THE KENYAN CONSTITUTION AND ADMINISTRATIVE LAW

Constitution of Kenya

A constitution is a public document which regulates the relations between the state and its citizens as well as the relations between the organs of the state.

The constitution of country is considered the fundamental or basic law of the land and thus the constitution may be defined as “A body of principles and rules, written and unwritten, that enables people within the state to live together in order and harmony. It expresses the agreed content of the political system by prescribing the principles and the basic structure upon which the system is founded and setting out the rules and procedures for setting differences without resources to force or violence.

According to Lord Bryce the constitution “consists of those rules and laws which determined the form of its government and the respective rights and duties of the government towards the citizens and of the citizens towards the government.”

Nature and the Scope of the Kenyan constitution

  • The constitution of Kenya was enacted on the 12th Dec 1963.
  • It was amended on the 12th Dec 1964, in order to establish a republic with a president as the Head of state.
  • The further amendments were included in a constitution of Kenya act in 1969.
  • Since 1969 some more amendments have been made in Kenyan constitutions which are included in the annually revised editions of the volumes of the laws of Kenya.
  • The section 47 of Kenyan constitution empowers parliament to make amendments by the votes of not less 65% of all the members of National Assembly which also requires the accent of the president.
  • The Kenyan constitution is quite long and consists of 128 sections.

The Kenya constitution contains the following parts.

CHAPTER                                                       CONTENT

I                                                                      The Republic of Kenya

II                                                                      The Executive

III                                                                      The Parliament

IV                                                                      The Judicature

V                                                                      The protection of Fundamental rights and

Freedoms of the individuals.

VI                                                                       The citizenship of a country

VII                                                                      The Finance

VIII                                                                    The Public service

IX                                                                       The Trust Fund

X                                                                       The General

XI                                                                      The Transitory

 

The constitution of Kenya is that source of law from which all other laws derived their validity. Thus any law that conflicts with the constitution is void or invalid.

In Kenya, this is not exception; the constitution of Kenya sets unity and guidelines on how the country on how the country is to be governed and lays down the guiding principles on the laws of the land e.g.

  • Selection of three of the Kenyan constitution states that any law which contradicts the constitution is void.
  • This therefore means that all other laws of the land have to be based on and support the provisions of the constitution.

The Executive

It is the arm of government which deals with the execution or implementation of laws made by the legislature; it consists of president, vice president, cabinet and civil servant.

Roles of Executive

The handle the general administration of the country including internal and external affair.

Roles of president

Head of state

Head of government

Chairing cabinet meeting

Legislative power

Commander in chief

Judicial power

Emergency power

Presiding over national holiday

The judiciary

Is one of the three organs of government; it consists of the judge, magistrate and other officers of superior and sub ordinates courts.

Functions of the Judiciary

  1. Settles legal disputes among individuals or between individuals and the state.
  2. It guarantees the rules of law (which stipulates that all Kenyan are governed by the same land) by exercising justice.
  3. Help in the development of laws.
  4. It administers justice.
  5. It is guardian of our constitution.
  6. The legal system arrange for the administration of the estate of deceased person by appointing guardians or trustees of estates.

The Legislature

This is also referred to as parliament and is the law making organ in Kenya.

It comprises in National Assembly and the president.

Functions of Legislature

  1. Legislative functions Control of revenue and expenditure
  2. Terminative roles
  3. Check on executive and judiciary
  4. Control of revenue and expenditure
  5. Bridge between people and the judiciary
  6. Creation of statutory bodies
  7. Shaping political leadership
  8. Promotion of good governance
  9. Election of the speaker
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