CONSTITUTIONAL LAW THEORY-LPR 111

SESSIONS THREE

FUNDAMENTAL PRINCIPLES OF THE CONSTITUTION OF KENYA 2010

1. SOVEREIGNTY OF THE PEOPLE

Sovereignty of the people refers to power by which the state is governed, where the people
surrender to the state the right to govern therefore making the government an agent of the
people. Article 1 of the constitution of Kenya states that, “all sovereign power belongs to
the people of Kenya and shall be exercised only in accordance with the constitution. The
people may exercise their sovereign power either directly or through their democratically
elected representatives. Sovereign power under this constitution is delegated to state organs
which shall perform their functionsin accordance with the constitution.

2. SUPREMACY OF THE CONSTITUTION

This is a government system in which the freedom of making laws must cede to the
requirements of the constitution, hence no laws can violate the constitution. Supremacy of
the constitution is discussed in Article 2 of the Constitution. The constitution is the
supreme law of the Republic and binds all persons and all state organs at both levels of
the government. In addition, the validity of the constitution is not subject to challenge by
or before any court or other state organ and that any law that is inconsistent with this
constitution is void to the extent of the inconsistency and any act in contravention of this
constitution is invalid. This is in light of Article 2(3)and 2(4) respectively

3. RULE OF LAW

This simply means that nobody is above the law. Therefore, exercise of the powers of
government shall be conditioned by law and that the subject shallnot be exposed to the
arbitrary will of his ruler. In Dicey’s rule, three meaning were given. The first was absence
of arbitrary power, second, subjects of officials to the ordinary courts (equality before the
law) and third, rights of citizens are to be ascertained from the principles /rules in court.

4. DEMOCRACY

Democracy literally means rule by the people. This is a form of government in which all
people have an equal say in the decisions affecting their lives. Itinvolves both direct and
indirect participation in proposing, developing and passing legislation into law as well as
conditions enabling free and equal practice of political self-determination. According to
Abraham Lincoln, democracy is the government of the people, for the people and by the
people.

5. SEPARATION OF POWERS

This is consistent with distinction of organs of government to ensure that different

functions are run exclusively. This came to be as it was believed that if the same person
or body exercised all the organs, there would be arbitrary use of power. In Kenya the three
organs are executive, judiciary and legislature. The three organs should therefore have
different functions;thus, power should be shared out between the organs and measures
adopted to ensure that whilst each organ can cooperate with the other organs, no organ
will be subservient to any other.

6. CONSTITUTIONALISM

Constitutionalism can simply be said to be adherence to a constitutional system of

government. It is a doctrine wherein government’s authority isdetermined by the constitution.
 FUNDAMENTAL PRINCIPLES OF THE CONSTITUTION IN THESTRUCTURE
OF GOVERNMENT IN KENYA

1. SOVEREIGNTY OF THE PEOPLE

Sovereignty is defined as supreme power. Sovereignty of the people meansthat the citizens
of Kenya have the ultimate power to make laws and decisions in Kenya. They can do this
directly or indirectly.

Sovereignty of the people has been prescribed by the constitution of Kenya.

The preamble of Kenya states that “…exercising our sovereign and inalienable right to
determine the form of governance of our country andhaving participated fully in the
making of this constitution...”

Article one states that all sovereign power belongs to the people, this sovereign power
may be exercised directly or democratically through theirdemocratically representatives.
It also states that sovereign power is delegated to the three arms of government i.e.
legislature, executive and judiciary.

This was also emphasized in the case of Trusted Society of Human Rights v The
Attorney General and Others where the High court stated inter alia that the
constitution delegates sovereign power under it to the three branches /arms of government.
Lastly this sovereign power shall be exercised at both levels of government, national and
countygovernments.

a) National government.

The people of Kenya exercise sovereignty in the national government either directly or
indirectly as seen in article 1(2). We exercise sovereignty directlythrough a referendum as
per article 255 and directly through our democratically elected representatives e.g. electing
the president in the executive and electing members of parliament to represent us in the
legislature as per article 97(1) and 98(1). Although we don’t democratically elect
representatives in the judiciary it is important to note that all judicial authority is derived
from the people as per article 159.

