OF KENYA
BY
OTIENDE AMOLLO*
IN
HARARE ZIMBABWE,
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 inviting 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
operationalization. These concepts have crystallized in many countries,
Kenya and Zimbabwe included, through the express acknowledgement
in the Constitution. Governance practitioners are unanimous that their
inclusion in the Constitution is in itself a manifestation 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 constitutions, there still remains a significant gap in relation to
their realization. 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 realisation. 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 Aristotle with his extensive writings on
Diceys second connotation was that the concept meant that no man is
above the law and that every man, irrespective of his rank or condition, is
subject to the law of the state and amenable to the jurisdiction of
ordinary tribunals. The third meaning ascribed to the concept by Dicey
1
2
3
4
5
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).
De Smith (No. 1 above).
(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.
A.V. Dicey, An Introduction to the Study o f the Law of the Constitution 1885, 23.
Magna Carter ch 39 in H Marsh, British Documents of Libert y (1971) 44-47.
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)
vi)
vii)
viii)
ix)
x)
xi)
xii)
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 artificial
categories, commonly referred to as three generations of human rights.
These are the civil and political right s (First Generation), economic, social
and cult ural rights (Second Generation) and collective right s (Third
Generation). However, the categorization of human rights was
demystified 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 instructive 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 configuration of
government, the Judiciary naturally plays the role of the custodian of the
rule of law and respect for human rights. Put differently, the Judiciary is the
bastion of constitutionalism and good governance. The primary role of the
Judiciary is to independently and impartially administer justice 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
10
11
12
5.0 THE ROLE OF THE LEGAL PROFESSION IN THE PROMOTION OF THE RULE OF
LAW AND HUMAN RIGHTS
The Legal Profession plays a critical 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 impartial and the Legal Profession
is independent and proactive to participate in matters of public interest
without any fear or favour. In order to achieve this, t hey must be willing to
represent any party in judicial proceedings, initiate programmes including
policy, legal and administrative proposals to promote the rule of law and
promotion of human rights. The role of lawyers is aptly captured thus:14
13
14
1 of the Universal Charter of the Judge, 1999 and the Bangalore Principle on Judicial
Conduct, 2002.
D, Simmons, Issues of Judicial Independence in the Caribbean Court Room (2001) 14
Journal of the Commonwealth Magistrates and Judges Asso ciation 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.
Law Commission of India, One Hundred Third First Report on the Role of the Legal
Profession in Administration of Justice, 1988.
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 adv ocate, 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.
Given the foregoing, some thought provoking questions one may ask
include, to what extent are the Judiciaries in our countries independent?
Are the legal and institutional 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
16
The American Bar Association, Model Rules of Professional Conduct: Preamble and
Scope. Available at www.americanbar.org.
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 relation 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 constitutional amendments that concentrated state
power in the core executive and weakened other state institutions. The
upshot was democratic regression which facilitated autocracy,
patrimonialism, state capture, corruption, violations of human rights,
deference of state institutions 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
agitating 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 political
detainees were always harassed and even detained.
The role and authority of the Judiciary declined and in some cases
usurped by other entities 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 political patronage taking the form of opaque political appointments;
nepotism, favoritism and tribalism in appointments and promotions; and
17
18
19
20
21
22
O. Amollo, Processes and Pro cedures for Strengthening the Effi ciency of the Justice
Delivery System Through Judi cial Reforms: The Case of K enya, A Paper Presented to
the SADC Law Association Conference in Swaziland on 24t h August 2012.
Gibson Kamau Kuria vs Attorney General, High Court Misc. Case No. 550 of 1988,
Maina Mbacha and 2 Others v s Attorney General, High Court Misc. Application No.
356 of 1989.
Ooko vs Republic, High Court Civil Case No. 1159 of 1966
George Anyona vs Republic, Nairobi Law Monthl y, 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.
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.
W. Mutunga, Progress Report on the Transformation of the Judiciary: The First Hundred
and Twenty Days, 19t h October 2011.
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.
