor retained executive power on defence, external affairs and internal security. Kenya still remained a dominion of the United Kingdom. c. The National Assembly was bicameral. The upper House, the Senate, was a safeguard for regionalism or majimbo. Any constitutional amendment required a 90 per cent vote in the Senate for entrenched provisions and 75 per cent for other provisions. This was in addition to 75 per cent in the House of Representatives. The House of Representatives could pass a vote of no confidence in the Government. This House of Representatives was designated to guard national interests. The constitutional amendment process was rigid and inflexible. Senate representation was distributed over 40 districts and Nairobi area. The Senate was a forum for tribal representation in Kenya. d. Regionalism or majimbo was established. Kenya was divided into seven regions with each having a regional legislature and Executive. Regionalism was a loose form of federalism. Voters in a region had to demonstrate genuine connection to the region, for example place of birth. The boundaries of the regions could not be changed by the central government without approval by the regional government. The president of a region was elected to office by elected members themselves or persons qualified to be elected as such. The legislative powers of the regions were subject to intervention by the central government. e. The Constitution secured the rights of minorities through a Bill of Rights. The Bill of Rights was modeled on the European Convention on Human Rights.31 Europeans were concerned about obtaining their retirement benefits and compensation in cases of premature retirement and the fate of their property, including land, in Kenya and protection against discrimination for those who wanted to stay while Asians were apprehensive about the security of their investments and the right to continue working and residing in Kenya.32 No special seats were reserved for non Africans. Since Asians were deeply distrusted by Africans, a majority preferred to keep their British passports33. f. The Judiciary was independent and impartial with judges serving secured terms. The Judiciary was intended to regulate public power and prevent abuse and corruption. The security of tenure applied to the Attorney General, who served as the principal legal adviser to the Government and the Controller and Auditor General. g. The civil service was independent and apolitical, with the functions of its recruitment and promotion vested in the Public Service Commission. The Controller and Auditor General and the Attorney General enjoyed security of tenure and could not be removed by the Commission. The Commission had to consult the Prime Minister or the Regional President concerned when appointing senior civil servants34. h. T h e C o n s t i t u t i o n c r e a t e d a n i n d e p e n d e n t E l e c t o r a l Commission of Kenya responsible for delimi ting cons ti tuency boundaries and supervising, o r g a n i s i n g a n d m a n a g i n g elec tions . The Cons ti tu tion demanded impar tiali ty and honesty in elections. The Electoral Commission comprised of the Speakers of the two Houses of Parliament and one nominee by the Prime Minister and each of the Regional Presidents35. i. The Constitution provided for ci ti zen ship . All indigenou s communi tie s au toma ti cally became citizens by operation of law. Other residents, who were British subjects, qualified to become citizens on application. A section of migrant communities also automatically acquired citizenship. T h e Constitution affirm e d the validity of existing titles. Where land was subject to an adjudicated claim under the Land Titles Ordinance, the land was subject to such adjudication. The Crown land was vested in the regional governments while the central government acquired public and trust land in Nairobi. Trust land was vested in county councils, which held the land in trust for the residents. The Independence Constitution created checks and balances on the exercise of governmental power. However, it was a complex document that did not have the full support of the political leadership with the suspicions of Kanu and Kadu running deep. The fact that European and Asian political parties supported Kadu positions on protecting the minorities during the negotiations of the Independence Constitution further fuelled the mistrust. It was clear that it was just a matter of time before the Constitution was amended. However, the Independence Constitution was an important symbol of the creation of a new nation and confi rmation that political power could be truly exercised by the African majority. As stated above, the Independence Constitution insulated the amendment process from unilateral and partisan action. Changes would require a majority of 75 per cent of each House except any amendment seeking to alter entrenched rights of the individual and the regions, citizenship, elections, the Senate, the judiciary and the amendment process, which required 90 per cent vote in the Senate in addition to the 75 per cent vote in the House of Representatives. Between 1963 and 2005, the Constitution was amended many times that it could no longer be classified as rigid1. Most of the amendments were not intended to improve the quality of the Constitution but to entrench an authoritarian and undemocratic administration. Other amendments were intended to solve political problems facing the government from time to time. Most of the amendments were carried out by a Parliament dominated by members of one political party. In the post independence period, the relationship between KANU and KADU did not demonstrate healthy political competition. KADU played the negative role of obstructing KANU while the KANU government reacted by using its solid majority to thwart the opposition irrespective of the merits of the particular issue fronted by KADU. In 1964, KADU was dissolved to join KANU. The leaders of KADU pledged to work together to build the nation socially, economically and politically. T Kenya assumed the Republican status in 1964. This was the fi rst Constitutional amendment to the Independence Constitution. It created the offi ce of the President, who was the Head of State and the Commander in Chief of the Armed Forces.2 The fi rst President would be the person who before 12th December 1964 held the offi ce of the Prime Minister under the Constitution. A candidate for the Presidency had to be a candidate for the House of Representatives. The candidate had to be supported by 1, 000 registered voters during nomination. The candidate who won a seat in the House of Representatives and received the majority number of votes would be elected as President. If a vacancy occurred at a time when there were no General Elections, the House of Representatives, acting as an electoral college, would elect a successor. The amendment reduced the powers of the regional assemblies by further and substantially weakening the quasi-federal structure, especially with regard to sources of funding and provided that the Vice President would be appointed from among the elected nominated by a political party14. Every party would be required to nominate a presidential candidate. If the offi ce of president became vacant other than during the General Election, a presidential election would be conducted within 90 days. In the interim, the Vice President would exercise the functions of the offi ce of the President. However, in matters of appointment of Ministers and in declaring a state of emergency, the Vice President would only act on a resolution by the Cabinet. The amendment replaced 12 specially elected MPs with 12 MPs nominated by the President. The amendment provided for a presidential election in the event of a vacancy replacing the parliamentary role with direct election. It sanctifi ed the role of political parties in elections and proscribed independent candidature. In 1969, a revised Constitution15 was published incorporating all previous amendments. Some amendments were made including the alteration of the membership of the Electoral Commission, whose members would be appointed by the President. Previously, the Speaker of the National Assembly was the Chairman of the Electoral Commission of Kenya. After the consolidation and revision of the Constitution in 1969, no further amendments were made for five years. The twelfth amendment which was effected in 1974 lowered the voting age from 21 to 18 years16. This amendment was enacted prior to the General Elections scheduled during that year and was intended to increase the pool of voters. The thirteenth amendment made Kiswahili the offi cial language of the National Assembly. The amendment was motivated by cultural nationalism and was preceded by a meeting of the National Governing Council of KANU which proposed the use of Kiswahili as the national and offi cial language for all purposes. One year after the amendment, Parliament repealed the thirteenth amendment and provided the legislative Bills would be presented in English in Parliament and debated in either English or Kiswahili18. It was not necessary to effect a constitutional amendment to declare which languages Parliament could use in its debates. Indeed the amendment was in confl ict with section 34 (c) of the Constitution which required a candidate for election as a Member of the National Assembly to be fl uent in English but not Kiswahili. The fi fteenth amendment extended the power of mercy exercisable by the President under section 27 of the Constitution to persons who had been found guilty of an election offence by an Election Court19. A person found guilty of an election offence was barred from contesting for elections for fi ve years. This amendment followed the fi nding of guilt against Hon Paul Ngei who served as a Minister at the time. Hon Ngei had been detained in the pre-colonial period with the Late President Kenyatta at Kapenguria. The amendment was intended to save the political career of Hon Ngei. The Bill was published one day before it was tabled for debate and was debated and passed in one afternoon. The Bill was signed into law by the President the next day and was granted a retrospective application from 1st January 1975. The sixteenth amendment established the Court of Appeal after the East African Court of Appeal collapsed alongside the East African Community20. The amendment also abolished the right to remit compensation for land compulsorily acquired without compliance with foreign exchange regulations. The Chief Justice became both a High Court Judge and a Judge of the Court of Appeal creating administrative difficulties for the operation of the offi ce. It meant the Chief Justice could theoretically sit on appeal on a matter he or she had determined as a High Court judge. The seventeenth amendment provided for fl uency in Kiswahili and English as a requirement for the purposes of qualifying for nomination as a candidate for the National Assembly21. This amendment corrected the situation where debates in Parliament could be conducted in English or Kiswahili but there was no requirement that candidates vying for parliamentary seats must be profi cient in Kiswahili. The eighteenth amendment required certain public offi cers to resign within six months to the date of the General Election if they intended to contest in the election22. The amendment was intended to ratify a directive issued to all civil servants intending to contest in elections to resign by 15th May 1979. The amendment was ostensibly to prevent abuse of offi ce by persons holding public offi ces who intended to venture into elective politics. After the enactment of the amendment, the Attorney General stated that he would issue a statement on the offi ces covered by the amendment even though no such discretion had been conferred upon that offi ce by the law23. I m p a c t o f C o n s t i t u t i o n a l Amendments on Constitutionalism and independence and impartiality of Constitutional Institutions The amendments to the Constitution were solely carried out by Parliament. Parliament was an important centre for high stakes political game. There was no attempt at all to engage in participatory constitution making. The effects of these amendments can be summarized as:-24 a. Creation of a strong centralist g o v e r n m e n t t h r o u g h t h e establishment of a Republic and the dismantling of regionalism. The practice of frequent amendments represented the legal endorsement of increasingly authoritarian politics and constitutional decay. The constitutional imperative of division of power between the executive, the judiciary and legislature was gradually distorted, resulting in a close to dictatorial presidency25. b. Removal of specially entrenched provisions of the Constitution and reduction of the thresholds for approving constitutional amendments thus making it easier to amend the Constitution. The single chamber National Assembly could carry out any type of amendment of the Constitution without reference to any other constitutional organ. c. Concentration of power in the Presidency and whittling down of the watchdog role of the Legislature over the Executive. Moreover, the existence of one political party, KANU, meant that the political career of an MP depended on his support for the ruling party position. Any dissent could easily end his political career. I t has been argued tha t these amendments were intended to tackle the challenges of governance in the newly independent nation. Some amendments were proposed by the political elite to eliminate political opposition and instill discipline in the party and in Parliament. Party indiscipline was presented by the government as a constitutional issue26. Other amendments were intended to consolidate and create opportunities for political dominance in the future27. The Independence Cons ti tu tion introduced an alien concept of binding rules which were hitherto not available to the colonial administrators. The colonial structures were authoritarian. The initial amendments were therefore intended to harmonize and fuse the operations of a democratic constitution with an undemocratic authoritarian administrative structure with the result that democratic principles were undermined and the quality and legitimacy of the Constitution was downgraded28. T h e p a r t i e s n e g o t i a t i n g t h e independence Constitution did not accept some provisions that were included in the fi nal document. KANU did not accept regionalism and even used financial and administrative mechanisms to ensure that the regional structure did not function effectively. When KADU voluntarily dissolved and joined KANU in 1964, the concept of regionalism was no longer tenable . KANU members had ideological differences in the development path that the new state should have adopted. However, these ideological differences were subsumed by the unanimous demand for self rule and independence. The differences resumed in earnest after attainment of independence. The existence of two factions in the ruling party explains the attempt to solve party discipline matters through constitutional amendments. This split also led to the strengthening of the provincial administration to replace regionalism. Officers serving in the provincial administration were part of the Executive. The formation of a rival party, KPU, occasioned amendments which concentrated the security functions in the Executive, postponed elections by two years and facilitated assignment of new constituencies to Senators after the abolition of the Senate. Political repression in Kenya –from 1982 to 1992 The first President of the Republic died in offi ce in August 1978. His Vice President, Hon Daniel Moi assumed offi ce of the President immediately, initially for a period of 90 days during which elections for the offi ce of the President would be conducted. The transition was carried out in scrupulous compliance with the Constitution. Hon Moi was shortly elected as the President and pledged to follow in the foot steps on the fi rst President. Indeed