Constitutional Law I

GPR 104 Constitutional Law I Lec: Mrs.
Pamela Oburu Ager
- Class postponed to Friday 2 pm.

- Buy the current constitution (At the Government Printer library, the cost is
approximately 200/=). Don’t read it from cover to cover; it doesn’t help. Just go
through it generally.
What is a constitution?
- The term constitution in simple terms is that document that contains the rules for
operation of government.
- The constitution describes the whole system of government and state and the
collection or rules that regulate and control the government.
- The rules are partly legal in the sense that courts of law will recognize them and
apply them and are partly non-legal, taking the form of usages, understandings,
customs and conventions which courts do not recognize as laws but which are not
less effective in controlling the government than the rules of law strictly so called.
The British constitution is a collection of legal and non-legal deeds.
- A more legal and detailed definition of the term constitution can be derived in two
senses:
o Abstract: It is the whole political system of a country. A body of principals
and rules, written and unwritten, that enables people within the state to
live together in order and harmony. It expresses the agreed content of the
political systems by prescribing principals of the basic structure upon
which the system is founded and setting up rules and procedure for settling
differences without recourse to violence or force. It can also be seen as the
scheme of organization of public responsibilities that must be performed
in any community.
- Bolingborke: “By constitution, we mean wherever we speak with propriety and
exactitude that assemblage of laws, instructions and customs derived from certain
fixed principles of reason that compose the general system according to which the
community has agreed to be guarded.”
- In a concrete sense, a constitution is a document having legal sanctity, which sets
the framework and principal functions of the organs of the state and declares the
principal in which the organs ought to operate.
- Hood Phillips and Jackson: “A constitution is a body of laws, conventions and
customs that describe the composition and power of organs of the state and that
regulate the relations of various state organs to one another and the private
citizens.
- Benjamin Aksin: “Constitutions are any documents or series of documents or/ and
customary rules which are formally designated as enjoying a higher authority and
dealing with the functions and structure of the state.”
- Lord Bryce: “A constitution consists of rules and laws which determines forms of
it’s government, rights and duties toward the citizens and of the citizen towards
the government.”
GPR 104 Constitutional Law I Lec: Mrs. Pamela Oburu Ager
- C.F. Strong: “A true constitution has facts about how various agents of
government are recognized and what powers they are entrusted in those agencies
and the manner in which those powers are exercised.”
- In section 3 of the constitution of Kenya, the constitution is defined as the
supreme law of the land and the source of all other laws of Kenya, which must not
be inconsistent with it.
Policies of a good constitution

- Dynamic, durable and elastic: It must be compliant with the changes in society in
terms of technology e.t.c. It mustn’t be too rigid to prevent change and not too
flexible as to encourage tampering with its basic principles.
- Clear and definite: It should define clearly its contents.
- It must have a clear amendment procedure and must provide for how and when it
is to be amended.
- It should protect the fundamental rights of the individual.
- It should be internally consistent and shouldn’t contradict itself or other laws.
- It must be practical to apply.
Origin of the constitution

- Constitutions originate from:
o Acts of parliament.
o Revolutions.
o Births of republics.
o The need of the citizens to have a system of checking and balancing the
power of the government.
o Colonization
Types of constitutions
- Written constitutions:
o They are also known as formal constitutions. They are single documents.
Examples are Kenya, US.
o Advantages:
▪ Clarity: They are well defined and formal.
▪ Easy accessible and information about them is easily obtainable.
▪ It stabilizes and limits political power effectively/
o Disadvantages:
▪ They are rigid and not easily changed.
▪ They are inaccurate of constitutional affairs of the country because
they don’t encompass the totality of the constitution applicable in
any given country.
- Unwritten constitutions:
o They are not completely unrecorded but are found in scattered legislation
supplemented by conventions exercised by the people. Examples are
Britain.
o Advantages:
▪ They are elastic and adaptable to change as they can be easily

amended just like any other act of parliament, i.e. by a simple
majority.
▪ There is room for a tradition of ideals and practices to be
incorporated in the constitution. These ***** may form the basis
of the principles
o Disadvantages:
▪ They may not be able to protect people’s rights effectively as they
are not clearly defined.
▪ Political powers are not clearly defined and instability may reign,
For example, courts are given too much power in the premise of
translating the constitutional principles which are to be found in
the various sources of the constitution such as statutes and acts of
parliament, judicial decisions, customs and usages.
▪ They are vague and indefinite.
- Flexible constitutions:
o They are those that the legislature are able to amend following the
procedure used to amend any ordinary laws.
o Procedural obstacles that must be surmounted before the constitution can
be validly amended are few in this case.
o An example in this case is New Zealand.
o Advantages:
▪ It is very adaptable to changes and this minimizes chances of a
violent revolution. The constitution will reflect the prevailing
sentiments regarding the government and accepted principles of
civil and political liberty.
▪ The people will then be forced to have political consciousness and
vigilance to ensure that the constitution is not amended against
their will. So as a result, there will be greater civic knowledge
among the people.
o Disadvantages:
▪ They lack stability and permanency, leading to political
uncertainty in a country and diminishing people’s confidence.
▪ There is the possibility that the ruling elite will change the
constitution to suit their whims, especially during a major
catastrophe in the social regime.
- Rigid constitutions:
o An example is France.
o The legislature may be required to sit according to special procedures.
o In Switzerland, a referendum involving the entire electorate must be
provided.
o The most rigid constitution is the US one which requires that the initiative
to change the constitution must come from 2/3 of both houses of congress
with ratification by the legislatures or ¾ of the state.
o Advantages:
▪ There is greater protection of the fundamental rights and freedoms

by prescription of clear terms concerning powers and functions of
the state, making it difficult to infringe fundamental rights which
are owed to the people.
- Federal constitutions:
o In the countries with this type of constitution, territorial units are provided,
each with it’s own governmental powers. There is a federal authority with
its own constitutional policies recognized. The federal authority is more
powerful than the territorial units.
o Advantages:
▪ They entail deliberate balancing of powers between the central
government state authorities and various organs.
▪ They are written and rigid and the respective competencies of state
policies are provided for at the area of federal state level.
- Quasi-federal constitutions:
o In the countries with this type of constitution, there are territorial units and
a federal authority just as in the Federal constitutions. The difference is
that they are not exactly coordinated.
- Confederal constitutions:
o In the countries with this type of constitution, there are territorial units and
a federal authority just as in the Federal constitutions. However, the
territorial units hold more power than the central federal authority.
- Military constitutions:
o This kind of constitution provides for a hierarchy of government structure
with a superior legislature and the executive and judiciary at the center.
o Advantages:
▪ In most cases, the constitution is supreme, limiting the power of
the legislature to both enact laws and amend the constitution.
▪ In a military constitution, the state organs are clearly defined: their
powers and duties are also clearly defined in a hierarchical
structure.
▪ It enhances nationhood.
o Disadvantages:
▪ The doctrine does not clearly work because it will probably lead to
the state organs competing for power. Also, the legislature will be
made powerless and thus its power to make laws will be too
limited.
- Presidential executive constitutions and Parliamentary executive constitution
o These classes are based on the mode of distribution of powers within the
government. A Presidential executive constitution is one in which the
office of the president is described and defined and is separated from
Parliament. An example would be that of US. A Parliamentary executive
constitution is one that has the executive operate from the platform of
parliament. An example is Britain.
o The merit of a presidential executive constitution is that there is clear

separation of powers. The disadvantage is that there is too much power
given to the president.
- The principal of separation of powers, when applied, results in a president
executive, which has autonomous government entities under the parliamentary
type. The chief executive is the prime minister, who is a member of parliament
and is responsible to the legislature.
- The head of the executive is also the head of state (under presidential) is not
directly legislature and therefore is not directly responsible for the legislature e.g.
Italy.
- Republican constitutions and monarchial constitutions
o In the republican constitutions, the president is the head of state and
government. In the monarchial constitutions the head of the royal family is
the head of state and government. Most monarchs today are symbolic and
ceremonial.
- Supreme and subordinate constitutions
o Supreme constitution: One that cannot be amended by the legislature
except by special process e.g. referendum and constitutional convention. It
is supreme in that it is above the legislature.
o Subordinate constitution can be amended by the national assembly in the
manner prescribed by the constitution itself e.g. Kenya constitution can be
amended through the procedure stipulated in Sec 42.
Next week: Constitutional Supremism
Notes for today are in handouts.
• Next week: Debate on whether it was legal for the president to dissolve the
cabinet and prologue paliarment.
Judiciary
Functions
- To settle disputes and conflicts.
- To uphold the rule of the law.
- To interpred laws from legislature.
- To make laws through judicial precedent (decided cases)
Devices provided for in law by the government to make judges’ lives comfortable
- Judges cannot be sued (Sec 6 of the Judicature act)
- They enjoy security of tenure – It is very difficult for a judge to be fired.
- It is criminal and unacceptable to criticize a judge or his decision.
- They are given extra benefits: Cars, house, security, extra allowance for holidays,
tax benefits e.t.c.
- They can declare “contempt of court – If anybody in the courtroom does anything
that to the judge is disruptive, annoying or rude, the judge can instantly
criminalize the act and have the man thrown in jail by declaring the act to be in
contempt of court.
- Subjudism – You cannot discuss a matter that has been concluded in court or is
pending in court if you’re a judge.
- A judge is appointed and not elected. Thus they don’t owe their allegiance to any
electorate or blah blah blah (Sec 61 (11) & (12) of Kenya Constitution)
Executive
Who/ What is the executive?
- Consists of the president, vice president and the cabinet.
- The executive is defined in chapter 2 of the Kenya Constitution. (Note Sec
4,5,6,13, 14(1)&(2), Section about ministers, sec about VP, 23, 26 and 123)
Powers of the president
- To appoint certain people to the government. Also to dismiss these people.
- To declare a state of emergency.
- To dissolve or prologue parliament.
- To assent to the law.
- To be the commander in chief of the armed forces.
- To pardon imprisoned or condemned people.
- To award honors.
Legislature
Who/ what is the legislature?
- President and the national assembly (Sec 30 of the Kenya Constitution)
Function/ Powers
- To monitor the expenditure of the country: Financial function.
- To make laws: Legislative function.
- To monitor the work of the president and the ministers and to question it or
criticize it: Critical function.
- To pass a vote of no confidence.
The doctrine of separation of powers

