governance

Abstract

The rule of law is a theory of governance that holds all individuals, organizations, and public and private entities, including the state itself, responsible to laws that are openly promulgated, fairly applied, independently decided, and compliant with international human rights standards. This article intends to conceptualize the rule of law in Kenya with an aim of making realistic recommendations.

Political and judicial officers who are tasked with the heavy burden of ensuring strict compliance with the rule of law in Kenya will be positively criticized while their crucial roles will be under analysis. This article aims at putting it out there that much as we have been trying to better our judicial system with the aim of delivering justice by following the rule of law, much more is yet to be done.

Introduction

Admittedly, the definition of the term ‘rule of law’ is a contentious one and context specific. Nonetheless, this term is often thrown here and there as an abstract and unattainable higher moral and legal concept. At the same time, governments of the day give promises that they will govern by the rule of the law, a concept that truly speaking they either do not fully understand or show no willingness at all to implement. The opposition on the other hand are often heard resorting to the rule of law, negatively, to appease their audience whenever it is beneficial to them.

At the same time, Kenya identifies herself as one of the most thriving democracies in the continent of Africa. What she, however, forgets that a true democracy does not only speak of the rule of the law in its remote sense but lives by it. In this way, it is expected that political rights, civil liberties and mechanisms of accountability which, in turn, protect everyone’s political equality and prevent future misuses of governmental authority.

It is noteworthy that we can hardly speak of the rule of law without stressing the need for existence of an independent judiciary. These twin principles ensure that even the most vulnerable members of our society are treated with dignity at least in the theoretical and hypothetical sense.

The United Nations opines that certain key considerations speak to the presence or absence thereof of the rule of law. The United Nations states that the rule of law demands for taking of measures aimed at ensuring strict adherence to supremacy of the law, equality before the law, separation of powers, participation in all aspects of political, social and economic decisionmaking, fairness in the application of the said laws, legal certainty, avoidance of arbitrariness as well as procedural and legal transparency.

This article adopts the parameters set by the United Nations in its analysis of the core elements of the rule of law. It will be evident in a short while that Kenya has impressive legal provisions and policy frameworks that touch on the rule of law. The main challenge, however, that is yet to get a meaningful solution is the implementation of this impressive paperwork. It is worth reiterating that the Judiciary will enjoy a key and specialised attention herein. Reliance will be placed on both national and international legal frameworks in the determination of the concept of the rule of law.

Supremacy of the law

The Constitution is the supreme law of the republic of Kenya. This flows from the express provisions of Article 2(1) of the Constitution of Kenya, 2010. This very same Constitution has received lots of praise as one of the most progressive Constitutions that the continent of Africa has ever witnessed. At the same time, Article 2(4) of the said Constitution provides that any law, including customary law that is inconsistent with the Constitution is void to the extent of the inconsistency hence any act and or omission in contravention with the constitution is invalid.

The Constitution thus being the supreme law should be accorded the respect that it deserves. The usage of the term’ should’ is not in vain as the observance of the constitutional provision is another issue worthy of analysis. The Constitution has some provisions which ought to be respected for the rule of law if the state is serious with full realisation of the rule of law. This article will bring ought the fact that such provisions are either ignored in their entirety or partially disrespected.

First things first, the supremacy of the Constitution is not a foreign concept. Its earliest origin can be traced to Hans Kelsen theory of grundnorm grounded on his theoretical underpinning of the pure theory of law. In as much as there is no universalism on what Hans Kelsen meant by basic norm, it is arguably true that the Constitution in the Kenyan context can be treated as the grundnorm. As such, all other rules that are made by dint of the existence of the Constitution and in the exercise of the power granted by the Constitution should be consistent with the Constitution.

The practice in Kenya especially from the legislators is divergent from both the expectations and requirements of both the Constitution and basic norm theory. To put the issue into context, the legislative arm of the government consists of forty-nine units. The said units are the national assembly, senate and forty-seven county assemblies. With so many people involved in pushing the wheels of justice, it is more than expected that errors will definitely arise. This happens more so when those tasked with the huge role of lawmaking are not well conversant with the laws as well as the art of lawmaking. That, however, does not mean that lawmaking should be preserved for experts alone as that is practically impossible.

Incidents of the court declaring that a whole statute or part of legislation is void and illegal have become rampant. The main reason for such declarations and orders has been failure of the lawmakers to comply with the Constitution and the parent article that grants the powers for such a statute to be made. To that extent therefore, an assertion that our lawmakers have normalised usurping powers not expressly donated to them by the constitution or any statute is the order of the day is not any further from the truth.

It is much worse if nobody in their sane mind goes to court requesting the court for an order of illegality of the statute. In as such a situation, the rule of law is often dealt a heavy blow as people are often ruled by laws that are inconsistent with the Constitution.

Equality before the law

The law provides or at the very worst assumes that everyone has inherent human dignity. This inherent dignity suggests that each and every one should both be equal before the law in words and in action. As such, each and every individual is entitled to equal treatment and protection of the law. The importance of equality cannot be overstated and the same has been emphasized, locally, regionally and internationally. It is quite difficult to detach the twin yet separate principles of equality and discrimination. The two principles have found expression in Article 27 of the Constitution of Kenya, 2010.

Not only has equality found a stand-alone provision in Kenya, but it has also been equally enshrined in other constitutional provisions as well. First and foremost, Kenyans saw it wise to include national values and principles of governance in her Constitution. The national values and principles of governance includes but not limited to equality and nondiscrimination. It is worth noting that the Constitution outlaws discrimination on any possible grounds including race, sex, pregnancy, marital status, health status, ethnic or social origin, color, age, disability, religion, conscience, belief, culture, dress, language or birth. The grounds provided above generally fall into social, political and economic classifications and are generally referred to as the protected grounds of discrimination.

Suffice to notice, Kenya is way too far from achieving its goal of equality. On the converse, discrimination has preoccupied minds of majority of Kenyans. It is equally true

that discrimination is so entrenched in the Kenyan society that it will take years, possibly centuries, for it to be completely eradicated if at all it will be eradicated. To make matters worse, majority of the people in Kenya have accepted discrimination as a normal way of life and have even gone a notch higher to institutionalize it.

Judicial Discretion

It is agreed that judicial discretion is necessary and very instrumental in ensuring that justice is done to both the victims of wrongs and the perpetrators of such wrongs. At the same time, judicial discretion, if not well harnessed and supervised, may be the recipe for partial and or biased decisions. The latter is quite common in Kenya. It is not uncommon to find judges and magistrates exercising their discretion in ways that are against the principles of the rule of law. There have been instances where judicial officers have been accused of being selective in the application of the law.

However, it is worth noting that such accusations of biasness and selectiveness are not in their entiretly true. The accusations of biasness and selectiveness often arise from partial truth. In as much as the law allows judicial officers to exercise discretion in ways that they seem fit, it is paramount to remember that such an exercise of discretion should be based on the law and nothing else. It is quite unfortunate that judicial officers have allowed extraneous considerations to interfere with their judicial work hence losing public trust and confidence.

In conclusion, the concept of the rule of law is a universal concept that transcends borders. The rule of law calls for and expects strict adherence to supremacy of the law, equality before the law, separation of powers, political, social and economic participation, fairness, legal certainty and transparency. These parameters have not been adhered to in totality by the state and her officials. There is a need for concerted efforts to be made so as to ensure that the state and all her organs are compliant with the rule of law.

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Michael has an unbeatable interest in research and is a keen and enthusiastic follower of emerging jurisprudence. He can be reached at Myllomosh@gmail.com