and true to this spirit, further amendments to the Constitution followed during his reign. Whereas the amendments were fewer, they were very far reaching. Some amendments completely altered the constitutional architecture of Kenya and severely undermined the enforceability of the Bill of Rights. Further Amendments fundamental right since all accused persons are presumed innocent until they are found guilty after a full trial. Compulsory incarceration of a suspect undermines that presumption. Indeed and by practice, the courts had not been granting bail to suspects of capital offences since such suspects were deemed fl ight risks who would fail to turn up for trial when required. The amendmen t wa s the re fo re unnecessary. It was intended to compromise judicial independence and impartiality. The twentieth fourth amendment further eroded the rights of suspects and accused persons by providing that police would hold suspects of capital offi ces for up to 14 days before arraigning them in court.14 The period was increased from 24 hours to 14 days. The initial Bill had intended to extend the period of holding suspects of all offences to 14 days. This proposal was roundly condemned by civil society and the public. At the time, there were many and serious allegations that police and other security agencies were involved in perpetrating torture and other human rights abuses on suspects held in their custody. The amendment was ill timed and it was unnecessary and irrelevant15. Courts had always permitted the police to hold suspects for longer periods than the stipulated 24 hours after presenting them in court in order to fi nalize investigations where this was deemed necessary. The government was clearly insensitive to public views. The amendment further removed the security of tenure for judges of the High Court and the Court of Appeal and members of the Public Service Commission. There was no justification for the amendment and it was outrageous. The amendment undermined the doctrine of separation of powers, which includes independence and impartiality of the judiciary and political neutrality of the civil service. The amendment undermined jurisprudential basis of the Constitution17. The executive could now freely interfere with the judiciary and the civil service. The amendment concentrated further powers in the Executive and reduced the me chani sm s fo r holding i t accountable. The amendment made one arm of the government subservient to another. The amendment recognized the creation of the offi ces of the Chief Magistrate and the Principal Magistrate as part of the subordinate courts. Synthesis of the Amendments and Agitation for Reform The amendments carried out between 1982 and 1990 were intended to concentrate power in the Executive, u n d e rmi n e t h e f u n c ti o ni n g o f other arms of the Government and independent offices and entrench an undemocratic and authoritarian system of government. The system of checks and balances envisaged in the Independence Constitution was clearly weakened. The creation of a de jure one party state was intended to stifl e dissenting voices in Parliament. Any MP who dissented from the official government position risked swift expulsion from KANU which was the only political party at the time. The judiciary was subjugated through removal of the security of tenure provisions for the judges of the High Court and the Court of Appeal. Likewise, the Attorney General and the Controller and Auditor General could be removed from office by the President at will as the security of tenure provisions had been repealed. This sad state of affairs led to agitation for reforms which were headlined by agitation for the introduction of a multiparty state. A large class of politicians who had been excluded from mainstream politics through expulsion from KANU or by being rigged out during the infamous queue voting elections of 1988 led the calls for reforms18. The international community and religious leaders weighed in with demands for reform. The government, at the time, was dependent on donor funding and the donor community threatened to cancel the aid package and the budgetary support to the government, unless reforms were carried out. The process of repairing the Constitution was therefore commenced in 1990 as a result of intense local and international pressure. Any MP who dissented from the official government position risked swift expulsion from KANU which was the only political party at the time. The judiciary was subjugated through removal of the security of tenure provisions for the judges of the High Court and the Court of Appeal. Likewise, the Attorney General and the Controller and Auditor General could be removed from offi ce by the President at will as the security of tenure provisions had been repealed. This sad state of affairs led to agitation for reforms which were headlined by agitation for the introduction of a multiparty state. A large class of politicians who had been excluded from mainstream politics through expulsion from KANU or by being rigged out during the infamous queue voting elections of 1988 led the calls for reforms18. The international community and religious leaders weighed in with demands for reform. The government, at the time, was dependent on donor funding and the donor community threatened to cancel the aid package and the budgetary support to the government, unless reforms were carried out. The process of repairing the Constitution was therefore commenced in 1990 as a result of intense local and international pressure. The twentieth fi fth amendment sought to correct the whittling down of constitutional jurisprudence that had been effected on the Constitution. The amendment restored the security of tenure for judges of the High Court and the Court of Appeal, the Attorney General and the Controller and Auditor General and members of the Public Service Commission19. The Attorney General, though intended to act independently, was directed to draft a Bill effecting the changes20. The same Parliament that had a few years earlier eloquently dismissed the primacy of judicial independence in a democracy argued and supported the need for separation of powers and reaffi rmed the need for judicial independence and impartiality21. The removal of security of tenure for judges of the High Court and the Court of Appeal and the independence offi ces of the Attorney General and the Controller and Auditor General had been roundly condemned in Kenya and internationally as an affront to the judiciary and intended to emasculate the institutions ability to function. The international criticism and calls for enhanced transparency and accountability in governance contributed to the change of heart by the Government. The twentieth sixth amendment increased the number of parliamentary constituencies to a minimum of 188 and a maximum of 21022. This amendment was carried out without the recommendation of or recourse to the independent Electoral Commission of Kenya as was required by law. The Commission was mandated to function without being subjected to the direction of any other person or authority. Since the boundaries had been reviewed in 1986, the earliest that another review could have been carried out within the law was 199423. The amendment was therefore an unlawful interference with the functions of the Commission and was enacted in a manner that violated the Constitution. The twentieth seventh amendment24 repealed section 2A of the Constitution paving way for multi- party politics and ending the de jure one party status. The amendment resulted from widespread criticism of the government which had failed to accommodate any form of opposition or alternative view. The amendment responded to international political and economic pressures that emphasized increased democratic space after the fall of the Berlin wall and had reduced Cold War tensions. However, locally, the clamour for reforms and especially the expansion of democratic space had taken a violent turn.25 Offi cial Recognition of the need for Comprehensive Reform The Government published a Bill to amend the Constitution in 199226. This Bill proposed wide ranging reforms to the Constitution. The Bill proposed a revision of the Constitution with far reaching consequences. The review of the Bill is important in light of the clamour for a new Constitution that followed. The Bill proposed the following changes27:- a. Abolition of the offi ce of the Vice President b. Speaker of the National Assembly was to act in the offi ce of the Presidency whenever the offi ce of the President was vacant. c. The term of the President was limited to two fi ve year terms. d. Defi ned the functions, powers and duties of the President. e. P r o v i d e d f o r t h e h o l d i n g of referenda on fundamental constitutional issues, including removal of the President. The Bill provided for impeachment of the President for unconstitutional conduct through a referendum vote. f. Created a dichotomy between the Head of State, an offi ce occupied by the President, and the Head of Government, an offi ce proposed to be occupied by a Prime Minister. g. Clarifi ed the role of the Electoral Commission of Kenya in the conduct and management of elections. h. P rovided fo r pa rliamen ta ry supremacy over veto of legislation by the President. i. Created a legal aid scheme the reform process. Soon after the said elections, ICJ Kenya, Kenya Human Rights Commission and Law Society of Kenya revived the agenda for a National Constitutional Convention to spearhead comprehensive reform of the constitution in February 1993. The three organizations commissioned the writing of a draft model constitution, dubbed the ‘Kenya Tuitakayo’. The draft Constitution would help popularize the call for re forms and the convening of a National Constitutional Convention. The other aim of the initiative was to create a core constituency comprising the political parties, religious groups and civil society, which would effectively lobby for comprehensive reform of the constitution. This was the fi rst representation of the views of the public on the Constitution they wanted. The model Constitution was an important lobbying tool and helped to visualise constitutional reforms. 2 The Proposed Constitution dubbed ‘Kenya Tuitakayo’ was sponsored by the ICJ Kenya and LSK. 3 Prof Macharia Munene,The Manipulation of the Constitution of Kenya, 1963-1996; a Refl ective Essay. The civil society and the opposition political parties initiated calls for comprehensive overhaul o f the constitutional order. The writing of a draft model constitution was commissioned to help crea te a core constituency, comprising all stakeholders which would effectively lobby for comprehensive reform of the constitution. The proposed model constitution received overwhelming support from the public, religious groups and opposition political parties.2 In November 3 1994, ICJ Kenya, LSK and KHRC launched the proposed model constitution at Ufungamano House. This was the pioneer comprehensive document highlighting some of the envisaged reforms to the constitution of Kenya. A steering committee of the proposal for a model Constitution was formed drawing members from the main civil society groups represented at the launch. These efforts would eventually lead to the convening of the National Constituency Assembly that would adopt the new Constitution. Among the proposals in the model constitution was that persons without high school education were not eligible to vie for the offi ce of the President and that persons over the age of 70 years were not eligible to vie for Presidency. The civil society led public awareness campaigns to enable the public understand the need for constitutional reforms. The mismanagement of the economy at the time by the government was linked to political misrule thereby adding pressure on the government to carry out reforms4. The international donors demanded that the government carry out governance reforms before any further budgetary support could be availed. In January 1995, the President promised to invite experts to prepare a draft Constitution. This promise was not implemented. The civil society resorted to mass action which led to violence and deaths. Since the Government was not constructively engaging the reform movement, there were real fears of escalation of violence. By 1996, many groups, including religious groups, political parties and the civil society were openly calling for constitutional reform. There was a widespread view that the constitution was defective and there was an urgent need to carry out reforms. The opposition parties recognized that the constitutional and legal landscape (Amendments were effected through the Constitution of Kenya (Amendment) Act, Act Number 9 of 1997). This was a group composed of MPs sourced from all parliamentary parties. The opposition parties recognized the need fi r some minimum reforms before elections since a new Constitution could not be realized before the elections in 1997. 7 Section 41 of the Former Constitution. was heavily tilted against them. In that legal environment, it was very diffi cult to win political power from the ruling party, KANU. The popular view was a constitutional overhaul was necessary. Parliament was no longer regarded as the sole entity that would spearhead reforms but rather one of the stakeholders in a consultative process5. The role of Parliament in the past of completely overhauling the constitution through myriad amendments without any reference to the citizenry was the cause of the constitutional crisis. T h e I n t e r - P a r t i e s Parliamentary Group Reform Package The opposition parties, in 1997, negotiated a minimum reform package through the Inter Parties Parliamentary Group6 (IPPG). The reforms which were negotiated by the MPs and agreed upon included:- a. Reform of the Electoral Commission of Kenya7. This was through the securing the independence of the Electoral Commission of Kenya by increasing the membership of the Commission from 12 members to 22. Parliamentary opposition parties were invited to nominate the 10 extra Commissioners. The slots were divided among the par tie s ba sed on their parliamentary strength. b. The Constitution was amended to expressly state that Kenya was a multiparty democratic state.8 c. The nomination of MPs by the President was to be based on the strength of parliamentary parties. Nominations were previously carried out by the President at his sole discretion and inevitably benefi ting members of his party9. d. The President could appoint Ministers from members of the National Assembly who did not belong to the political party that sponsored him to contest for the Presidency10. This created room for the formation of a government of national unity in future. e. A petitioner challenging an election under section 44 of the Constitution could appeal to the Court of Appeal if he or she was not successful at the High Court. A numbe r o f s ta tu te s tha t restricted civil and political rights were repealed, for example annulment of the offence of sedition, laws inhibiting freedom of association and expression. The Group agreed to carry out wide ranging reform after the 1997 General Elections and enacted the Constitution of Kenya Review Act, 1997. The Act was promoted by the Government without adequate consultation with the civil society and the opposition political parties. The government was anxious to assume control of the process and minimize popular participation11. N e g o t i a t i n g t h e L e g a l Framework for Constitutional Review The Constitution of Kenya Review Bill was published in August, 1997 as part of the IPPG package. The n eg o ti a ti on s w e r e c a r ri ed ou t between the government and the opposition to the exclusion of the civil society, religious groups and other stakeholders. The Bill was enacted by Parliament12 and assented to by the President13 in November 1997. The Act intended to create a comprehensive legal framework to carry out the constitutional reform. The Act codifi ed the modalities of reviewing the constitution. This was after intense negotiations between the government and the opposition. The Act provided a parliamentary route to constitutional review. This approach received little public support and was rejected by the civil society14. The protests by the civil society and the opposition parties about the structure of the reform process necessitated negotiations to identify an acceptable procedure. The negotiations took place in June and October 1998 in a series of National Conferences held at Safari Park Hotel in Nairobi. The negotiations were carried out by the IPPG, the opposition and civil society. The agreements reached at the conferences were incorporated in the Act. The Act was later amended by the Constitution of Kenya Review (Amendment) Act, 1998. The amended Act received presidential assent on December 30, 1998. Public participation was recognized as the driving principle of the review process. The Act listed 54 stakeholder groupings that would be represented in the Constitution of Kenya Review Commission. It provided 12 On 6th November 1997. 