- Measures put to distribute the powers of the government and to ensure that the
power is not concentrated in only one section (Between the legislature, judiciary
and the executive.)
- Many scholars have talked about it (So read a book you illiterate son of a …)
Report
Modern constitutions – K.C. Wheare. Library code: KAB.// JF// 95// .54//1960//Law://
What is a constitution?
- The word constitution is commonly used in at least two senses:
(i) The whole system of government of a country.
(ii) A collection of rules that establish and regulate or govern the government.
The rules are partly legal (Courts of law will apply them.) and partly non-
legal or extra legal (they take the form of usages, customs or conventions
which courts recognize as law and which are not necessarily less effective inn
regulating the government.
- Some countries may have many documents containing rules (e.g. statutes and
acts) and also customs and conventions expressing the law; all these put together
form the constitution in the wide sense. An example is what is found in Britain
today.
- Other countries have all these legal and non-legal rules embodied in one
document and call that the constitution. This is a constitution in the narrow sense
and it is found in almost every country in the world except Britain. The most
common example is America.
- Bolingborke: “By constitution, we mean … the assemblage of laws, institutions
and customs derived from certain fixed principles of reason … that compose of
the general system according to which the community agrees to be governed.”
Bolingborke supports the wider definition of constitution, which is the also the
older definition.
- In the narrow sense, the constitution may establish only the principal institutions
i.e. the legislature, the executive and the judiciary and leave the prescriptions of
the composition and mode of appointment of these bodies to be described and
dealt with in more detail by ordinary law. Some of these ordinary laws are
referred to as “organic law” (Lois Organiques – Laws that organise institutions
and regulate the exercise of public powers through organs established in the
constitution).
- The main reason why countries adopt a constitution or, if they already have one,
adopt a new constitution are because for some reason the people may feel a need
to make a fresh start. This could be caused by a union of communities (e.g.
America in 1787) a breaking up of communities (Austria, Hungary or
Czechoslovakia after 1918) a revolution (France in 1789 or USSR in 1917) defeat
in war (Germany after 1918, France in 1875 or in 1946).
- The reason why some constitutions are made to be supreme to the government is
because some people have little faith in the leaders and so the constitution needs
to be seen as a means through which the government can be controlled. There
may also be some basic principles that the people who frame the constitution,
based on their background maybe, wish to safeguard and so the constitution must
be supreme so that these principles cannot be altered easily when the legislators
feel like.
- Britain has no constitution because every time it tried do have one, the process
was hampered by certain factors:
o In 1642, there was a civil war in Britain, which was followed by the
execution of the King, Charles I, in 1649. Between 1649 and 1660, many
attempts were made at making a constitution but no agreement could be
made. In 1660, Charles II took the throne and made a restoration; He
restored the old system of monarchy.
o There was a revolution in 1688 and the creation of the bill of rights,
which is not a constitution per-se as it only safeguarded individual rights
but said nothing on Parliament. This was the closest the British ever got to
making a constitution.
o Also, in 1688, the doctrine of supremacy or sovereignty of parliament was
made, making the British parliament supreme to any other government
body or law. This doctrine is still in place today and until it is overruled,
there may be no constitution in Britain since the constitution needs to be
supreme and above parliament.
Classification of constitutions
Written constitutions and unwritten constitutions
- Written constitutions are where all legal and non-legal rules of a country are
embodied in one document.
- Unwritten is where the rules may be scattered in several documents. The countries
that fall in this category are Britain, New Zealand and Israel.
Flexible constitutions and Rigid constitutions
- Lord Bryce in “Studies in History and Jurisprudence.”
“Where no special process is required to amend a constitution, it is called
‘flexible’; where a special process is required, it is called ‘rigid’.”
- U.S. is an example of rigid. In order for the constitution to be changed or
amended, both houses of congress must have 2/3 majority supporting the change.
- New Zealand is an example of flexible; the constitution can be changed or
amended like any other law.
- This classification has disadvantages. One may think that because a constitution is
rigid, it is less frequently changed and that a constitution that is flexible is most
frequently changed. But this is not always the case, e.g. the Swiss constitution,
which is rigid in terms of it’s amending process, has been altered more frequently
than the constitution of the 3rd republic of France which is flexible. The Australian
constitution is identical to that of the Swiss but has been amended much fewer
times. Basically, if society is unsatisfied with a constitution, whether it is rigid or
flexible, it will be changed.
Constitutions that are supreme and those that aren’t
- Supreme constitutions are those that are supreme to the legislature (and therefore
cannot be changed by it alone) and constitutions that are not supreme can be
changed by the legislature.
- U.S., Switzerland, Austria & Denmark are examples of supreme constitutions.
- Sometimes, it is hard to say whether a constitution is supreme or not. For
example, for the Belgian constitution to be changed, parliament must vote to
decide whether it is to be changed or not. If 2/3 agrees, the parliament is dissolved
and a general election ensues. After the general election, the new parliament votes
again on whether the constitution should be changed or not. Thus, the electorates
are the ones who basically approve of the change. For this reason, it is hard to
place Belgium in the category of supreme constitution states.
Federal Constitutions and unitary constitutions
- In federal constitutions, the powers of the government are divided between a
government for the whole country and a government for the parts of the country
in such a way that each government is legally independent within it’s own sphere.
There is coordination between the powers of the general government and of the
individual government such that none is subordinate to the other. Examples of

countries with this kind of constitution are U.S., Switzerland and Austrailia.
- In Unitary constitutions, the legislature of the whole country is the supreme law
making body and although it permits other legislatures to exist and exercise their
powers, it can overrule them. Examples of countries with this kind of constitution
are New Zealand, Sweden, France, Denmark e.t.c.
- In quasi –federal constitutions, the powers are not exactly coordinated. Although
the general government and the individual governments are independent of one
another, the general government may be able to make decisions that affect the
individual governments like vetoing their decisions or appointing it’s leaders. An
example is Canada, the India constitution of 1950 and the West Germany
constitution of 1949 e.t.c.
- In a confederate constitution, the general government is subordinate to the
individual governments. The individual governments set up a common
organisation to regulate matters of common concern but retain to themselves, to a
greater or less degree, some control over this common organisation. Before 1789,
U.S. had a confederate constitution.
Doctrine of separation of powers
- It means that each of the processes of government - Legislative, executive
(Administrative) and Judicial - are confided exclusively in separate institutions of
government with no overlapping either of functions or persons.
Parliamentary Executive constitutions and Presidential Executive constitutions

- In parliamentary constitutions, executive powers are placed in parliament.
Ministers are heads of the executive and there is a prime minister who has the
most powers but is accountable to other ministers. The prime minister holds office
only while he is popular among other ministers. This kind of government is also
known as a cabinet government. An example is Britain.
- In presidential constitutions, the president is separate from the parliament and the
executive powers are exclusively given to him. Parliament’s role is strictly
legislative in this kind of constitution. The U.S. is an example of this kind of
constitution, the president has all the executive powers and at the same time is
completely separate from the legislature and is not allowed to sit in any of the
houses of congress. But even in this example, the powers overlap e.g. Although in
U.S. the houses of congress make legislative decisions, the president can veto
their decisions. The houses of congress in turn have the power to impeach the
president.
Republican constitutions and Monarchical constitutions
- In republican constitutions, the president is the head of state and is elected by the
people.
- In monarchical constitutions, the king is the head of state. He exclusively makes
all decisions and is accountable to no one. Britain used to fall in this category but
nowadays there are almost no monarchical constitutions in existence. A third
category: constitutional or limited monarchical constitutions exist today whereby
the king is only symbolic and there is a democratic government in place. This is
what is found in UK today.
Class Handout – Constitutional Law 1
The Judiciary, Executive and Legislature
The Judiciary
The primary judicial function is to determine disputed questions of fact and law in
accordance with the law laid down by parliament and expounded by the courts. This
function is exercised mainly in the civil and criminal courts by professional judges. It
should however be added that many disputes which arise out of the conduct of the
government are entrusted to administrative tribunals. For example, the Rent Tribunals,
which exercise a quasi-judicial function in determining disputes between the landlord and
the tenant.
As noted above, the judiciary determines disputes that arise between individuals. It also
determines disputes which arise between individuals and the state and will protect the
individual, whether citizen or non-citizen, against the excesses of the government and the
arbitrary action of government officials. The judiciary tries criminal cases where the state
prosecutes a person for an alleged crime. The sentence is, with a few exceptions, entirely
within the discretion of the court. More important still, the judiciary acts as the guardian
of the constitution, The constitution describes all the organs of the government,
determines their composition, their powers and duties and sets out certain fundamental
rights and freedoms of the individual. The constitution, it can therefore be said, lies at the
base of all power in Kenya. The judiciary will ensure that the executive actions of
officials are in accordance with the provisions of the constitutions and that the acts passed
by parliament do not conflict with the constitution; in other words, that they are
constitutional in the strict sense of the word.
As well as their primary function of settling legal disputes, the courts exercise certain
legislative functions (for example, the making of rules of court procedure) and
administrative functions (for example, the administration of estates of deceased persons).
Some work of the courts (for example, the granting of an uncontested divorce) involves
no dispute or controversy. Other tasks (for example, the sentencing of criminals) are
arguably not essential judicial functions, although they are traditionally the work of
judges.
Kenya, it is said, has independence of the judiciary. In other words, the judiciary in
Kenya is independent of both the executive and the legislature and the provisions in the
constitution assure this independence. A judge or magistrate can make a decision in the
knowledge that he/ she need not fear recrimination for his/ her decision.
Section 6 of the Judicature act gives protection to the judiciary. It says: “No judge or
magistrate and no other person acting judicially shall be liable to be sued in a civil court,
for an act done or ordered to be done in the discharge of his official duty, whether or not
within the limits of his jurisdiction, provided that he at the time; in good faith believed
himself to have the jurisdiction to do or order the act complained of.”
Judges and magistrates at times make decisions which may be embarrassing to the
government of the day. In some of these decisions, the judiciary has been criticised.
However, no criticism of the judiciary is allowed within the national assembly.
How far is the independence of the judiciary achieved?

