THE RULE OF LAW AND HUMAN RIGHTS: A CASE STUDY

OF KENYA

BY

OTIENDE AMOLLO*

A PAPER PRESENTED TO THE LAW SOCIETY OF

ZIMBABWE DURING THE WALTER KAMBA RULE OF LAW

DAY

IN

HARARE ZIMBABWE,

06TH

DECEMBER, 2012

*CMMR. OTIENDE AMOLLO, EBS, LL.B, LL.M, Advocate, Chairperson Commission on

Administrative Justice /Ombudsman, Chair of the Forum of Chairpersons of Constitutional

Commissions and Independent Office Holders, and former Member of the Committee of Experts

on Constitutional Review of the Republic of Kenya.

1.0 INTRODUCTION

It gives me great pleasure to join you today as the Keynote Speaker on

this occasion to share my perspective on the rule of law and human rights

two concepts that are dear to me and indeed all of us as lawyers. I wish

to take this opportunity to thank and commend the Zimbabwe Law

Society for organizing this Forum and invit ing me to be the Keynote

Speaker. I have noted from the concept note that the Society has had

this event for the past two years where outstanding members of the Legal

Profession have been honoured.

It is now universally accepted that the rule of law and respect for human

rights are indicators of good governance and form the foundation of a

civilized society. They provide the foundation upon which the values, and

substantive standards and processes of governance are based. Their

benefits are enormous as evidenced in their global adoption and

operationalizat ion. These concepts have crystallized in many countries,

Kenya and Zimbabwe included, through the express acknowledgement

in the Const itut ion. Governance practit ioners are unanimous that their

inclusion in the Const itut ion is in itself a manifestat ion of their importance in

modern society, even if in principle only. While these concepts exist in

some of the international and regional legal instruments as well as the

national const itut ions, there st ill remains a significant gap in relat ion to

their realizat ion. In all these cases, the Judiciary and the Legal Profession

play an important role; an unparalleled role in ensuring a comprehensive

framework of the rule of law and human rights in the legal system, and

further securing their realisat ion. This Paper seeks to examine the concepts

of the rule of law and human rights with a brief discussion of the theory

and practice in Kenya.

2.0 THE CONCEPT OF THE RULE OF LAW

The concept of the rule of law is one of the primary principles that

underpin good governance. It is a legal principle that posits that matters

of governance have to be based on established laws and principles

rather than the personal whims of the governors. The concept is believed

to have originated during the era of Aristot le with his extensive writ ings on

the subject.1 In one of his writ ings, Aristot le had underscored the

importance of the concept by stat ing that the rule of law is better than

that of any individual. The concept was further championed during the

period of enlightment by philosophers such as Hobbes, Locke, Rousseau,

Montesquieu, Kant and Hegel among others.2 Indeed, the essence of this

concept is evident in the case of Proclamations by Lord Just ice Coke

when he stated that the King himself ought not to be subject to man, but

subject to God and the law, because the law makes him King.3

In spite of the writings of the early scholars, the concept of the rule of law

as known today can be attributed to the 19th Century by Brit ish Jurist and

Const itut ional Scholar A.V. Dicey. Dicey had examined the English

Const itut ion and found the concept of the rule of law as a central

feature.4 His exposit ion were to be recorded in his book, An Int roduction to

the St udy of the Law of the Const it ut ion, published in 1885, where he

argued that the concept entailed three main connotations. In the first

place, the concept meant that no man could be lawfully made to suffer

in body or in goods except for a dist inct breach of law established in the

ordinary legal manner before the ordinary courts of the land. This

postulat ion largely reflected the Magna Carter, which had been

promulgated earlier and which provided that:5

No free man shall be seized or imprisoned, or stripped of his rights or

possessions, or outlawed or exiled, or deprived of his standing in any other

way, nor will we proceed with force against him, or send others to do so,

except by the lawful judgment of his equals or by the law of the land.

Diceys second connotation was that the concept meant that no man is

above the law and that every man, irrespective of his rank or condit ion, is

subject to the law of the state and amenable to the jurisdict ion of

ordinary tribunals. The third meaning ascribed to the concept by Dicey

1 SA de Smith The New Commonwealth and its Constitutions (1964) 635 cited in J

Hatchard et al Comparative Constitutionalism and Good Governance in the

Commonwealth: An Eastern and Southern African Perspective (2004). 2 De Smith (No. 1 above). 3 (1610) 77 ER, 1352, cited in AJ Osogo, Oval Slides in Triangular Spaces? Anchoring

National Human Rights Institutions in Tripartite Commonwealth Africa, (2006), LLM Dissertation, University of Pretoria, 2006.

4 A.V. Dicey, An Introduction to the Study of the Law of the Constitution 1885, 23. 5 Magna Carter ch 39 in H Marsh, British Documents of Liberty (1971) 44-47.

was to be found in the English tradit ions, courts as well as the written

const itutions elsewhere as the basis for governing by those exercising

power on behalf of the populace. Having conceptualized the doctrine,

Dicey praised the concept as exemplified by the English Const itut ion, as a

sound concept and ordained it the dist inguishing character of English

const itutionalism. He stated that:

Foreign observers of English manners, such for example as Voltaire, De

Lolme, de Tocqueville, or Gneist, have been far more struck than have

Englishmen themselves with the fact that England is a country governed,

as is scarcely any other part of Europe, under the rule of law

In as much as there have been varied interpretations of this concept,

there is unanimity that it is a key element of const itutionalism that entails

amenability of all persons to the law and control of arbitrariness in exercise

of governmental power. In its most basic form, the rule of law refers to the

supremacy of the law and equality of all before the law. The hallmarks of

the rule of law include separation of powers, regular, free and fair

elections, independent and impart ial judiciary, independent, fearless and

vibrant legal profession, free and independent media and equality of the

people before the law.