13 On 7th November 1997. 14 Andreassen, BA (Above), Page 1. for 25 commissioners, of which 13 were reserved for political parties, to be appointed by the president from a list of 49 nominations from stakeholders. The government and the opposition parties disagreed on the process of nominating members in the Constitution of Kenya Review Commission. The Act allowed the government to pick the members of the Commission without further consultations and in an exclusive and fi nal manner. In October 1999, a Parliamentary Select Committee on the Constitutional Review was formed with the mandate of collecting and collating views from Kenyans and to recommend how the Constitution should be reviewed in respect of the Constitution of Kenya Review (Amendment) Act, 1998, to facilitate the formation of the Review Commission, and to co-ordinate the process of review. The membership of the committee was drawn from all parliamentary political parties. Parliament adopted the Select Committee’s report in April 2000. Honourable Raila Odinga chaired the committee. The report recommended that parliament nominates 21 persons from whom the president would appoint 15 members to the Commission. The collection of views from the people by the Commission should be done at the constituency level. These proposals if enacted would have locked out the civil society from participating in the review process as per the Act. The government revised the Act and provided for goals of the review process and wide participation of the people. It created an independent Commission which would consult the people and draft the Constitution. The opposition parties boycotted the process and did not participate in enactment of this law. The civil society had similarly been sidelined. The Government therefore handpicked members of the Commission. The civil society commenced a parallel review process under the leadership of main religious groups. On April 27, 2000, the Peoples’ Commission of Kenya was inaugurated by the Ufungamano Initiative. The Ufungamano Initiative consisted of religious organizations and civil society. The People’s Commission of Kenya was appointed based on provisions of the Act. It operated despite limited fi nancial resources and Tr a d i t i o n a l l y, c o n s t i t u t i o n a l amendments have been carried out by politicians without any input from the public. The review process sought to reduce the role of politicians and convert them into one of the many categories of stakeholders. Politicians turned out to be better mobilisers of public support than the civil society and they are more willing to introduce and exploit ethnicity in the review process7. On the last day of the National Constitutional Conference in March 2004, ministers, led by the Vice President, walked out before the final voting, protesting that the consensus reached by the parties on the structure of the executive had not been honoured. The Constitution of Kenya Review Commission Chairman presented the Draft Constitution as finalised at the conference to the Attorney General, who received it as a delegate and a Commissioner of Constitution of Kenya Review Commission because there was a court order issued in the case of Rev. Njoya vs. the Attorney General and Others (referred to as Njoya Case)8 barring him from receiving the document in his capacity as the Attorney General. The A c t wa s la ter amended to provide for revision of the Bomas Draft by simple majority of MPs in Parliament, a mandatory referendum 7 Ibid, Page 29. 8 [2004] KLR 9 See below Patrick Onyango & Others vs. the Attorney General [2008] 3 KLR (EP) 84. and resolution of contentious issues by the Parliamentary Select Committee. This prompted the civil society led by the Yellow Movement to fi le a case challenging the Act9. The amendments deprived the citizens of their constituent power since there was no provision for a mandatory referendum under the Constitution of Kenya Review Act. A f t e r th e di s b an dm en t o f th e conference, the Parliamentary Select Committee on the Constitution Review attempted to build political consensus on the sharing of the executive powers in the Constitution between the President and the Prime Minister, through the Naivasha Accord. The Act was amended to conform to the court ruling and to kick start the process after the conference political stalemate. The Accord stated that executive power would vest in the President, Prime Minister and the Cabinet. The President would appoint a Prime Minister from the political party or the coalition of parties with the majority support in Parliament. The devolution structure was proposed to be three tiers: national, county and district levels. The civil society weighed in with calls for the process to be completed by experts. In this regard, the National Council of Churches of Kenya and the Law Society of Kenya produced Draft Constitutions. The NCCK Draft Constitution proposed the presidential system and a unitary government. This was in contrast with the conference draft that proposed a parliamentary system and a devolved government. The fi ve options that were proposed at the time to break the stalemate were:- a. Amend the conference Draft Constitution in Parliament. This option was not supported by law given the ruling in the Njoya case and was very unpopular with the public. b. Build consensus among MPs. This would depend on the control party leaders had over MPs in their respective parties at the time. This option faced a limitation in that a select team would have no mandate to complete the review process unless the law was amended. c. Election of a new Constituent Assembly. The Assembly would be constituted through elections with the power to examine the views collected and generate a draft. d. Conduct a referendum on the draft. The people would have an opportunity to approve or reject the conference Draft Constitution. e. Enact the Draft Constitution in Parliament and later amend it as needed. f. Recall the conference for a session to sort out the contentious issues in the draft. Further Amendments to the Review Framework The Act (as amended in 2004) sought to legitimise retrospectivity by applying the Act to events that had occurred before it was enacted. Such events included the work of the commission and the proceedings of the National Constitutional Conference. The proposed amendment did not fully accord with the judgement in the Njoya Case, which raised questions on the adoption and approval of a constitution and representativity of the conference. The Constitution of Kenya Review Act, 2004 provided for a mandatory r e f e r en dum t o ra ti f y th e n ew Constitution. This complied with the Njoya case decision, which provided for the adoption of a new constitution through a referendum or through an elected constituent assembly. This means that the citizens had the fi nal say in adopting the type of constitution they wanted. The holding of a referendum in the soured political environment that obtained after the conference could translate into an audit of government’s performance rather than approval of the constitution. The Act did not cure the defect in section 47 of the former Constitution that did not provide for the adoption and coming into force of a new Constitution. Perhaps, the Minister for Justice and Constitutional Affairs at the time did not want to propose a constitutional amendment since the handling of the review process had led to loss of support by many MPs. The Act, which proposed to complete the process in about 180 days, did not provide for suffi cient time to translate the draft Bill into accessible languages, carry out civic education and to create an appropriate infrastructure for conducting the referendum and operationalise the new constitution. The voting on referendum by the citizens was intended to be based on knowledge and choice. There was no consensus on the ideal majority of the referendum vote that was appropriate to approve the constitution in the referendum. The reform process lacked suffi cient constituency building and the support for a new constitution was fragmented in many respects. The fragmentation o f the core constituency o f the citizenry and the civil society, which has all along supported the review of the constitution, was precipitated by emerging fragmented political interests about the contents of the Draft Constitution. The divisions were not necessarily driven by the methodology adopted to review the constitution. The socalled ‘contentious issues’ were to be resolved through consensus. However, the so-called contentious issues were never defi ned or isolated. Proponents of certain views in the Constitution were responsible for stalling the review process in order to push for the acceptance of their favoured positions. There were doubts on the technical capacity, independence and impartiality of the Electoral Commission of Kenya to conduct the referendum. The application of the Electoral Offences Act10 and National Assembly and Presidential Elections Act 11to a referendum was not appropriate. The right of the citizenry to exercise the constituent power to make a new constitution was not supposed to be tied to registration or non- registration as a voter. The application of such laws disenfranchised Kenyans who had not registered as voters. The vote on the referendum should have been recognised as an exercise of sovereign right available to all Kenyan citizens. It was an exercise to decide on the relationship of the citizen and the Government. The commissioners of the ECK serving at the time were nominees of political parties. This created doubts as to their impartiality. As noted, there was no legal framework in place to permit the replacement of the Constitution. The replacement of the current constitution with the new proposed constitution would have required an amendment of section 47 of the Constitution. The amendment to section 47 of the former Constitution would have facilitated compliance with the Njoya case judgement, legitimised the referendum results and created a mechanism of entry into force of the new constitution. The President had no power to proclaim the new constitution as law as was provided in the Act. The President could only set the date for entry into force of the new constitution. The amendment to the constitution would also clarify who and how the new constitution would be proclaimed and create the necessary transitional mechanisms. In the circumstances, even if the referendum was held and Kenyans came up with a new constitution, it was not clear how it would be brought into force under the provisions of the former Constitution. The procedures for challenging the results of the referendum were criticised as excluding the poor. Each applicant for review of the referendum results was required to deposit fi ve million shillings in court as security for costs. The Chief Justice was empowered to constitute the Bench that would hear applications to challenge the results of the referendum. There was no prescribed timeframe for conclusion of the hearing of the petitions and the delivery of judgement. It was feared that given the backlog currently bedeviling the judiciary, fi ling of cases challenging the referendum results would inordinately delay the entry into force of the new constitution. Determination of the application after say fi ve years or longer would injure, perhaps fatally, the process of implementing the new constitution. It was possible for persons to file such petitions regardless of the sufficiency of grounds given the political and sectarian intrigues that had emerged in the process at the time with the sole intention of delaying the implementation of the constitution. Such petitioners would be driven by sectarian or other narrow selfinterests. The amendments to the Act were based on political expediency and solved few legal problems facing the review process. The amendments were by ‘consensus’, which was a polite word for political horse-trading than technical legislative consultations. The Act did not promote accountability. It provided that the assets of the commission would vest in the Government without any provision for an audit. At the political front, there was a change in chairmanship of the Parliamentary Select Committee whereby Hon Simeon Nyachae replaced Hon William Ruto on May 5, 2005. The PSC received views from stakeholders (civil society, political parties, and religious groups) and considered the inclusion of the Naivasha Accord in the Draft. The Bomas Draft was revised using the views collected and the product was dubbed the “Kilifi Draft”. Some MPs felt that the committee had Constitution does not allow Parliament to revoke it or establish a new constitutional order vide section 47 of the Constitution. The Constitution of Kenya Review Act was not unconstitutional to the extent that it allowed Parliament to make changes to the Bomas Draft Constitution, for further refi nement of the Draft Constitution by the Attorney General and for promulgation of the new Constitution by the President after the referendum. The court stated that there two ways of validating a proposed constitution in exercise of constituent power of the people: through a referendum or through a Constituent Assembly. The court held that the power to frame a constitution was a primary power whereas that to amend a rigid constitution was derivative, as it is derived from the Constitution and is subject to the limitations imposed by the prescribed procedure under the Constitution. The amending power must be exercised in accordance with the existing constitution. The constitution was a creature of the people’s law making power, the constituent power. The right of the people to exercise the constituent power is inherent in them. No group, for example Parliament, the executive or the judiciary, has the right to take that right away. The court had no mandate to prohibit the exercise of the constituent power or declare that the people should not exercise their constituent power. The exercise of power to injunct the people from exercising their sovereign constituent power would constitute usurpation of the people’s power. Judicial power is itself exercised on behalf of the people and cannot be exercised against the people. The Re ferendum and the Aftermath: It’s Role in the Process Consequently, a referendum was conducted on November 21, 2005 in which the Proposed New Constitution was rejected16. The referendum was conducted in a peaceful manner and the outcome represented the will of Kenyans. The Electoral Commission of Kenya was able to carry out speedy voting, a well-managed counting process and rapid announcement of results. The referendum campaign confi rmed that Kenyan politics were characterised by ethno-political cleavages and political loyalty based on ethnicity17. Contentious issues were cited as the major reason for failure. These issues included but were not limited to inter alia devolution of power in regions. The conference draft proposed fi ve levels of government including