THE FORMATION STRUCTURE AND FUNCTIONS OF THE GOVERNMENT OF KENYA

What is Parliamentary Democracy?

  • It is a system of government whereby the civilians elect their leaders.

Describe the system of government that was adopted in Kenya after independence.

  • Kenya adopted a parliamentary government based on parliamentary democracy.
  • An effective defence force was organized and put in place to maintain law and order and to protect the country from external aggression.
  • The Legislature makes laws, which are implemented by the Executive.
  • The Judiciary ensures that nobody violates the laws.
  • The three arms of government operate on a system of checks and Balances, the Executive being subordinate to the Legislature.

 

THE ELECTORAL PROCESS IN KENYA

Describe the system of election in Kenya.

  • The system of election in Kenya is democratic, allowing people to choose the leaders they want to represent them every five years.
  • Elections are organized and supervised by the Electoral Commission of Kenya (ECK).
  • Various methods of election are used.
  • Today, Kenya is divided into 210 electoral constituencies.

Identify three methods of election in Kenya.

  • The Secret Ballot;
  • Acclamation;
  • The Queuing system, although of late the queuing system is not used.

Describe two main types of election.

  • General Elections, which are held once every five years,
  • By-Elections, which involve election of new leaders to fill seats left vacant by death, resignation or annulment of the election of their occupants.
  • Party elections e.g. 2003 when Musikari Kombo was elected new Chairman of FORD-Kenya following the death of Michael Kijana Wamalwa.

Identify the types of elections that fall in the General Elections category.

  • General Elections constitute:
  • Presidential elections;
  • Parliamentary elections
  • Civic elections.

Under what circumstances are general elections in Kenya held earlier than normal? (Under what circumstances could early general elections be held/called in Kenya? Or:

  • What circumstances could lead to early general elections in Kenya?) Ø When the President dissolves parliament (as was in 1983). If Parliament passes a Vote of No Confidence in the government.
  • Since 1992, Kenya has had multiparty elections, whereby several political parties compete to have their candidates chosen to fill the vacant parliamentary and civic seats.
  • Apart from the general elections.

Explain the importance of elections in Kenya. (State the reasons why elections are held in Kenya every five years. Or: Identify the factors that justify elections in Kenya.)

  • They help ensure that leaders deliver services and respond to or address the needs of their people.
  • They help generate new ideas by offering alternative ways of running the government through different political party manifestos.
  • It is a constitutional requirement that they be held every five years.
  • They enable the citizens to exercise their democratic right of choosing their leaders.
  • The country is run by leaders who have been picked and are confided in by Kenyans.

Describe/explain the laws that regulate elections in Kenya. (Identify/state the electoral regulations in Kenya)

  • In Kenya, elections are regulated by laws passed by parliament, such as:
  • The Constitution, by which Kenya is a sovereign republic and a multiparty democratic state.
  • The National Assembly & Presidential Elections act, which outlines the steps to be followed in the registration of voters, nomination of candidates, polling, counting of votes and other related processes.
  • The Local Government Act, which gives the procedures and rules for conducting elections for county, municipal and town councils.
  • The election Offence act, which lays out election offences and the penalties for committing such offences.

State the requirements for parliamentary candidates in Kenya. (What conditions must one meet in order to be a parliamentary candidate in Kenya? Or: What are the qualities of a parliamentary candidate in Kenya? Or:

State the basic requirements for a nominated member of parliament in Kenya.) In Kenya, a parliamentary candidate must:

  • Be sponsored or nominated by a registered political party.
  • Be a registered voter in a constituency.
  • Be a Kenyan citizen aged 21 years or older.
  • Have been living in Kenya six months prior to the election.
  • Be able to speak, read and write English and Kiswahili, with a certificate of proficiency from the Language board or a letter of exemption from the electoral Commission of Kenya.
  • Nominated members of parliament must also have the basic requirements for elected members of parliament.

State the circumstances that could make one to be disqualified from parliamentary candidature in Kenya. (What factors could make one lose their parliamentary candidature in Kenya? Or:

Explain the reasons why a candidate could be prevented from vying for a parliamentary seat in Kenya.)

  • If one is declared bankrupt by a court of law.
  • If one is a public officer holding a public office as a civil servant or member of the Armed Forces unless he or she resigns.

If one is sentenced to death or to a Jail term of at least six months.

  • If one is convicted for an election offence.
  • If one is certified to be of unsound mind.

Under what circumstances could an MP lose their seat in the Kenya Parliament? (Explain the factors that could cause a member of the Kenya parliament to lose their seat. Or: Explain the factors that may lead to loss of a parliamentary seat by an elected member of the Kenya Parliament.)

  • If the member ceases to be a Kenyan citizen.
  • If the member receives a six-month or longer jail term or a Death penalty from a court of law.
  • If one‟s election is nullified on one‟s conviction for an election offence.
  • If one is elected by the other members as the Speaker of the National Assembly.
  • If one is declared bankrupt by a court of law.
  • If one is found to be of unsound mind.
  • If the member resigns either as an M.P or from the party by which he or she was voted into parliament.
  • If the member fails to attend eight consecutive sessions during the life of a particular parliament without the Speaker‟s permission.
  • If the member defects from one party to another.

Describe two levels at which candidates are selected to vie for seats during elections in Kenya.

  • Party nominations, whereby parties select their candidates to contest elections.
  • Electoral Commission of Kenya nominations, whereby party nominees are presented to the Electoral Commission of Kenya for formal nomination to contest the elections.
  • On nomination, political parties and their candidates hold political meetings or organize Meet-The-People tours to sell themselves and their party-ideas to voters in their constituencies and wards through what are referred to as Election Campaigns, enabling the voters to assess the aspiring candidates and their party policies as well as strategies before deciding on who should represent them in parliament or Local Authority.

VOTER REGISTRATION

Who is a voter?

A voter is a person who is listed once in the register of voters. The register of voters is a record of persons entitled to vote at Presidential, Parliamentary and Civic elections. The names of those who have died are removed from the register of voters.

What are the requirements for a voter in Kenya? (What conditions must one fulfil in order to be a voter in Kenya?)

  • One must be a Kenyan citizen, with an original Identity card or passport.
  • One must be eighteen years of age or older.
  • One must not have been convicted of election offences.
  • One must not have been sentenced to more than twelve months imprisonment.
  • One must not have been declared to be of unsound mind.
  • One must not have been sentenced to death by a court of law.

Explain how voters elect their leader in Kenya. (State the steps through voters elect their leader in Kenya. Or:

Explain the voting process in Kenya.)

On polling day, voters elect their leader of choice through the following steps:

Each voter must present himself or herself at a polling station, usually in a school or hall within the area between 06.00AM to 06.00PM.

  • Each must have the Voter‟s card and an Identity card, with his or her name in the register of voters.
  • On producing the required documents, the voter is issued with a ballot-paper showing the names of the candidates and their party symbols.
  • The voter puts his or her mark in the space provided on the Right-hand side of the Ballot paper, then slots the paper into a box.
  • The Presiding officer ensures efficient and transparent counting of votes after the closure of the voting exercise, after which he or she announces the number of votes garnered by each candidate.
  • Total votes from all the polling stations are tallied by the Returning Officer and the Election Officer in charge of the constituency, announcing the results per candidate.
  • The Returning Officer declares the elected Constituency Member of Parliament and the Councillor of each ward within the constituency as well as the number of votes per candidate for the Presidential election.
  • The electoral Commission of Kenya declares the validly elected candidates for the Presidential, parliamentary and civic elections.

Explain the factors that undermine/hinder free and fair elections in Kenya. (Explain the obstacles to free and fair elections in Kenya.)

At times, the election process does not run as smoothly as stipulated by the law due to:

  • Inadequate civic education i.e. poor sensitization of voters on who can lead them effectively.
  • Illiteracy among some citizens, which limits their ability to correctly mark the Ballot papers.
  • Violence or chaos, which makes voter access to the voting halls difficult.
  • Vote rigging, of which many aspiring candidates and their agents often complain.
  • Bribes, whereby voters are swayed by incentives from individuals in order to vote for certain candidates.
  • Natural calamities such as heavy rain, especially in places with poorly developed infrastructure.

Explain how free and fair elections could be ensured in Kenya. (In what ways could free and fair elections be ensured in Kenya?)

  • Intensification of civic education.
  • Engaging adequate Security personnel so as to check violence.
  • Putting in place measures to discourage rigging or voter bribing.
  • Encouraging many local and international observers to assess the elections.

 

THE ELECTORAL COMMISSION OF KENYA

Describe the Electoral Commission of Kenya.

  • It is the body that conducts and supervises elections.
  • It is subject to no other than its Chairperson, which helps ensure its independence.
  • It is made up of twenty-one Commissioners, eleven of which are appointed by the President while the rest are appointed by opposition parties that are represented in parliament.
  • It has a Secretariat of permanent employees, who carry out its day to day administration. The Commissioners serve for a guaranteed term of five years.

Explain the functions of the Electoral Commission of Kenya.

  • Division of Kenya into constituencies, which it names and whose boundaries it marks.
  • Review of civic wards, their boundaries, numbers and names.
  • Registration of voters.
  • Preparation and distribution of nomination papers, ballot-papers and Ballot-boxes and the required stationary.
  • Supervision of voting.
  • Appointment and payment of the staff at the voting stations e.g. returning officers.
  • General direction and supervision of administrative conduct of both General and Byelections.
  • Division of constituencies into polling areas and stations.
  • Countrywide voter education.
  • Promotion of free and fair elections.
  • Receiving money deposited by aspiring parliamentary candidates.
  • Conducting Language Proficiency tests for candidates nominated by their parties to vie for elections.
  • Publishing notices of elections and nominations as well as arrangement for the printing of Ballot-papers.
  • Announcing dates of elections and By-elections.
  • Provision of security throughout the election exercise.
  • Announcing election results.
  • The electoral Commission of Kenya also performs other functions as provided by the law.

Describe/identify the officials appointed by the Electoral Commission of Kenya. (Identify the election officials in Kenya.)