The concept was later adopted by the Charter of the United Nations and

other subsequent international human rights legal instruments.6 The

International Bar Associat ion has identified twelve requirements of the

concept of the rule of law:

i) there must be laws prohibit ing and protecting against private

violence and coercion, general lawlessness and anarchy;

ii) the government must be bound by the same laws that bind the

individual;

iii) the law must possess characterist ics of certainty, generality and

equality;

iv) the law must be and remain reasonably in accordance with

informed public opinion and there must be some mechanism for

ensuring that;

6 Preamble of the Charter of the United Nations of 1945, Preamble of the Universal

Declaration of Human Rights (UDHR) of 1948, International Covenant on Civil and

Political Rights (ICCPR) of 1966 and the International Covenant on Economic, Social

and Cultural Rights (ICESCR) of 1966.

v) there must be inst itut ions and procedures that are capable of

speedily enforcing the law;

vi) there must be effective procedures and inst itut ions to ensure that

government action is in accordance with the law;

vii) there must be an independent judiciary;

viii) a system of legal representation is required, preferably by an

organized and independent legal profession;

ix) the principles of natural just ice (or procedural fairness) must be

obeyed in all hearings;

x) the courts must be accessible (without long delays and high costs);

xi) enforcement of the law must be impart ial and honest; and

xii) there must be an enlightened public opinion.

3.0 THE CONCEPT OF HUMAN RIGHTS

The foundation of human rights can be traced to many centuries back

and predates the polit ical society.7 Although, there has never been

consensus on the meaning of human rights, there is unanimity that human

rights are inherent to every individual. They are recognized legit imate

claims of individuals, which the society is legally and morally obligated to

respect, ensure, and realize.

Throughout the evolut ionary history of human rights, three aspects of

human existence have sought to be safeguarded: human integrity,

freedom and equality, all of which are premised on the respect for the

dignity of the individual.8 The concept has crystallized globally through

codification as recognit ion of the inherent nature of human rights. Indeed,

within the municipal legal systems, the concept has been captured as

sovereignty of the people in the various const itut ions, meaning that the

people should not be subordinated to anyone except themselves.

The Universal Declarat ion of Human Rights captures the philosophy of

human rights by proclaiming that all human beings are born free and

equal in dignity and rights. This philosophy was adopted in the

subsequent human rights instruments, mainly the ICCPR, ECSCR and

7 T, Buergental, International Human Rights, West Publishing Co. 1995, p.3-5. 8 A Eide Economic, Social and Cultural Rights as Human Rights in A Eide et al (eds)

Economic, Social and Cultural Rights: A Textbook (1995) 24.

ACHPR.9 These instruments set the basic standard regarding the rights of

individuals and the obligations of states to promote and respect human

rights.

Human rights have been broadly categorized into three art ificial

categories, commonly referred to as three generations of human rights.

These are the civil and polit ical right s (First Generation), economic, social

and cult ural rights (Second Generation) and collect ive right s (Third

Generation). However, the categorizat ion of human rights was

demyst ified during the Vienna World Conference on Human Rights in

1993, which declared that human rights are universal, indivisible, inter-

dependent and interrelated.10

It is instruct ive to note that the concept of human rights is closely related

to the concepts of democracy and good governance. Respect for

human rights and fundamental freedoms is taken as an important

element of democracy.11

4.0 THE CONCEPT OF INDEPENDENCE OF THE JUDICIARY

The role of the Judiciary in the promotion and protection of the rule of law

and human rights cannot be overemphasized. In the configurat ion of

government, the Judiciary naturally plays the role of the custodian of the

rule of law and respect for human rights. Put different ly, the Judiciary is the

bast ion of const itut ionalism and good governance. The primary role of the

Judiciary is to independently and impart ially administer just ice in society.

However, the effectiveness of the Judiciary in discharging its mandate is

invariably founded on the substantive and procedural independence

granted to it . As noted by the Special Rapporteur on the Independence

of Judges and Lawyers:12

9 Buergental, (No. 7 above), p.28. 10 Vienna Declaration and Programme of Action, World Conference on Human Rights,

Vienna U.N. Doc. A/CONF.157/24 (Part I) at 20 (1993) para. 5. 11 UNGA Resolution 2000/47. 12 P, Cumaraswamy, The Independence of the Judiciary: A Human Rights Priority

United Nations Background Note, 1996. The concept as enunciated by various legal

instruments and extant literature, requires States to establish independent and

impartial tribunals to give effective remedies for the realisation of human rights. See,

for instance, Articles 8 and 10 of UDHR, Article 14 of ICCPR, Article 26 of ACHPR, Article

An independent judicial system is the constitutional guarantee of all

human rights. The right to such a system is the right that protects all other

human rights. Realisation of this right is a sine qua non for the realisation of

all other rights.

However, it is important to note that judicial independence goes beyond

the substantive and procedural independence to include the

independence of mind of the presiding judicial officers. The

independence of mind invariably means that judicial officers must have

grounded knowledge on const itutionalism to enable them make

appropriate decisions on matters before them. A lack of grounding may

be fatal as was clearly stated by Simmons that:

[T]he efficacy of legal and constitutional protection is limited. And

however much the law may seek to insulate a judicial officer from

pressure or influence, ultimately judicial independence can only be

guaranteed by the character, personal integrity and responsible

professional conduct of the judicial officer.13

5.0 THE ROLE OF THE LEGAL PROFESSION IN THE PROMOTION OF THE RULE OF

LAW AND HUMAN RIGHTS

The Legal Profession plays a crit ical role in ensuring the rule of law and

promotion of human rights. This is usually achieved in an environment

where the Judiciary is independent and impart ial and the Legal Profession

is independent and proactive to part icipate in matters of public interest

without any fear or favour. In order to achieve this, they must be willing to

represent any party in judicial proceedings, init iate programmes including

policy, legal and administrat ive proposals to promote the rule of law and

promotion of human rights. The role of lawyers is aptly captured thus:14

1 of the Universal Charter of the Judge, 1999 and the Bangalore Principle on Judicial

Conduct, 2002. 13 D, Simmons, Issues of Judicial Independence in the Caribbean Court Room (2001) 14

Journal of the Commonwealth Magistrates and Judges Association 8. The concept of

judicial independence is conceptualised to include the freedom of a judicial officer

from the influence of superior judicial authorities and the officers peers. 14 Law Commission of India, One Hundred Third First Report on the Role of the Legal

Profession in Administration of Justice, 1988.