Nabudere, a renowned constitutional lawyer in Africa says: “There is no such thing as an
independent judiciary anywhere. The judiciary has always been created by the politics of
the economic base and not vice versa.”
It is appropriate to examine the specific techniques that have been utilised to secure such
measures of independence, as is thought desirable.
The concept of judicial independence involves the freedom of the judge from all
pressures and constraints in arriving at a decision, safe for the constraint of the law.
The judicial oath requires that a judge undertakes to decide all cases without fear or
favour, affection or ill will.
In order to achieve this desires protection of the judiciary, various devices both in law
and administratively have been employed. These include:
(i) Judges are appointed rather than elected in order to provide some safeguard
against the pressures of political processes. Even though the powers to appoint
judges is vested on the president, he makes such appointments on the advise
of the judicial service commission as provide din the constitution.
(ii) The chief justice is appointed by the president.
(iii) The puisne judges (i.e. High court judges) are appointed by the president on
the advice of the judicial service commission.
(iv) Judges enjoy security of tenure. The tenure of the office of judges is provided
as 74 years by the judicature act. Section 9 of the judicature act provides that
the age at which a person holding the office of judge shall vacate his office
shall be 74 years. Often, judges remain in office for life.
(v) Removal of judges from office is jealously guarded. The constitution provides
that “a judge of the high court shall be removed from office by the President if
the question of his removal has been referred to a tribunal and the tribunal has
recommended to the president that the judge ought to be removed”.
(vi) Their economic remuneration is well above the ordinary civil servant scale.
The salaries of judges are a permanent charge on the consolidated fund.
(vii) Protection from criticism in the National Assembly is provided. It is possible
to criticise a particular decision after judgement.
(viii) Special privileges for judges exist. Like members of the national assembly,
judges may enjoy special privileges. Under the Judicature act, judges and
magistrates are not to be sued in civil courts for their decisions if those
decisions are made in good faith.
(ix) Judges have powers to punish for contempt of court – that is for disobeying an
order of the court, or for the publication of an article which brings contempt,
disrespect to the court or prejudices the fair trial of an accused person.
The Executive
It is more difficult to give a simple account of the executive function than the legislative
function. Broadly speaking, the executive function comprises the whole corpus of
authority to govern, other than that which is involved in the legislative functions of
Parliament and the judicial functions of the courts.
The general direction of policy includes the initiation of legislation, the maintenance of
order, the promotion of social and economic welfare, administration of public services
and the conduct of the external relations to the state. The executive function has therefore
a residual character, it’s techniques ranging from the formation of broad policy to the
detailed management of routine services.
The executive consists of the president, the vice-president, ministers and administers,
who are all members of the National assembly.
President
The president in Kenya is the head of state and the commander in chief of the armed
forces. He is elected at a general election following the dissolution of parliament. To
qualify for his office, one must be a citizen of Kenya, have attained the age of 35 years
and be registered in some constituency as a voter in elections to the national assembly.
Every candidate for president must be nominated by a political party taking part in the
general election. The functions of the president are:
(a) To prologue parliament at any time. [Section 59 of the Kenyan Constitution] (note
president Kibaki’s recent decision to prologue parliament.)
(b) To appoint the vice president.
(c) To appoint and dismiss the ministers and assistant ministers (Note in particular
president Kibaki’s recent decision to dismiss all ministers.)
(d) To appoint the chief justice. [Section 61(1 & 2) of the Kenyan Constitution] (The
high court judges are appointed by the president on the advice of the judicial service
commission)
(e) To exercise the prerogative of mercy [Section 27 of the Kenyan Constitution]
(f) To award honors e.g. the order of the burning spear.
It should be noted that no criminal or civil proceedings whatsoever can be instituted or
continued against the president o2 against any person exercising the functions of the
office of the president while the person holds office. [Section14(1 & 2) of the Kenyan
Constitution]
The Vice President [Section15 of the Kenyan Constitution]
The vice president is appointed by the president from among the ministers who are
elected members of the national assembly. The vice president is the principal assistant of
the president in the discharge of his functions. He enters upon the duties of his office
when he has taken and subscribed the oath of allegiance and such oath of due execution
of his office may be prescribed by paliarment.
Cabinet
The cabinet consists of the president, the vice president and other ministers but not
assistant ministers. The function of the cabinet is to aid and advise the president in the
government of Kenya. Although the cabinet is part of the executive, it is mainly a
deliberative body.
The cabinet considers and formulates government policy. It is influenced in it’s
deliberation not only by the ministers but by debates in the national assembly, reports of
commissions, the views of permanent civil servants, different associations, the press e.t.c.
The cabinet also determines inter-departmental disputes which can arise over the
implementation of some policy decisions. It gives the final approval to the budget,
prepared by the Minister of finance.
The cabinet has the assistance of certain permanent officials in the discharge of it’s
functions.
Ministers are responsible to the national assembly for the work of their departments and
this is normally witnessed during question time in parliament.
The cabinet is also collectively responsible to the national assembly for all things done by
or under the authority of the president or vice-president or any other minister in the
executive of his office.
The executive carries out all the laws by parliament and other things which are
necessarily for the smooth administration of the country.
Although the legislative, executive and judicial functions are normally distinct, it is not
the case that the executive functions are exclusively performed by the executive or that
the executive does not engage in functions which would normally be described as
legislative or judicial in character.
As noted above, executive functions are incapable of comprehensive definition, for they
are merely the residue of functions of government after legislative and judicial functions
have been taken away. They may, however, be said to entail the formulation or
application of general policy in relation to particular situations or cases, or the making or
execution of individual discretionary decisions. More specifically, they include the
execution of law and policy, the maintenance of public order e.t.c.
In performance of these functions, public authorities may be empowered by statute to
exercise functions which are strictly legislative. These instances by rules, regulations,
orders and other forms of subordinate legislation, or strictly judicial in character in
addition to certain discretionary actions of the executive which are not far removed from
legislation.
The Legislature
The legislative function involves the enactment of general rules determining the structure
and powers of public authorities and regulating the conduct of citizens and private
organisations.
The work of the national assembly may be divided into three sections: Legisalitve,
financial and critical.
(i) Legislative:
The legislative power of parliament is exercisable by bills passed by the
national assembly. Before and act of parliament becomes law, it is known as a
bill. A bill is a draft proposed by parliament. When the national assembly has
passed a bill, it is presented to the president for his assent. When this assent is
given, it becomes law and by definition an Act of Parliament. The operative
date of the act may be delayed to be brought into operation at a later date by
ministerial order but it is now a source of law of Kenya. The actual procedure
by which a bill becomes law is detailed and is contained in the Standing
orders of the National Assembly. In summary, a bill must receive 3 readings
in the national assembly. The second and third readings are the occasion for
wide debates on the main objects of the bill under discussion, Detailed
consideration is left to a committee stage, which takes place in a select
committee of the National Assembly or by the National assembly itself.
Thereafter, the president must give his assent to the bill before it becomes a
law. The effect of this new act is that it binds all people in Kenya.
(ii) Financial:
Each year, estimates of expenditure of the government are prepared by the
departments for the next financial year. These estimates are analysed by the
treasury/ ministry of finance and then submitted to the cabinet for approval.
After receiving the Cabinet’s approval, they are considered by a committee of
the whole national assembly. The estimates of the various departments are
then scrutinized and debated and this presents an opportunity for the policy of
****INCOMPLETE*****
The Doctrine of Separation of Powers
For purposes of constitutional analysis, the powers of government are traditionally

divided into 3 broad classes.
(i) The executive function
(ii) The legislative function
(iii) The judicial function
In any ordered form of government, there must be the distinction of these organs of
government such that the different functions are run exclusively. This line of thought was
suggested by various political thinkers who believed that the liberty of citizens would be
jeopardised if more than one of these powers was in the same hands. They believed that
if the same person or body exercised all three functions noted above, then there would be
tyranny and arbitrary government. It is therefore desirable that the powers of government
should be vested in different persons or bodies. It should be noted that strict separation is
still not desirable. What different philosophers believed in summary is that it is highly
undesirable that the persons who make the laws should execute them, for they may
exempt themselves from obedience of the laws they make, and shut the law, both in it’s
making and execution of their own private advantage and thereby come to have distinct
interest from the rest of the community. The three organs should therefore have separate
functions. The acts or deeds of each arm of government may have adverse effects on the
citizens and hence for the purpose of liberty and good governance of the people, each arm
should have it’s own role to play and none of these arms should usurp the role of the
other.
A more obvious importance is that is would be tyrannical and a miscarriage of justice for
one arm of government to perform all three functions being legislation, execution and
judicial practice. The authority on this importance is found in the constitutions of various
countries, including Kenya, which arguably vests judicial, legislative and executive
powers respectively.
In Kenya, we have a separation of powers to the extent that we have an independent
judiciary and this is of cardinal importance. The legislature which makes the laws,
contains certain members of the executive ministers, who are responsible for carrying out
the laws – who also participate in the legislative functions. There is nothing particularly
wrong with this because those ministers who are elected members of parliament, are
responsible, both financially and collectively, to the legislature for the administration of
their departments. It is arguable that the link here between the executive and the
legislature is essential for the efficient administration of government services.
Criticisms of the doctrine of separation of powers