An example of this would be in the appointment of the Chief Justice under article 166. The
chief justice shall be appointed by the president who represents the executive and whose
 power is derived from the people subject to the approval of the national assembly which
derives its legislative power from the people under article 94.

Sovereignty of the people is also seen in article104 which gives the electorate power to
recall a member of parliament representing his/her constituency. Article 249 of the
constitution also states that one of the objects of the commissions in article 248 and
independent offices is to protect the sovereignty of the people.

The legislature must also conduct public participation in its legislative process. This was
also reiterated in the case of Doctors for life international v Speaker of the
national assembly and others where the court acknowledged sovereignty of the
people ruling that where the legislature fails to conduct public participation the particular
legislative process shall be null and void.

Sovereignty is also seen where the three arms of government adhere to and abide by the
constitution having emanated from the people. The court in the case of Coalition for
Reform and Democracy (CORD). & another v the Republic of Kenya and
Another discussed this. The constitution having been enacted by a referendum is a direct
will of the people who hold sovereign power hence all the three arms of government bow
to it as a representation of the people’s will.

In the case of Njoya v AG, the court stated that sovereignty of the republic is the
sovereignty of the people and that all government power and authority is exercised on
behalf of the people. The court was also of the opinion that sovereign power can be derived
from the 1963 constitution which declared Kenya a sovereign state.

b) County government.

Article 1(4) states that sovereignty of the people shall be exercised in the national and also
the county government. The county government represents the devolved government under
chapter 11 of the constitution. Sovereignty in the county government is also exercised
indirectly. In the legislature under article 177 through the democratically elected
representatives in the county assemblies.

These representatives commonly known as MCAs derive their power from the people. The
citizens of Kenya also exercise their power in the county governments through the county
executive by electing the governor who is a member of the county executiveunder article
 179(2).

As seen in the national assembly, the county assemblies must also acknowledge sovereignty
of the people and involve them through public participation in their legislative process as
county assemblies. Failure to which the process will be regarded as unconstitutional. This
was emphasized in the case of Martin Wambora v The County Assembly of Embu and
Others where the court was of the opinion that such measures were unconstitutional if
they did not allow members of the public to participate.

Public participation reminds the citizens of their sovereign power accorded to them by the
constitution. It therefore should be real and not illusory. It should not be carried out as just
a mere fact fulfilling the constitutional mandates. This was held so in the case of Robert
N. Gakuru& others v The Governor Kiambu County & 3 others where it the judge
further stated that the constitution behooves the county assemblies to ensurethe spirit of
public participation is attained when enacting legislation.

2. SUPREMACY OF THE CONSTITUTION

This principal presumes to let the constitution rank all other laws, conventions and
principals and legislation. This is completely embodied in the constitution which states that
under This Constitution is the supreme law of the Republic and binds all persons and all
State organs at both levelsof government. The judicature act provides that the constitution
to be a hierarchy of other statutes whereby it lays out the court will exercise jurisdiction
firstly according to the constitution then other statutes.

The supremacy of the constitution is embodied and respected in all both levels of the
national government and county government.

a) National government

The national government comprises the Parliament, national executive and the judiciary
and independent tribunals.

i. The National legislature

The national legislative body is mainly composed of the parliament. Parliament consists of
the national assembly and senate as stated. It further explains that the national assembly
and senate shall exercise their functions in accordance to the constitution as stated under
article. This emerges that Kenyan legislative bodies bear an obligation to discharge
mandates in accordance with the terms of the constitution and they cannot plead any
statutory scheme as a reprieve from that obligation.

Justice Kanyeihamba in the Ugandan case of Paul Ssemogerere and Another vs

Attorney General pointed out it is the constitution not the parliament which is supreme,
he further out-spanned in saying that if parliament is to claim and protect its powers and
internal procedures it must act in accordance with the provisions outlined in the constitution
which determines its composition and the manner in which it must perform itsfunctions.

This clearly points out that even if the parliament has its procedures or its own legislated
laws but the constitution will always stand out to trump them. This undermines a strong
point where parliament has power to regulate its own proceedings the constitution will
always be upheld to checkif the proceedings are in terms with the constitution.