  • To ensure efficiency and effectiveness during elections, the Electoral Commission of Kenya appoints various categories of officials. These include:
  • District Election coordinators, who handle all electoral matters at the District level and link the people within their jurisdiction with the Commission headquarters.
  • Registration officers, who register voters in each constituency and issue them with Voters‟ cards.
  • Returning officers, who organize elections in the constituency.
  • Presiding officers, who are in charge of polling stations.
  • Polling clerks, who assist and guide, particularly illiterate voters.
  • Security personnel (Police-Officers), who assist the Presiding officer to maintain law and order during polling and vote counting.
  • Counting Clerks, who sort out the ballots and then count the Ballots per candidate.
  • Party agents, who represent candidates or political parties in a polling station or counting hall, ensuring that polling and vote-counting are transparent, orderly, free and fair.
  • Observers, who watch over elections and write reports to indicate if the elections were free and fair.
  • Explain/state the functions of: Ø A Returning Officer; Ø Presiding Officers.

FUNCTIONS OF A RETURNING OFFICER

  • Setting up polling booths in each polling station.
  • Receiving nomination papers from prospective candidates.
  • Distributing Ballot-papers and boxes to all polling stations.
  • Supervising the casting and counting of votes in the constituency.
  • Appointing the Presiding Officers in each polling station.
  • Announcing constituency election results.

FUNCTIONS OF PRESIDING OFFICERS

  • Ensuring that polling is orderly, free and fair.
  • Ensuring that every eligible voter votes only once.
  • Help illiterate voters to mark ballot-papers.
  • Seal the Ballot-boxes and transfer them to a central point for vote-counting.
  • Maintain law and order at polling stations.
  • Ensure impartiality in polling.

 

THE FORMATION OF GOVERNMENT

Analyse/explain the process of government-formation in Kenya.

  • Constitutionally, a President will be elected whenever parliament is dissolved.
  • After Presidential and parliamentary elections, the Chief Justice swears in the President.
  • The President appoints a cabinet (government) from among the members of parliament. Members of the cabinet are also sworn in.
  • To ensure continuity of government operations, the existing cabinet remains even after dissolution of parliament until a new one is formed.

Describe/explain the major tasks that are performed by the new government in Kenya.

(What are the duties/responsibilities of the new government in Kenya?)

  • Ensuring socio-economic development in the country by setting up policies to improve social amenities.
  • Upholding human rights and ensuring that all citizens live in peace and harmony through the administration of justice.
  • Enhancement of law and order to ensure that citizens enjoy state-security.
  • Organization of an effective defence force to protect the country from internal and external aggression.
  • Establishment of sound foreign policies by setting up foreign embassies and high commissions to promote international cooperation.

Describe/identify the main organs/branches/arms of the Kenya government.

  • The government of Kenya mainly consists of:
  • The Legislature (Parliament), which is the Lawmaking organ in Kenya. It consists of the President and the National Assembly.
  • The Executive, which deals with implementation of laws made by the Legislature and handles the general administration of the country, including internal and external affairs. It comprises the President, vice President, the cabinet and the civil servants.
  • The Judiciary, which deals with administration of justice through the court system. It is headed by the Chief Justice and is made up of Judges, Magistrates and other judicial officers.
  • Operation of these three main organs of the Kenya government is based on the policy of separation of powers, whereby each is completely independent of but compliments the others for the purpose of effective governance.

Analyse/describe the composition of the Kenya parliament.

  • At present, the Kenya parliament comprises 210 elected, twelve nominated and two exeofficio members.
  • Nominated members of the Kenya Parliament represent special interests e.g. the youth and the disabled.
  • The Speaker and the attorney-General are exe-officio members i.e. members of parliament by virtue of their position in the government other than through election.
  • The national assembly also has a clerk and Sergeant at Arms.
  • Members of Parliament form various committees in the House and at the same time form the Parliamentary Service Commission (PSC).
  • The Parliamentary Service Commission employs its own staff to take care of its administration.
  • Other officers of parliament include: the accounts Personnel, secretariats, Catering, Hansard editor and Reporters, Library staff and Subordinate Staff.

Identify/state the duties of the Parliamentary Service Commission.

  • Streamlining Parliament operations.
  • Taking care of the welfare of members of Parliament and staff of the national assembly on issues, such as salaries, offices and equipment as well as pension.

 Identify two main components of the Legislature.

  • The National Assembly; Ø The President.

Name/outline The Officers of the National Assembly in Kenya.

  • The Speaker.
  • The Deputy Speaker.
  • The Attorney-General.
  • The Clerk to the National Assembly.
  • The sergeant At Arms.

Analyse/describe the Speaker of the Kenya parliament.

  • Is an exe-officio Member of Parliament.
  • Is elected when the House first meets after a General election and before the house proceeds with any other business.
  • Is the Spokesman and Head of the National Assembly.
  • When there is a tie in voting in Parliament, the speaker determines the winner, for he or she has a casting vote.
  • Is accompanied by a ceremonial Mace, which rests on the table of the chamber while the Speaker is on the Chair, symbolizing the constitutional authority of the National Assembly and of the Speaker‟s office.

Under what circumstances could the Speaker of the Kenya parliament leave/lose office?

(What factors could cause the Speaker of the Kenya parliament to leave/lose his/her seat? Or:

What factors could lead to removal of a Speaker of the Kenya parliament from office? Or:

Under what circumstances is a new speaker of the Kenya parliament elected? Or: What factors could lead to election of a new speaker to the Kenya parliament?)

  • Expiry of his/her tenure.
  • If he or she dies before expiry of his/her tenure.
  • If he/she resigns from office.
  • If he or she loses the basic qualifications for membership to the National Assembly.
  • If a resolution of the National Assembly, supported by at least three quarters of all members, removes him or her from office.

Name the people that served as Speakers to the postcolonial Kenya parliament. The postcolonial Kenya Parliament has had seven speakers so far, namely:

  • Muinga Chokwe;
  • Hamphrey Slade;
  • Frederick Mbiti Mati;
  • Moses Arap Keino;
  • Professor Jonathan Ng‟eno;
  • Francis Ole Kaparo;
  • Kenneth Otiato Marende.

State the functions of the Speaker.

  • To adjourn sittings if the house lacks quorum.
  • To receive and accept letters of resignation from members of parliament.
  • To give members of parliament the chance to contribute to House debates.
  • To declare parliamentary seats vacant.
  • To organize or determine the business to be conducted in the House.
  • To issue writs for General and by elections.
  • To represent and protect the authority of Parliament.
  • To make rules and issue orders for the regulation of visitors to Parliament. Ø To maintain order during parliamentary debates.
  • To chair the Speaker‟s committee, the Committee of Powers and Privileges and the Commanding Orders Committee.
  • To enforce rules that govern the conduct of the House.
  • To head and take charge of the National Assembly department.
  • To discipline members who have violated standing orders.
  • To keep and maintain the attendance register.
  • To decide over House-proceedings and ensure that they are conducted in accordance with the Rules of Procedure.
  • To cast a vote to break a tie.
  • To preside over the swearing in of members of Parliament at the start of each Parliament.
  • To receive bills, motions and parliamentary questions intended for tabling and discussion.

Analyse/describe the following parliamentary authorities/officials:

  • The Deputy Speaker;
  • The Clerk to the national assembly; Ø The sergeant at arms.
  • Leader of Government business.
  • Leader of the Official opposition.

THE DEPUTY SPEAKER

This:

  • Must be a sitting member of the National Assembly. Therefore, he or she remains a Constituency member even after election to the post.
  • Is not an exe-officio member.
  • Chairs the committees of the whole House, including Library committees.
  • Performs the duties of the Speaker when the Speaker is absent.
  • In case both the Speaker and Deputy Speaker are absent, a member from the Chairperson‟s panel presides over the parliamentary proceeding.

THE CLERK TO THE NATIONAL ASSEMBLY

This:

  • Is a civil servant.
  • Is the chief administrator of Parliament.

Is the chief Executive of the Parliamentary Service Commission.

  • Is the procedural advisor to the Speaker, the Deputy Speaker and all members of parliament.
  • Is the Accounting officer of the National assembly.
  • A candidate to this post must be a serving clerk.

THE ROLE OF THE CLERK TO THE NATIONAL ASSEMBLY

  • Records all notices of motions, questions and other matters handed in by members.
  • Acts as the Branch Secretary to the Commonwealth Parliamentary Association, Interparliamentary Union and Union of Africa Parliaments.
  • Records minutes of House-proceedings and advice members on matters of procedure.
  • Supervises parliamentary staff.
  • Maintains correspondence with the ministries concerning parliamentary matters.
  • Serves as the Principal advisor to the Speaker and members of parliament on all the parliamentary procedures, practice, conventions and traditions.
  • Controls the finances of the House.
  • Prepares and safely keeps all parliamentary records in the Hansard.
  • Prepares true copies of bills passed by the Assembly and then submits them to the President for Assent.
  • Organizes and maintains a library for use by members.

THE SERGENT AT ARMS

The sergeant at Arms:

  • Is responsible for all ceremonies within and around Parliament buildings.
  • Ensures discipline within and around Parliament buildings.
  • Is the custodian of the Mace, which is the authority of the House and without which no sitting can be held.
  • Enforces all orders made by the Speaker.
  • Is responsible for the maintenance of Parliament buildings.

LEADER OF GOVERNMENT BUSINESS

  • This position is adopted as a matter of tradition and does not appear in the Constitution of Kenya. Usually, the President appoints the Vice president, who is a member of the Cabinet, to serve in the position. The Leader of Government Business:
  • Chairs weekly Committee meetings on procedural motions, including motions of adjournment.
  • Seconds most bills moved by Ministers.
  • Consults regularly with the Leader of the Official Opposition on Parliamentary issues.
  • To ensure that they win the debate, the government chooses and confides in the Leader of Government Business while the Opposition party with the highest number of members rallies behind the Leader of the Official Opposition as leader of their debating team.