In democratic societies, lawyers surely fill an important role that no other

professional fills: the lawyer is the guardian of the rule of law...In emerging

democracies, this role is especially important for lawyers, who have the

potential to become the great levelers between the powerful and the less

so.

Similarly, the ABA has aptly described the role of the lawyer as follows:15

As advisor, a lawyer provides a client with an informed understanding of

the clients legal rights and obligations and explains their practical

implications. As advocate, a lawyer zealously asserts the clients position

under the rules of the adversary system. As a public citizen, a lawyer

should seek improvement of the law, access to the legal system, the

administration of justice...and further the publics understanding of and

confidence in the rule of law and the justice system. A lawyer should be

mindful of deficiencies in the administration of justice. Lawyers play a vital

role in the preservation of society. The fulfillment of this role requires an

understanding by lawyers of their relationship to our legal system.

The role of lawyers was further captured by Alexis De Tocqueville who

stated in relat ion to the United States of America that:16

When one visits Americans and when one studies their laws, one sees that

the authority they have given to lawyers and the influence that they have

allowed them to have in the Government form the most powerful barrier

today against the lapses of democracy.

Given the foregoing, some thought provoking quest ions one may ask

include, to what extent are the Judiciaries in our countries independent?

Are the legal and inst itutional frameworks conducive for the Judiciary and

the Legal Profession to operate effectively? To what extent is the Legal

Profession free from interference to ensure rule of law in society? How

effective have we been in discharging our legal mandate? Is the Legal

Profession a captive of its own making?

15 The American Bar Association, Model Rules of Professional Conduct: Preamble and

Scope. Available at www.americanbar.org. 16 A. De Tocqueville in KM Sullivan, The Good that Lawyers Do, (2000), Journal of Law

and Policy, Volume 4, 7.

6.0 THE RULE OF LAW AND HUMAN RIGHTS: THE FRAMEWORK AND PRACTICE

IN KENYA

Having discussed the conceptual framework and scope of the concepts

of the rule of law and human rights, this Paper now turns to the practical

experiences of implementation of these concepts in Kenya wit h a special

focus on the Kenyan Judiciary.

6.1 THE PRE-ADOPTION PERIOD OF THE NEW CONSTITUTION IN AUGUST 2010

Kenyas post -independence record in relat ion to the rule of law and

human rights was varied. Like other African countries, Kenya experienced

democracy deficits during the period after independence mainly

occasioned by const itut ional amendments that concentrated state

power in the core executive and weakened other state inst itutions. The

upshot was democratic regression which facilitated autocracy,

patrimonialism, state capture, corruption, violat ions of human rights,

deference of state inst itut ions to the Executive, disregard of the rule of law

and, above all, the creation of a criminal state. The Legal Profession and

the Judiciary were not spared. Their members were always harassed for

making decisions that were deemed unfavourable to the Executive or

agitat ing for democratic changes. For instance, judicial officers who

made decisions deemed unfavourable to the Executive were transferred

to other stations and ultimately in 1988 their security of tenure was

removed. Similarly, lawyers who defended individuals accused of polit ical

detainees were always harassed and even detained.

The role and authority of the Judiciary declined and in some cases

usurped by other ent ities mainly the ruling party, the Kenya National

African Union. As has been stated by a commentator, the subordination

of the Judiciary not only undermined its development, but also exposed it

to polit ical patronage taking the form of opaque polit ical appointments;

nepotism, favorit ism and tribalism in appointments and promotions; and

subservience by some judicial officers.17 The Judiciary, for instance, failed

to enforce the Bill of Rights on the grounds that the Chief Just ice had not

developed Regulat ions as envisaged under Section 84(6) of the repealed

Const itut ion;18 failed to secure the right of the accused persons to be

provided with reasons for detention;19 and incorrectly stated that the

operations of the ruling party could only be handled by the party itself.20

However, as noted by Brown, the period after 1991 witnessed remarkable

shift from autocracy to transit ion towards democracy with Parliament and

the Judiciary beginning to assert their independence and authority.21 In

spite of the decisions, the Judiciary st ill had challenges that could only be

addressed through radical changes. The Chief Just ice aptly captured the

state of the Judiciary as at the t ime of assumption of office in June 2011

thus:22

We found an institution so frail in its structures; so thin on resources; so low

on its confidence; so deficient in integrity; so weak in its public support

that to have expected it to deliver justice was to be wildly optimistic. We

found a Judiciary that was designed to fail. The institutional structure was

such that the Office of the Chief Justice operated as a judicial monarch

supported by the Registrar of the High Court. Power and authority were

17

O. Amollo, Processes and Procedures for Strengthening the Efficiency of the Justice

Delivery System Through Judicial Reforms: The Case of Kenya, A Paper Presented to the SADC Law Association Conference in Swaziland on 24th August 2012.

18 Gibson Kamau Kuria vs Attorney General, High Court Misc. Case No. 550 of 1988,

Maina Mbacha and 2 Others vs Attorney General, High Court Misc. Application No.

356 of 1989. 19 Ooko vs Republic, High Court Civil Case No. 1159 of 1966 20 George Anyona vs Republic, Nairobi Law Monthly, 1991. It is, however, important to

note that there were some isolated cases where the Judiciary remained steadfast

and interpreted the Constitution purposively. Some of these cases included the

Margaret Magiri Ngui vs Republic, Criminal Application No. 59 of 1985, High Court,

Nairobi; and Stanley Munga Githunguri vs Republic, High Court Criminal Appeal No.