One of the difficulties in separating the powers of government is that these divisions
become blurred when one strictly examines the powers of the different organs of
government. For example, ministers are given statutory power to legislate-delegated
legistation; for example, ministers are given statutory power to legislate delegated
legislation; legislation is the function of parliament, but the delegation of this function is
necessary as parliament doesn’t nave the time to make all laws. In addition, there must be
flexibility in administration; statutes are mere skeletons, the flesh is provided by
subsidiary legislation.
There are in existence several administrative tribunals e.g. the rent tribunals, which
exercise a quasi-judicial function in determining disputes between landlords and tenants.
The exercise of a judicial function by these tribunals is not a usurpation of the powers of
the judiciary. It is not recognition of the fact that there are certain functions which are
better administered by other bodies.
In it’s pure form, the doctrine has also been criticised on the following grounds amongst
others:
The government is an organic whole and therefore its work cannot be divided into
completely distinct or separate organs. Every organ of the state needs the assistance and
cooperation of other organs. Such artificial separation may therefore be a practical
impossibility.
It was also realised that complete separation of powers would give rise to a spirit of
competition rather than cooperation in the functioning of government. Competition
between the organs of government would lead to frequent disputes, deadlocks and
inefficiency thereby injuring public interest. Separation of powers is therefore desirable
only to the extent of promoting specialization is therefore desirable only to the extent of
promoting specialisation of functions, division of labor and enhancing efficiency. The
policies of government can succeed only if the three organs of government work in
unison.
The great political thinkers advocated for this doctrine in order to protect the rights and
liberties of the individual. In reality, it is known that liberty is not achieved merely by
strict separation of powers under the laws of any country. Liberty is best protected
through political will, political consciousness and vigilance by the governed. Even with
separation of powers, the liberty of the individual is still threatened ad the legislature may
pass laws oppressive to the people, which the executive must enforce and the judiciary
must apply to particular cases.
The doctrine has also been based on the false assumption that all three arms of the
government are equally important. In actual fact, the legislature emerges as the more
superior arm of government, as it is the main law making body in the government and it
also controls public funds thereby giving it control over the executive and the judiciary.
The legislature can also pass a vote of no confidence and thereby remove the then
government from power.
However, it is important to note that it has been said that the above and other criticisms of
this doctrine is based on a misconception of the doctrine. It has been said that the
philosophers never thought to separate the powers completely, but rather to modify the
concentration of powers. That, in actual fact, the theory really implies a partial
separation.
Conclusion
The solution might be in a compromise to ensure that the legislative, executive and
judicial powers are not vested in one man or one group. These should be separate and
independent of one another in such a way that they provide checks and balances and
thereby act as safeguards against tyrannical abuse of power.
The solution does not lie in a complete and airtight separation, It is about avoiding
concentration of governing power in any one arm of government as would enable that
arm to become despotic.
This end could best be achieved, not by a theoretically pure separation of the legislative,
executive and judicial power, but by a judicious blending and overlapping which would
permit each branch to check and balance the tyrannical tendencies of the others.
Debate: It was legal for the president to dissolve the cabinet and to prologue parliament.
For
-Sec 3 and 23 of Kenya Constitution: “The president can only do what is in the
constitution.”
- Sec 17, 15(2), 19(5), 16(3 a.) and 19 (2 a): “The president can abolish any office
he chooses.”
- The president has the right to terminate offices of government at his pleasure.
- The president chooses when parliament starts and stops.
- Sec 59(1): “The president can prologue parliament.”
Questions asked to the “For” group
- Sec 24, 16(1,2), 123(9 a.): “Isn’t the president a minister?”
Against
- Sec 16(1): “The president actually has a right to dissolve parliament at his own
will.”
- What the president did was legal, but regardless it was still dictatorial.
- Sec 3: “Certain decisions in the government cannot be made without ministers.
There are certain functions that cannot be discharged without ministers.”
Questions asked to the “Against” group
- Sec 23(1), 22(1).
Doctrine of Supremacy of the constitution

- Relevant sections of Kenyan Constitution are: Sec 3 and 47.
Read cases (Kenyan and Overseas) and analyze

- Facts.
- Issues.
- Law- common and statutory.
- Decisions.
- Reasons for decision.
The rule of law
The supremacy of the rule of law has since the middle ages been a principle of the
constitution. It means that the exercise of powers of government shall be conditioned by
law and that the subject shall not be exposed to the arbitrary will of his ruler.
In the middle ages, the theory was held that there was a universal law which ruled the
world. Bracton, writing in the first half of the 13th century, deduced from this theory the
proposition that rulers were subject to law.
Dicey’s exposition of the rule of laws
Of all the writers on the constitution since Blackstone, the most influential has been the
late A. V. Dicey, whose lectures delivered as Vinerian Professor of English Law at
Oxford and first published in 1885 under the title Introduction to the study of the law of
constitution1 have been studied by successive generations of statesmen, lawyers and a
large section of those interested in public life.
The constitutional law of today differs in many respects from that of 1885. but the
influence of Dicey remains a real force. There is no better way of distinguishing between
the permanent and impermanent features of our constitution than by examining the
principles of the constitution expounded by Dicey and determining how far they hold
good today. Of those principles which Dicey expounded, that which has had most
influence and at the same time has received most modern criticism is his exposition of the
rule of law.
Dicey gave the rule of law three meanings.

(i) Absence of arbitrary power:
This means in the first place, the absolute supremacy or predominance of

regular law as opposed to the influence of arbitrary power, and excludes the
existence of arbitrariness, of prerogative, or even wide discretionary authority
on the part of the government… a man may be punished for a breach of law,
but he can be punished for nothing else.
This interpretation conveyed that no man is punishable or can be punished or