LEADER OF THE OFFICIAL OPPOSITION

  • The opposition party with the highest number of seats in Parliament can be the official opposition party while its chairperson becomes the Leader of the Official Opposition as provided for by Standing Order NO.2A. The Leader of the official opposition:
  • Offers direction, guidance and support for Opposition leaders.
  • Investigates government expenditure in consultation with the Public Accounts Committee according to the report of the Controller and Auditor-General.
  • Works in consultation with members of the Diplomatic community based in Nairobi and other parliamentary delegations from abroad to Kenya on official visits.

Describe/Explain the functions of the Legislature. (What are the responsibilities of the Kenya Parliament. Or:

  • In what ways does the Kenya parliament foster good governance? Or:
  • Explain the duties/obligations of the National Assembly in Kenya.)
  • Making laws through debates on bills. Parliament makes, amends or repeals laws.
  • Control of revenue and expenditure. Parliament considers the proposed use of public funds as set out in the estimates submitted by the government and proposals for the imposition of taxes to raise money required for government expenditure.
  • The Terminative role. Parliament can pass a Vote of No Confidence in the President and the government as provided for by the Constitution, after which the government would have to resign as Parliament stands dissolved and fresh elections held to elect new members of the new government.
  • To check on the Executive and the Judiciary. Parliament debates on public issues and ensures that the rights of individuals are not infringed upon through abuse of power by the Executive and the Judiciary in addition to passing laws that do not undermine the citizens.
  • Serving as a bridge between people and the government. Members of Parliament explain government policies to the people and inform the government on people‟s views, thus providing linkage between the people and the government in their constituencies.
  • Creation of Statutory bodies (parastatals) through various acts of parliament to promote social and economic growth in the country. Such bodies include Telecom Kenya, Teachers Service Commission, Agricultural Finance Cooperation, National Serials and Produce Board and, Central bank of Kenya.
  • Shaping political leadership by giving direction for future national political leadership, thus serving as an institution of political recruitment, management and education.
  • Promotion of good governance as parliamentarians deliberate on national and international issues affecting the nation through debates, which provide members with opportunity to challenge the government through positive criticism.
  • Election of the Speaker and Deputy Speaker to preside over parliamentary debates.
  • Maintenance of the national spirit by providing a forum for expression of national interests. In spite of the differences among themselves, members of parliament meet to debate on issues in Parliament.

 

THE PROCESS OF LAWMAKING

  • Describe the process of law making in Kenya. (Under what circumstances/conditions does law making in Kenya begin?)
  • Law making includes enacting of new laws or amending the existing ones.
  • Lawmaking can only begin in the presence of the Speaker or Deputy Speaker amidst a quorum of thirty members in Parliament.
  • A proposed piece of law is called a Bill.
  • What is a bill?
  • A bill is a written suggestion for a new law that is presented to a country‟s parliament for discussion.
  • Into what two main types are parliamentary bills categorised?
  • There are two types of bills, namely:
  • Public bills, which deal with matters of public policy, which affect all citizens of Kenya.

Private bills, which are intended to affect particular persons, associations or people living in a small part of the country.

 Describe two types of Public bills.

  • Public bills are further divided into two categories, namely:
  • Government bills, which are introduced by Ministers.
  • Private Members Bills, which are introduced by back-benchers.
  • Explain the process/stages that a bill undergoes/passes before it becomes law.
  • Basically, the following process is followed in lawmaking in Kenya:
  • A bill is drafted in the Attorney-General‟s office. Ø The bill goes to Parliament for the First Reading.
  • The second Reading, whereby the Minister in charge moves it and the principles of the bill are discussed.
  • The Committee stage,, where the Bill is analysed and recommendations are incorporated.
  • The Report stage, whereby the Committee reports its considerations to the House.
  • The Third Reading, where final voting is done on it in parliament.
  • Presidential Assent, whereby, if the bill passes through the Third reading, it is presented to the President for Assent.
  • Publication, whereby, after Presidential Assent, the bill becomes law and is published in the Kenya Gazette and local dailies. It then binds all Kenyans.

Analyse/discuss the stages/process of law making in Kenya.

THE DRAFT STAGE

  • Before drafting of a bill, there must be consultation among government departments and other public offices to be affected by the bill to ascertain the validity of the intended bill.
  • If recommended, the bill will then be drafted by the Government Draftsman in the AttorneyGeneral‟s chambers known as the Parliamentary Council.
  • When the Cabinet is satisfied with the draft, it is published in the Kenya Gazette at least two weeks before its introduction to parliament in order to give the public a chance to view and criticise it and for members of Parliament to research and prepare for a debate on it in future.

THE FIRST READING

  • The bill is introduced and read by the clerk to Parliament.
  • The Minister in charge of the bill stands up and moves a motion on the bill.
  • The bill is then passed over to the relevant departmental committee, which is a Parliamentary committee that consists of eleven members, who would go through the bill clause by clause.
  • A week later, the departmental committee reports back to the House.
  • Members of Parliament are then allowed to think about the bill. No debate or voting takes place since no approval or disapproval is required.
  • The date for the Second Reading is fixed.

THE SECOND READING

  • Seven days after the First Reading, the bill is read again before Parliament.
  • The Minister in charge of the bill formally moves it by initiating debate on it.
  • The bill is then seconded by another Member of Parliament, usually a Minister.
  • Minute-details of the bill are discussed and amendments or improvements proposed,, coupled with addition or deletion of some clauses or sections. It is at this point that the members of the house can reject a bill. It can only be passed to the next stage if it has a Majority support.
  • A bill that has been rejected cannot be taken back to parliament until after six months, so that Members of Parliament and the Minister or private member from who the bill originated  can reconsider their stand on it.
  • The Second Reading is the most important stage in Lawmaking.

THE COMMITTEE STAGE

  • At this point,
  • The bill is referred to the Select Committee, which is a small group of members elected by Parliament.
  • The Select Committee closely examine the bill and incorporate recommendations from the second reading.
  • The select committee report their findings to the House.

THE REPORT STAGE

  • The chairman of the Select Committee reports its considerations to Parliament.
  • Members confirm if their proposals have or have not been taken into account. Ø Parliament votes on the report, which, if accepted, proceeds to the next stage.

THE THIRD READING

  • A final vote is taken.
  • If approved, the bill is considered to have passed through Parliament.
  • This stage resembles the Second Reading, except that debate and further amendments are limited.
  • Bills are rarely defeated in the Third Reading. 1973 when the Pension Amendment Bill was defeated at such a stage was one such rear occasion.

PRESIDENTIAL ASSENT

  • After passing through Parliament in the Third Reading, the bill is prepared in the form of a Draft-Act by the Clerk and the Attorney-General‟s chambers.
  • The Draft-Act is printed by the Government Printer.
  • The Clerk forwards the Draft-act through the Attorney-General to the President for assent. The bill must be accompanied by a certificate of the Clerk to confirm that it is the correct copy of the bill passed.
  • If the President decides to veto (reject) the bill, he or she must write to the Speaker within 14 days giving reasons for denying it Presidential assent. This is politically risky, for it will be a must for presidential assent to be given if two thirds of the members of Parliament vote for the bill.
  • After Presidential assent has been given, the bill becomes an act of Parliament.
  • It is published in the Kenya Gazette and sections of it in the local dailies to publicise it to all residents in the country.
  • It then becomes Law, binding everybody in the country.

PARLIAMENTARY SUPREMACY

  • Explain the principle of Parliamentary supremacy in Kenya.
  • Constitutionally, Parliament consists of the elected representatives of the people, which makes it supreme since it has the people‟s mandate to legislate and govern on their behalf.

Explain why Parliament is supreme. (What factors justify parliamentary supremacy?)

  • Ministers have to answer questions in and account to Parliament for their activities in the ministries under their control.
  • It can limit the powers of the Executive  through an amendment of the constitution and can pass a Vote of No Confidence in the government.
  • It makes and repeals laws.
  • Bills prepared by the Cabinet have to be legislated by Parliament.
  • It can terminate a President‟s appointment through a Vote of No Confidence.
  • It scrutinizes and can therefore approve or disapprove government revenue and expenditure.
  • It regulates the other arms of the government i.e. the Judiciary and the Executive.
  • Explain how Parliament controls government revenue and expenditure.
  • Every year, the Minister for Finance presents the budget to Parliament for approval.
  • Government ministries can only get funds after Parliament has approved their expenditure.
  • The Auditor and Controller General checks the expenditure of all ministries and reports to Parliament.
  • The Public Accounts Committee closely monitors government revenue and expenditure.

Explain the limitations of Parliamentary supremacy. (What factors undermine/hinder

Parliamentary supremacy?)

  • A cabinet that is too powerful may influence decision-making in and reduce the authority of Parliament.
  • Parliament cannot pass a law against people‟s customs and traditions, unless the people want a change.
  • The application of the rule of law does not allow Parliament to pass a law that is contrary to the constitution of the land.
  • The President has power to declare a State Of Emergency and side-step the supremacy of Parliament to deal with crisis.
  • The application of international laws may compel Parliament to ratify a law out of necessity.
  • The Local Government Act mandates the local authorities to independently make laws that affect their respective authorities.

What are the merits/advantages of parliamentary supremacy? The following are the advantages of a Parliamentary government:

  • It instils a sense of responsibility in the Executive since Ministers rise to their people‟s grievances as they sit and answer questions in Parliament.
  • It creates harmony as the Executive and Legislature work together.
  • It legitimises action taken by the government, particularly from the recommendations passed by Parliament, which represents the people.
  • It is flexible as it gives people the right to choose a leader to handle a crisis, e.g. an Emergency situation.
  • It allows for constructive criticism from the Opposition, thus ensuring good governance.
  • It is both responsible and responsive.
  • It enables Kenyans of ability and experience to prove their worth in Parliamentary debates.
  • It allows ordinary citizens to participate in the governing process by electing their representatives to articulate their views on issues of national interest.
  • It serves as a training ground for effective leaders.
  • It allows for regular elections, during which the electorate participates either as voters or contestants.