271 of 285. 21 See S, Brown Theorizing Kenyas Protracted Transition to Democracy (2004) 22

Journal of Contemporary African Studies 325. The Judiciary also made landmark

decisions that upheld the rule of law and kept the Executive under checks. For

instance, in the case of Job Nyasimi Momanyi and 2 Others vs the Attorney General

and Another (2009) eKLR, the High Court stated that it was unconstitutional for the

Executive to create districts without due regard to the law. 22 W. Mutunga, Progress Report on the Transformation of the Judiciary: The First Hundred

and Twenty Days, 19th October 2011.

highly centralized. Accountability mechanisms were weak and reporting

requirements absent.

In spite of the posit ive changes, there was unanimity among stakeholders

that Kenya needed a new Const itution to provide a framework for

societal t ransformation. This led to the agitation for Const itut ional Review

which was eventually realized in August 2010, mainly given impetus by the

events following the General Elect ions of 2007 where over 1,300 lost their

lives, over 600,000 displaced and massive destruct ion of property.

6.2 THE POST-ADOPTION PERIOD OF THE NEW CONSTITUTION IN AUGUST

2010

The post-election violence of December 2007 to February 2008 following

the mismanaged General Elect ions in Kenya created the impetus and

urgency for the re-examination of Kenyas governance system. Some of

the primary reasons for the post -election violence were the highly

concentrated state power in the core executive, weak state inst itut ions

such as the Judiciary, widespread tribalism and the widespread culture of

impunity. There was a general consensus among all stakeholders that

Kenya needed a new governance framework to address her myriad

challenges. This was eventually realized in August 2010 when Kenyans

overwhelmingly adopted a new Const itut ion through a Referendum.23

Although a number of mechanisms exist to enhance the rule of law and

human rights in Kenya, the Const itut ion is the most important of them all.

Accordingly, the subsequent part of this Paper will largely focus on the

Const itut ional framework on the two concepts.

The Const itut ion marked a turning point in the history of Kenya and

radically t ransformed the governance structure and relat ions in the

country. It also crystallized const itutionalism and re-engineered the

polit ical, legal, social, economic and administrat ive structures and

processes in Kenya thereby promoting the rule of law. In part icular, the

Const itut ion has enhanced the rule of law and human rights in Kenya in

the following ways:

23 There had been a number of amendments to the Constitution prior to the adoption of

the Constitution in August 2010, which expanded the democratic space in the

country.

6.2.1 Recognition of the Sovereignty of the People

The Const itut ion creates a paradigm shift in governance by recognizing

the sovereignty of the people of Kenya and their right to self-

determination. This is captured in the Preamble and Chapter One of the

Const itut ion. Art icle 1(1) of the Const itution, for instance, provides that all

sovereign power belongs to the people of Kenya and shall be exercised in

accordance with this Const itut ion. In order to give effect to this principle,

the Const itut ion provides for its supremacy and binding nature on all

persons and State Organs at both the National and County levels of

Government and requires them to respect, uphold and defend the

Const itut ion. It has an obligation further provides that everybody in Kenya

has an obligation to respect, uphold and defend the Const itut ion. These

safeguards are important for the rule of law in that they serve as reminders

to everybody, part icularly, those entrusted with power that sovereign

power belongs not to them, but to the people.

6.2.2 Prescription of National Values and Principles of Governance

The Const itution provides for national values and aspirat ions of the

Kenyan Society in its Preamble as a Government based on the essential

values of human rights, equality, freedom, democracy, social just ice and

the rule of law. A comprehensive prescript ion of the national values and

principles of governance are to be found in Art icle 10 and includes

sharing and devolut ion of power, the rule of law, democracy,

part icipation of the people, human dignity, equity, social just ice,

inclusiveness, equality, human rights, non-discrimination, protection of the

marginalized, good governance, integrity, t ransparency, accountability

and sustainable development. According to this Art icle, these values and

principles bind all State Organs, State Officers, Public Officers and all

persons in Kenya, as was emphasized in the Centre for Rights Education

and Awareness (CREAW) and 8 Others vs Attorney General and Another,

where the High Court declared unconst itut ional the President's

appointment of County Commissioners for breaching the national values

among other grounds.24

24 (2012) eKLR, HCC (Nairobi) Petition Nos.207 & 208 of 2012. The national values and

principles of governance form part of the substantive part of the Constitution of Kenya

and all State Organs and persons are bound by them. This is in contrast to the

infamous decision of the Supreme Court of Ghana in the Re Akoto Case (1961) GLR

6.2.3 Re-Configuration of the Architecture of Government

The Const itut ion addresses the perennial bad governance that has

impeded national development and the enjoyment of rights and

performance of dut ies. It brings fundamental changes to the three arms

of Government and prescribes their functions, and principles of

governance and separation of powers among the State Organs to

facilitate const itutionalism. This is further buttressed by the decentralizat ion

system in the form of county governments that not only enhances

democratic governance, but also public part icipation in governmental

matters.

6.2.4 Prescription of Tenets of Leadership and Integrity

One of the significant prescript ions of the Const itut ion is the leadership

and integrity requirements for State and Public Officers. The Const itut ion

lays the foundation for t ransformative and servant leadership that

conforms to the tenets of integrity and good governance. It is worth of

not ing that Chapter Six on Leadership and Integrity is at the heart of the

Const itut ion and is one of the disqualifying grounds to appointment,

election or holding of State or Public Office. The need for this kind of

leadership was borne out the historical leadership failures that had

bedeviled Kenya, and the need for accountability and respect for civil

libert ies. It also requires objectivity and impartiality in decision making,

accountability to the public, integrity in public administrat ion, discipline,

commitment in service and corruption free-service. Art icle 73, for instance,

states that the authority assigned to a state officer is a public trust that

should be exercised in a manner that is consistent with the Const itut ion;

demonstrates respect for the people; brings honour to the nation and

dignity to the office; and promotes public confidence in the integrity of

the office. Furthermore, such authority vests the responsibility to serve the

people, rather than power to rule them. The contents of this Chapter of

the Const itution have already been tested in the case of Trusted Society

of Human Rights Alliance vs Attorney General and 2 Others, where the

Part II, 523, where the Court supported the emasculation of the Constitution by the

Executive since, according to the Court, the values and principles were not binding,

but merely statements of aspirations of the citizens of Ghana.