made to suffer in body or goods, except for a distinct breach of law
established in ordinary legal manner before the ordinary court of the land. In
this sense, the rule of law is contrasted with systems of government based on
the exercise by persons in authority of wide or discretionary powers of
constraint.
(ii) Subjection of officials to the ordinary courts:
1
10th Edition, with introduction by E.C.S. Wade (Macmillan), 1959.
[The rule of law] means, again, equality before the law or the equal
subjection of all classes to the ordinary law of the land administered by the
ordinary law courts.
In this sense, the rule of law conveys that no man is above law; that officials,
like private citizens are under a duty to obey the same law, and (though this
does not necessarily follow ) that there are no administrative courts to which
are referred claims by the citizen against the state or it’s officials.
(iii) Constitution the result of ordinary law of the land:
[Lastly, the rule of law means] that with us the law of the constitution, the
rules which in foreign countries naturally form part of a constitutional code,
are not the source but the consequence of the rights of individuals, as defined
and enforced by the courts, that, in short, the principles of private law have
with us been the action of the courts and parliament so extended as to
determine the position of the #rown and of it’s servants; thus the constitution
is the result of the ordinary law of the land.
This meant that the legal rights of the subject, e.g. his freedom of action and
speech, are secured not by guaranteed rights proclaimed in a formal code but
by the operation of the ordinary remedies of private law available against
those who unlawfully interfere with his liberty of action, whether they be
private citizens or officials. A person libeled may sue his defamer. Free access
to courts of justice is an efficient guarantee against wrongdoers.
How far Dicey’s exposition was true of Dicey’s time is primarily a question for the legal
historian, How far it is true today and whether the conception of the rule of law has
permanent value as a principle of the constitution is an issue which must be established.
Dicey’s exposition of the rule of law must now be briefly examined in the light of
conditions prevailing in Kenya today.
The first part of Dicey’s definition: It is correct to say that ordinary law of Kenya is
supreme. A person will only be punished for a breach of law; he can also normally
foresee the consequence of his conduct. There are no special courts in Kenya for the trial
of certain offences. All persons are tried by the ordinary courts. Judges and magistrates
have a discretion in most cases as to the sentence they will impose but this discretion is
exercised within well defined limits; this does not detract from the principle. The police
have a discretion as to whether they will undertake a prosecution in criminal cases, but
this power is not abused. Certain persons, particularly members of the armed forces and
professional people, like advocates and doctors, are subject to special rules which
regulate their conduct and to domestic disciplinary action. There is no danger here as
such persons are subject to the ordinary laws; they do not occupy a privileged position in
the legal system.
The second part of the definition – Equality before the law: This is perfectly true, all
persons, including government ministers and officials, are equal before the law. It does
not mean that all persons have the same powers. The government officials have, of
necessity, more powers than the ordinary citizen, but they are all equal before the courts.
Diplomats, organizations like trade unions and infants enjoy certain privileges that others
do not, but there are acceptable reasons for this.
The third part of the definition has no application to Kenya. It is true in the United
Kingdom that fundamental rights and liberties stem from the ordinary law of the land, but
in Kenya these rights are contained in the constitution.
The rule of law applies in Kenya, but this does not affect the sovereignity of parliament.
Parliament can always alter the law and the new law will be supreme and will be
administered in the same way as other laws by the courts.
Legislation is the main instrument for implementing government policy, it provides for
law and order, it imposes controls, but the main effect is to increase the discretionary
powers of the government and this means that more powers are also given to the public
authorities. There is nothing particularly harmful in this, so long as checks and balances
exist.
The government departments and private individuals are treated equally, except that no
order of specific performance, certiorari, prohibition or injunction can be awarded against
the government; only a declaratory order. The function of the courts here is to ensure that
these bodies exercise their powers within the limits prescribed by parliament, An excess
of power must be curbed; an abuse of power must be remedied; illegal acts must be
challenged, and the citizen must have redress in the courts.
Apart from the courts determining disputes as noted by Dicey, Administrative tribunals
are increasingly becoming important. An administrative tribunal is a body established by
statute which is given powers of an administrative or quasi-judicial nature. Such tribunals
have been set up piecemeal to deal with specific matters. There have been debates as to
whether these tribunals are an extension of the judiciary, or an extension of the
administration, or whether they can be regarded as a distinct branch of the machinery of
government. What must be realized on the outset is that where tribunals are given quasi-
judicial powers, it is a clear recognition of the fact that the courts, with their strict rules of
procedure and evidence, are not always the ideal for the settlement of disputes. There is
no usurpation of the judicial function. Without doubt, these administrative tribunals have
advantages. They are more accessible than the courts, they are cheaper; they are free from
the technicality of the courts; they can sometimes call upon expert knowledge. On the
other hand, there is no proper appeal structure in the field of administrative tribunals, as
there is in the judiciary. An excess of jurisdiction on the part of tribunals can still be
remedied by the courts by means of an order of prohibition for an injunction, but this
form of control is no substitute for a proper appeal structure. Examples of tribunals are
the industrial court and the rent tribunals.
Doctrine of Supremacy
- Sec 3 and 47 of Kenyan Constitution.
- Even though it is what is provided for, the courts have had inconsistency as far as
when actual cases arise.
Reema Maangi [1968] EALR 637

An African widow had applied for a letter or administration in the case of

the estate of her dead husband. The high court had a practice of not
printing the letters for Africans because of the Indian acts (amendment)
act, section 9 of which said that all Indian acts applied to Africans with
respect to certain specified matters. Probate and administration were not
attributed as one of such matters. The relevant prohibition was
discriminatory.
Justice Farrell held that: “Section 9 of the Indian acts (Amendment) act is
discriminatory within the meaning of Section 6 of the [Kenyan]
Constitution (Now Section 82(2 and 3)) and I don’t think I need to say
more than that.”
Basically, the law was declared void because it was contrary to the
constitution.
Rep vs. AG & Police Commisioner Exparte Daniel Mwirigi M’Kirinani

The applicant, Daniel Mwirigi, was a bank security officer when
fraudulent activities were discovered. He assisted the police in
investigation and they arrested a suspect, a former military person who
was later charged. The applicant, during the investigation, was subjected
to interrogation (even during the public holidays). His human rights were
infringed upon and he filed an application seeking bail pending his arrest
and consequent charges. His contention was that while the police
investigated, they shouldn’t have kept him in custody necessarily. The
court held that, according to Section 84 of the Kenyan constitution,
anyone who feels that his rights are likely to be infringed upon had the
right to appeal to the high court. It therefore held that the applicant was
entitled to the prayers he sought and was he was admitted to bail pending
preferring charges against him
Margaret Magiri Ngui vs. Rep

The applicant was charged in the magistrate’s court of robbery with
violence, which was contrary to section 296(2) of the penal code. This
charge carried a mandatory death sentence. She was ailing in custody and
applied for bail in the trial magistrate’s court but the magistrate refused
on the basis of Sec 123 of the criminal procedure code as amended on
1978 & 84, which prohibited a grant of bail for offences that carried the
death penalty. However, section 72(5) of the constitution provided that
anyone arrested or detained for any offence shall be released either
conditionally or upon reasonable conditions as are necessary to provide
that he/ she appears later for trial.
In view of the contradiction, the court held that Section 123 of the criminal
procedure code was therefore void as it was inconsistent with section
72(5) of the constitution. The high court underscored the principle that the
constitution is supreme and that other laws conform to it.
- After the case of Margaret Magiri Ngui vs. Rep, Parliament amended the
constitution and altered section 72(5) to prevent capital crime criminals from
applying for bail.
John Kimutai vs. AG

The accused was charged under section 3(1) of the Narcotics, drugs and
psychotropic substances (Control) act of 1994, which provided that if
anyone is found in possession of any of the drugs, he wouldn’t be granted
bail. The court cited with approval the case of Margaret Magiri Ngui vs.
Rep and section 3(1) was held to be void as it was inconsistent with
section 72(5) of the constitution.
Okunda vs. Republic

The AG instituted criminal proceedings against two people under the
Official Secrets act of the E.A.C. Section 8(1) of the act however stated
that the consent of the council of E.A.C. was necessary to prosecute
anybody under the act. On the other hand, section 26(8) of the Kenya
Constitution provided that the AG wasn’t subject to discretion or control
of any other person in the exercising of a prosecution. Therefore, there
was a conflict between Section 8(1) of the E.A.C. Official Secrets act and
section 26(8) of the Kenya Constitution.
The court upheld the principle of the supremacy of the constitution and so
Section 8(1) of the E.A.C. Official Secrets act was held to be void.
Rep vs. El Mann

This was a constitutional reference on the court of the senior resident
magistrate. El Mann was charged with the offence of contravening the
Exchange Control Act (Cap 113 of the revised laws of Kenya). He
completed a questionnaire at the airport but didn’t submit the foreign
currency and the prosecution used this as evidence in court. Section 21(7)
of the Kenyan constitution (Now section 77(7)) however said that no
person charged for a criminal offence shall be compelled to give evidence
at trial. El Mann appealed saying that there was a contradiction between
the Exchange control act and the constitution.
Chief Justice Mwendwa ruled against El Mann and ordered him back to
the magistrate’s court; the Chief Justice failed to uphold constitutional
supremacy and chose to use ordinary rules of interpreting statutes rather
than to regard the constitution as a special statute with different rules of
interpretation. He stated that, “We don’t deny that to a certain context, a
legal interpretation may be called for. But in one cardinal respect, we are
satisfied that the constitution may be construed in the same way as any
other legislative enactment and where the words I use are precise and
unambiguous, they are to be construed in an ordinary and natural sense.”
- The case of Rep vs. El Mann is a rare occurrence in which the constitution was
not held supreme. Many scholars have criticized the decision in this case.
Crispus Karanja Njogu vs. AG

Was working at Kenyatta University.
Something about fake degree certificates.
Charged with the offence of masterminding.
(You’ll have to read up on this one. But how?)
Andrea vs. Republic

The applicant, a foreigner from Mozambique, was found guilty for
possession of illegal literature.
The applicant appealed saying that there was a breach of section 71(2
b.,d. and f.) of the constitution, which provided that the accused be
informed in his language of the details of his charges, be permitted to
defend himself in court in person or by a legal representative of his own
choice and be permitted to have an interpreter free of charge. Because
none of these things were done, according to section 77 of the constitution,
it was against the applicant’s right to a fair trial. He requested that the
trial be declared a mistrial.
The court held that although the applicant wasn’t asking for a trial, he
was asking for a retrial because of the chance that he might have not
understood the proceeding. The ruling asserted that the judge in the
original case had breached the applicant’s right to a fair trial and so the
proceedings and the sentence from the trial were null and void. The
constitution was thus held supreme.
Madhwa vs Nairobi City Council