What are the disadvantages/demerits of parliamentary supremacy?

  • It can create instability for it works well in a two-party system.
  • It may not be effective in times of emergency, since the head of the government has to consult with the cabinet and the Legislature.
  • It weakens the Executive. For instance, it compels Ministers to spend most of their time in the Legislature instead of dealing with matters of their ministries.

 

THE EXECUTIVE

  • Explain the main responsibility/function of the Executive arm of government.
  • The Executive deals with the implementation of laws made by the Legislature. It handles the general administration of the country, including internal and external affairs.

Identify the components of the Executive arm of government

  • The President,
  • The Vice President,
  • The Cabinet,
  • The civil servants.
  • The President and the Cabinet are elected members of Parliament while Civil Servants are appointed by the Public Service Commission. Constitutionally, the President and the cabinet are collectively responsible to Parliament in all things done by or under the authority of the President, the Vice President and the Ministers while carrying out their duties.

 

THE PRESIDENT

  • In Kenya, the President is the Chief Executive, heading both the state and government. The President is elected through Secret Ballot by registered voters every five years.

Under what circumstances can Kenya’s President be elected sooner or other than during general elections that are held every five years?

  • If there is an emergency.
  • Death of the current President.
  • Resignation of the current President.
  • Nullifying of elections by the High Court.
  • If the President is physically or mentally incapacitated.
  • If a Presidential candidate dies before or after polling and before one is declared elected as President.
  • Explain the functions/powers of Kenya‟s president. Ø Heading the State.
  • Heading the Government.
  • Chairing Cabinet meetings, which normally discuss policies of national importance.
  • Legislative powers, i.e. addressing the National Assembly at any time and attending all meetings as a member of Parliament, though in practice, he delegates the functions of the Leader of Government business to the Vice President.
  • He is Commander In Chief of the Armed Forces. It is he who appoints senior officers within the Armed Forces and receives the Oath of Loyalty pledged by all members of the Armed Forces.
  • Judicial powers.
  • Emergency powers. The President can deal with situations that may plunge the country into instability and insecurity. Presiding over national holidays by meeting and leading the people and expounding on  government policy during the important national holidays like Jamhuri day and Madaraka day.
  • Safeguarding and upholding the constitution by ensuring that no person or groups of persons abuse it.
  • Power to call elections.
  • Conferring of honours on men and women of Kenya for their outstanding achievements.
  • Explain the functions/powers of Kenya‟s president as Head of State.
  • Represents the government and the people of Kenya both at home and abroad.
  • Receives credentials of foreign envoys posted to Kenya.
  • Hosts Heads of foreign countries visiting Kenya.
  • Makes and ratifies international agreements and treaties on important matters.
  • Explain the responsibilities of Kenya‟s President in heading the Government.
  • Has power to appoint and dismiss Ministers and all senior civil servants appointed by him.
  • Allows the Ministers and Assistant Ministers to leave the country either to represent the government or to conduct private visits.
  • Appoints special commissions and commissions of enquiry to look into issues of public interest, e.g. the Judicial Commission of enquiry into the Goldenberg scandal.
  • State the judicial powers/functions of Kenya‟s President Ø May pardon any person.
  • May commute any punishment.
  • May grant clemency to anyone who has been imprisoned or detained.
  • Ensures that the rule of law is upheld throughout the country.

Identify the situations that may plunge the country into instability and insecurity.

  • War,
  • Internal disorder due to an attempted coup,
  • Disruption in the country‟s economy,
  • Natural disasters such as earthquakes and floods.
  • Identify Honours conferred by the President on men and women of Kenya for their outstanding achievements.
  • The Order of the Golden Heart of Kenya.
  • The Order of the Burning Spear.
  • The Distinguished Service Medal.
  • The Head of State Commendation.
  • Elder of the Burning spear.

In what two ways does Kenya’s President exercise his power to call elections?

  • The President can call elections earlier or later than five years, though Parliament has to pass an amendment to that effect.
  • He can also call elections if a Vote of No Confidence in the government is passed by the National Assembly.

What are the requirements for a Presidential candidate in Kenya? (What conditions must one meet in order to be a Presidential candidate in Kenya?)

  • Be a Kenyan citizen of age 35 years or older.
  • Be a registered voter in a constituency.
  • Not have been jailed for a period of over six months.
  • Qualify as a Parliamentary candidate.
  • Be an elected Member of Parliament.
  • Not have been declared bankrupt by a court of law.
  • Be a member of a registered political party.
  • Attain 25% of votes cast in at least five provinces in Kenya.
  • Be nominated by his or her party.
  • Be supported by not less than 1000 registered voters.
  • Not have served two consecutive terms as President.
  • Be of sound mind.
  • According to the National Assembly and Presidential Elections Act, elections are based on the principle of Universal Suffrage, whereby all adults are entitled to vote on the principle of One Man One Vote.
  • Constitutionally, when the office of the President falls vacant, the Vice President takes over for the first 90 days, followed by elections, in which even the Vice President can vie for the Presidency.
  • In case both the offices of the President and Vice President fall vacant, the cabinet constitutionally pick one among themselves to act as President for 90 days, during which elections must be held.

Explain the reasons for Presidential election in Kenya. (Why do Kenyans elect their President?)

  • The President derives his or her power from the people, it is not a self-imposed rule.
  • Kenyans mandate their President to rule the country and act on their behalf through such elections.
  • The President does not go against public opinion, for he or she is responsible and accountable to the electorate.
  • The people have the choice to elect a President directly, freely and fairly.
  • The President has protection against legal proceedings i.e. no criminal or civil charges can be instigated against the President while in office.
  • The President‟s salary, allowances, gratuity and pension are determined by a parliamentary resolution, which then charges the money to the consolidated fund. A constitutional amendment of 1992 limited the tenure of office for the Presidency to two five-year terms.

 

THE CABINET

  • The Cabinet is the executive and policy-making body of be country. Its members are appointed by the President after a General election.

 Identify the components of the Cabinet in Kenya.

  • The President.
  • The Vice President.
  • Head of the Civil Service, who is also Secretary to the cabinet.
  • Attorney-General, who is a civil servant, but attends cabinet meetings as the legal advisor to the government.
  • What conditions/qualifications must one meet/bear in order to be a member of Kenya‟s Cabinet? (Identify the entities that make up the cabinet in Kenya).
  • Members of Parliament.
  • People that the President can trust.
  • People that work as a team in line with the principle of collective responsibility.
  • Members who do not show disagreements in public.
  • People with high level of education.
  • Members from all ethnic groups and provinces, incorporating various interest-groups in the country.
  • Assistant Ministers, who are appointed by the President from the National Assembly to assist the cabinet in carrying out their duties.
  • The Ministers and their assistant Ministers take the oath of allegiance and cannot leave the country without Presidential permission.

Identify the circumstances that could make a Minister lose their job. Under what circumstances could a Government Minister in Kenya lose their job?)

  • If they are dismissed by the President.
  • If the Minister ceases to be a Member of Parliament.
  • If they resign or die.
  • If declared bankrupt by a court of law.
  • If the National Assembly passes a Vote of No Confidence in the Minister.
  • The Secretary to the cabinet, who is also the head of the civil service and a Permanent Secretary in the office of the President, carries out and informs the government and the civil service on the decisions and orders of the cabinet.
  • Cabinet meetings, which are chaired by the President, guide cabinet operations. The cabinet has standing committees such as Development, Foreign Affairs and Manpower committees, which deal with issues within their context of operation. It may at times hold adhoc meetings on specific but urgent issues. The Ministers are collectively responsible for the policies and administration of their ministries. Although Assistant Ministers are not part of the cabinet, they carry out ministerial duties when Ministers are not available.
  • Constitutionally, the cabinet are collectively responsible to parliament for all things done by or under the authority of anyone of them. Ministers have to accept without publicly criticising cabinet decisions and government principles.
  • Explain the functions of the cabinet in Kenya.
  • It acts on behalf of the President when performing duties delegated by the President to the Ministers, such as appointment of Parastatal board-members.
  • It advises and assists the President in governing the country.
  • It formulates and prepares the budget through the Minister for finance, which is then presented to the national assembly.
  • It discusses national and international issues with the President.
  • It formulates government policies and programs.
  • Cabinet Ministers have and deal with individual responsibilities in their respective ministries.
  • It initiates and tables new and government bills in parliament.
  • It supervises the implementation of government policies by respective ministries. Ø It initiates Development projects by ministries in different parts of the country.

 

THE CIVIL SERVICE

  • What is the Civil Service?

The civil  service is the system responsible for the public administration of a country‟s government. It implements policies or programs that the cabinet may not carry out on its own.

Though inherited from the British colonial government, the Kenya Civil service has been modified from time to time since independence to cope with the needs of the people.

Identify the bodies/departments that are not part of the Civil Service in Kenya.

  • Kenya‟s Civil Service consists of all the ministries, except:
  • The Judiciary,
  • The Armed Forces, Ø Local Authorities,

What bodies/departments does the Public Service in Kenya constitute? (Identify the bodies/departments that make up the Public Service in Kenya? Or:

  • What bodies/departments does the Public Service in Kenya comprise/consist of?)
  • The Public Service in Kenya includes:
  • Civil servants,
  • Military officers,
  • Parastatal employees,

Explain the main role of the Civil Service in Kenya. (In What ways is the Civil service mainly important?)

  • It accomplishes the functions and duties of the Executive arm of government.
  • It is through the Civil Service that the Executive runs the government.
  • The Head of Public Service is also the Secretary to the cabinet.

What are the characteristics of a good civil service?

  • Constant and high degree of efficiency in managing the affairs of the state as well as provision of services to the people.
  • Its members are impartially selected.
  • Competence in their administrative work.
  • Commitment to the service of the people.
  • Equal service to all persons without discrimination.
  • Neutrality in party politics. The constitution does not deny members of the civil service the right to belong to a party or even to vote, it restricts their active participation.

State two constitutional powers of the Public Service Commission (PSC).