High Court annulled the appointment of the Chairperson of the Ethics and

Anti-Corruption Commission. The Court stated thus:25

In our view, it would be constitutional mockery to sanitize an appointment

process merely on the ground that it went through the procedural hoops

if, in fact, it turns out that the organs charged with the task of

appointment were merely going through the procedural motions. That

would be to empty the Constitution of its meaning and intent when it

bequeaths the appointment task to a government organ and lays down

an appointment procedure which is aimed at fulfilling the constitutional

objectivesKenyans were singularly desirous of cleaning up our politics

and governance structures by insisting on high standards of personal

integrity among those seeking to govern us or hold public officeThe

people of Kenya did not intend that these provisions on integrity and

suitability for public offices be merely suggestions, superfluous or

ornamental; they did not intend to include these provisions as lofty

aspirations. Kenyans intended that the provisions on integrity and

suitability for office for public and State offices should have substantive

bite. In short, the people of Kenya intended that the provisions on integrity

of our leaders and public officers will be enforced and implemented.

The Leadership and Integrity Chapter of the Const itut ion is also the subject

of another case in the High Court that seeks to bar certain presidential

candidates from standing for the Office of the President on account of

their charges at the International Criminal Court for their alleged

involvement in the violence following the General Elect ions of December

2007.26

6.2.5 Prescription of Broad Bill of Rights

One of the dist inguishing features of the Const itut ion is the prescript ion of

a broad range of rights and freedoms in the Bill of Rights Chapter, which is

an entrenched part of the Const itution. The Bill of Rights includes all the

three generations of rights civil and polit ical rights; economic, social and

cultural rights; and group or collect ive rights. The scope of the rights and

freedoms is not limited to the prescript ion in the Const itution; by virtue of

Article 2(5&6) and 19(3)(b), it includes other rights and freedoms

recognized in law as long as they are consistent with the Const itut ion. The

25High Court Petition No. 229 of 2012 26

Const itut ion requires the State, all State Organs and other persons to

observe, respect, protect, promote and fulfill the rights and freedoms in

the Bill of Rights. In order to ensure full enforcement of the Bill of Rights, the

Const itut ion has significantly whittled away the requirement of locus

st andi for inst ituting court proceedings in case of a violat ion or threat of

violat ion the rights or freedoms.27 Furthermore, the Kenya National Human

Rights and Equality Commission has been established to ensure

implementation of the Bill of Rights.28

6.2.6 Facilitation of Public Participation in Governance

Public part icipation is an important element of governance. Governance

practit ioners the world over are unanimous that one of the ways of

improving governance is through public part icipation. The purpose of

public part icipation is to facilitate the involvement of those potentially

affected by or interested in a decision. Persons affected by a decision

have a right to be involved in the process leading to the decision. It is in

this regard that the Const itut ion extensively inst itut ionalizes public

part icipation in the governance process in Kenya. Some of these

provisions include sovereignty of the people, national values and

principles of governance, right of access to information, public access

and part icipation in parliamentary proceedings, right to petit ion

Parliament, Executive authority, Judicial authority, alternative forms of

dispute resolut ion mechanisms including tradit ional resolut ion

mechanisms, devolut ion, part icipation in affairs of County Governments,

part icipation in public finance, and values and principles of public

service29 and Art icles on appointment of individuals into state offices.

6.2.7 Establishment and Strengthening of Institutions Supporting Good

Governance

One of the fundamental features of the Const itut ion is the establishment

of inst itutions support ing good governance under Chapter Fifteen t o

buttress the tripart ite configurat ion of Government and enhance

27 Article 22 of the Constitution of the Republic of Kenya. 28 In accordance with Article 59(4) of the Constitution, the Kenya National Human Rights

and Equality Commission has been restructured into three separate Commissions, that

is, the Kenya National Commission on Human Rights, the Commission on

Administrative Justice and the National Gender and Equality Commission. 29 Articles 1, 10, 35, 118,119, 129, 159(1), 159(2), 174, 196, 201 and 232 respectively of the

Constitution.

transparency and the rule of law. The inst itutions listed under that Chapter

are Const itut ional Commissions and Independent Offices.30 The primary

aim of these bodies is to safeguard public interest by protecting the

sovereignty of Kenyans, promoting const itut ionalism and securing the

observance of democratic values and principles. These bodies have

already begun to shape and influence the implementation of the various

aspects of the Const itution including the rule of law and the Bill of Rights.

For instance, the Commission on Administrative Just ice (Office of the

Ombudsman) has already issued advisories on various issues that touch on

the rule of law, involved in human rights protection and adjudication

(lit igation) on issues of national importance.31 The Commission has also

been vocal on the need to vet individuals seeking elective offices to

ensure that they comply with the const itutional provisions on leadership

and integrity.

6.2.8 Re-Engineering of Institutions on Administration of Justice

As has been stated elsewhere in this Paper, some of the main reasons why

Kenyans agitated for a new const itut ional framework included the culture

of impunity and the weak inst itut ions of governance that were unable to

enforce the law. One area where this was felt most was that of

administrat ion of just ice. As stated by Thomson in his seminal discourse, An

Introduction t o African Polit ics, the inst itut ions in the administrat ion of

just ice in Kenya had been weakened to an extent that, by and large,

they were serving the interests of the Executive, other than the public.32

30 The Constitutional Commissions are the Commission on Administrative Justice,

Commission for the Implementation of the Constitution, Ethics and Anti -Corruption

Commission, Public Service Commission, National Gender and Equality Commission,

Kenya National Commission on Human Rights, Commission on Revenue Allocation,

Salaries and Remuneration Commission, National Police Service Commission, National

Land Commission, Teachers Service Commission, Independent Electoral and

Boundaries Commission, Parliamentary Service Commission and Judicial Service

Commission. The Constitutional Independent Offices are the Office of the Attorney

General, Office of the Director of Public Prosecutions, Auditor General and Controller

of Budget. 31 The Commission on Administrative Justice is established under Article 59(4) of the

Constitution and the Commission on Administrative Justice Act with the mandate of

addressing maladministration in Kenya through inquiries, investigations adjudication

and institutional capacity building. The Commission is also empowered to ensure

compliance with leadership and integrity requirem ents of the Constitution and resolve

inter-governmental conflicts in addition to promoting constitutionalism and human

rights. 32 A. Thomson, (2000) An Introduction to African Politics, Routlege, London: New York.