In the case of democratic alliance vs, the president of South Africa and others it affirmed
the supremacy of the constitution over parliament. In the case of Speaker of The National
Assembly vs Attorney General and three others The court stated that the [parliament
must operate under the constitution as it is the supreme law of the land, it continued to state
that where there are specific decrees provided under the constitution for the different houses
of parliament to follow during their proceedings, they will abide by them.

The constitution is supreme in a way it removes itself from be at pour with other legislated
acts of the Parliament, in the case of Chrispus Karanga Njogu v Attorney General
and another In this civil suit the constitutional court clearly pointed out that the
constitution is not an act ofParliament but rather it separates in nature and it is supreme.

The constitution has made to effect by providing provisions to exercise itssupremacy over
the parliament in article 94 through the following sub articles:

(4) Parliament shall protect this Constitution and promote the democratic governance
ofthe Republic. This gives the parliament the primary dutyto shield the constitution, this
also denotes that the parliament will not enact legislation which will violate the
constitution. A clear example is where the legislation is violating fundamental right or
freedom of the constitution shall be put at check and nullified.

(5) No person or body, other than Parliament, has the power to make provision having
 the force of law in Kenya except under authority conferredby this Constitution or by
legislation. This clearly shows that the constitution is so supreme in the sense that it
is the only legate law which gives parliament the legislative function of the country.

ii. National Executive

The national executive in broad sense is the aggregate or totality of corpus authority to
govern which is concerned with execution of the will of the state. In the constitutional
sense the national executive is not clearly defined rather it gives an approach of its
composition which includes the president, vice president and its cabinet ministers, still more
the chapter 9of the constitution goes on to provide other bodies which form the part of the
national executive like the office of the director of public prosecutions and the office
attorney general as outlined in part 4 of chapter 9 in the constitution.

Article 2 which clearly validates the constitution is the supreme law and binds all state
organs. This also includes that the national executive being one of the organs of the state
is bound to the constitution and it has to recognize that the constitution is supreme. In the
words of Kasanga Mulwa J in the case of Republic v Kenya Roads Board Exparte
John Harun Mwau HC where he stated that ‘’once a Constitution is written, it is
supreme. I am concerned beyond peradventure that when the makers of our Constitution
decided to put it in writing and by its provision thereof created the three arms of
Government namely the Executive, the Legislature and the Judiciary, they intended that
the Constitution shall be supreme and all those organs created under the Constitution are
subordinate and subject to the Constitution.’’

This entails more in clear viewthat the executive is a subordinate to the constitution,
mandated to respect, safeguard and respect. It also entails that the executive can only be
established under constitutional provisions since it’s subject to be a subordinate to the
constitution hence its legit establishment is totally based on the constitution.

The national executive one of its core authorities is to respect, uphold and protect the
constitution which gives the president this primary duty. This clearly entails that the
constitution is so supreme that it reigns over the executive by giving a core function of the
executive to safeguard the constitution.

The constitution reigns over the executive in the sense that even when it reaches to the
point of nominating or appointment of state officers in the executive it has to be in alliance
 with the constitution, the constitution states that the president shall nominate and appoint
or dismiss with the approval of the national assembly in accordance with the constitution,
any other State or public officer whom this Constitution requires or empowers the
President to appoint or dismiss.

In the case of Law society of Kenyavs Attorney General and 2 others the court
stated out that the president acted unconstitutional in the way he handled the appointment
ofstate officers who were judges, since the constitution is supreme the courthad a view
that the president is mandated to follow the provisions of the constitution when it comes
to his role of appointing of state officers, thisclearly entails president cannot exercise duty
unless established in the constitution, this is in support with article 2(2) of the constitution
whichstates that No person may claim or exercise State authority except as authorized
under this Constitution.

iii. The judiciary

The judiciary is composed of the courts and independent tribunals. It plays a key role of
exercising judicial authority by settling disputes and interpreting the laws of the state, it is
also of key point to note that the judiciary is independent in its nature as established under
the constitution which states that in the exercise of judicial authority, the Judiciary, as
constituted by Article 161, shall be subject only to this Constitution and thelaw and shall
not be subject to the control or direction of any person or authority. This clearly points out
also that the judiciary is subject to the constitution hence the judiciary realizes that the
constitution is supreme and it is a subordinate to it.