regional government. The jurisdictions and fi nancial autonomy mechanisms of the devolved structures were not clear to the majority. Another contentious issue was the powers of the executive. The majority felt the institution of the presidency was too powerful and needed more checks and balances, including sharing power with a Prime Minister. The land tenure reform was another sticking point. The proposals relating to land were not well understood, for example capping the acreage owned by an individual and inheritance of land by women in some communities; the creation and intended functions of religious courts was not well understood by the majority; single or two chamber parliament; the abolition of provincial administration; and that referendum threshold to ratify a new constitution should be raised from simple majority to 65 per cent of total votes cast18. There was no agreement on what the contentious issues were. Some of the identifi ed issues were devolution, Kadhis courts, the land tenure question and structure of the executive. There was no clear procedure under the law for resolving the issues that proved divisive. The contentious issues continued to haunt and paralyse the reform effort since they were not comprehensively addressed in an appropriate context and framework. Further, the political groups showed little will in having the issues resolved19. The referendum was organised by the ECK, which was at the time chaired by Samuel Kivuitu. The Proposed New Constitution was published by the Attorney General in August 2005. The commission registered referendum committees in September 2005. The campaign period was set for one month. Voters were registered for two months up to October 2005. The Electoral Commission was also responsible for civic education . The commission admitted that the civic education was not carried out satisfactorily. Public debate had moved away from constitutional issues to political debates between different camps. Ethnic division and hostility was substantial in the run-up to the referendum. The campaign was characterised by hostile, aggressive, and inciting utterances20. The voting process went smoothly. The offi cials of the Electoral Commission carried out the exercise professionally. The results were announced on November 22, 2005 by the chairperson of the commission. The ‘Yes’ Camp conceded defeat and pledged to work with the ‘No’ camp to promote reconciliation. The ‘No’ Camp carried the vote in seven out of eight provinces21. The vote of ‘Yes’ or ‘No’ at the referendum was a vote on a package of proposals. Voters liked parts of the proposals and disliked others. Some voters responded to appeals by their ethnic leaders. The President dismissed the entire Cabinet and declared that he would form a new one in two weeks. He later announced a new Cabinet and excluded the ministers who had supported the ‘No’ campaign. The ethnic polarisation during the referendum underlined the post-election violence later in 2007. The structure of the executive had proved the most intractable and polarising contentious issue in the review process. The results proved that the review process was not complete and more efforts would be required to realise a new constitution for Kenya. The result was a rejection of the Proposed New Constitution and not a vote to retain the former Constitution. Options Post 2005 Referendum After the referendum and given the judgements of the High Court relating to the process, three broad procedures t o c om pl e t e t h e r e vi ew w e r e identifi ed. There was no agreement on which method should be adopted to complete the process. In addition, the three methods were not viewed as mutually exclusive. One method was the establishment of a Constituent Assembly to deliberate and agree on the Constitution. The Constituent Assembly would be constituted in a representative manner through an election. This would require an amendment to the Constitution. The proposal was to use the election window in 2007 to elect the members of the Constituent Assembly. The ballots for the elections would incorporate an election of a representative to the Assembly. The second method was a mandatory referendum. The Patrick Onyango and Njoya judgements had held that Kenyans had a sovereign and inherent right of ratifying a new Constitution. The experience of the referendum on the Proposed New Constitution in November 2005 indicated that the law should provide for the structure of a meaningful referendum. An amendment to the Constitution was necessary to provide for citizens participation in constitution making. At the time, there were three law making procedures known to the Constitution. These were amending the Constitution, enacting legislative Bills and amending the National Assembly Standing Orders. There was no procedure for constitutional replacement. The structure of the referendum would be established through a Referendum Act. Some arguments being advanced in support of the Constituent Assembly and against the referendum included the fact that a referendum provided an opportunity for the public to hit back at the government on issues totally unrelated to the Draft Constitution, which would be the subject of the referendum. The fact that a sizeable portion of the population is illiterate or semi-illiterate made it easy for politicians to manipulate them . The political landscape in Kenya had been highly ethnicised and, therefore, the debate on the contents of the Constitution was not focused or balanced. The past referendum served to raise tribal suspicions, hostilities and animosities to unacceptable levels. The referendum was a casualty of Kenya’s deeply entrenched culture of political mercantilism and electoral corruption.22 The third method, which was least favoured by the public, was using the amendment procedure provided for under section 47 of the Constitution to undertake an overhaul of the Constitution. Kenyans were opposed to this method as they believed that politicians were driven by selfinterest and not that of the nation. Further, parliament had presided over annihilation of the Independence Constitution through amendments thus necessitating the quest for a new constitutional order. Even some political parties were opposed to minimum reforms championed by parliament. The role of parliament as an organ of reform could not be underrated since even the amendments necessary to streamline and facilitate constitution making process had to be enacted in parliament. There was an urgent need to amend the Constitution to set up the mechanism for constitution making process and succession. This was by amending Section 47 of the Constitution to provide for a referendum and Constitutional Assembly as well as the procedure of promulgating a new Constitution. In addition to the constitutional amendment, an appropriate legislative framework for the review process was required, including setting up a review commission through an Act of Parliament23. However, after the rejection of the Proposed New Constitution, the Government was not keen on completing the reform process immediately. The road that Kenya had to follow as it rummaged in search for a new Constitution was like in many other nations rutted and snaky. In the early 90s, transforming the Supreme Law into a people oriented one appeared to be a tall order. Changing the status quo ante was an idea that the then administration of former President Moi was ready to oppose by any means necessary, including force. The collapse of the constitution making process had proved the doomsayers right - that constitutions are hardly made during peacetime, but rather in times of crisis. Fortunately for the review process and unfortunately for the The new Constitution On the 4th August 2010, Kenyans exercised their sovereign right by overwhelmingly adopting the new Constitution. This exercise marked the end of a long perilous journey towards a new constitutional dispensation. This Constitution is as a result of the struggle of million of Kenyans who desired fundamental changes in political , social and economic governance. Many paid a heavy price for the struggle including undergoing torture, detention, exile while others paid the ultimate price for the love of a new order. Though millions desired it, a slightly lesser number didn’t. A great number of politicians and technocrats were less than happy about the changes. They rejected the Constitution during the referendum and they would naturally be expected to frustrate its implementation. The backdrop of the struggle and the status provides a lesson to Kenyans to guard, protect and promote the Constitution in order to obtain the aspirations and the common good for the society of Kenyans. While large amounts of work have been prepared on the history of the struggle, a lot is yet to be done regarding the immediate history pertaining to the performance Chapter 6 The New Constitution of the 2010 Referendum and the role of the Committee of Experts. Upon studying this immediate history, we would be at a suitable level to examine the implementation of the Constitution by various organs, the impacts as a result of the new dispensation and the future prospects. Ana lys is of The 2010 The Referendum The 2nd referendum ever held in Kenya was conducted on the 4th August 2011. Unlike the fi rst which was held in the year 2005, the 2010 referendum was anchored in both constitutional1 and statutory provisions2. The PCK was officially published by the Attorney General on 6th May 2010. Subsequently, the IIEC framed the referendum question on 13th May 2010 in both English and Kiswahili in the following manner “Do you approve the proposed New Constitution?” and in Kiswahili “Je, unaikubali Katiba Mpya inayopendekezwa?” The Voters’ answer to this question was to be either “yes” or “no”. Bearing in mind the high levels of illiteracy in the country, the IIEC was required by the law to ensure that each answer was accompanied by a visual symbol to ensure that the voters were certain about the choices they were making. For this reason the IIEC adopted the visual symbols in the form of colours- green was to be the symbol for “yes” while the colour red was the symbol of choice for the “no” proponents. The CoE was under the Constitution of Kenya Review Act required to conduct Civic Education nationwide with a view of educating members of the public on the contents of the Proposed Constitution so that they could make an informed choice. The IIEC on its part announced that the referendum campaigns would take place between 13th July 2011 and 2nd August 2011. It also published Referendum rules which were to provide the procedures relating to the conduct of the referendum process. Typical of Kenyans, nearly all institutions launched their campaigns way before the official period but disguised them as Civic Education. The CoE faced huge challenges in executing its mandate. It was limited by time since the 30 days provided was not adequate to conduct an effective countrywide civic education. LESSON FIVE –governments A government is the system or group of people governing an organized community, often a state. In the case of its broad associative definition, government normally consists of legislature, executive, and judiciary. Government is a means by which organizational policies are enforced, as well as a mechanism for determining policy. Each government has a kind of constitution, a statement of its governing principles and philosophy. Typically the philosophy chosen is some balance between the principle of individual freedom and the idea of absolute state authority (tyranny). While all types of organizations have governance, the term government is often used more specifically, to refer to the approximately 200 independent national governments and subsidiary organizations globally. Historically prevalent forms of government include monarchy, aristocracy, timocracy, oligarchy, democracy, theocracy and tyranny. The main aspect of any philosophy of government is how political power is obtained, with the two main forms being electoral contest and hereditary succession. Libertarianism and anarchism are political ideologies that seek to limit or abolish government, finding government disruptive to self organization and freedom. i. Forms of governments This lists shows forms of government and political systems, according to a series of different ways of categorizing them. The systems listed are not mutually exclusive, and often have overlapping definitions. 1.Forms of government by power structure Anarchy; A society without a publicly enforced government or political authority.[1][2] Sometimes said to be non-governance; it is a structure which strives for non-hierarchical, voluntary associations among agents. Anarchy is a situation where there is no state. This can be a natural, temporary result of civil war in a country, when an established state has been destroyed and the region is in a transitional period without definitive leadership.[3] Alternatively, it has been presented as a viable long term choice by individuals known as anarchists who oppose the state and other forms of coercive hierarchies. These individuals typically think people should organize in non- hierarchical, voluntary associations where people voluntarily help each other.[4] There are a variety of forms of anarchy that attempt to avoid the use of coercion, violence, force and authority, while still producing a productive and desirable society Confederation : A confederation (also known as a confederacy or league) is a union of sovereign states, united for purposes of common action often in relation to other states. Usually created by a treaty, confederations of states tend to be established for dealing with critical issues, such as defense, foreign relations, internal trade or currency, with the general government being required to provide support for all its members. Confederalism represents a main form of inter-governmentalism, this being defined as ‘any form of interaction between states which takes place on the basis of sovereign independence or government. Confederation is almost as a Federation with the Federal Government being as a combination or alliance of all the states. Federation A federation (also known as a federal state) is a political entity characterized by a union of partially self-governing states or regions under a central (federal) government. In a federation, the self- governing status of the component states, as well as the division of power between them and the central government, is typically constitutionally entrenched and may not be altered by a unilateral decision of either party, the states or the federal political body. Alternatively, federation is a form of government in which sovereign power is formally divided between a central authority and a number of constituent regions so that each region retains some degree of control over its internal affairs Unitary : A unitary state is a state governed as a single power in which the central government is ultimately supreme and any administrative divisions (sub-national units) exercise only the powers that the central government chooses to delegate. The majority of states in the world have a unitary system of government. Of the 193 UN member states, 165 are governed as unitary states. 2. Forms of government by power source Autocracy: a system of government in which supreme power (social and political) is concentrated in the hands of one person or polity, whose decisions are subject to neither external legal restraints nor regularized mechanisms of popular control (except perhaps for the implicit threat of a coup d'état or mass insurrection). Absolute monarchy (such as Saudi Arabia, the United Arab Emirates, Oman, Brunei and Eswatini) and dictatorships (also including North Korea) are the main modern day forms of autocracy. encapsulates matters of revenue raising and sharing. Art 201 states that principles guiding public finance in the Republic shall promote an equitable society by ensuring that the burden of taxation is shared fairly and that revenue raised nationally shall be shared equitably among national and county governments. It also provides for equitable development of the country by making special provision for the marginalized groups and areas. The above mentioned constitutional provisions ensure fair sharing of national revenue unlike in the past governments under the old constitution where it was done by the whims of the president severely neglecting some areas. Use of the phrase can be traced to 16th-century Britain, and in the following century the Scottish theologian Samuel Rutherford employed it in arguing against the divine right of kings.