The main inst itut ions in this regard included the law enforcement agencies

mainly the Police, Prosecution, State Law Office, Judiciary, Probation and

Correctional Services Inst itut ion.

However, the Const itut ion has fundamentally changed the configurat ion,

functions, powers and accountability of these inst itutions. For instance, an

independent Office of the Director of Public Prosecutions has been

established and the Judiciary re-engineered and elevated to the level of

Parliament and the Executive. Similarly, the inst itut ional and operational

frameworks of the Police Service have been radically changed to enable

them serve the public efficient ly and effectively. Two of the inst itut ions

created include the National Police Service Commission to manage the

human resources of the National Police Service and the Independent

Policing Oversight Authority to handle policing matters within the National

Police Service.

6.2.9 Revolutionalization of the Appointment to Public Offices

One of the reasons advanced for the inadequate observance of the rule

of law was the nature of appointment of individuals to key inst itut ions of

the State. Before the adoption of the Const itution, appointments to main

public offices were the preserve of the President. Some of the

appointments made by the President in some instances were crit icized as

not conforming to the law. Indeed, the Report of the Independent Review

Commission headed by Just ice Johann C. Kriegler, commonly known as

the Kriegler Commission created after the disputed General Elect ions in

Kenya in 2007, found that the unilateral appointment of Commissioners to

the Electoral Commission of Kenya by the President just some few months

to the elections was one of the actions that undermined the integrity and

objectivity of the Commission to manage the elections effectively.

In order to address this challenge, the Const itut ion has provided for

transparent and competit ive process of appointment of individuals to

State Offices. The process is rigorous and begins with the advert isement in

the Daily Newspapers and in some cases on the relevant Websites;

publication of names of the applicants in the Daily Newspapers where the

public are invited to give comments on the applicants, if any; public

interview of the applicants; appointment by the President in consultat ion

with the Prime Minister; vetting and approval of names by the National

Assembly; formal appointment and gazettment by the President ; and

swearing in before the designated officers. Some of the inst itut ions where

such process has been followed include the Judiciary, Const itut ional

Commissions and Independent Offices (except the Attorney General),

Inspector-General of Police and his two Deputies (the process

appointment is currently underway) and Statutory Bodies such as

Universit ies and parastatals among others. This is important since it inst ills

professionalism, independence, transparency and accountability in the

Public Service.33

6.2.10 Entrenchment of the Rule of Law and Human Rights

As noted by Thompson, one of the features of that dist inguished the post -

independence Const itut ion was its mutilat ion to concentrate power in the

core executive and weaken the other state inst itut ions.34 One of the

reasons for the amendments of the key Const itut ional provisions was the

ease of carrying out amendments to the Const itut ion without the

part icipation of all the stakeholders. Indeed, in Kenya, one of the key

provisions that turned Kenya into a de jure one party state was the

insert ion of Section 2A in the Const itut ion within a record of one hour

following the attempted coup in 1982. It is, therefore, with this realisat ion

that the Const itut ion has created entrenched provisions that cannot be

amended easily, without part icipation of the public through a

referendum. The entrenched Const itutional provisions as per Art icle 255(1)

include that on the supremacy of the Const itut ion, the territory of Kenya,

the sovereignty of the people, the national values and principles of

governance, the Bill of Rights, the Term of Office of the President, the

independence of the Judiciary and the Const itut ional Commissions and

Independent Offices, the functions of Parliament, the objects, principles

and structure of devolved Government and the Amendment formulae.

An amendment of these provisions would require a higher threshold

including a referendum for it to be effected. The entrenchment is

important for democratic consolidation, certainty and observance of the

rule of law.

33 In the Centre for Rights Education and Awareness (CREAW) and 7 Others vs Attorney

General, (2011) eKLR, HCC (Nairobi) Petition No. 16 of 2011, the High Court declared

as unconstitutional, the unilateral appointment of the Chief Justice, Attorney General,

Director of Public Prosecutions and Controller of Budget by the President. 34 Thomson (No. 32 above)

6.2.11 Re-Engineering of the Judiciary

The Judiciary is one of the inst itut ions where the transformative nature of

the Const itut ion has been felt . The Const itut ion not only radically changed

the inst itut ional structure of the Judiciary, but also changed its leadership

and composit ion. The Const itut ional provisions were largely informed by

the challenges that the Judiciary had faced which hampered its ability to

deliver on its mandate. Some of the challenges included lack of

independence and autonomy, corruption and unethical conduct, poor

infrastructure, poor terms and condit ions of work and delays in

dispensation of just ice among others which eroded public confidence in

the Judiciary. Indeed, these were some of the reasons advanced by

various commentators to explain the escalat ion of the electoral tension

and violence during the 2007 General Elect ions. The Const itut ional

provisions take cognizance of the primary role of the Judiciary in ensuring

const itutionalism by independently and impart ially administering just ice,

protecting and promoting human rights, ensuring the observance of the

rule of law and limitat ion of governmental power.