The judiciary bears a mandate to protect and promote the principles of the constitution
which is clearly established under article.20 This shows that courts bear an obligation to
protect and promote the principle of supremacyof the constitution, in the case of Minister
of health and others vs treatment action campaign and others was pointed out
the primary duty of courts is to the Constitution and the law, which they must apply
impartially and without fear, favor or prejudice.

Where state policy is challenged as inconsistent with the Constitution, courts have to
consider whether in formulating and implementing such policy the state has given effect to
its constitutional obligations, if it should hold in any given case thatthe state has failed to
do so, it is obliged by the Constitution to say so.
 The judiciary also bears a law to invalidate or struck down any provision which is
inconsistent with the constitution, a clear example was shown in the case of Samuel G.
Momanyi vs. The Hon. Attorney General and Another in which this Court struck down
a provision of section 45(3) of the Employment Act 2007 because it was inconsistent with
the Constitution.The court are in a compulsory obligation to hold this principle of supremacy
as it was stated in the case of Jayne Mati & Another vs. Attorney General
and Another where the court stated that this Court is obligated toinvalidate an act, omission
or any law which contravenes the Constitution.

It is of clear fact the judiciary carries the burden as the final custodian keepers of the
constitution. The judiciary being the final custodian has the power to intervene in other arms
of the government when the constitution has been violated and it's only the judiciary which
can interpret the constitution.

In the case of The Council of Governors and Others vs. TheSenate the court pointed
out that the court is vested with the power to interpret the Constitution and to safeguard,
protect and promote its provisions as provided for under Article 165(3) of the
Constitution, has the duty and obligation to intervene in actions of other arms of
Government and State Organs where it is alleged or demonstrated that the Constitution has
either been violated or threatened with violation.

b) County government

The county government comprises the legislative assemblies of the countygovernment and
the executive structure of the county government.

According to article 10(2) (a) of the constitution of Kenya 2010 devolution and sharing
of powers are identified as principles that guide Kenyan governance system. The
constitution defines this constitution as the supreme law of the land andthat it binds all
state organs at both levels of government.

In Kenyan system there are two levels of governments namely the Nationalgovernment and
County government whose distribution of functions are outlined in the fourth schedule. All
these two levels are bound by the supremacy of this constitution and any act or omission
which does not conform with the articles of this constitution will be declared
unconstitutional hence null and void as provided in article 2(4).
 This is clearly seen in council of governors and 3others v senate and 53others where
the national assembly pursuant to consultation with the senate enacted county government
amendment Act (CGAA) which amended the county government Act by introducing new
section 91A which was to establish county development boards (CDBs) in each of the 47
counties

The first petitioner council of governors lodged petition challenging constitutionality of

CDBs and asked court to declare the provision of section 91A of the county government
amendment Act is unconstitutional for violating:

articles 6(2),95,96,174(1),175,179(1),179(4),183(1),185(3),189(1) of

the constitution of Kenya 2010.

The court being satisfied with the petitioner’s case declared the entire county government
amendment Act 2014 unconstitutional hence null andvoid.

In another decision where clearly supremacy of the constitution is seen at county level of
government is in Wilfred Manthi Musyoka v county assembly of Machakos; governor
county government of Machakos and 2 others The petitioner filed a petition that on 24th
October 2018 the chair of house and rules committee tabled a report on the proposed
amendments to standing orders which were adopted by the respondent.

The petitioner reiterated that the respondents did not carry out public participation
before amending the standing orders which wasin violation of the constitution and the
respondent being constitutional and statutory offices are bound to the provisions of the
constitution in accordance to article 2(1) of the constitution of Kenya 2010.

The court agreed with the petitioner that the respondents failed to facilitate public
participation and involvement in the process contrary to Machakos county standing orders
and article 196(1)(b) the court went further and gave a declaration that amendments of the
standing orders no 2,23,26,27,42,59,60 and 62 made to Machakos county assembly
standing orders on 24th October 2018 in their totality as approved are unconstitutional.