The city council, in an attempt to promote Africanisation of the commerce
policy enacted a by-law that required some 6 Asians with their business
premises in Muindi Mbingu Street to evacuate their premises. The Asians
went to court and appealed against the by-law as it was inconsistent with
section 82(2, 6 and 7) which said that no one should be discriminated on
account of his race, creed blah blah blah and so the Asians had a right to
the premises.
The supremacy of the constitution was upheld as well as the importance of
the fundamental human rights.
Albert Rutori & S.K. Wangenda (on behalf of Kenya Bankers) vs. Rep
Parliament had passed a Central Bank of Kenya act In 2001 which set to
offer a charge on loans and rates of interest e.t.c. It was supposed to be
enacted in Jan 2001 but instead it was given government assent in August
2001. The government wanted the Central Bank of Kenya to revise
transactions that had now been criticized by the act. The banks contended
that seeking to reverse a legally established economic policy and establish
a new economic regime in the Central Bank of Kenya contravened section
77(4) of the constitution because the act sought to criminalize established
policies. It would be like recalling acts done at a time when they were
legal and terming them criminal. This amounted to retrospective
enforcement of a criminal act and a penal enactment and it was prohibited
at section 77(4) of the constitution of Kenya. To the extent of this
inconsistency, they felt that the Central Bank of Kenya act should be
declared null and void.
The court noted that even where section 47 has been adhered to in the
making of a law, if in an effort to enact it, it is found to be contradicting
any section of the constitution, it is considered void and the section of the
constitution supreme.
Class Handout
Supremacy of the constitution
The rationale behind constitutional supremacy is that the government is a creation
of the people. It is the people who create organs of state, clothes them with their power
and in so doing delimits the scope within which they operate. The people’s expression of
their authority, intent and wish is through the constitution. Thus the government is a
creation of the people by means of a constitution. Being therefore an emanation of the
will of a superior body, then it is a law that is in itself supreme.
1. People as the constituent power and they are the authority from where the
constitution draws its legitimacy. See the case of Timothy Njoya and others vs.
The Attorney General.
2. Kelsen – The constitution is the fundamental law of a country. It is the
supreme law; it is the grand-norm from where all other laws derive their
legitimacy and validity.
3. Section 3 of the Judicature Act lists the constitution as the supreme law of the
country and all other laws as inferior to the constitution.
Most constitutions contain a supremacy clause which states that the constitution is
supreme and any other law that contradicts it or is in conflict with the constitution is void.
Some constitutions too give the supreme courts or constitutional courts the power to
declare such laws void through the interpretation process. See section 3 of the Kenyan
constitution, which recognizes the supremacy of the constitution, Chapter one Article one
to Ghana’s 1992 constitution, Article 6(2) – of the constitution of the United States of
America.
Amendability of the Constitution

The extent to which a constitution is supreme depends to a large extent on the
ease or otherwise with which its provisions may be amended.
See Article 5 of the US constitution, Section 47 of the Kenyan Constitution. Article

5 gives congress the power to amend while section 47 gives parliament power to amend.
See the recent judgement in the Njoya case.
Experience in Africa and elsewhere has shown that while it may not be so
difficult to make a good constitution, it is very difficult to implement or observe it, and
all too easy to alter it or even overthrow it. If not well protected, a constitution thus can
be susceptible to easy amendment and this in turn can lead to instability in a country.
There is a need for the constitution to be protected against indiscriminate amendment. If
the amendment procedure is too simple, this reduces public confidence in the
constitution. The converse, however, is also true. If the amendment procedure is too rigid,
this may encourage revolutionary measures to bring about change instead of using the
acceptable means. Therefore a balance has to be struck between these two extremes.
Under constitutional law, a broad categorization is made between rigid and
flexible constitutions.
Rigid constitutions
In the case of rigid constitutions, the entire constitution, or part of it, is
safeguarded from amendment by prescription of certain special procedures or majorities
required before it can be amended, these prescriptions include:
(a) Specifying that the legislature’s approval of an amendment must be by a
particular majority. (Look at the provisions of Article 5 of the constitution of the
United States of America, Section 47 of the constitution of Kenya. Look at the
amendment provisions of the independence constitution of the Republic of Kenya,
Look at the proposed amendment procedures on the Draft Kenyan Constitution.
(b) Approval by the legislature both before and after an election.
(c) Approval by the legislature and the people in a referendum.
Flexible constitutions
A flexible constitution on the other hand requires no special procedures or
majorities for amendment to be made. The constitution is amended like any other
legislation. This is in tandem with the principle of parliamentary sovereignty, whereby
parliament is sovereign and is vested with the power to make and amend any legislation.
A good example of this is the practice on parliamentary democracies like Great Britain.
In Kenya, the power to interpret the constitution lies with the court.
Supremacy in the Kenyan Constitution

The independence constitution provided for various protection and enforcement
mechanisms. It provided for two categories of amendments:
(1) Ordinary Amendments.
(2) Amendments of specially entrenched provisions.
The ordinary or non-entrenched provisions could be altered by a vote of three-
quarters of all members in either house of the national assembly.
The specially entrenched provisions could not be altered except by a bill secured
by three-quarters of the votes of all members on the second and third readings in the
House of Representatives and nine-tenths of the senate in similar readings. The
entrenched provisions related inter alia to:
- Fundamental rights.
- Citizenship.
- Elections.
- The senate.
- The structure of the regions.
- The judiciary.
- The amendment process itself.
Section 3 of the Kenyan Constitution

It reads “This constitution is the constitution of the Republic of Kenya and shall
have full force of the law throughout Kenya and subject to Section 47, if any law is
inconsistent with this constitution, the constitution shall prevail and the other law shall, to
the extent of the inconsistency be void.”
See the cases of:
- Okunda vs. Republic, where it was held that the East African Community laws
and other laws within the meaning of Section 3. of the constitution are void to the
extent of any inconsistency with the constitution.
- Reema Maangi [1968] EALR 637 in which it was held that section 9. of the Indian
Acts was discriminatory and hence unconstitutional and therefore void.
- E.A. Community vs. Republic where it was held that the constitution is paramount
and the laws of the East African Community conflicting with it are void.
Section 47 provides for the alteration of the constitution by parliament. It requires
the support of at least 65 percent of the members of parliament. Parliament has powers to
alter any part of the constitution.
Interpretation of the constitution

Who is to interpret the constitution is a much-contested issue in constitutional
law. This is because interpretation of the law could mean changing certain values of the
constitution and also in the job of interpretation, judges do make law. Judges interpret the
law through the process of judicial review by declaring laws or legislation that are
inconsistent with the law invalid or by declaring administrative acts of the government
unconstitutional. The courts role in judicial review has been criticized for being counter-
Notes copied from Paul
Nationality and citizenship

- The term citizenship is more specific, more legalistic and more up to date in its
reference to the phenomenon of the modern state irrespective of its natural culture
or history. The term is derived form the word “city”, which suggests a link with
the days of the ancient civilization of city-state. The city-state in this respect is a
self-governing community in many ways like a normal state.
- The term citizenship addresses itself to the relationship between the individual
and the state as defined by the law of the state. The relationship deals with matters
such as acquisition or loss of citizenship status, rights, privileges, duties and
obligations.
- Rights and privileges include civil, political and social advantages. The duties and
obligations include abiding by civil as well as criminal law. Liability to military
service and loyalty to the state.
- While nationality and citizenship, in practice, substantially overlap, the former
doesn’t bear the legalistic connotations of the other.
- Nationality is essentially a cultural phenomenon derived from the notion of

nationalism: identification of the state or nation with the people. This occurs
given the psychological link with the national authority which nationality implies
more than citizenship anticipates the nation’s protection abroad and of citizenship
too. This attempt to rationalize the relationship between the two concepts still
runs into conflict with the terminology employed in certain countries. For
example, Britain’s relevant legislation is invariably described as the “British
Nationality Act.”
- In USA, an operational distinction is drawn between the two concepts.
- The term nationality is inaptly for the many countries of Africa, which endeavor
to construct distinct nations. The civic relationship between such countries and
their people must be seen in terms of citizenship.
- Acquisition of Kenyan citizenship is by:
(i) Birth. If a parent is a citizen after 11th December 1963, the person is
considered a citizen by birth, except for those whose fathers are envoys to
Kenya or citizens to other countries. (Sec 89 of the Kenyan constitution)
(ii) Naturalization. Anyone who is above 21 years, has resided in Kenya for 1
year prior to application for citizenship, is seen to be of good character by
the minister and has adequate knowledge of Kiswahili can be naturalized.
(Sec 93 of the Kenyan constitution)
(iii) Decent (Sec 90 of the Kenyan constitution)
(iv) Registration (Sec 92 of the Kenyan constitution)
- Citizenship by birth can’t be lost. But citizenship by registration or naturalization
can be lost by:
o Renunciation – Formal declaration made and deposited to the immigration
department.
o Deprivation - If someone is, by act or speech seen to be disloyal or
disaffected towards the country, then his/ her citizenship may be deprived.
(Sec 94 of the Kenyan constitution).
- Also see Commonwealth citizens (Sec 95).
Domicile
- It is the legal relationship between the individual and the country that is deemed
to be his home or his residence. It governs the personal law of an individual in
such matters as inheritance, contract, divorce, taxation e.t.c.
- It is distinct from citizenship and nationality because domicile and nationality or
citizenship don’t necessarily have to coincide. It simply means the place where a
person has made his permanent home and intends to live.
- There are 3 types of domicile:
(i) Domicile of origin (birth):
Imposed by the operation of law on every person at birth. A legitimate
child follows his father’s domicile. An illegitimate one follows his
mothers.
(ii) Domicile of choice:
Acquired by any person above 21 years with capacity. Someone may