The Const itut ional changes, therefore, sought to transform the Judiciary to

restore its role and place in Kenya as a repository of const itut ionalism in

the following ways:

a) Restoration of the Role and Place of the Judiciary in the Architecture

of Government

The Const itut ion has restored the place and role of the Judiciary in

Kenyas governance system. It begins by vest ing the Judicial Authority in

the Judiciary and granting the Judiciary the powers to adjudicate over

disputes in consonance with the Const itut ion and other relevant laws. In

so doing, the Const itut ion has elevated the Judiciary and placed it at par

with Parliament and the Executive insofar as the configurat ion of

Government is concerned. In addit ion, it allows the Judiciary to take its

natural place as the custodian of const itut ionalism and determine issues

independently without any fear or favour.

b) Restructuring of the Judiciary

The Const itut ion has restructured the Judiciary by creating the Supreme

Court, re-organizing its leadership and decentralizing its operations. The

Supreme Court is at the apex of the Judiciary with the Chief Justice as its

President, the Court of Appeal headed by a President Judge and the

High Court headed by a Principal Judge. This is intended to address the

problem of concentrat ion of power in the Office of the Chief Just ice that

was a feature of the old system. In addit ion, specialized Divisions of the

High Court have been created for purposes of efficiency and expedit ious

resolut ion of disputes.

c) Vetting of the Sitting Judicial Officers

One of the unique features of the Const itution is the requirement of

vetting of judicial officers who were serving in the Judiciary as judges or

magistrates at the t ime of the adoption of the Const itution to determine

their suitability to continue to serve in the Judiciary35 (section 23 of the sixth

schedule). This is a transit ional provision that was informed by the views of

Kenyans some of whom had sought the resignation of all the judicial

officers upon the adoption of the Const itution. An enabling legislat ion, the

Vett ing of Judges and Magistrat es Act , was passed in 2011 and a Vett ing

Board comprising of five Kenyans and three foreign nationals established.

Although the vetting process has not been completed, the Board has

already made determinations concerning a number of Senior Judges

serving in the Supreme Court, Court of Appeal and the High Court. Based

on the vett ing process, at least eight Judges have been found to be

unsuitable to continue serving in the newly reformed Judiciary with the

issues ranging from corruption, delay delivering judgments, insensit ivity t o

lit igants, subservience to the Executive, case mismanagement, abuse of

judicial powers and unethical conduct.36

d) Operational and Financial Independence

One of the fundamental aspects of the Const itut ion is the independence

granted to the Judiciary to enable it function effectively. In part icular,

Article 160 of the Const itut ion provides for the operational independence

of the Judiciary by stat ing that the Judiciary shall be subject only to this

Const itut ion and the law and shall not be subject to the control or

direction of any person or authority. It also protects judicial officers from

35 Section 23 of the Sixth Schedule of the Constitution. 36 The Senior Judges include Justice Moham ed Ibrahim (Supreme Court), Justices

Samuel Bosire, Habel Nyamu, Riaga Omollo and Emanuel Okobasu and Rosemary

Nambuye for the Court of Appeal and Justice Jeane Gacheche and Khaminwa (High

Court). However, the vetting process has run into difficulties w ith suits being instituted

in Court to determine the fairness of the Board in its operations.

any action for anything done or omitted in good faith in the lawful

performance of a judicial function; non-alterat ion of the terms and

condit ions of work. Similarly, financial independence of the Judiciary is

provided for through the establishment of the Judiciary Fund for

administrat ive expenses of the Judiciary being administered by the Chief

Registrar of the Judiciary.

e) Reconstitution of the Judicial Service Commission

The Const itution has reconst ituted the Judicial Service Commission by

expanding its composit ion and functions. The reconst itut ion provided for

transparency and inclusion of two members of the Bar Associat ion and

two lay members to represent the public.37 The reconst ituted Judicial

Service Commission has been instrumental in init iat ing a number of

reforms in the Judiciary which include the appointment and promotion of

judicial staff, co-ordinating the functions of the Judiciary, improvement of

terms and condit ions of service for judicial officers and assert ing its

const itutional and statutory mandate and independence. For example,

the Commission asserted its authority in the unilateral appointment of the

Chief Just ice by the President in February 2011, which alongside other

factors made the President to defer the matter to it .

6.3 THE ACTIVISM OF THE LAW SOCIETY OF KENYA

The Law Society of Kenya (LSK) has played a significant role in ensuring

good governance in Kenya. This was so even at the t ime of One-Party

dictatorship era where the enjoyment of rights and freedoms were greatly

suppressed and democratic principles undermined. Over the years, LSK

has played a leading role in challenging oppression, lawlessness, impunity

and bad governance in the country. Due to this, some members of LSK

were always harassed and even detained by the State which, by and

large, jeopardized the independence of the Judiciary. However, this did

not deter the Society from challenging the stat us quo and agitat ing for

const itutional and legal changes. The LSK has employed a number of

strategies to achieve its objectives which include advocacy, education

and lit igation on matters of national importance. In the present set up, LSK

has played an important role in the governance process in Kenya,

37 Article 170 of the Constitution.

part icularly, in ensuring full implementation of the Const itution, the

appointment of individuals to public offices, vett ing of judges and legal

discourse.

7.0 THE IMPACT OF THE CHANGES IN THE JUDICIARY

Having seen these changes, how have they impacted on the rule of law

and human rights in Kenya? Although it is not possible to assess the impact

of these changes given the short duration since August 2010 and the

need for an in-depth assessment, the recent decisions of the Courts and

processes point towards an improvement of the realizat ion the rule of law

and human rights in Kenya. The legal and administrat ive changes in the

Judiciary have greatly enhanced efficiency in its work systems through

reduction of technicalit ies and preference for substantive just ice. In

addit ion, an inst itut ional rebirth has been enacted with the adoption of

new leadership, inst itut ional restructuring and development, and change

management approaches such as the introduction of Results Based

Management, st rengthening of the National Council on Administrat ion of

Just ice comprising of inst itutions in the just ice system, Judiciary Training

Inst itute for training of judicial officers, establishment of Judiciary

Ombudsman to receive and address complaints against judicial officers

by the public and adoption of part icipatory approaches involving various

publics in Kenya.