From the facts provided this clearly points out that the constitution is supreme over the county
government and it is mandated to be subject to itand the county government is a subordinate
to the constitution.
The constitution vests upon the attorney general the responsibility to uphold the rule of
law and defend the interest of the public. The director of public prosecutions powers are
limited in that he needs permission fromthe court to withdraw from a prosecution. He can
also be removed from office by a petition presented to the Public Service Commission, in
this wayhis power can be checked.

The authority of the Judiciary shall be derived from the people and exercised according to
the constitution thereby making it subject to the lawamong other principles of law

Independence of the judiciary is at the core of the principle of the rule of law. The judiciary
is not subject to control by anyone or authority except thelaw. however a judge of the
superior court may be removed from office by the Judicial Service Commission.

The independence of the judiciary is also limited by parliament in the appointment of the
tribunal used to investigate a judge before removal from office. In the performance of its
functions the Judicial Service Commission shall abide by the general principles of law and
shall not be subject to interference.

The devolved government was adopted to the new constitution to ensure that power and
resources are shared to the smallest units of society. It wasdesignated to foster equality
among citizens and enhance public participation.

For the purposes of upholding the rule of law, the county governor is not above the law and
can also be removed from office for gross misconduct.

The principles of public finance mirror the constitutional principles highlighted

with the approval of the Public Service Commission.

The constitution vests upon the attorney general the responsibility to uphold the rule of
law and defend the interest of the public. The director of public prosecutions powers are
limited in that he needs permission fromthe court to withdraw from a prosecution. He can
also be removed from office by a petition presented to the Public Service Commission, in
this wayhis power can be checked.

The authority of the Judiciary shall be derived from the people and exercised according to
the constitution thereby making it subject to the lawamong other principles of law.

Independence of the judiciary is at the core of the principle of the rule of law. The judiciary
is not subject to control by anyone or authority except thelaw. However, a judge of the
superior court may be removed from office by the Judicial Service Commission. The
independence of the judiciary is also limited by parliament in the appointment of the tribunal
used to investigate a judge before removal from office. In the performance of its functions
the Judicial Service Commission shall abide by the general principles of law andshall not
be subject to interference.

The devolved government was adopted to the new constitution to ensure that power and
resources are shared to the smallest units of society. It wasdesignated to foster equality
among citizens and enhance public participation.

For the purposes of upholding the rule of law, the county governor is not above the law and
can also be removed from office for gross misconduct.

The principles of public finance mirror the constitutional principles highlighted.

3. RULE OF LAW

The rule of law is a fundamental principle of law that promotes equality ofall people by
dictating that no one is above the law and that the power of decision-making lies on
principles that are both legal and moral. These principles form the building blocks upon
which International Law is madeof. The rule of law works to ensure that no power is
exercised unchecked thereby preventing dictatorship.

This principle generally sums up other principles of law which include; supremacy of law,
accountability to the law, legal certainty, procedural and legal transparency, equality before
the law, fairness in the application of thelaw, participation in decision-making and avoidance
of arbitrariness.

The constitution of Kenya 2010 has applied these principles in the structureand functions
of the government in both the National and the County level. The rule of law in the
government of Kenya derives its authority from the Constitution which is the supreme law
 of the land. it further states the ruleof law as among the national values and principles of
governance in Kenya.

The constitution offers the right to having a fair hearing to all persons without any
discrimination as to social status among other biases. The Constitution accords the right fair
administrative action and authorizes thatthe same be conducted in a fast, reasonable, efficient
and lawful while ensuring that all people are accorded the same standard of treatment.

The rule of law promotes democracy by ensuring that the law is meant to beapplied for the
benefit of the people. All persons have the legal right to complain to the Kenya National
Rights and Equality Commission over any denial, violation or infringement of rights
contained in Chapter 4 of the Constitution.

Furthermore, the conduct of people occupying state offices is regulated by the constitution
and acting contrary to the rules applicable to them under Articles 76,77 and 78 of the
Constitution highlighting financial probity,restrictions and their citizenship respectively
may result in disciplinary procedure and removal from office in other cases.

a) National Government

i. Legislature

The Constitution confers the right to bring forth claims of its contraventionor threat of
contravention to a court of law, on every person. This also includes the mandate to petition
parliament on matters in which it has jurisdiction. In Petition 381 & 430 of 2014
(Consolidated)

The respondents argued that the petitioner should have approached parliament instead of
the court regarding constitutionality of amendmentsto the County Government Act, No.
17 of 2012, through the County Governments (Amendment) Act, 2014. The petitioner
maintained thatthe amendments exceeded the power granted by the constitution to state
organs. The court ruled that it would betray the principle of rule of law byrestricting its
authority to article 165 of the Constitution and that the position adopted by the
respondents was without merit.
ii. Executive

The executive as the law implementing arm of the government derives itsauthority from
the people of Kenya and exercises it with rules and regulations of the constituent.