  • It appoints and confirms civil servants.
  • It exercises disciplinary control over civil servants.
  • What senior Government officers are not answerable to the Public Service Commission? (Name the government officers that are not within the jurisdiction of the Public Service Commission.
  • The Attorney-General,
  • The Auditor and controller General,
  • Ambassadors,
  • High Commissioners,
  • Permanent Secretaries,
  • The Director of Personnel management,
  • The President’s personal staff.
  • All these are appointed and dismissed by the President.

Name the officers that constitute/make up the Public Service Commission.

The Public Service Commission comprises/is made up of:

The Chairperson, The Deputy Chairperson, 15 members.

  • Its members are senior government officers appointed by the President to carry out various duties. It is an independent body created by an Act of Parliament.

State two main duties of the Public Service Commission.

  • It deals with promotion, transfer, interdiction, suspension, retirement and termination of the services of civil servants.
  • It advertises vacancies in the country in the Kenya Gazette or in the local dailies.

Analyse the structure of the Civil Service in Kenya.

  • The civil service is headed by the secretary to the Cabinet, who is also permanent Secretary in the office of the President.
  • The Ministry is run by a Minister and one or two assistant ministers. All ministers are accountable to the Secretary to the Cabinet.
  • Each ministry is headed by a Permanent Secretary (P.S) as its most senior civil servant. The Permanent secretary is the administrative head of the Ministry.
  • Under the Permanent secretary are Deputy Secretaries.
  • Each ministry comprises small departments, which are further divided into divisions, sections and units for efficiency and for access to the ministry’s services at the grassroots level.
  • The Directorate of Personnel Management takes charge of the civil service. It grades, appoints, promotes, transfers, identifies and arranges training for civil servants. The Director of Personnel management is the Chief Personnel advisor to the government on all matters relating to the administration, establishment, structure and organization of the civil service.

What are the duties of the Permanent Secretary?

  • Supervision and evaluation of the operations of the ministry.
  • Control of the Ministry’s civil servants.
  • Interpretation of the policies of the ministry.
  • Keeping the Minister informed of the needs and problems of the ministry.
  • Being the Chief Accounting officer of the ministry.
  • Being the Chief Technical advisor in the ministry.
  • The relationship of civil servants with the public and the government is regulated by various cords, including the 2003 Public Order and Ethics Bill, which requires civil servants to declare their wealth to curb corruption and bring efficiency in the civil service.

Explain the functions of the civil service in Kenya.

  • Explanation and interpretation of government policies to the people.
  • Participation in the preparation of development plans and the budget.
  • Continuity in the government. That is why, though ministers change, civil servants do not.
  • Implementation of government policies and programs. They mobilize citizens to initiate and participate in development projects.
  • Collection of and accounting for government revenue and expenditure.
  • Maintenance of law and order throughout the country.

Advising the minister on matters of policy.

Offering direct services to the nation as doctors, Lawyers, engineers and accountants among other professions.

Linking the local people with the central government through the provincial administration.

What problems does the civil service encounter in Kenya? (Explain the problems facing the civil service in Kenya.)

  • Poor terms of service. They are poorly paid for their services.
  • Corruption, coupled with lack of transparency and accountability.
  • Political interference.
  • Job-insecurity owing to retrenchment, inadequate funds and government bureaucracy (long procedures in carrying out tasks).

 

PROVINCIAL ADMINISTRATION

  • What is Provincial administration?
  • Provincial administration is the executive organ of the Central government, based at the provinces to ensure efficiency and effectiveness.
  • Analyse/discuss the structure of provincial administration in Kenya.
  • Kenya comprises eight provinces, each of which is headed by a Provincial Commissioner (PC), who is appointed by the President and is part of the Executive branch of government, being a civil servant.
  • Each province is divided into districts, which are headed by District Commissioners (DC), who are also appointed by the President.
  • Every district is made up of divisions, which are headed by District Officers (DO), who are appointed by the President and are themselves civil servants.
  • A Division is divided into locations, headed by chiefs, who are answerable to the District Officer. The chiefs are civil servants but are not transferable to other areas.
  • A location comprises sub locations, which are headed by Assistant Chiefs, who are answerable to the chief.
  • The sub location consists of villages headed by village-elders, who are appointed by either the Chief or the Assistant chief. The elders offer voluntary service and are not formal administrators.

Explain the functions of Provincial administration in Kenya. 

  • Representing the President during national holidays.
  • Linking Central government and the people., thus transmitting information from the government to the people and vice versa.
  • Maintenance of law and order in the province.
  • Coordination of government departments to ensure efficiency in delivery of services within the province.
  • Coordination of provincial development activities to enhance nation building.
  • Implementation of government policies and programs.
  • Interpretation and explanation of government policies.
  • Transparent and accountable spending of public funds.
  • Ensuring fair play and justice outside the court of law.
  • What are the duties of the Provincial Commissioner?
  • Personal representation of the President.
  • Welcoming visitors to the province.

Coordinating important provincial development projects.

Ensuring that government policies are implemented.

Supervising Provincial administration.

Serving as a link between the people and the government.

Ensuring security  in the province, since he or she is the chief security Officer.

 

What are the duties of the District Commissioner?

  • Representing the President at the District level.
  • Coordinating District Development activities.
  • Conducting civil marriages.
  • Overseeing relief operations i.e. assistance to victims of floods, famine and other calamities.

Explain the responsibilities/obligations of the District Officer.

  • Heading the division.
  • Interpretation, explanation and implementation of government policies within the Division. Ø Coordinating Divisional development activities.
  • Administering food-relief.

Explain the duties of the following:

  • Chief and Assistant Chief.
  • Village Elder.

DUTIES OF THE CHIEF AND ASSISTANT CHIEF

  • Identification of people to be issued with Identity cards, birth and death certificates.
  • Settling minor disputes, particularly those involving inheritance, marriage and land.
  • Helping in determining the estate of a deceased person in the localities. Ø Coordinating development activities e.g. school and road building.
  • Interpretation, explanation and implementation of government policies.

DUTIES OF THE VILLAGE ELDER

  • Mobilizing the village for communal work. Ø Reporting offenders to the Assistant Chief.
  • Informing villagers on and encouraging them to attend the Chief‟s Barazas.
  • Hearing and settling minor disputes while referring some to the Assistant Chief for further action.

 

THE ARMED FORCES, POLICE AND PRISONS

  • The Armed Forces, the Police and Prisons are instruments for safeguarding Kenya‟s security and integrity.

THE ARMED FORCES

  • Colonial Kenya’s defence was under the British, who established the King’s African Rifles (KAR). After independence, Kenya, through the Armed Forces Act, established her own armed forces, which constitutes three main branches:.

Identify three main branches into which the armed forces in Kenya are divided.

The Kenya Army.

The Kenya air force.

The Kenya Navy.

Each branch sets up its program of expansion, modernization and Africanization. Each Branch is headed by a Commander. The President is the Commander in Chief of the Armed forces.

Explain the functions of the Armed Forces in Kenya.

  • Defending the country from external attacks.
  • Helping in preserving security, particularly when the police are likely to be overcome.
  • Nation building such as road and bridge construction.
  • Entertaining the public during national holidays and events.
  • International peace-keeping operations such as those organized by the UNO. Ø Helping in control of locust invasion.
  • Patrolling Kenya’s territorial waters.
  • Checking on illegal landings, departures and unauthorised fishing by foreigners in Kenyan waters.
  • Provision of Emergency services such as evacuation of civilians during floods.

 

THE KENYA POLICE

  • Analyse/describe establishment of the Kenya Police.
  • The Kenya Police was created by the British as the British East African Police in the 1890s.
  • It was renamed the Kenya Police in 1920 when Kenya became a colony.
  • In 1953, control of the entire police force was placed under the Commissioner of Police.
  • Today, the police force is under the office of the President and is considered a specialized department within the Public Service.
  • The Police Officers are trained at Kiganjo in Nyeri.

Describe the branches/constituent members of the Kenya police. (Identify the units/sections into which the Kenya police is divided.)

  • The Kenya Police is divided into several units or sections, depending on the responsibilities given to them. These include:
  • The Regular Police, who patrol and maintain law and order among the civilians. They deter and prevent crime.
  • The Traffic Police, who control Traffic, ensuring that Traffic rules are followed.
  • National Security Intelligence Service, which is concerned with state-security and identify those who may be a threat to state-peace, stability and the rule of law. It replaced the former Special Branch.
  • The General Service Unit (GSU), which assists the Regular police to restore law and order and to keep peace.
  • The Criminal Investigation Department (CID), whose members work mostly under cover, investigating criminal activities and arresting suspects.
  • Police Air-Wing, who operate in remote areas with poor road networks such as North- Eastern Kenya. They search for dens of thief‟s and drug-dealers and pursue car-jackers.
  • The Antistock Theft Unit, which does a lot of patrolling to prevent movement of stolen livestock.
  • The Antinarcotics Unit, which tracks down drug peddlers to alleviate drug-trafficking. The Flying-Squad, which works with the CID officers to investigate crime and to track down suspects during highways and bank robberies.

The Prosecution Unit, which presents cases before the  court and cross-examines witnesses.

The Kenya Police Reserve, which comprises retired volunteers and are called upon to help the police during emergency.

Administration Police, who assist the Provincial administration to maintain law and order in their areas of jurisdiction.

Explain the functions of the Police force in Kenya.