One of the immediate benefits has been an emergence of independent

and assert ive Judiciary willing to determine matters that were hitherto not

dealt with by the Courts. This is illustrated by a number of decisions where

the Court has taken bold steps to uphold the rule of law and human

rights. In the Centre for Rights Education and Awareness (CREAW) and 7

Others vs Attorney General, the High Court declared unconst itut ional, the

President's purported unilateral appointment of a new Chief Just ice,

Attorney General, Director of Public Prosecutions and Controller of

Budget.38 In another case, Centre for Rights Education and Awareness

(CREAW) and 8 Others vs Attorney General and Another, the High Court

declared unconst itut ional the President's appointment of County

Commissioners for acting outside the law and breaching the mandatory

38 No. 32 above.

requirement on gender and consultation.39 In the Kenya Section of the

International Commission of Jurists vs the Attorney General and 2 Others,

the High Court issued an arrest warrant against the President of Sudan on

account of war crimes under the International Criminal Court system.40

In addit ion, the integrity threshold for judicial officers has been raised to a

new level as recently witnessed in the case that led to the removal of the

Deputy Chief Just ice (DCJ) Nancy Baraza from the Judiciary. The case

related to her conduct at one of the Shopping Malls in Nairobi on 31 st

December 2011 where she allegedly by-passed a security personnel

conducting body screening, pinched her nose and threatened to shoot

her. There was a public outcry after the saga was reported in the media.

The Judicial Service Commission called for an emergency session where it

ordered for speedy invest igations. The DCJ recorded a statement with the

Police. Upon a Report being made to JSC, it recommended to the

President for a Tribunal to be set up to invest igate the conduct of the DCJ.

The Tribunal was set up and Chaired by Just ice August ino Ramadhan,

former Tanzanian Chief Just ice. It made a Report to the President with a

finding that the DCJ was unfit to hold office on account of gross

misconduct. The DCJ appealed to the Supreme Court, but later in

October 2012 she opted to resign from the Judiciary instead of pursuing

the matter further.41

8.0 THE RULE OF LAW AND HUMAN RIGHTS IN KENYA: ON OR OFF TRACK?

Based on the foregoing discourse, one may be tempted to believe that

the path to the realisat ion of the rule of law and human rights in Kenya is

without any obstacles, and that all stakeholders have embraced them.

Nothing can be further from the truth. The path to the realizat ion of these

principles has not been and will never be smooth. A number of challenges

st ill exist and their impact is evident in Kenya. Some of the challenges, in

this regard, include failed leadership, widespread tribalism, litt le respect

for state inst itutions, little appreciat ion of the place and role of new State

39 (2012) eKLR, HCC (Nairobi) Petition Nos.207 & 208 of 2012. 40 Miscellaneous Criminal Application No. 685 of 2010. 41

Organs, culture of impunity, disregard of court orders42, delay in

operational some laws43 and resistance to change. This was aptly

captured by the Chief Just ice when he said:44

Of course, there is resistance. The old order is too terrified not just of the

radical nature of the Constitution but also the assertive independence of

the Judiciary. Many people, particularly the political and economic elite,

having been socialized in and benefited from a retrogressive culture have

neither the skill nor appetite for this new environment. They were used to a

CJ and a Judiciary they would call and do deals and bargains with. Not

anymore. They were used to a Judiciary that would be deliberately be

starved of resources as a blackmail strategy. Not anymore. They were

used to a Judiciary that was very unpopular with the public, not anymore.

This has caused considerable frustration not just to these elite but also the

lawyers who had established corrupt networks with judges and

magistrates.

9.0 CONCLUSION

The rule of law and human rights are as relevant to us today as they were

several decades ago. This is especially so for the African countries which

have experienced and continue to experience democratic deficit and

underdevelopment. As has been stated in this Paper, the Legal Profession

plays an important role in ensuring compliance with the rule of law and

human rights. This is primarily due to their daily interaction with the law as

judicial officers, public officers, private legal practit ioners and academic

among others. Despite the challenges facing the profession and the

national polit ical environment, the Legal Profession should remain

steadfast and play their role as expected by society since their abdication

42 This has increasingly become a challenge in Kenya where public officers disregard

court orders. This was witnessed ion the appointment of County Commissioners case and creation of districts. It has taken the trend of some Members of Parliament

mobilize their constituents to the execution of court orders. This has made other

categories of other persons in Kenya to follow suit such as the Workers Unions and Teachers Unions.

43 The two instances to illustrate this are the Privatization Act which was enacted in 2005

but operationalized in 2009; and the National Police Service Commission Act which

took one year to be operationalized after enactment in 2011. 44 Speech by the Chief Justice, Dr. Willy Mutunga, at the Centre for Strategic and

International studies, 7 September 2012, Washington DC.

to do so would lead to a complete shutdown of the democratic space.

As Bhagwati has warned: 45

It would be no exaggeration to state that human rights would remain

safe in a society governed by a written Constitution so long as its judges

are strong and independent, do not cave in to pressures, influences or

centres of power and are committed to the cause of human rights and

the rule of law.

The study of the Kenyan experience has provided insights of the renewed

hope for the realizat ion of the rule of law and human rights based on the

new const itutional dispensation. You must keep the fire burning as you

alone can facilitate societal re-engineering and transformation. As one

commentator once stated true wealth of a country lies not in the dollar

worth of its economy, but in its people their commitment to the country

and community, their ability to think, achieve and excel. The Legal

Profession must lead society towards the realisat ion of these ideals.

Finally, I would like to remind you of the words of Abigail Adams that

these are the t imes in which a genius would wish to live. It is not in the st ill

calm of life, or the repose of a pacific stat ion that great characters are

formed. The habits of a vigorous mind are formed in contending with

difficult ies.46 These words are st ill relevant to us today. We have an

opportunity, individually and collect ively, to lead our society towards the

realisat ion of the rule of law and human rights. There is no doubt that we

have the capacity and capability to make a posit ive mark in our society.

Let us rise to the occasion for this is the legacy that we can bequeath our

society.

45 PN, Bhagwati, Inaugural Address made during the Commonwealth Judicial

Colloquium held in Bangalore, India between 14th and 26th February 1988. 46 Letter from Abigail Adams to John Quincy Adams quoted in D McCullough John

Adams, 2006, 226.