The authority of the president is not absolute but shall not only be exercisedthrough the rule
of law. The president’s powers are checked by ensuring that he protects the rule of law,
gives an annual update to the nation on progress made towards realizing national values in
Article 10 and a report to the national assembly for debate on progress in international
obligations.He also has the power to nominate, appoint and dismiss; cabinet secretaries in
accordance to article 152 of the constitution, principle secretaries as per Article 155,
high commissioners, ambassadors and diplomatic and consular representatives. The
president’s power to declare war and a state of emergency is also regulated by having to
have it approved by parliament.

The results of a presidential election are not absolute but are subject to transparency and
the rule of law and a petition to the Supreme Court 7 daysafter the results are announced
can be applied to contend these results.

The president enjoys certain immunities while in office but since no one isabove the law,
these immunities are not absolute. The president can be prosecuted for violating treaty
law to which Kenya is a party and which prohibits this immunity. The immunity is also
restricted to acts performedwhile in office and in exercise of its functions. The president
can be prosecuted for his actions once he is out of office.

To prevent dictatorship, the president’s power can be revoked by grounds ofincapacity

or incompetence. National assembly may pass a motion to investigate the physical or
mental state of the president to perform his functions. They may also move a motion to
impeach the president on grounds listed in article 145 of the Constitution. This ensures
that not even the president is above the law and can lawfully lose his position as head
of state and government.

In Petition 476 of 2015 it was stated that in a constitutional democracy the president
carries the heaviest burden to uphold the rule of law in the exercise of his functions as
captured by the Constitutional Court of South Africa in Economic Freedom Fighter v
Speaker of the National Assembly and Others; Democratic Alliance v Speaker of
 the NationalAssembly and Others.

The deputy President can also be removed from office through the same process as the
president as highlighted in Articles 144 and 145 of the constitution.

The power of the president to appoint cabinet secretaries is regulated by the National
Assembly having to approve the nominated cabinet secretary. Similarly the National
Assembly can propose a motion to dismiss a president - appointed cabinet Secretary. The
president also requires approval of the Public Service Commission to appoint principal
secretaries.

The constitution vests upon the attorney general the responsibility to uphold the rule of
law and defend the interest of the public. The director of public prosecutions, powers are
limited in that he needs permission fromthe court to withdraw from a prosecution. He can
also be removed from office by a petition presented to the Public Service Commission, in
this wayhis power can be checked.

iii. Judiciary

The authority of the Judiciary shall be derived from the people and exercised according to
the constitution thereby making it subject to the lawamong other principles of law.

Independence of the judiciary is at the core of the principle of the rule of law. The judiciary
is not subject to control by anyone or authority except thelaw. However, a judge of the
superior court may be removed from office by the Judicial Service Commission. The
independence of the judiciary is also limited by parliament in the appointment of the tribunal
used to investigate a judge before removal from office. In the performance of its functions
the Judicial Service Commission shall abide by the general principles of law andshall not
be subject to interference.

In Petition 472 of 2017 honorable Judge John M. Mativo in his judgement stated
that the courts have a primary duty to uphold the law impartially and without fear, favor
or prejudice. If the courts in the exerciseof this function find themselves intruding into
other branches of government, it is to be noted that such intrusion is permitted by law.
b) County Government

The devolved government was adopted to the new constitution to ensure that power and
resources are shared to the smallest units of society. It wasdesignated to foster equality
among citizens and enhance public participation.

For the purposes of upholding the rule of law, the county governor is not above the law and
can also be removed from office for gross misconduct.

In Petition 351 of 2015 the honorable judge called out the Cabinet Secretary Ministry of
Devolution for violation of a court order and considered holding him in contempt of court
but instead exercised hisdiscretion.