  • Conducting driving tests to aspiring drivers.
  • Maintenance of law and order by arresting law breakers.
  • Inspection of vehicles to ensure that they have the necessary documentation.
  • Protection of life and property.
  • Mounting guards of honour for local and international dignitaries.
  • Detecting, investigating and preventing crime by arresting suspected criminals.
  • Release of detainees on bail or on Bond.
  • Prosecution of suspected criminals in courts of law.
  • Liaising with the International Police (Interpol) to prevent and combat international crime.
  • Control and entertainment of the public during national holidays and events.
  • Helping to curb cattle rustling and related livestock theft.
  • Provision of Emergency relief services during natural and other calamities.
  • Promptly obeying and executing all orders and warrants lawfully issued.
  • Apprehending all persons whom they are legally authorised to do so and for whose apprehension sufficient grounds exist.
  • What problems does the Kenya police encounter? (Describe/explain the challenges facing the Kenya Police. Or:
  • Identify the factors that undermine the work of the police force in Kenya). Ø Various factors undermine the work of the Police force in Kenya, such as:
  • Use of sophisticated equipment by criminals, which the police are unable to counter.
  • Poor and inadequate transport and communication facilities, causing delay in police response to emergencies.
  • Incompetence of some police officers due to recruitment and promotion of people with low academic qualifications as a result of nepotism and tribalism.
  • Poor remuneration as well as unfavourable working and living conditions.
  • Poor methods of investigation due to poor training and lack of forensic facilities, which have led to over-reliance on confessions, which are mostly obtained through trickery and torture.
  • Poor relationship between the police and the public, which denies the police the vital information they require.
  • Lack of transparency and accountability in the force, particularly when investigating crimes committed by fellow police officers apart from denying ordinary suspects a chance to defend themselves.
  • Lack of regular in-service training for the officers in lower cadres, which has frustrated their quest for promotion and lowered  their performance in public relations and human rights.
  • Political interference, characterised by blind loyalty of some officers to powers outside the service and the fact that certain criminals are given immunity by powerful politicians.
  • Lack of an information technology, causing the police to rely on outdated methods of recordkeeping, which culminates in cases of lost files.

The rise of terrorist activities, characterised by use of crude and indiscriminate methods by terrorists e.g. suicide bombings, which have left police forces all over the world bewildered.

Corruption, whereby most police officers have been accused of taking bribes.

High population in some areas, such as slums in the urban centres, which make police operations difficult.

Frequent road accidents and congestion on roads, which add pressure to the work of the police.

What measures has the Kenya government adopted to improve Police operations?

  • Introduction of professional training programs for officers.
  • Acquisition of modern communication equipment and vehicles.
  • Improvement in the terms and conditions of service for the police force.
  • Introduction of a Public Relations officer and a police-spokesman at the police-headquarters to coordinate and disseminate information affecting relations between the police and the public.
  • Introduction of Community policing, hotlines, suggestion-boxes and police-booths to help the police to get information from the public.
  • Raised (higher) qualification requirements for the police-force, whereby university graduates are now employed in the service.
  • Adoption of a five-year master-plan in 2003, aimed at reshaping and revamping the policeforce.
  • Change of name from the Kenya Police-Force to the Kenya Police Service.
  • Improved surveillance to deter crime and to protect individuals and property.

 

THE KENYA PRISONS

  • Describe two main classifications of prisons. (Into what two groups are prisons generally divided?)
  • Generally, prisons are grouped into:
  • Open (short-term) institutions, which hold prisoners that are convicted of less-serious crimes.
  • They have training programs in agriculture, keeping livestock, carpentry, tailoring and so on.
  • Closed (Long-term) institutions, which are for offenders convicted of serious offences, who are imprisoned for a long time in Maximum Security prisons.

Describe the categories of prisons in Kenya. (Describe the classes of prisons in Kenya).

  • Classes of prisons in Kenya include:
  • Principal institutions, which make up the highest level of prisons. They include Kamiti in Kiambu, King‟ong‟o in Nyeri and Naivasha Maximum Security prison in Naivasha.
  • District 1 and 2 Prisons. These are found in various districts. They hold offenders who have committed various crimes except capital offences.
  • Detention camps. These were created under the Detention Camps Act. They hold either vagrants or rural emigrants convicted of minor offences. Two major detention camps are:
  • Nairobi Detention camp and the Mombasa Detention camp.
  • Youth Institutions. These cater for offenders between 15-21 years of age. They are of two types: Borstal Institutions and Youth Corrective Training Centres.
  • Extramural Penal Employment. This caters for petty offenders as a Community-based approach of treating offenders who reside in their own homes but who report to the authorities to undertake communal government  activities such as building access-roads, reforestation or working on prison farms without pay. Such offenders do not mix with other criminals in prison, since they are not isolated from their homes.

State/explain the functions of the Kenya Prisons. (Discuss/analyse the role of the Kenya Prisons.).

confinement of prisoners convicted by the courts of law to protect public rights and freedoms.

Watching over the behaviour of suspected criminals whose cases are still pending in lawcourts.

  • Carrying out court-decisions on the treatment of prisoners.
  • Rehabilitation of prisoners through counselling to correct their behaviour.
  • Offering diverse vocational training to make prisoners productive after completing their jailterms.
  • Providing prisoners with the necessary medical attention and other care.
  • Helping in confining suspected dissidents, who are a threat to state-security.

What problems to the Kenya Prisons department face. (Describe the challenges/difficulties encountered by the Prisons department. Or:

  • Identify the factors that undermine the work of the Prisons Department in Kenya.)
  • Overcrowding in prisons, leading to subjection of inmates to poor living conditions, especially poor sanitation.
  • Disease outbreaks due to congestion and inadequate facilities.
  • Mistreatment of prisoners by prison warders.
  • Inadequate medical facilities.
  • Poor clothing.
  • The HIV-AIDS pandemic, which has affected many prisoners.
  • Poor conditions and lack of housing and other facilities for prison warders.

Explain the reforms adopted in the Kenya Prisons department. (Analyse/discuss the measures or reforms that have been undertaken to improve the conditions of the prisons and the prisoners in Kenya.)

  • Direct government involvement in the affairs of prisoners.
  • Provision of better food.
  • Improved medical services.
  • Release of Death-roll inmates, some of who had been in jail for over ten years awaiting execution.
  • Provision of sufficient clothing and beddings.
  • Reduction of congestion in prisons.
  • Efficient & better transport as new vehicles have been purchased.
  • Streamlining of the hearing of cases in order to shorten the period of keeping prisoners in remand before sentencing.
  • Change of name from the Kenya Prisons to the Prisons Service Department.
  • Adoption of the Convict Scheme, which allows petty offenders to serve in Community projects rather than get imprisoned.

 

THE JUDICIARY

What is the Judiciary?

  • The Judiciary is the arm of government that deals with administration of justice through the Court system.

It is headed by

Identify the officers that make up the Judiciary in Kenya.

The Chief Justice, who heads the Judiciary.

Judges, Magistrates, etc.

Define Law. (What is the meaning of the term Law?)

  • A law is a body of rules made by people in authority to govern the conduct of members of the state for the maintenance of peace and order. Laws are enforced by the courts, who punish offenders and compensate the offended.

Describe the sources of Kenyan laws. (Explain the origin of Kenya‟s judicial system.)

  • Customary law, which comprises African customs and applies only to civil cases such as marriage, land and inheritance.
  • Religion, i.e. belief systems such as Islamic law (Sharia), which provide moral guidance among people.
  • The British Common Law, which originated from England and consists of age-old customs and judicial decisions.
  • Legislation i.e. Acts of Parliament.
  • Judicial Precedents e.g. rulings by the court of Appeal, which become binding to all subordinate courts.
  • The Constitution, which contains fundamental (supreme) laws of the country. All other sources of law must be in conformity with the constitution (They must be constitutional).

What are the functions of the Judiciary in Kenya?

  • Guarding the constitution by ensuring that laws enacted by the Legislature conform to the constitution.
  • Settlement of legal disputes among individuals, or between individuals and the state.
  • Approval and recommendation of children to Approved Schools for rehabilitation.
  • Guaranteeing the rule of law by exercising justice as well as ensuring that all Kenyans are governed by the same law.
  • Appointing guardians or trustees of estates, particularly those of deceased persons.
  • Helping in the development of the law.
  • Swearing in the President and other members of the cabinet before they take up their offices. The task is accomplished through the Chief Justice, who heads the Judiciary.
  • Administration of justice.

Analyse the structure of Kenya’s court system. (Analyse the court system in Kenya).

  • The structure of the court system in Kenya is as follows, starting from the lowest to the highest level:
  • The District Magistrates Courts.
  • Kadhis‟ Courts, which are at the same level as the Resident Magistrates Courts, but they deal only with Islamic law.
  • The Resident Magistrates Court, which is the second lowest in the court system, but is the highest in the province.
  • The Senior Resident Magistrates Court.
  • The Principal Magistrates Court.
  • The Senior Principal Magistrates Court.
  • The Chief Magistrates Court. This is the highest Magistrates Court.

The High Court, to which all Magistrates and Kadhis’ courts are subordinate. It is headed by the Chief Justice.

The Court of Appeal. This is the highest court in the Judicial structure. It is also headed by the Chief Justice.

Special Courts & Tribunals. These are established by Acts of Parliament. They handle special issues, such as industrial disputes, disputes within the armed forces and disputes over house and business rent.

  • Basically, Kenya‟s Court-system comprises the Court of Appeal, the High Court, subordinate courts and Kadhis‟ courts.

Into what three categories are District Magistrates Courts divided?

  • District Magistrates Courts of the First Class,
  • District Magistrates Courts of the Second Class,
  • District Magistrates Courts of the Third Class (which are being phased out as no officer is appointed at their level today).

Identify two main classifications/types of Special Courts and Tribunals.

  • Court-Martial
  • Administrative Tribunals.

Identify the courts that fall under Special Courts and Tribunals. (Identify the divisions of Special Courts and Tribunals).

  • Anticorruption courts,
  • The Rent-Restriction tribunals,
  • The Business Premises Tribunals,
  • The Children’s courts,
  • Court Martial,
  • The Industrial Court,
  • The Law Society of Kenya,
  • The Public Law Institute,
  • The Law Commission.

Identify/outline administrative tribunals in Kenya.

  • Administrative tribunals in Kenya include:
  • The Law Society of Kenya,
  • The Public Law Institute,
  • The Law Commission.

State three considerations that are made when/in grading courts in Kenya. (What factors are considered when/in grading Kenyan courts?)