[6] John Locke wrote that freedom in society means being subject only to laws made by a legislature that apply to everyone, with a person being otherwise free from both governmental and private restrictions upon liberty. "The rule of law" was further popularized in the 19th century by British jurist A. V. Dicey. However, the principle, if not the phrase itself, was recognized by ancient thinkers; for example, Aristotle wrote: "It is more proper that law should govern than any one of the citizens".[7] The rule of law implies that every person is subject to the law, including people who are lawmakers, law enforcement officials, and judges.[8] In this sense, it stands in contrast to tyranny or oligarchy where the rulers are held above the law. Lack of the rule of law can be found in both democracies and monarchies, for example when there is neglect or ignorance of the law. The rule of law is more apt to decay if a government has insufficient corrective mechanisms for restoring it. iii. Governance Governance comprises all of the processes of governing and whether through the laws, norms, power or language of an organized society.[ It relates to "the processes of interaction and decision-making among the actors involved in a collective problem that lead to the creation, reinforcement, or reproduction of social norms and institutions".[ In lay terms, it could be described as the political processes that exist in and between formal institutions. There is a distinction between the concepts of governance and politics. Politics involves processes by which a group of people (perhaps with divergent opinions or interests) reach collective decisions generally regarded as binding on the group, and enforced as common policy. Governance, on the other hand, conveys the administrative and process-oriented elements of governing rather than its antagonistic ones.[11] Such an argument continues to assume the possibility of the traditional separation between "politics" and "administration". Contemporary governance practice and theory sometimes questions this distinction, premising that both "governance" and "politics" involve aspects of power and accountability. In general terms, public governance occurs in three broad ways: • Through networks involving public-private partnerships (PPP) or with the collaboration of community organisations; • Through the use of market mechanisms whereby market principles of competition serve to allocate resources while operating under government regulation; • Through top-down methods that primarily involve governments and the state bureaucracy. iv. Democracy Democracy (Greek: δημοκρατία, dēmokratiā, from dēmos 'people' and kratos 'rule') is a form of government in which the people have the authority to choose their governing legislation. Who people are and how authority is shared among them are core issues for democratic theory, development and constitution. Some cornerstones of these issues are freedom of assembly and speech, inclusiveness and equality, membership, consent, voting, right to life and minority rights. Generally, there are two types of democracy: direct and representative. In a direct democracy, the people directly deliberate and decide on legislature. In a representative democracy, the people elect representatives to deliberate and decide on legislature, such as in parliamentary or presidential democracy. Liquid democracy combines elements of these two basic types. However, the noun "democracy" has, over time, been modified by more than 3,500 adjectives which suggests that it may have types that can elude and elide this duality.[1] The most common day-to-day decision making approach of democracies has been the majority rule,[2][3] though other decision making approaches like supermajority and consensus have been equally integral to democracies. They serve the crucial purpose of inclusiveness and broader legitimacy on sensitive issues, counterbalancing majoritarianism, and therefore mostly take precedence on a constitutional level. In the common variant of liberal democracy, the powers of the majority are exercised within the framework of a representative democracy, but the constitution limits the majority and protects the minority, usually through the enjoyment by all of certain individual rights, e.g. freedom of speech, or freedom of association.[4][5] Besides these general types of democracy, there have been a wealth of further types (see below). Republics, though often associated with democracy because of the shared principle of rule by consent of the governed, are not necessarily democracies, as republicanism does not specify how the people are to rule.[6] Democracy is a system of processing conflicts in which outcomes depend on what participants do, but no single force controls what occurs and its outcomes. The uncertainty of outcomes is inherent in democracy. Democracy makes all forces struggle repeatedly to realize their interests and devolves power from groups of people to sets of rules.[7] Western democracy, as distinct from that which existed in pre-modern societies, is generally considered to have originated in city- states such as Classical Athens and the Roman Republic, where various schemes and degrees of enfranchisement of the free male population were observed before the form disappeared in the West at the beginning of late antiquity. The English word dates back to the 16th century, from the older Middle French and Middle Latin equivalents. According to American political scientist Larry Diamond, democracy consists of four key elements: a political system for choosing and replacing the government through free and fair elections; the active participation of the people, as citizens, in politics and civic life; protection of the human rights of all citizens; a rule of law, in which the laws and procedures apply equally to all citizens.[8] Todd Landman, nevertheless, draws our attention to the fact that democracy and human rights are two different concepts and that "there must be greater specificity in the conceptualisation and operationalisation of democracy and human rights".[9] The term appeared in the 5th century BC to denote the political systems then existing in Greek city-states, notably Athens, to mean "rule of the people", in contrast to aristocracy (ἀριστοκρατία, aristokratía), meaning "rule of an elite". While theoretically, these definitions are in opposition, in practice the distinction has been blurred historically.[10] The political system of Classical Athens, for example, granted democratic citizenship to free men and excluded slaves and women from political participation. In virtually all democratic governments throughout ancient and modern history, democratic citizenship consisted of an elite class, until full enfranchisement was won for all adult citizens in most modern democracies through the suffrage movements of the 19th and 20th centuries. Democracy contrasts with forms of government where power is either held by an individual, as in an absolute monarchy, or where power is held by a small number of individuals, as in an oligarchy. Nevertheless, these oppositions, inherited from Greek philosophy,[11] are now ambiguous because contemporary governments have mixed democratic, oligarchic and monarchic elements. Karl Popper defined democracy in contrast to dictatorship or tyranny, thus focusing on The principle of checks and balances is that each branch has power to limit or check the other two, which creates a balance between the three separate branches of the state. This principle induces one branch to prevent either of the other branches from becoming supreme, thereby securing political liberty. Immanuel Kant was an advocate of this, noting that "the problem of setting up a state can be solved even by a nation of devils" so long as they possess an appropriate constitution to pit opposing factions against each other.[20] Checks and balances are designed to maintain the system of separation of powers keeping each branch in its place. The idea is that it is not enough to separate the powers and guarantee their independence but the branches need to have the constitutional means to defend their own legitimate powers from the encroachments of the other branches.[21] They guarantee that the branches have the same level of power (co-equal), that is, are balanced, so that they can limit each other, avoiding the abuse of power. The origin of checks and balances, like separation of powers itself, is specifically credited to Montesquieu in the Enlightenment (in The Spirit of the Laws, 1748). Under this influence it was implemented in 1787 in the Constitution of the United States. The following example of the separation of powers and their mutual checks and balances from the experience of the United States Constitution is presented as illustrative of the general principles applied in similar forms of government . But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. 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. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State. 2. Independence of the judiciary Judicial independence is the concept that the judiciary should be independent from the other branches of government or the politician in office.[1] That is, courts should not be subject to improper influence from the other branches of government or from private or partisan interests.[2] Judicial independence is important to the idea of separation of powers. Many countries deal with the idea of judicial independence through different means of judicial selection or choosing judges. One way to promote judicial independence is by granting life tenure or long tenure for judges, which ideally frees them to decide cases and make rulings according to the rule of law and judicial discretion, even if those decisions are politically unpopular or opposed by powerful interests. This concept can be traced back to 18th- century England. In some countries, the ability of the judiciary to check the legislature is enhanced by the power of judicial review. This power can be used, for example, by mandating certain actions when the judiciary perceives that a branch of government is refusing to perform a constitutional duty or by declaring laws passed by the legislature unconstitutional. Judicial independence is thought as an essential feature of liberal democracy. Importance Judicial independence serves as a safeguard for the rights and privileges provided by a limited constitution and prevents executive and legislative encroachment upon those rights.[5] It serves as a foundation for the rule of law and democracy. The rule of law means that all authority and power must come from an ultimate source of law. Under an independent judicial system, the courts and its officers are free from inappropriate intervention in the judiciary's affairs. With this independence, the judiciary can safeguard people's rights and freedoms which ensure equal protection for all.[6] The effectiveness of the law and the respect that people have for the law and the government which enacts it is dependent upon the judiciary's independence to mete out fair decisions. Furthermore, it is a pillar of economic growth as multinational businesses and investors have confidence to invest in the economy of a nation who has a strong and stable judiciary that is independent of interference.[7] The judiciary's role in deciding the validity of presidential and parliamentary elections also necessitates independence of the judiciary.[8] Disadvantages The disadvantages of having a judiciary that is seemingly too independent include possible abuse of power by judges. Self-interest, ideological dedication and even corruption may influence the decisions of judges without any checks and balances in place to prevent this abuse of power if the judiciary is completely independent.[9] The relationship between the judiciary and the executive is a complex series of dependencies and inter-dependencies which counter-check each other and must be carefully balanced. One cannot be too independent of the other. Furthermore, judicial support of the executive is not as negative as it seems as the executive is the branch of government with the greatest claim to democratic legitimacy. If the judiciary and executive are constantly feuding, no government can function well.[10] Also, an extremely independent judiciary would lack judicial accountability, which is the duty of a public decision-maker to explain and justify a decision and to make amendments where a decision causes injustice or problems. Judges are not required to give an entire account of their rationale behind decisions, and are shielded against public scrutiny and protected from legal repercussions. However judicial accountability can reinforce judicial independence as it could show that judges have proper reasons and rationales for arriving at a particular decision. While judges are not democratically accountable to the people, the key is for judges to achieve equilibrium between the two to ensure that justice is upheld. 3. Supremacy of the constitution • Article 2 of the Constitution of Kenya (1) This Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of government. (2) No person may claim or exercise State authority except as authorised under this Constitution. (3) The validity or legality of this Constitution is not subject to challenge by or before any court or other State organ. (4) Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid. Supremacy of the constitution is provided for in the constitution under Art 2(1) which states that the constitution is the supreme law of the Republic and binds all persons and state organs at both levels of In May, Parliament passed the Fair Administrative Action Act, 2015 to give effect to Article 47 of the Constitution. The Act is set out in some four parts. Part One deals with Preliminary matters while Part Two focuses on Fair Administrative Action. Parts Three and Four provide for Judicial Review and Miscellaneous matters, respectively. As no commencement date is indicated, the Act commenced on 17th June, 2015 fourteen days after its publication in the Gazette.[3] Indeed the Act radically alters the judicial review landscape in Kenya in conformity with the transformative Constitution of Kenya, 2010 which permits judicial review against both private and public bodies. Definitions To begin with, the Act defines “administrative action” to include “powers, functions and duties exercised by authorities or quasi-judicial tribunals” or “any act, omission or decision of any person, body or authority that affects the legal rights or interests of any person to whom such action relates”.[ The decisive question is therefore whether the administrative action or decision complained against is attributable to an authority or quasi-judicial tribunal, on one hand or to any other person, body or authority but affects the legal rights or interests of an affected party, on the other hand. The implication is that the decision of a public authority or quasi-judicial tribunal is outright amenable to judicial review while the decision of any other person or body is amenable to judicial review if it affects the legal rights or interests of the concerned party. While the expansion of the scope of judicial review to private claims is apt, “legal rights or interests” is too wide a criteria and the phrase must in due course be interpreted to mean “rights or fundamental freedoms” or in long form “legal rights or interests, derived from the Bill of Rights”. Such an interpretation would be consistent with the language in the rest of the Act and the Constitution.