The principles of public finance mirror the constitutional principles highlighted in Article
10. Being a sensitive matter, transparency andfreedom from interference is important.

There lies a checks and balances between the members of the county executive committee
and the county governor whereby the former reportsto the later.

4. DEMOCRACY

Abraham Lincoln defined democracy as the government of the people, by the people, for
the people. Democracy therefore, may generally be defined as a form of government where
the people say is equal in the decisionsaffecting their lives.

In a democracy people tend to get what they want and do not get what theydo not want. The
legislature and executive respond when people make demands.

Theoretically, democracy should be a government of the people, by the people, for the
people. The essence of democracy is in ideas not practicescopied from one time or one place
to another.

By virtue of article 1(2) the people may exercise their sovereign power either directly or
through their democratically elected representatives.

Democracy has two main criteria; first is that through elections of officials exercising power
they are granted legitimate authority. Second, for a government to be changed, peaceful
 and regular elections is the mechanismto follow.

There are two types of democracy, namely; direct and indirect democracy.

Direct democracy

This is where Citizens vote on major policy decisions and laws through referendum. In
Kenya, the referendum question is" Do you approve of theproposed new Constitution."

"Je, unaikubali katiba mpya inayopendekezwa?"

Indirect democracy.

Also known as representative. The elected members of the parliament and the executive
make decisions on behalf of the people. The representatives must exercise their power
according to the rules set by the constitution anddecisions made by these representatives
are binding on the people. In addition, the representatives are temporary given that there
areperiodically repetitive and competitive elections.

a) Democracy in the national government

The national government is made up of the legislature, judiciary and theexecutive.

Democracy in the national government has been portrayed in the followingways:

i. The legislature

Parliament is the legislative arm of the National government. Chapter 8 of the

Constitution creates parliament and proceeds to give one of its role isto protect the
Constitution and promote the democratic governance of the republic under article 94(4).

Parliament is made up of the national assembly which represents the people of the
constituencies and special interests in the national assembly as provided under article 95(1)
and the Senate which represents the counties and serves to protect the interests of the
counties and their government as provided under article 96(1). The Senate ,which
represents the counties, participates in law-making functions of the parliament by
considering, debating and approving bills concerning counties as in article 96(2).

The national assembly consists of 290 and 47 women each elected by registered voters, 12
members nominated by parliamentary political parties to represent the youth, persons with
disabilities, workers. The speaker whois an ex officio member.
 The Senate consists of 47 members elected by registered voters, 16 women,2 members a
man and a woman representing the youth, 2 members a man and a woman representing
persons with disabilities and the speaker(ex officio member).

The people of Kenya can also recall a member of parliament before theirterms come to an
end.

This right to recall has been vested to the electorate by article 104 ,Article 118 ensures
public access and participation.

Parliament is required to conduct its business in an open manner, and it'ssitting and those of
its committees shall be open to the public, facilitate public participation and involvement
in legislative and other parliament businesses.

The media and the public cannot be excluded from any sittings unless in exceptional
circumstances the relevant speaker has determined that thereare justifiable reasons for the
exclusion.

The public is involved in the legislative process when they vote for a bill through a
referendum, article 255(2).

For example, the 2020 proposed Constitutional amendment (BBI), Kenyanswill be required to
vote during the upcoming referendum.

ii. The Executive

It comprises the president, deputy president, attorney general and othercabinet members.

The president pursuant to article 136(1) is elected by registered votersin a national

election conducted in accordance with the constitution and anyAct of parliament regulating
presidential elections. The president is then mandated to make decisions on behalf of the
people.

By virtue of article 132(2) the president, with approval of the nationalassembly, nominate
or dismiss the: Cabinet secretary, Attorney general, Secretary to the cabinet, Principal
secretaries, High commissioners, ambassadors and diplomatic and consular representatives
inter alia.

iii. The judiciary

 Democracy under the judiciary is seen in the High Court and the Court ofAppeal.

In the High Court when the judges elect their principal judge. Article 165(2), there shall be
a Principal Judge of the High Court, who shall beelected by the judges of the High court
from among themselves.