  • Kenyan courts are graded according to:
  • The seriousness of the cases they handle,
  • The punishment they give,
  • The geographical area of operation.

Discuss the functions of either:

  • The Chief Justice;
  • The Attorney General.

THE CHIEF JUSTICE

  • The Chief Justice is appointed by the President and is the Head of the Judiciary.

FUNCTIONS OF THE CHIEF JUSTICE

  • Prescription of fees to be charged by the courts.
  • Advisory role in the removal of the President on grounds of incapacity.
  • Heading the Kenyan Judiciary.
  • Swearing in the President and members of the cabinet.
  • Giving directives on administration of justice in the arbitration of disputes.
  • Possession of and exercising diverse discretionary powers whenever need arises.
  • Chairing the Judicial service Commission.
  • Exercising constitutional functions vested in the High court and in the Court of Appeal.

THE ATTORNEY GENERAL

  • Functions of the Attorney General include:
  • Advising the government on matters relating to law.
  • Appointment of public prosecutors as well as giving permission to prosecute on behalf of the government.
  • Drafting proposed government bills.
  • Protection of charitable endowments for public interest.
  • Assisting the President in pardoning any person convicted of an offence.
  • Advising the President on appointment of Judges of the High Court and Court of Appeal.
  • Heading the Attorney-General‟s chambers, which draft bills and register societies.
  • Handling matters concerning the Judiciary e.g. questions and budgets of the national Assembly.

Define the term Jurisdiction. (What is Jurisdiction?)

  • Jurisdiction is the right or power to administer justice or to apply law.

Explain the difference between original Jurisdiction and Appellate Jurisdiction.

  • Original Jurisdiction is the hearing of cases brought to a court for the first time.
  • Appellate Jurisdiction is the hearing of appeals brought from a lower court.

Compare and contrast courts in Kenya.

  • In Kenya, courts have either original or appellate jurisdiction.
  • While some courts can only work in and hear cases of specially defined areas such as a district, others have the power to hear cases from the entire country.
  • Some are courts of finality.
  • Each court has specific powers and functions.

Analyse Kenya’s Court Of Appeal.

  • The Court of Appeal was established after the collapse of the East African Community in 1977. It is the highest court in Kenya‟s Judicial system and is based in Nairobi. It is the final court, against whose ruling there is no further appeal. It comprises the Chief Justice and eleven other judges referred to as Judges of the Court Of Appeal.
  • The Court of Appeal is a superior court of records. Its decisions are binding as they can be referred to by lawyers in the lower courts and the High Court if necessary.
  • The Court of Appeal has only Appellate jurisdiction. It has no original jurisdiction except on an application for a Stay-Off Execution pending appeal to it or contempt proceedings.
  • The Internal jurisdiction of the Court of Appeal is unlimited. It even can punish for contempt of court.

Explain the powers of the Court Of Appeal in Kenya Kenya’s Court of Appeal has power to:

  • Determine a case finally.
  • Reward a case.
  • Assess issues and refer them for trial.
  • Take additional evidence or require such evidence to be taken by the court of first instance.
  • Order a new trial.

Explain how the Court of appeal works.

The Court of Appeal receives, hears and determines appeals from other courts, including the High Court of Kenya, but has no original jurisdiction.

  • Appeal to the Court of Appeal against Appellate decisions of the High court and civil matters are restricted. Most civil appeals are decided by the High Court.
  • The Court of Appeal cannot handle a case where the amount or value of the subject matter does not exceed 1000sh.
  • No appeal cases can be heard by the Court of Appeal directly from subordinate courts.

Describe the High Court of Kenya. 

  • The High Court is below the Court of Appeal.
  • It has unlimited original jurisdiction in civil and criminal matter.
  • It was established in 1897 as Her Majesty’s Court of East Africa.
  • In 1902, it became known as The High Court of the East African Protectorate and was based at Mombasa.
  • In 1921, a new supreme court was created and the headquarters of the court was moved to Nairobi.
  • In 1964, the Supreme Court was Renamed the High court of Kenya.
  • The High Court consists of the Chief Justice and up to fifty judges, all of who are appointed by the President. Although it is based in Nairobi, there are other stations in the provinces and districts in what is referred to as The Circuit System, where judges sit to hear cases. Such stations include Mombasa, Nakuru, Kisumu, Machakos, Kakamega, Nyeri, Eldoret and Meru.
  • When in session, the High Court is presided over by one judge, although two or more judges may try a case in civil cases or appeals.

What are the functions of the High Court in Kenya?

  • Interpretation of the constitution to determine whether the dispute is constitutional or not.
  • It tries both criminal and civil cases. It particularly handles cases involving large amounts of money.
  • Attending to cases from all parts of the country.
  • It has power to correct mistakes made by the lower courts.
  • Hearing appeals from decisions of professional disciplinary tribunals e.g. the Law Society of Kenya and the Kenya Medical and dentists Association.
  • Hearing appeals from the Kadhis‟ courts.
  • It acts as a court of appeal for cases from Resident and Chief Magistrates courts.
  • It deals with election petitions.
  • Describe/identify the court divisions that were created within the High Court as a result of the recommendation of the Kwach committee on the administration of justice in the Judiciary.
  • Following the findings of the Kwach Committee on the administration of justice in the judiciary, court divisions were created within the High Court. These are:
  • The Family Division, which covers matters of adoption, custody of children, matrimonial property, succession of property, divorce, separation, maintenance and other cases of Family Law.
  • The Commercial Division, which deals with registry of taxation. It handles matters involving banks, personal injury claims and employment contracts.
  • The Criminal Division, which deals with capital offences such as treason, murder, attempted murder, robbery with violence and attempted robbery with violence.
  • The Civil Division, which deals with civil matters, mainly issues involving public service.

What are Subordinate courts?

  • Subordinate courts are courts subordinate to the High Court.
  • Identify two categories of Subordinate Courts.
  • The Magistrates Courts;
  • The Kadhis‟ courts.
  • The process at these courts avoids the lengthy and complex procedure at the High Court.

There  Name/outline the classes into which subordinate courts are divided. (Identify the classes of Subordinate courts in Kenya.)

  • There are nine classes of subordinate courts. These are:
  • Chief Magistrates Courts.
  • Senior Principal Magistrates Courts. Ø Principal Magistrates Courts.
  • Senior Resident Magistrates Courts. Ø Resident Magistrates Courts.
  • Kadhis‟ Courts.
  • District Magistrates Courts of the First Class.
  • District Magistrates Courts of the Second Class.
  • District Magistrates Courts of the Third Class.

Explain how the Resident Magistrates courts operate/work.

  • The Resident Magistrates Courts have criminal jurisdiction, though a Magistrates Court of the First Class cannot impose a sentence in excess of seven years imprisonment or a 20,000sh fine or corporal punishment in excess of 24 strokes of the cane. This means that if the sentence has to be severe, the case should then be referred to the High Court for appropriate action.

Identify/outline the courts that fall under the Resident Magistrates courts. 

These comprise:

  • The Chief Magistrates court,
  • The Senior Principal Magistrates Court.
  • The Principal Magistrates Court.
  • The Senior Resident Magistrates Court.
  • The Resident Magistrates Court.

Analyse/describe:

  • The District Magistrates courts;
  • Kadhis‟ Courts.

Name the places where Kadhi Courts are found in Kenya.

THE DISTRICT MAGISTRATES COURTS

  • The District Magistrates courts were established under the Magistrates Courts Act.
  • They are the lowest courts in Kenya.
  • The jurisdiction of a District Magistrates court is limited to a specific geographical area. Because of this, the country is divided into Judicial Districts. Two or more administrative districts may be combined and designed as a single judicial district by the Chief Justice.
  • Each District Magistrates court of whatever class exercises jurisdiction within the district allocated to it. The power to commit for trial is given to and used by subordinate courts when a person is charged with an offence that can be tried only by the High Court or where a subordinate court before which the person is charged finds it unsuitable to try the offence. A good example of cases of this type is Murder. If there isn‟t enough evidence to justify sending the suspect to the High Court for trial, the Magistrate discharges the suspect.

KADHIS’ COURTS

  • Kadhis’ court-system started with the coming of the Arabs to Kenya around nine centuries ago. In 1890, the British government gave the Muslims in east Africa an official assurance that matters concerning their religion would be protected. This was confirmed in the 1895 and 1920 agreements between the British and the Sultan of Zanzibar.
  • Kadhis courts serve as special courts that deal with Islamic law. They are headed by the Chief Kadhi and not less than three other Kadhis. Today, there are twelve established Kadhis‟ courts, each of them subordinate to the High Court. A Kadhi is equivalent to a magistrate of the First and Second Class and should be proficient in Islamic law.
  • Kadhis‟ Courts are found across the country. In the former protectorate i.e. Kwale, Mombasa, Kilifi and Lamu districts, there are three Kadhis‟ courts. There are two Kadhis‟ courts covering the two administrative provinces of Nyanza and Western and nine other specified administrative districts in the Rift Valley Province. Wajir and Mandera are covered by Kadhis‟ Court while Nairobi, Central and Eastern provinces fall under other courts. There is one Kadhi for Garisa and Tana-River districts. Recently, five more Kadhis were appointed and posted to Hola, Bungoma, Kwale, Mandera and Nyeri.
  • A Kadhis‟ Court may be held at any place within its area of jurisdiction.

Describe the Children’s/juvenile courts.

  • They are subordinate courts.
  • They are presided over by magistrates.
  • They offer protection or discipline to juveniles.
  • Under what circumstances do Children‟s/juvenile courts offer protection or discipline to the child.
  • If the child has neither parent nor guardian.
  • If the child cannot be controlled by parents or guardians.
  • If the child has a parent or guardian who does not exercise proper care and guardianship or parentage.
  • If the child is falling in bad associations or is exposed to moral or physical danger.

State the powers of the Juvenile Court in Kenya.