[5] The proposed interpretation will also ensure that in the case of private parties, judicial review is preserved for the vindication of purely constitutional rights while ordinary civil disputes continue to be adjudicated by the civil courts. Otherwise there is an inherent danger that any dispute between any two parties can be converted into a claim for judicial review thus opening the floodgates. One is unable to conceive of any civil case or dispute which is not about a legal right or interest. Application In recognition of the horizontal application of the Bill of Rights, Section 3 of the Act extends the scope of fair administrative action and judicial review to the administrative actions of public and private persons or bodies. The section expressly states that the Act applies to all state and non-state agencies including any person exercising administrative authority; performing a judicial or quasi-judicial function under the Constitution or any written law; or whose action, omission or decision affects the legal rights or interests of any person to whom the action, omission or decision in question relates. Fair Administrative Action Section 4 re-echoes Article 47 of the Constitution and reiterates the entitlement of every Kenyan to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.[6] At the same time, every person has to be given written reasons for any administrative action taken against him.[7] In all cases where a person’s rights or fundamental freedoms is likely to be affected by an administrative decision, the administrator must give the person affected by the decision: prior and adequate notice of the nature and reasons for the proposed administrative action; an opportunity to be heard and to make representations; notice of a right to a review or internal appeal against the decision where applicable; a statement of reasons; notice of the right to legal representation and right to cross-examine; as well as information, materials and evidence to be relied upon in making the decision or taking the administrative action. It is noteworthy that some of these elements are mandatory while some are only required where applicable. Subsection 4 further obliges the administrator to accord affected persons an opportunity: to attend proceedings in person or in the company of an expert of his choice; a chance to be heard; an opportunity to cross-examine persons who give adverse evidence against him; and request for an adjournment of proceedings where necessary to ensure a fair hearing.[8]. The right to appear with an expert is said not to limit the right to appear or be represented by a legal representative.[9] The courts may soon be called upon to interpret the meaning of “legal representative”. Does the phrase mean “advocate”[10] or was Parliament deliberate in allowing, for instance, paralegals, union officials, floor representatives or work colleagues to appear for or to represent parties in administrative action. The latter interpretation seems most accurate, administrative action may at times arise in situations where representation by an advocate is expensive or unnecessary. This however, must not be seen as an invitation for unqualified persons to perform the work of advocates for gain. The Act allows administrators the leeway to use their own procedures of administrative action if these procedures are written in law and conform to the principles in Article 47 of the Constitution.[11] The implication is that for administrative action may be undertaken in accordance with the procedure set out in a law. Some of the foreseeable examples include the procedure for removal from office of various public officers or the procedures of various tribunals. Administrative Action Affecting the Public In recognition of the status of public participation as a national value and principle of governance under Article 10, the Act codifies public participation as an integral part of public administrative action. Accordingly, where any proposed administrative action is likely to materially and adversely affect a group of persons or the general public, the administrator must issue a public notice of the proposed administrative actions and invite public views on the proposal. The administrator must also consider all relevant and material facts.[12] In case the administrator proceeds and takes the proposed administrative action in the notice, the Act requires that administrator to not only give reasons for the decision or administrative action, but also to issue a public notice specifying internal mechanism available for appeal including the format and timelines for the appeal.[13] The section however does not oust the powers any person to file a complaint with the Commission on Administrative Justice.[14] One may also apply for review of an administrative action or decision by a court of competent jurisdiction under the Constitution or any written law.[15] Similarly, there is latitude to institute any legal proceedings for such remedies as may be available under any written law.[16] Access to Information on Administrative Action Though the section header to Section 6 is entitled “Request for reasons for administrative action”, the subject of the section is really access to information on administrative action. To this end, the section entitles persons affected by any administrative action to be supplied with information necessary to facilitate their application for appeal or review.[17] The information, which must be supplied in writing within three months, may include reasons for the administrative action and any relevant documents relating to the matter.[18] Where an administrator does not give an applicant reasons for an administrative decision, there is a rebuttable presumption that the action was taken without good reason.[19] However, the Act provides that an administrator may be permitted to depart from the requirement to furnish adequate reasons if such departure is reasonable and justifiable in the circumstances.[20] The administrator must inform the person of such departure.[21] The implication of this provision is that the section allows a limitation of the right to information under Article 35 and the right to fair administrative action under Article 47. However, the seems to run afoul of Article 24 of the Constitution as it permits a limitation of rights so long as such a departure is deemed “reasonable and justifiable” in the circumstances as long as the person is “informed”.[22] Contrary to this, Article 24 of the Constitution requires that any departure must be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.[23] The departure must also take into account all relevant factors, including the nature of the right of access to information and fair administrative action, importance of the purpose of the departure and the nature and extent of the departure.[24] At the same time, the departure must take into account the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and also the relation between the departure and its purpose and whether there are less restrictive means to achieve the purpose.[25] The other inherent problem with this provision is that it amounts to an uncanalised delegation of legislative authority; a tyranny of discretion which patently violates the rule against excessive delegation and offends applicant to first exhaust alternative remedies before instituting judicial review applications.[48] Nevertheless, in exceptional circumstances the court may on application exempt applicants from the obligation to exhaust any remedy in the interest of justice.[49] Parties aggrieved by orders of the High Court in judicial review proceedings may appeal to the Court of Appeal.[50] There is silence as to the position on appeals from subordinate courts to the High Court. It perhaps expected, that consistent with Article 165(3)(e) the legislation contemplated under Article 23(2) will also outline the procedure for appeals from the subordinate courts to the High Court in judicial review cases. Procedural Technicalities and Rules The Act eschews undue regard to procedural technicalities in judicial review applications.[51] This echoes the language of Article 159 and is perhaps in recognition that judicial review is a tool in defense of the Bill of Rights. The Constitution demands that formalities relating to proceedings to enforce the Bill of Rights be kept to a minimum, and that the court shall in appropriate cases entertain proceedings on the basis of informal documentation.[52] Nonetheless, the Chief Justice has the discretion to make rules regulating the procedure and practice in matters of judicial review.[53] Reliefs in Proceedings for Judicial Review The Act expands the scope of judicial review reliefs beyond the traditional three – mandamus, prohibition and certiorari.[54] In this regard, section 11 empowers the court to grant any order that is “just and equitable” including the ten reliefs expressly listed in the section. The term just and equitable must of necessity be interpreted to mean “appropriate relief” which is the term used in Article 23(3). The same has been interpreted by the court in Nancy Makokha Baraza v Judicial Service Commission[55] as being wide and unrestrictive and also inclusive rather than exclusive and to allow the court to make appropriate orders and grant remedies as the situation demands and as the need arises. Some of the reliefs outlined in section 11 of the Act include: a declaration, injunction, a direction to give reasons, prohibition, setting aside and remission for reconsideration, mandamus, temporary interdicts and other temporary relief, and an award of costs. The Act elaborates further reliefs in proceedings relating to failure to act.[56] The court may direct the taking of the action, declare the rights of parties, direct parties to do or refrain from doing any act, or make an orders as to costs or other monetary compensation.[57] Judicial Review Under the Constitution v Judicial Review Under the Common Law? The provisions of the Act are said to be in addition to and not in derogation from the general rules of the common law and the rules of natural justice.[58] Coincidentally, Odunga J, in Republic v Director of Public Prosecution Ex Parte Chamanlal Vrajlal Kamani [2015] eKLR has recently urged that: “the grounds in judicial review applications be developed and the grounds for granting relief under the Constitution and the common law be fused, intertwined and developed so as to meet the changing needs of our society so as to achieve fairness and secure human dignity… But care should be taken not to think that the traditional grounds of judicial review in a purely judicial review application under the Law Reform Act and Order 53 of the Civil Procedure Rules have been discarded or its scope has left the airspace of process review to merit review except in those cases provided in the Constitution. In other words the categories of judicial review grounds are not heretically closed as opposed to their being completely overtaken…” The judge seems to be saying that the court must while granting judicial review as a constitutional principle also concurrently continue granting judicial review on the traditional grounds of judicial review in (sic) purely judicial review applications under the Law Reform Act and Order 53 of the Civil Procedure Rules, 2010. Both section 12 and Odunga J’s dicta are a recipe for confusion. Professor James Thuo Gathii has posed the warning in “The Incomplete Transformation of Judicial Review” that the Kenyan judiciary must guard against the development of a two-tracked system of judicial review – with cases influenced by the common law, on the one hand, and cases decided under the 2010 Constitution’s principles of judicial review on the other – as those two tracks are likely to undermine the establishment of a vibrant tradition of judicial review as required by the 2010 Constitution.” The Supreme Court has indeed in the case of CCK v Royal Media Services Ltd [2014] eKLR recognized that the power of any judicial review is now found in the constitution. Similarly, in the South Africa case of Pharmaceutical Manufacturers Association of South Africa in re ex parte President of the Republic of South Africa & Others 2000 (2) SA 674 (CC) at 33, a case cited in part by Odunga J, it was held that: “[t]he common law principles that previously provided the grounds for judicial review of public power have been subsumed under the Constitution and, insofar as they might continue to be relevant to judicial review, they gain their force from the Constitution. In the judicial review of public power, the two are intertwined and do not constitute separate concepts”. The court went further to say that there are not two systems of law, each dealing with the same subject matter, each having similar requirements, each operating in its own field with its own highest court. Rather, there was only one system of law shaped by the Constitution which is the supreme law, and all law, including the common law, derives its force from the Constitution and is subject to constitutional control.” In the CCK [ case the Supreme Court cautioned that unthinking deference to cannons of interpreting rules of common law, statutes, and foreign cases can subvert the theory of interpreting the constitution. This caution was repeated in Judges and Magistrates Vetting Board v Centre for Human Rights and Democracy [2014] eKLR that “…the Constitution should be interpreted in a holistic manner; that the country’s history has to be taken into consideration; and that a stereotyped recourse to the interpretive rules of the common law, statutes or foreign cases, can subvert requisite approaches to the interpretation of the Constitution”[62] At the same time, Kwasi Prempeh in Marbury in Africa: Judicial Review and the Challenge of Constitutionalism in Contemporary Africa foretells a problem with the application of the common law as the default rule and norm for framing and analyzing of even constitutional questions. He opines that the common law, in its method, substance, and philosophical underpinnings, carries with it elements and tendencies that do not accord with the transformative vision reflected in modern bills of rights. Much of the problem, he notes, stems from the basic constitutional and jurisprudential paradigm upon which English common law is built, namely Austinian positivism and Diceyian parliamentary sovereignty, notions which are incompatible with the transformative ideals.[64] Similarly, Davis and Klare in Transformative Constitutionalism and the Common and Customary Law[65] express an apprehension that transitional nations cannot progress to social justice with a legal system that rigs a transformative constitutional superstructure onto a common law base inherited from the past.[66] They therefore propose a context-sensitive “transformative methodology” informed by the Bill of Rights and specifically by the constitutional aspiration to be the legal foundation of a just, democratic and egalitarian social order.[67] And the fears above are well founded. Under the common law judicial review is exercisable as a prerogative writ issued to supervise administrative authority.[68] Contrastingly, under the Constitution of Kenya, 2010 judicial review in Kenya has become “normalized as a basic accoutrement of the rule of law within a constitutional democracy.”[69] The difference in the theory of judicial review has implications in its practice. For instance, while the Constitution permits judicial review of the administrative actions of private parties, the common law only permits the judicial review of the administrative acts of public bodies. The Odumbe Case illustrates the injustice this approach can work where a private body exercises an administrative power that affects the rights of an applicant.