In the Court of Appeal when the judges elect their president. Article 164(2), there shall be
a president of the Court of Appeal who shall beelected by judges from among themselves.

b) Democracy in the county government

County governments are created under chapter 11 of the constitution. Article 175(a) states
that county governments shall be based on democratic principles. The county government
consists of a county assembly and a county executive. County assembly consists of
members elected by registered voters of wards (a single member per ward), numberof
special seat members to ensure gender balance, members of marginalized groups and the
speaker who is an ex officio member. This isprovided under article 177.

The county executive committees exercise the executive authority as statedunder article
179(a). The county executive committee is made up of the county governor, deputy county
governor and members elected by the county governor with approval of the assembly.

Article 180(1) states that the county governor shall be directly elected by the voters
registered in a county, on the same day as a general election of Members of Parliament,
being the second Tuesday in August, in every fifth year.

Article 196(1) ensures that there is public participation in the county assembly. The county
assembly is required to; conduct its business in an open manner and hold its sittings and
those of its committee, in public. Facilitate public participation and involvement in the
legislative and otherbusiness of it and its committees

Article 196(2), the public or media may not be excluded from any sitting by the county
assembly unless in exceptional circumstances the speaker hasdetermined that are justifiable
reasons for doing so.

In relation to article 196(2) of the constitution is section 243 and 244 ofthe senate standing
order. According to section 243 of the Senate Standing Orders, A senator may at
any time, rise to claim that the publicor any particular person be, for reasons stated,
excluded from the senate orfrom a Committee and if the speaker is of the opinion that there
are justifiable reasons for the exclusion, he or she may order that the public or such person
withdraw from the senate or the committee.

Such a determination by the speaker is not open for comment or debate. The Sergeant at
arms shall ensure that an order for the withdrawal of the public is compiled with. In
addition, section 238 of the Senate Standing Orders ,the speaker may direct that
any matter which, in the speaker's opinion ,is secret or purely personal be excluded from
the journals of the senate and from the verbatim report of the proceedings of the senate
and shall be kept in the custody of the clerk.

Section 244 of the standing orders states that, any media institution whose representative
infringes the standing orders or any rules made by the speaker for the regulation of the
admittance of the public to the senate or to the committees or persistently misreports the
proceedings of the Senate ,or neglects or refuses on request from the speaker to correct
any wrong report in respect of the proceedingsof the senate to the satisfaction of the
speaker ,may be excluded from representation in the Press Gallery for such period as the
speaker shall direct.

In Wilfred Manthi Musyoka v The County Assembly of Machakos and 2

others,where amendments to standing orders 59,60 and 62 were made in the process of
the removal of the Governor and County Executive committee by doing away with the
notice period of seven and three days respectively.

In essence the amendments therefore, did away with the small window of opportunity that
was available to the members of the public to participate in the process of the removal of
the Governor and rendered the entire process a purely county Assembly affair. It was
therefore held that where the legislature does not conduct public participation in it's
legislative process in accordance with the dictates of the constitution, the product ofthe
legislative process is null and void. The entire amendments were therefore declared null and
void on that ground alone.

Section 87 of the County government Act, provides for principles of citizen

participation in counties. Citizen participation in county governments shall be based upon
the following principles:

1. Timely access to information, data, documents and other informationrelevant or

related to policy formulation and implementation.
2. Reasonable access to the process of formulating and implementing policies, laws
and regulations, including the approval of development proposals, projects and
budgets , the granting of permits and the establishment of specific performance
standards.

3. Protection and promotion of the interest and rights of minorities, marginalized

groups and communities and their access to relevant information.

4. Legal standing to interested or affected persons, organizations and where pertinent,

communities to appeal from or, review decisions or redress grievances, with
particular emphasis on persons and traditionally marginalized communities,
including women, the youthand disadvantaged communities.

5. Reasonable balance in the roles and obligations of county governments and

non-state actors in decision-making process topromote shared responsibility
and partnership, and to provide complementary authority and oversight

6. Promotion of public-private partnerships, such as joint committees, technical teams,

and citizen commissions to encourage direct dialogue and concerted action on
sustainable development and;

7. Recognition and promotion of the reciprocal roles of non-state actors'participation

and governmental facilitation and oversight.