(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
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 w ould 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 w hen it
bequeaths the appointment task to a government organ and lays down
an appointment procedure w hich 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. I n 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 Constitution 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 Elections of December
2007.26
6.2.5 Prescription of Broad Bill of Rights
One of the distinguishing features of the Constitution is the prescription of
a broad range of rights and freedoms in the Bill of Rights Chapter, which is
an entrenched part of the Constitution. The Bill of Rights includes all the
three generations of rights civil and political rights; economic, social and
cultural rights; and group or collective rights. The scope of the rights and
freedoms is not limited to the prescription in the Constitution; 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 Constitution. The
25High
26
Constitution 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
Constitution has significantly whittled away the requirement of locus
st andi for instituting court proceedings in case of a violation or threat of
violation 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 participation is an important element of governance. Governance
practitioners the world over are unanimous that one of the ways of
improving governance is through public participation. The purpose of
public participation 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 Constitution extensively institutionalizes public
participation 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 participation in parliamentary proceedings, right to petition
Parliament, Executive authority, Judicial authority, alternative forms of
dispute
resolution
mechanisms
including
traditional
resolution
mechanisms, devolution, participation in affairs of County Governments,
participation in public finance, and values and principles of public
service29 and Articles 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 Constitution is the establishment
of institutions supporting good governance under Chapter Fifteen t o
buttress the tripartite configuration of Government and enhance
27
28
29
transparency and the rule of law. The institutions listed under that Chapter
are Constitutional Commissions and Independent Offices.30 The primary
aim of these bodies is to safeguard public interest by protecting the
sovereignty of Kenyans, promoting constitutionalism 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 Constitution including the rule of law and the Bill of Rights.
For instance, the Commission on Administrative Justice (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
(litigation) 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 constitutional 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 constitutional framework included the culture
of impunity and the weak institutions of governance that were unable to
enforce the law. One area where this was felt most was that of
administration of justice. As stated by Thomson in his seminal discourse, An
Introduction t o African Politics, the institutions in the administration of
justice 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
31
32
The main institutions in this regard included the law enforcement agencies
mainly the Police, Prosecution, State Law Office, Judiciary, Probation and
Correctional Services Institution.
However, the Constitution has fundamentally changed the configuration,
functions, powers and accountability of these institutions. 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 institutional and operational
frameworks of the Police Service have been radically changed to enable
them serve the public efficiently and effectively. Two of the institutions
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 institutions of
the State. Before the adoption of the Constitution, appointments to main
public offices were the preserve of the President. Some of the
appointments made by the President in some instances were criticized as
not conforming to the law. Indeed, t he Report of the Independent Review
Commission headed by Justice Johann C. Kriegler, commonly known as
the Kriegler Commission created after the disputed General Elections 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 Constitution has provided for
transparent and competitive process of appointment of individuals to
State Offices. The process is rigorous and begins with the advertisement 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 consultation
with the Prime Minister; vetting and approval of names by the National
33
34
In the C entre for Rights Education and Awareness (CREA W) 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.
Thomson (No. 32 above)
any action for anything done or omitted in good faith in the lawful
performance of a judicial function; non-alteration of the terms and
conditions of work. Similarly, financial independence of the Judiciary is
provided for through the establishment of the Judiciary Fund for
administrative expenses of the Judiciary being administered by the Chief
Registrar of the Judiciary.
e) Reconstitution of the Judicial Service Commission
The Constitution has reconstituted the Judicial Service Commission by
expanding its composition and functions. The reconstitution provided for
transparency and inclusion of two members of the Bar Association and
two lay members to represent the public. 37 The reconstituted Judicial
Service Commission has been instrumental in initiating 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 conditions of service for judicial officers and asserting its
constitutional and statutory mandate and independence. For example,
the Commission asserted its authority in the unilateral appointment of the
Chief Justice 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 time 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 count ry. 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 agitating for
constitutional and legal changes. The LSK has employed a number of
strategies to achieve its objectives which include advocacy, education
and litigation on matters of national importance. In the present set up, LSK
has played an important role in the governance process in Kenya,
37
No. 32 above.
39
40
41
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 practitioners and academic
among others. Despite the challenges facing the profession and the
national political environment , the Legal Profession should remain
steadfast and play their role as expected by society since their abdication
42
43
44
This has increasingl y become a challenge in K enya where public offi cers 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.
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.
Speech by the Chief Justice, Dr. Willy Mutunga, at the Centre for Strategic and
International studies, 7 September 2012, Washington DC.
The study of the Kenyan experience has provided insights of the renewed
hope for the realization of the rule of law and human rights based on the
new constitutional 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, t heir ability to think, achieve and excel. The Legal
Profession must lead society towards the realisation of these ideals.
Finally, I would like to remind you of the words of Abigail Adams that
these are the times in which a genius would wish to live. It is not in the still
calm of life, or the repose of a pacific station that great characters are
formed. The habits of a vigorous mind are formed in contending with
difficulties. 46 These words are still relevant to us today. We have an
opportunity, individually and collectively, to lead our society towards the
realisation of the rule of law and human rights. There is no doubt that we
have the capacity and capability to make a positive mark in our society.
Let us rise to the occasion for this is the legacy that we can bequeath our
society.
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46