  • The Children‟s court may:
  • Make and order absolute discharge.
  • Put the young person on probation.
  • Have the young person imprisoned, though this is
  • Order conditional discharge.
  • Commit the child to a person or body it deems fit.
  • Impose a fine on the offender or on their parent.
  • Authorise that the juvenile be subjected to corporal punishment.
  • Place the juvenile in a Remand home.

Describe the following legal institutions. (Explain how the following courts and tribunals work.)

  • Anticorruption courts;
  • Special courts and tribunals;
  • Court Martial;
  • The Industrial Court;
  • The Rent-Restriction Tribunal;
  • The Business Premises Tribunal;
  • The Law Society of Kenya;

ANTICORRUPTION COURTS

  • There also are anticorruption courts, which
  • These are created to try cases involving corrupt deals or persons.
  • They are administrative in nature.

SPECIAL COURTS AND TRIBUNALS

  • These are established by acts of parliament.
  • They handle special issues such as industrial disputes, disputes within the Armed forces and disputes over house and business rent.
  • They include court-Martial and Administrative tribunals.

COURT MARTIAL

  • These are convened by the Chief of General Staff and Commander of the Armed Forces.
  • They are Criminal courts in their own right, with totally penal or disciplinary powers.
  • They are meant to enforce and ensure discipline within the armed forces.
  • Their decisions cannot be appealed against in the High Court unless they involve constitutional issues.
  • They are established by Parliament through the Armed Forces Act. In Kenya, they were set up after the attempted coup of august 1982 to try soldiers of the Air-Force for their participation in unlawful activities.

ADMINISTRATIVE TRIBUNALS

  • An administrative tribunal is a body that is given the power of an administrative or QuasiJudicial nature.
  • Administrative tribunals are regarded as separate courts dealing with specific rights and duties.
  • They are referred to as Administrative Tribunals in order to differentiate them from judicial courts.
  • They are independent in their operation since they resolve specialized disputes without reference to the judicial courts.

THE INDUSTRIAL COURT

  • This is established by the provisions of the Trade-Disputes Act to give judgement in trade disputes between employers and employees and handle related issues.
  • It comprises a judge appointed by the President and four other members appointed by the Minister for Labour.
  • Its decision is final.

THE RENT-RESTRICTION TRIBUNAL

  • These mainly determine the reasonable rent for residential houses and impose some restriction on increasing such rent.
  • They settle disputes between landlords and tenants with respect to residential premises.
  • They safeguard the right to property.
  • They fix standard rents in relation to residential areas.

THE BUSINESS PREMISES TRIBUNAL

This deals with disputes between property-owners and tenants in controlled business premises.

  • It covers shops, retail and Wholesale stores and offices.
  • It sets out reasonable tenancy standards, ensuring that property owners do not charge excessively high rents for business premises.

THE LAW SOCIETY OF KENYA

  • This settles disputes among its members.
  • Through the Law Institute, it deals with Consumer and environmental protection and the legal advice and legal aid scheme.
  • Through the Law-reform Commission, it examines proposals for law reform, develops laws when necessary and can eliminate anomalies in laws and repeal outdated ones.
  • Outline the structure of the Judicial Service Commission. (Identify/name the officers that constitute/make up/form the Judicial Service Commission.)
  • The Judicial Service Commission is made up of:
  • The Chief Justice, who is its chairman.
  • The Attorney-General.
  • Two judges of appeal.
  • The Chairman of the Public Service Commission.

Identify the powers and functions of the Judicial Service Commission.

  • Appointment, discipline and removal of the Registrar or Deputy Registrar of the High Court, the Chief Magistrate, senior resident Magistrates or the District Magistrates, officers of subordinate courts exercising criminal jurisdiction, the Chief Kadhi and the Kadhis.
  • Advising on the appointment of judges of appeal.
  • The Commission‟s decision is arrived at by absolute majority consensus, not by voting.

What is Judicial Independence?

  • Judicial independence is the capacity of courts to perform their constitutional functions, free from actual or apparent dependence upon any persons or institutions, particularly the Executive and the Legislature.
  • In what two main ways is Judicial independence important? (Explain two main purposes/reasons for Judicial independence.)
  • The Independence of the Judiciary is intended to safeguard citizens from the abuse of power by the other arms of the government.
  • The legal system will question excessive use of power by the Legislature and the Executive, based on a system of Checks and Balances through separation of powers.

Explain how Judicial Independence is protected in Kenya.

  • Separation of the Judiciary from the other organs of the government.
  • The method of appointing judicial officers. They are appointed by the President, advised by the Chief Justice and the Judicial Service Commission.
  • The tenure of office for judges, which is longer than that of employees in the civil service.
  • Security of Tenure enjoyed by Judges i.e. it can be terminated only when unable to perform their duties, which makes them impartial.
  • The oath of allegiance, whereby appointees swear to perform duties without fear or favour.
  • The fact that judges and magistrates are not answerable to the Executive.
  • A separate system of command, whereby the Judiciary is headed by the Chief Justice, unlike government departments, which are headed by the Permanent secretary.

Identify the features of the rule of law.

The rule of law demands that all individuals are governed and their disputes settled with reference to laws enacted through legislative processes established by a constitution or the law as pronounced by a properly constituted court or tribunal.

FEATURES OF THE RULE OF LAW

  • Subjection of all persons to the law, be they individual or in government.
  • Equality of all before the law. The law does not discriminate in its application to persons.
  • Subjection of all to the same law, irrespective of their status, colour and religion. There can be no specific law for certain persons.
  • No person shall be a judge in their own case. A judge should not try a case in which he or she has a personal interest, no matter how remote the interest may be.

Explain the implications of the Rule of law.

  • Limited Legislative and Executive power.
  • Adequate and equal opportunities to access legal advice and assistance.
  • Protection of individual and group rights and liberties.
  • Equality before the law.

Describe the elements of the Rule of Law.

  • The concept of the rule of law has four major elements. These are:
  • The Principal of Legality. The state can only exercise powers granted to it by the law in order to promote a government of laws and not of men.
  • Separation of powers of the three arms of government, each equal with and controlling the others through a system of Checks and Balances.
  • Equality before the law, requiring equal treatment of everyone under the law.
  • Administration of justice without favour or the fear of intimidation.

State the principles of the Rule of Law.

  • The discretion of the Security Forces should not be allowed to pervert the law.
  • The independence of the Judiciary must be guaranteed.
  • The courts should be easily accessible.
  • The making of certain laws should be guided by open, stable, clear and general rules.
  • The principles of natural justice must be followed.
  • Laws should be relatively stable, not changing too often.
  • The courts should have powers to review the implementation of these principles.
  • All laws should be prospective and open. When a law is passed, it should only take effect in the future.

Explain the meaning of the term Natural Justice. (Explain the meaning of the concept of Natural Justice. Or:

Define the concept of Natural Justice.)

  • Natural Justice refers to the requirement that minimal standards of fair decision-making are at least adhered to in resolving disputes. It is such standards that are referred to as the rules of Natural Justice.

Name/identify two main principles of Natural Justice.

  • Natural Justice is based on two main principles. These are:
  • The right to a fair hearing.
  • The rule against bias.

Identify the considerations involved in the Right to a Fair hearing.

  • The person affected by an impending decision must have the right to a fair hearing prior to the decision being made. This right involves the following considerations:
  • Prior Notice of Hearing. The accused must be given adequate notice of all the allegations against him or her and of the procedure for determining the alleged breaches of the rules of conduct.
  • The right to be heard. The accused should be given the opportunity to be heard i.e. to state his or her case.
  • The conduct of a hearing. The accused should be allowed to consider, challenge or contradict any evidence.
  • The right to legal representation. The accused must be represented at the hearing by a legally qualified person.
  • The decision and the reason for it. The adjudicator should give reasons for his or her decision and the sanction being imposed as soon as possible. decision and the sanction being imposed as soon as possible.

Explain the meaning of the term Rule against Bias.

  • The person or body hearing the case should act in good faith and without bias/favouritism.

Explain how the Rule against Bias could be best applied.

  • Show a full enquiry into the circumstances involved before deciding as to whether a breach of the rule of conduct has occurred and what sanctions to impose.
  • Not suggesting irrevocable decision of the outcome prior to the commencement of the hearing.
  • A person must be presumed innocent until proved guilty by a court of law.
  • The police have no right to beat up the suspect. They only arrest and produce the suspect in court for trial.

Explain the challenges facing the Judiciary in Kenya today.

  • Too much interference from the Executive. Judges are appointed by the President. Presidential pronouncement in the cases pending in court can interfere with judgement and independence of the Judiciary.
  • Most Judges are corrupt and do not guarantee protection of the rights and freedom of the citizen. Rich people have influence in Court decisions.
  • Political interference. Politicians and students from higher institutions of learning have mobbed courts with a view to intimidate judicial officers and influence the due process of law.
  • Incompetent Judges. This attributed to flawed appointments and promotions, which are mostly based on tribal and political affiliation rather than merit. This is evident in poor and inconsistent judgements.
  • Few judicial officers in service. There are inadequate facilities e.g. equipment such as chairs, libraries, rooms, etc. This has created or caused the problem of chronic case backlogs.
  • Lack of funds. The courts depend on the government for funding. The funds are inadequate, which frustrates court operations.
  • There is need for judicial officers to take part in continuous legal education to keep them updated on latest developments in the law and its practices. Judges need to update themselves in information technology so as to enhance quick delivery of justice.
  • Ignorance on legal rights among the Kenyan public and lack of education on judicial affairs. Members of the public fear the courts. Besides, the language of law is complex to many Kenyans.
  • Information on the Judiciary has not been made available to the public. Litigation fees are also high, which further limits public access to the courts.

Explain the reforms in the Judiciary in Kenya.

  • Increased legal education given to judicial officers and members of the public. For instance, Kituo Cha Sheria releases information booklets and also offers free legal advice to people.
  • In the year 2002, the government improved the terms and conditions of service for judges and other officers.
  • In 2003, the government set up and mandated a committee to investigate the conduct of judges.
  • The government has recruited more legal officers to reduce the backlog of cases in courts.
  • The judiciary is more open to the public.
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