[70] Any conflict between the Fair Administrative Action Act, 2015 and the sections 8 and 9 of Cap 25 must be resolved in favour of the former. It is the Act envisaged by Article 47(3) and therefore has a constitutional underpinning and reflects the will of the people of Kenya more closely. Conversely, sections 8 and 9 of the Law Reform Act, Cap 25 must, if necessary, be interpreted with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with this Constitution.[71] Regulations and Transitional Provisions The Act empowers the Cabinet Secretary in consultation with the Commission on Administrative Justice to make regulations for the better carrying out of the provisions of the Act, requiring the approval of the regulations by Parliament. The Section is however an act of excessive delegation in breach of Article 94(6).The section does not expressly specify the limits of the delegated legislative authority, the nature and scope of the law that may sovereignty of the people and the principle of public participation. Supremacy of the Constitution means that the devolution is no longer optional and discretional. It is solidly established by the supreme law and everyone including state and private entities must be bound by that reality. Further, the fact that devolution is buttressed by the sovereign power of the people means that whatever governance aspirations and commitments are done at both national and counties levels of governance shall be done on behalf of and for the people. Indeed Article one of the constitution clearly stipulates that all state organs exercise their powers as delegated by the Kenyan people. Kenyans have a choice to exercise these powers either directly or indirectly through state organs – at both levels of government. It is also important to note that devolution in Kenya is also based on a public participation constitutional principle. That is to say that although state organs at both levels of government exercise delegated powers from the people, the same people do retain some residual powers and constitutional rights to be engaged on all major decisions made on their behalf by those elected or appointed into state offices. This paper will consider the devolution architecture in Kenya with a specific bias on its overall and legal architecture. The Conceptual basis of devolution in Kenya According to the World Bank report (n.d) on decentralization and sub-national economics: When governments devolve functions, they transfer authority for decision-making, finance, and management to quasi-autonomous units of local government with corporate status. Devolution usually transfers responsibilities for services to municipalities that elect their own mayors and councils, raise their own revenues, and have independent authority to make investment decisions. In a devolved system, local governments have clear and legally recognized geographical boundaries over which they exercise authority and within which they perform public functions. The devolved form of government in Kenya is very ambitious because it collapsed three previous levels of administrations into one level. That is to say, the current counties resulted from the collapse of former provincial administrations, local authorities and national functions that were being done at the local levels Devolution in Kenya would need to be seen in the context of Kenyans historical clamor for equatable distribution of national resources. For a time, it was perceived that central government had skewed arrangement where certain regions in Kenya did benefit more from state resources and developmental programmes. Further, devolution clamor was informed by Kenya being a very diverse country with over forty two ethnic groups; diverse climatic realities with northern Kenya being arid and semi arid and other areas being arable among other political and economic realities (World Bank: 2012, 4). Actually, the strong provisions for devolution in the new Constitution were a key source of public support for the draft of the Constitution. The World Bank (2012, 5) has indicated that just under 20 percent of supporters of the new Constitution did so because of the strong provisions for devolution; this is the second most common response after a simple desire for change, which measured at just over 20 percent. The actual philosophy and reason behind Kenyans’ majority support for devolution can be deduced from the constitution itself. A consideration of the objectives and principles of devolution as clearly itemized in article 174 and 175 of the constitution would make these aspirations of Kenyans more clearer. The objectives of devolution in Kenya The objectives of devolution essentially outline the sovereign reasons why Kenyans overwhelmingly voted for the new constitution whose one of the major highlights are devolution promises and commitments. These objectives include: a) To promote democratic and accountable exercise of power; b) To foster national unity by recognizing diversity; c) To give powers of self-governance to the people and enhance the participation of the people in the exercise of the powers of the State and in making decisions affecting them; d) To recognize the right of communities to manage their own affairs and to further their development; e) To protect and promote the interests and rights of minorities and marginalized communities; f) To promote social and economic development and the provision of proximate, easily accessible services throughout Kenya; g) To ensure equitable sharing of national and local resources throughout Kenya; h) To facilitate the decentralization of State organs, their functions and services, from the capital of Kenya; and, i) To enhance checks and balances and the separation of powers. Principles of Devolved Government Several principles of devolution need to be considered when implementing devolution. These are embedded in the three principles stated in Article 175 of the Constitution. Therefore, County governments established under the Constitution would, as a constitutional obligation, reflect the following principles: a) County governments shall be based on democratic principles and the separation of powers; b) County governments shall have reliable sources of revenue to enable them to govern and deliver services effectively; and, c) No more than two-thirds of the members of representative bodies in each county government shall be of the same gender. The legal framework and devolution It is important to note that devolution is now a constitutional reality. The provisions in the constitution on devolution are actually insulated and cannot be amended by parliament. Any amendment on this chapter would require a direct mandate from the people of Kenya through a referendum. Further, the constitution obligated parliament to pass specific laws that would cement both the spirit and letter of devolution into the Kenyan governance architecture. The legal framework on devolution include: – 1. The Constitution The constitution is the main legal backbone of the entire devolution architecture. It outlines the objectives and principles of devolution, the actual governance structures at this level, the relationship between national and county governments, the functions that have been devolved to counties among others. All other laws borrow and derive their authority from the constitution. 2. The County Governments Act, 2012 This is the main legislation after the constitution. This law outlines the entire framework of the constitution including the two arms of government at the county level; the county assembly and executive. The County Governments Act, 2012 stipulates the structure, functions and operations of the county assembly including its membership, election and removal of the speaker as well as the entire staffing arrangement of the assembly. The Act also provides for the entire arrangement of the county executive including the appointment, and removal, procedures of county executive committee members, chief officers, county secretaries and other senior staff at that level. The law further provides for the powers and functions of the governor and his or her deputy. The law also provides, pursuant to Article 200 of the Constitution, for the manner of nomination or appointment of persons to, and their removal from, offices in county governments, including the qualifications of voters and candidates; the procedure of assemblies and executive committees including the chairing and frequency of meetings, quorums and voting; and the suspension of assemblies and executive committees. It is important to note that this law came into effect immediately after the last general election. It therefore follows that the law would need to be re-evaluated and possible amendments included to make it more contextual and speak to prevailing realities. For example, the law does not envision a desired complete dichotomy of staffing between the county assembly and county executive at county level. Although the law provides for both county assembly service board as well as county public service board to recruit and governments. The constitution provides that the main role of senators is to represent the counties, while also serving to protect the interests of the counties and their governments. The senate also determines the allocation of national revenue among counties, as provided for in article 217, and exercises oversight over national revenue allocated to the county governments. There is ongoing national discourse on whether the senate actually is protecting the counties. According to Jane Goin (2014): “Eventually we shall go to the Supreme Court for constitutional interpretation on the functions of the assemblies vis-a-vis the functions of the Senate because the Senate is calling the executives; we are also calling the executive asking the same question,” 2. Constitutional commissions and Independent Offices. The Commissions and Independent offices are listed under article 248 of the Constitution. These commissions and independent offices have a bearing, in one way or the other, on devolved governments. The actual interface between the commissions and independent offices is not within the purview of this paper. These commissions and independent offices include: a) Commission for the Implementation of the Constitution (CIC); b) Commission on Revenue Allocation (CRA); c) Independent Electoral and Boundaries Commission (IEBC); d) Judicial Service Commission (JSC); e) Kenya National Human Rights and Equality Commission f) National Land Commission (NLC); g) National Police Service Commission (NPSC); h) Parliamentary Service Commission (PSC); i) Public Service Commission (PSC); j) Salaries and Remuneration Commission (SRC); and, k) Teachers Service Commission (TSC). 3. The Independent offices are: Auditor-General. This office is provided for in the new constitution. The office has statutory objective and role of ensuring that resources are used and applied for the good of the public. The office ensures that there is value for money and its prudent use. b) Controller of Budget. This office is also provided for under the new constitution. Its constitutional objective and role is broadly to ensure that there is prudent and legal formulation and implementation of budgets by both national and county governments. Conclusion Devolved governments are new. The counties only came in place in 2013 after the general elections. This means that these five years are likely to be bumpy and a lot more experiential. However, the expectations of Kenyans on service delivery remains high. This is after having largely a central government since independence in 1963. It has been noted in this paper that many laws and arrangements put in place are still being tried and tested. It follows therefore that these laws will need to be reviewed and possibly updated based on real experiences on the ground moving forward. An opportune time to evaluate and review the devolution laws and arrangement would possibly be after the lapse of this electoral tenure, in 2017. This paper has sought to outline the over-arching devolved government architecture and processes. Other and further studies would need to be done to specifically deal with various aspects of the devolved government in a more comprehensive manner. The counties of Kenya (Swahili: Kaunti za Kenya) are geographical units envisioned by the 2010 Constitution of Kenya as the units of devolved government.[1] The powers are provided in Articles 191 and 192, and in the fourth schedule of the Constitution of Kenya and the County Governments Act of 2012. The counties are also single member constituencies for the election of members of parliament to the Senate of Kenya[2] and special women members of parliament to the National Assembly of Kenya.[3] As of 2013 general elections, there are 47 counties whose size and boundaries are based on the 47 legally recognised Districts of Kenya. Following the re-organisation of Kenya's national administration, counties were integrated into a new national administration with the national government posting county commissioners to represent it at the counties.[4] Establishment County governments were established in 47 counties (largely based on the 1992 Districts of Kenya),[5] after the scheduled general elections in March 2013. The counties' names are set out in the First Schedule of the Constitution of Kenya. LESSON EIGHT –constitutional values and principles i. Constitutional Values, Principles and Safeguards Article 10 of COK (1) The national values and principles of governance in this Article bind all State organs, State officers, public officers and all persons whenever any of them -- (a) applies or interprets this Constitution; (b) enacts, applies or interprets any law; or (c) makes or implements public policy decisions. (2) The national values and principles of governance include -- (a) patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people; (b) human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised; (c) good governance, integrity, transparency and accountability; and (d) sustainable development. National Values and Principles of Governance are fundamental beliefs or ideals that guide the choices, actions and behavior of a nation. They are critical in building national identity and national character that guides the realization of national development. In addition, National Values exert influence on the way individuals relate with one another, how communities engage one another and how citizens and government interact to promote peace, national unity and cohesion. National Values and Principles of Governance are key in managing diversity and building national social capital that surpasses ethnic, religious, class and racial limitations. They cultivate internal social and cultural coherence which are based on national norms and interests that govern interactions focused on achieving national common good. It is because of the central role of values in organising, inspiring, transforming and guiding Kenyans that they are enshrined in Article 10 of the Constitution. The National Values and Principles of Governance facilitate the building of bridges among communities, ethnic, religious and racial traditions and establish constitutionalism that binds and integrates Kenyans into a unitary nation-state. They provide marginalised; good governance, integrity, transparency and accountability; and sustainable development. ii National Values and Principles of Governance National Values and Principles of Governance are fundamental beliefs of a nation guiding the choices, actions and behaviour of its citizens. In addition, National Values exert influence on the way individuals relate with one another, how communities engage one another, and how citizens and government structures interact, hence defining a people‘s identity. The National Values and Principles of Governance are enshrined in the Constitution as a deliberate effort to facilitate far reaching transformation on the interaction between the governance structure and its citizenry. Commitment to National Values and Principles of Governance transcends communal, ethnic, religious or racial traditions and norms that bond and integrate Kenyans into a unitary nation state. It underscores the citizens‘ aspirations and desire to appreciate their diversity but remain firmly united by National Values and Principles of Governance. National Values and Principles of Governance are alsoenshrined in critical clauses including Articles 4(2), 10(2) and 132(1)(c).Article 4(2) states that ―The Republic of Kenya shall be a multi-party democratic state founded on the National Values and Principles of Governance referred to in Article 10.