abandon his domicile of origin and establish a new domicile with intention
of remaining permanently.
(iii) Domicile of dependance:
It occurs through the operation of law and is acquired by those legally
dependent on others. A child during infancy takes the father’s domicile. If
the father acquires a new domicile, the child’s domicile changes
simultaneously and when the child attains the age of maturity, his domicile
of dependence changes to the domicile of choice.
- Domicile is important because it is through it that we determine our personal
rights e.g. laws of contract or divorce that apply to us.
- It is the prerogative of each state to determine for itself and according to it’s own
laws what kinds/ classes of persons shall be entitled to it’s citizenship.
- These rules differ from constitution to constitution and it is an internal
understanding that nationality cannot be imposed upon people outside it’s
territory or that a country cannot impose citizenship upon people who have no
intention of living there permanently.
- The importance of nationality is that besides identifying every person and placing
him under a specific country of origin or belonging, it carries with it certain
advantages and duties.
- A citizen owes his allegiance to the state in return for the protection the state
provides for him.
- The citizen has the following rights:
(i) To be received back by one’s country if he had left.
(ii) To be protected by the state and not extradited when another state
demands his/ her extradition because he/ she is wanted for a political or
ulterior motive.
- The citizen has the following duties:
(i) To not perform acts that are injurious to the interests of other states
(maybe in a way that is contrary to the interests of the home-state)
(ii) To not do any precedented harm to the state and to protect the state when
it is threatened by any internal/ external aggression.
(iii) To be placed under the jurisdiction, whether political or judicial, of the
state based on the person’s nationality.
Statelessness
- This is the status given to any person who doesn’t possess any nationality of any
state.
- It occurs:
(i) Through conflicts of municipal laws of a state.
(ii) Through changes of sovereignty of a country e.g. if a country conquers
part of another country.
(iii) Through denationalization laws of a state.
- In the Hague codification conference of 1949, an attempt was made to rationalize
the laws and practices of states and statelessness. This was addressed in articles
13 and 15 of the conference resolutions and the proposals were made and
accepted by many states. The accepted proposals were:
(i) States should feel themselves obliged to regard certain nationality as
acquired or not to regard certain nationality as lost.
(ii) States should refrain from denaturalization laws unless there is just cause.
(iii) Liberal-minded states should endeavor to confer their nationality upon
declared stateless persons.
(iv) States are encouraged to give relief to stateless persons in the form of
identity documents, privileges of entrance to the country, privileges of
ability for residence and freedom to practice a profession in that country.
- These rules were adopted to minimize the occurrence of statelessness.
- When a country accepts refugees, it should treat them in a most human manner
and provide them with basic needs.
- It is the right of every country to grant political asylum to persons in self-exile,
expelled for political reasons from the countries in which they are nationalized.
Aliens
- Every statute is under a duty to admit aliens, with exception of criminals, drug
peddlers and diseased persons.
- A state is bound to admit foreigners but it is at liberty to impose conditions with
regard to admission and is entitled to exclude all aliens at will.
- Once an alien is admitted to a country, he becomes subject to the laws of that
country in the same way as it’s own citizens. Most states however subject
foreigners to some kinds of discriminatory treatment e.g. they must be denied the
right to vote or practice certain professions and businesses.
- Read about political asylum and extradition.
Constitutional law, fundamental rights and freedoms

What are fundamental rights and freedoms?
- Right to life.
- Right to movement.
- Right to expression/ speech.
- Right to privacy.
- Section70 of the constitution of Kenya.
- Whether or not the fundamental rights of people are upheld will be a matter of
opinion arising from the decisions of court.
- Section 70 applied for rights of any Kenyan citizen and provides for instances for
which they may be delegated:
(i) Right to life.

(ii) Right to personal liberty.
(iii) Freedom from slavery or forced labor.
(iv) Freedom from inhuman treatment.
(v) Right to own of property.
(vi) Freedom from arbitrary search.

(vii) Right to protection by the law.
(viii) Freedom of conscience.
(ix) Freedom of expression.
(x) Freedom of assembly and association.
(xi) Freedom of movement.
(xii) Freedom from discrimination.
- Section 70 also provides for delegation of these rights where any such delegation
ensures enjoyment of these rights by others as well as where the enjoyment
prejudices matters of public interest. This is broadly examined under section 83 of
the constitution, which provides for delegation from fundamental rights and
freedoms. They are due to people whatever race, creed blah blah blah.
- Section 71:
o Protection of right to life. Provided for protection against the international
degradation of life. It recognizes that the person’s right is not infringed
upon when he loses his life:
▪ When the government executes him as a capital punishment.
▪ When he is killed in order to be prevented from breaking the law.
▪ When he is killed in self-defense.
- Section 72:
o Right to personal liberty: Freedom from captivity, slavery or repressive
control. That which is enshrined in this section can only be delegated
from:
▪ Through a court order.
▪ During education or discipline of a person under 18 years.
▪ For the purpose of quarantine.
o It also provides for communication of reason for detention.
R vs. Kadhi of Kisumu Exparte (Nasreen) [1932] EALR 153

Mrs. Nasreen was married under Islamic law. The husband brought a
case under the Kadhi court for her leaving of the matrimonial home. He
sought restoration of conjugal rights. The Kadhi held that she must return
to her husband. She appealed to the High Court for declaration under
order ******* on the basis that the Kadhi’s decision would infringe on
her right to personal liberty, freedom of movement and freedom from
servitude. The court considered that a person may be deprived of his
personal liberty in the execution of a court order made to ensure the
fulfillment of an obligation imposed by the law. It then stated that in view
of the preeminence of the liberty of the subject under the constitution, it is
reasonable that the onus should be placed on those seeking to support the
Kadhi’s order to satisfy the court and to do so independently without
assuming authority of that order of existence in law of an obligation of the
wife to resume cohabitation with the husband. The operative law/ common
law therefore stated that the opposite. It was held in Place vs. Searle
[1932] 2 KB 497 that the wife should’t be held as the husband’s property.
Justice McCardie stated: “It is recognized that her body isn’t her
husbands but her own. The husband cannot restrain her physical liberty,
he cannot administer any physical punishment and her freedom of
occupation cannot be restricted by him.” Mr. Nasreen couldn’t show any
law that imposed a duty on his wife to restore conjugal rights and thus the
law upheld her right to personal liberty.
Kioko vs. R Crim. AC [1966]

The appellant was convicted of an offence under the Vagrancy act, a
colonial statute the basic intent of which had been to keep the urban areas
clear of tramps, vagabonds and loiterers. The object is clear from the
preamble to the act to make provision for the suppression of vagrancy, for
the detention of vagrants and the rehabilitation of beggars…The court of
1st instance had imposed a sentence of imprisonment of 1 year taking into
account the fact that this was the 7th time the accused was convicted of
vagrancy. His sole ground of appeal was that it was his appeal was that it
was his belief that such laws as the vagrancy act had been revoked under
the post independence legal order. Although the order through the
constitutional issue wasn’t clearly represented, the high court saw it fit to
consider the constitutionality of the vagrancy act in light of the bill of
rights. The court conclude$ that vagrants were a class of persons who the
statute sought to regulate in the interests of public order.
- Section 73: Protection from slavery and forced labor.

o It upholds the right of the people to freedom blah blah blah.
o In the case of R vs. Kadhi of Kisumu Exparte (Nasreen) [1932] EALR 153,
Mrs. Nasreen was to be subjected to servitude if the Kadhi court’s rule
was upheld. Implementation of the order in this case would have subjected
Mrs. Nasreen to the effective dominion of the husband to the extent of
constituting servitude.
- Section 74: Protection from Inhuman treatment.
o It prohibits torture. This however excludes punishment of any description
that is awarded by the law. It has been claimed that courts have a tendency
to fit the dignity claims of the individual to the scheme of operation of the
legal system and it’s machinery, thus giving preference to the latter. This
is illustrated in the case of Runyawa vs. R [1966] AER 693.
Runyawa vs. R [1966] AER 693

In this case, a south Rhodesian (the appellant) was charged with the
offence of attempting to set fire to a dwelling house. Just before the trial,
an amendment was made to the statute under which the case was brought.
The effect of the amendment was to increase the penalty for the offence.
The accused, who was tried and convicted appealed to the judicial
committee of the privy commission in England arguing that the
punishment of death was inhuman and degrading in the particular case as
it was excessive and inappropriate. This argument was rejected by the
privy council. Lord Morris held: “Once laws are validly enacted, it is not
for the court to adjudicate on their wisdom the appropriateness or
necessity of their existence. The provision of section 60 of the constitution
enables the court to adjudicate whether some form or type of description
or punishment newly devised or not previously recognized is inhuman or
degrading but it doesn’t enable the court to declare an enactment
imposing a punishment to be ultravirous on the ground that the court
considers that the punishment laid down by the punishment is excessive or
inappropriate for the particular offence.”
John Harun Mwau vs. Republic [1983] NHC Crim. AC 128 (Unreported
descision)
In this case, it was determined that the AG powers to terminate a case by
entering a Nolle Prosequi and then to reopen the case amounted to
inhuman treatment of the accused. As in the *******, one sees here a
direct conflict between, on one hand, the individual’s self esteem, dignity
and psychological tranquility and, on the other hand, the state’s
bureaucratic scheme as represented by its prosecution machinery. In the
view of the court, “inhuman treatment” must be taken to mean: “not
having the qualities proper or natural to human beings, destitute of
natural kindness or pity, brutal or unfeeling.”
It was held that the pre***** of charge at the instigation of the Attorney
General cannot amount to inhuman treatment as such an act doesn’t have
the qualities of being destitute of emotional kindness, brutal or unfeeling.
Felix Njagi Mawete vs. Republic [1987] Kenya Times (Unreported)

A technical assistant with the ministry of Agriculture and livestock
development, who was a married man with 4 children, was denied his
salaries with no explanation for 2 ½ years. He had served the ministry for
13 years but as a mere suspicion that he was involved in subversive
activities against public interests he wasn’t paid his salary; neither was he
formally dismissed from employment.
Justice Shield in the High Court ruled that: “I have no doubt that to
subject a man to 2 ½ years without pay and without work is a mental
torture and is inhuman and degrading treatment. Such treatment becomes
even more reprehensible when inflicted upon a married man with 4
children,”
- Section 75:
Haridas Changanlan vs. Kericho Urban District Council [1985] EALR