‖ The National Values and Principles of Governance provided in Article 10 bind state organs, state officers, public officers and all persons whenever they apply, interpret or enact laws or when they make or implement public policy decisions. Article 10 (2) highlights the followingNational Values and Principles of Governance: Patriotism, National Unity, Sharing and Devolution of power, The rule of law, Democracy, Participation of the people; Human dignity, Equity, Social justice, Inclusiveness, Equality, Human rights, Nondiscrimination, Protection of the marginalized; Good governance, Integrity, Transparency, Accountability; and Sustainable development. In addition, Article 132 (1) (c) requires the President to report, in an address to the nation, on all the measures taken and the progress achieved in the realization of National Values and Principles of Governance referred to in Article 10. To operationalise Articles 4(2), 10(2) and 132(1) among others, the Government spearheaded the development of Sessional Paper No. 8 of 2013 on National Values and Principles of Governancethat was approved by the National Assembly in December, 2015. The provisions of the Sessional Paper will be implemented through the partnerships and collaborations with the various value carriers and drivers who include the arts, music and entertainment, private sector, civil society, educational institutions, family, government, media, political parties, professional associations, religious and faith-based organizations and sports. This policy also recognizes the paramount role that individual citizens shall play in the transformation of the national values system. Objectives of National Values and Principles of Governance The main objective of national values and principles of governance is to foster societal transformation in Kenya. The specific objectives are: i. To shape our beliefs, our worldview and the paradigm that we operate from; ii. To transform institutional and individual behavior to foster ethical conduct; iii. To enhance positive influence on the work ethics and productivity of Kenyans; iv. To improve the quality of leadership, management practices and utilization of national resources at all levels; v. To brand and promote a positive image about Kenyans; vi. To promote national cohesion and stability among Kenyans; vii. To promote good governance in both state and non- state entities; viii. To improve the social, economic, political and environmental development of the country; ix. Promote transparency, accountability, trust, perception on Kenyans and hence lead to higher levels of investment, wealth and employment creation; and x. Improved quality and standard of life of the people. LEGAL,INSTITUTIONAL, POLICY FRAMEWORKS AND ADMINISTRATIVE ACTIONS FOR THE PROMOTION OF NATIONAL VALUES ANDPRINCIPLES OF GOVERNANCE 1. International Legal frameworks The Constitution of Kenya under Article (2(6) provides that any treaty or convention ratified by Kenya shall form part of the laws of Kenya. Kenya is legally bound by international instruments which provide a critical foundation for the development and implementation of National Values and Principles of Governance. These instruments include: i.The United Nations International Covenant on Civil and Political Rights Article 2 of this Covenant states among others that each party state undertakes to respect and ensure that all individuals within its territory and subject to its jurisdiction enjoy the rights recognized in the present Covenant, without discrimination of any kind, whether on the basis of race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. The member states are further required to adopt legislative or other measures as may be necessary to give effect to the rights recognized in the Covenant in accordance with its Constitutional processes. Article 27 of the covenant requires member states to ensure that ethnic, religious or linguistic minorities enjoy their own culture, profess and practice their own religion, or use their own language. ii. The United Nations International Covenant on Economic, Social and Cultural Rights, 1966 Article 3 of this Covenant states that member states should ensure equal rights of men and women to the enjoyment of all economic, social and cultural rights set forth in the Covenant. iii. The Universal Declaration of Human Rights, 1948 Article 2 of this Declaration stipulates that everyone is entitled to all the rights and freedoms set forth in the Declaration, without discrimination of any kind, whether on the basis of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no discrimination should be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it is independent, trust, non-self-governing or under any other limitation of sovereignty. iv. International Convention on the Elimination of All Forms of Racial Discrimination (1965) This Convention provides for elimination of racial discrimination in all its forms and manifestations, and to prevent and combat racist doctrines and practices in order to promote understanding between races and to build an international community free from all forms of racial segregation and racial discrimination. v.Convention on the Rights of the Child, 1989 The Convention provides for the promotion and protection of child rights. Children are defined as persons below 18 years of age which is also the case in Kenya. Article 2 stipulates that the rights in the Convention must be guaranteed without discrimination on the basis of, among other qualities, race, colour, language, and religion, national or ethnic origin. vi. Convention on the Elimination of All Forms of Discrimination Against Women, 1979 The convention focuses on the rights of women which include the right to equal treatment under the law; equality in education, political participation, employment, health, and the economy; freedom from sexual exploitation; and the possibility of temporary special measures to overcome inequality. Member states are required to eliminate discrimination against women by ―any person, organization or enterprise‖, member States agree to take appropriate measures ―to modify or abolish existing laws, regulations, customs and practices‖ that discriminate against women. vii. 2007 Declaration on the Rights of Indigenous People The Declaration focuses on the individual and collective rights of indigenous people, as well as their rights to culture, identity, language, employment, health, education and other issues. It emphasizes the rights of indigenous peoples to maintain and strengthen their own institutions, cultures and traditions, and to pursue their development in keeping with their own needs and aspirations. It prohibits discrimination against indigenous peoples, and it promotes their full and effective participation in all Constitution which provides that the President shall once every year, report in an address to the nation, on all the measures taken and the progress achieved in the realization of the national values, referred to in Article 10. The President is further required to publish in the Kenya Gazette the details of the report. v.Article 234 (2)(h) which requires the Public Service Commission to evaluate and report to the President and Parliament on the extent to which the values and principles referred to in Articles 10 and 232 are complied with in the public service. vi.Article 249 (1) (b) which requires all constitutional commissions and independent offices to secure the observance of democratic values and principles by all State organs. Other relevant provisions in the constitution include; Articles 1, 5, 7, 11, 19, 20, 22,27, 28, 33, 40, 43, 48, 52 – 57, Chapter 5 and 6, Articles 100, 104, 174, 202, and 204. These Articles emphasize the following elements of National Values and Principles of Governance: Sovereignty of the people; ii National, official and other languages; iii National symbols and national days; iv Culture; v The bill of rights particularly Articles 53 (children), 54 (persons with disability), 55 (youth), 56 (minorities and marginalized groups) and Article 57 (older members of the society); vi Land and environment; vii Representation of the people; viii Promotion of representation of marginalized groups in the legislature (Article 100) and the right to recall a member of parliament (Article 104); ix Devolution of Government; and x Equitable sharing of national revenue (Article 202) and the Equalization fund (Article 204). b) Leadership and Integrity Act, 2012 The Leadership and Integrity Act, 2012 was enacted in accordance with Article 80 of the Constitution of Kenya. The Act establishes procedures and mechanisms ensure that state officers uphold and respect the values, principles and requirements of the constitution while discharging public duty. this include: i. national values and principles of governance; ii. rights and fundamental freedoms; iii. responsibilities of leadership and principles governing the conduct of state officers; iv. educational, moral and ethical requirements for persons seeking elective office; v. Objectives of devoution; and vi. Values and principles if public service. c) Public Service (Values and Principles) Act, 2015 The Act seeks to: i Provide a general code on the values and principles of pubic service; ii Enhance pubic participarion in the promotion of the vaues amnd principles of, and policy making by the public service; and Enhance reporting on the status of the promotin of vaues and principles of public service. d) Fair Administrative Action Act, 2015. The Act seeks to give effect to Article 47 of the Constitution that provides for the rights of individuals to administrative actions that is expeditious, efficient, lawful, reasonable and procedurally fair. e) Other Legal Instruments The following Acts of Parliament form part of the legal framework for the promotion of national values and principles of governance: i. National Cohesion and Integration Act No. 12 of 2008 ii. The Commission on Administrative Justice Act, 2011 iii. The National Gender and Equality Commission Act, 2011 iv. The Transition to Devolved Government Act, 2012 v. Kenya National Commission on Human Rights Act, 2011 vi. The Public Audit Act No.12 of 2003 vii. Independent Electoral and Boundaries Commission (IEBC) Act No.9 of 2011 viii. Commission on Revenue Allocation Act, 2011 ix. Ethics and Anti-Corruption Commission Act, 2011 x. County Governments Act, 2012 xi. Salaries and Remuneration Commission Act, 2011 xii. National Police Service Commission Act, 2014 xiii. Anti-Corruption and Economic Crimes Act, 2003 xiv. Public Officer Ethics Act, 2003 xv. Public Procurement and Asset Disposal Act, 2015 xvi. Public Finance Management Act, 2015 xvii. Proceeds of Crime and Anti-Money Laundering Act, 2014 4 Institutional Frameworks a) The Presidency The Presidency plays a critical role in the promotion of national unity. Article 131 of the Constitution of Kenya, 2010 indicates that the President is a symbol of national unity. The President is required to lead the nation towards a collective heritage and vision regardless of the existing diversities. Specifically, the Constitution provides that the President; respects, upholds and safeguards the Constitution; safeguards the sovereignty of the Republic; promotes and enhances unity of the nation; promotes respect for the diversity of the Kenyan people and communities of Kenya; and ensures protection of human rights and fundemental freedoms and the rule of law. In Article 132, the president is required to report in an address to the nation on the measures taken and progress made in the realization of National Values and Principles of Governance (GoK, 2012). It therefore follows that the role of protection, prioritization and promotion of National Values and Principles of Governance is cited as a function of the Presidency. Executive Order No. 1 of 2016 moved the function of national cohesion and values to the Executive Office of the President. In respect to the promotion of National Values and Principles of Governance, the Executive Office of the President through the Directorate of National Cohesion and National Values undertakes the following functions: i. Formulation , development and implementation of policies, strategies and plans for the achievement of national values; ii. Spearheading the promotion of national values; iii. Formulation, coordination and implementation of programmes for the promotion of national values in liaison with other stakeholders; iv. Liaising with other Government Ministries, Departments and Agencies (MDAs) in mainstreaming National Values within the public service; v. Advocacy, Public Education and Sensitization on national values; vi. Conducting research in areas of national values; vii. Undertaking Monitoring and Evaluation of national values programmes in the country and their respective impact; and viii. Advising the presidency on promotion and reporting on national values. b) Ministry of Interior and Coordination of National Government The Ministry of Interior and Coordination of National Government is responsible for the following functions: National Government coordination at counties; internal state functions; printing of government documents; Disasters and Emergency Response coordination; National Disaster and Operation center; Policy on training of security Personnel among others. The Ministry‘s overall Vision is ‗to be an excellent agency in the provision and promotion of a secure, cohesive and crime free society, for Kenya‘s prosperity.‘ The Mission is ‗to promote the provision of security and safety, maintain a comprehensive national population database, enhance nationhood, facilitate administration of justice, provide correctional services and coordinate national government functions for socio-economic and political development in Kenya. c) Ministry of Education, Science and Technology The Executive Order No. 2/2013 assigns the Ministry of Education, Science and Technology the responsibility of education policy management, curriculum development, schools administration and programmes amongst others. The education sector provides an avenue through which life skills, principles and values for personal, social and economic development are propagated. The national goal of education emphasizes the promotion of values such as national unity, moral and religious values, social equality and responsible citizenship. Further, the Ministry provides for co-curriculum activities such as music, drama and clubs which provide a learning platform for inculcating National Values and Principles of Governance. Further, the peace education programme initiated by the Ministry is critical in inculcating values of tolerance, appreciation of diversity and peaceful co-existence which are key tenets of national unity. d) Ministry of Sports , Culture and the Arts The Executive Order No. 2/2013 assigns the Ministry of Sports, Culture and the Arts the responsibility of management of the sports policy, national culture and national heritage mangement, development of fine, creative and performing Arts. Overall, sports, culture and the arts are valuable tools for national cohesion and de-ethnicization of the Kenyan society and are critical in the promotion of national unity. e) Ministry of Devolution and Planning The Executive Order No. 2/2013 assigns the Ministry of Devolution and Planning the responsibility of steering devolution. Further, the Ministry coordinates special interest groups policies and special areas including arid and pastoralist lands among others. These targeted policy priority areas and initiatives provide a platform for the promotion of National Values and