370
The plaintiffs were leasehold owners of a plot of crown land, first granted
in 1928 and used as a hotel. A condition in the grant limited the holder to
business and residential ownership only. In 1960, the plaintiffs were
refused by the council to erect a petrol station as this would constitute an

offence under the recently passed by-laws. By virtue of the local
government ordinance of 1960, the question for judicial consideration was
whether the judicial by-laws, the effect of which was to curtail the
plaintiffs’ scope for the use of the property, were in conflict with the
constitution. The court held that although it wasn’t out of order for the
town-planning scheme to be brought into order, it was subject to payment
for compensation. And the enactment, it was held, couldn’t take away
private rights to property without compensation unless the intention was
expressed in clear and unambiguous terms.
B.P. Bhutt vs. Habib Veshi Rashani [1958] EALR

Inthis case, the court remarked that purpose in the public interest
definitely included aims of object in which the general interest of the
community as opposed to the particular interests of individual are directly
concerned, Acquisition of property are outside the scheme of guarantee
unless it is to benefit the public and is not just a general or indirect
purpose.
- Section 76:
- Section 77:
Ogolla vs. Republic [1970] EALR 277

The appelant’s advocate asked for an adjournment of a hearing day so
that an advocate chosen by the appellant could conduct his defense. The
trial magistrate however refused. On appeal, the high court held that the
appellant’s constitutional right had been infringed and proceeded to order
for a new trial.
Hellman vs. Republic
Charles Okang vs. Republic [1989] NHC CC 1189
Muyimba vs. Uganda [1969] EALR 533
Stanley Munga Githunguri vs. AG [1986] NHC CC 271 (Unreported

decision)
- Section 78: Freedom of conscience:
Langhi Meghi vs. Carson Preghi [1976] KLR

Freedom of conscience as guaranteed by the constitution precludes the
court from interfering in matters of religion and conscience except where
there is breach of the law. The courts would therefore not interfere in
matters of a dogma ritual or other internal matters within the competence
of a church or religious organization. However, the courts are likely to
come down on acts of a religious kind if these come in conflict with

ordinary c***
Mugaa M’pwie vs. G. N. Kariuki [1981] NHC 556
- Section 79: Protection of freedom of expression
Republic vs. David Onyango Oloo []Senior President Magistrates court

(Unreported decision)
The accused was charged with possession and publication of seditious
documents. He pleaded that it wasn’t seditious as it was critical of public
matters. Also, he had difficulty perceiving the “demarcation point between
constructive criticism and sedition.” Without specifically addressing this
issue and in the context of constitutional guarantees, the court found him
guilty and sentenced him to 5 years imprisonment.
- Section 80:
Kagiya vs. Republic [1969] EALR 451

The then VP of the defunct opposition party, KPU, had been invited to the
occasion of sub branch office opening. Arising from the context of a
speech he was making, the ceremony was cancelled by the provincial
administration. Kagiya complied with the order and the crowd dispersed
in an orderly manner. But he was charged with holding of an unlawful
meeting, both at 1st instance and on appeal he was found guilty of holding
an unlawful meeting and sentenced to 6 months in jail. The interpretation
of the public order act but nothing was said of guaranteed freedom of
association in constitution. Any reasons of public order, public safety or
public morality should have taken supremacy over the right to assemble
and associate with party members. This wasn’t considered.
Angaha vs. the registrar of Trade Unions [1973] EALR 297
- Section 81: Protection of freedom of movement
Raila Odinga vs. AG [1986] Daily Nation 7th March (Unreported case)
Mwau vs. AG [1984] Commonwealth law bulletin No. 3 1108-1109
Patrick Padi Ooko vs. Republic [1986] HC CC 1189

The plaintiff was detained by virtue of regulation made by parliament. He
sought declaration that this detention was lawful because the detention
order had referred to him by a name that wasn’t his, i.e “Patrick Peter
Ooko” and also because the minister had failed to comply with section 27
of the constitution (at the time) which required that the detainee be
furnished with a complete report of the decision to detain. Justice Rudd
easily disposed of the first ground saying that “there is no doubt that he
was in fact the person that the detention order was intended to apply to.”
As to the second ground the judge said, “There could well be a great deal
of substance in such a submission if no written statement at all on the
grounds of submission had been submitted. In this case, there was a
statement of grounds though in sufficient *****, in such a case the
plaintiff is to apply to this court and this court on such a submission can
order further and better particulars on the grounds for the detention and
is not bound to order that the detainee be released from detention.” The
judge then ordered the defendant to supply to the plaintiff the details
complained about within 10 days. This order was duly complied with and
the judge then gave the second judgment in which he dismissed the
plaintiff’s case. He confined himself to procedural technicalities and
maintained that this wasn’t the legitimate duty of the court to pry into the
merits of the case. He said, “The grounds stated, if true could legally
justify his detention.” The truth of these grounds and the question of
necessity or otherwise of his continued detention are not matters of this
court.”
- Section 82: Protection from discrimination
Madhwa vs Nairobi City Council
Reema Maangi [1968] EALR 637
Fernandes vs. Kericho Liquor Licencing board [1968] EALR 640

The high court allowed an appeal on the basis that non-citizenship
couldn’t have been contemplated as a disqualification for the grant of a
liquor licence. This fits with Madhwa vs Nairobi City Council.
Shah Bershi Devshi and Co. Ltd. Vs. Transport Licencing Board [1971]
EALR 289
- Section 83: Delegation for fundamental rights.

o Very controversial section.
Liversidge vs. Anderson [1942] AC

Clearly indicate the proper procedure judges must follow should
fundamental rights and freedoms in the bill of rights be infringed.
“In a case in which the liberty of the subject is concerned, we cannot go
beyond the natural construction of the statute. In this country, amid the
clash of arms, the laws are not salient, they may be changed but they
speak the same language in law as in peace. It has always been one of the
pillars of freedom, one of the principals of liberty for which on recent
authority we are now fighting that the judges are no respecters of persons
and stand between the subject and any other encroachments on his liberty
by the executive alert to see that any coercive action is justified by law.”
- Section 84
Analita Karimi Njeru vs. Republic [1979] 1 KAR 154
David Makaro Nganga vs. Republic 1990 Mppl (Miscelaneous

Application) 166
The applicant filed a constitutional application under section 84 seeking
to restrain the police from arresting, detaining or harassing him. Not
understanding the fact that section 84 provides “that if section 82-83
inclusive has been or is likely to be contravened in relation to him”,
Justice David dismissed the application primarily on grounds that the
proper remedy for the applicant was an order of prohibition under
*********
The court reasoned that since in application for an order of prohibition
cannot be brought without leave of the court, the application before the
court must fail as no such leave had been granted.
Koigi Wamwere vs. AG [1990] HC 3 Appl No 180
George Anyona vs. Zachary Onyanka & Others 18th October 1989
Constitutional Law Cat

Question One
Either
- Define nationality. Distinguish between a national and a citizen.
- When is a person eligible for citizenship by naturalization?
Or
- Professor B.O. Nwabueze suggests that “there is no such thing as an independent
judiciary anywhere; the judiciary has always been created by the politics of the
economic base and not vice versa.” Discuss this statement in relation to the
doctrine of separation of powers.
Question Two
- Have Kenyan courts safeguarded the fundamental rights and freedoms provided
for in the constitution? Give cases and specific provisions under the constitution
to illustrate your answer.
ISSUES
SURROGACY
VETOE POWERS
Veto power and actuaql veto
Separation of power protect liberty but in the words of Hood Philips no complete separower unless
one department wants to dominate (separation of power a constitutional myth)
CORD is seeking the Constitutional court’s interpretation of Article 115 of the Constitution on
presidential assent and referral.
ORD also wants the court to declare that reservations and proposed amendments contained in
memorandum by the president are in breach of Constitution thereby null and void.
For a President who also have majority in both the Senate and Houde of Assembly, it is not clear
why he will need to veto. Veto and separation of power.
The Veto Power; eir power structure as Commander and Chief, and pardon criminals the power to
Veto is very controversial. One person vetoing three hundred parliamentarians.Latin for "I forbid
President exercise limited veto unlike the total veto by the security council. The presidential veto is
impartial because eit can be overcome by two-thirds vote.
A veto gives power only to stop changes, not to adopt them (except for the rare "amendatory
veto"). Thus a veto allows its holder to protect the status quo.
their objections in writing.[14] Spitzer, Robert J. (1988). The Presidential Veto. New York: State
University of New York Press. pp. 18–19. ISBN 978-0887068027.
Line vetoe illegal
Types of Vetoe; regular veto, the pocket veto and the line item veto
FULL ANSWER
A regular veto involves the president returning legislation to the originating
chamber of Congress unsigned within 10 days of having received it. Congress
can override this type of veto with a two-thirds vote of both of its houses.
A pocket veto cannot be overridden. It takes place when Congress adjourns

during the 10-day period during which the President can return a bill unsigned.
By simply not signing the legislation, the pocket veto takes effect.
A line item veto involves vetoing selected items of a piece of legislation while
approving the remainder. The U.S. President does not have this authority, but
some state constitutions give it to their governors.
he most common way for the president to veto a bill is for him to outright veto the proposal
and send it back to Congress with a veto message attached. A veto message is an
explanation as to why the president vetoed the proposal.
There is a second way that a president can veto a proposal called a pocket veto. Say a
president refuses to sign a bill but doesn't reject it outright, and Congress adjourns, or takes
a break, from its law-making cycle. Within ten working days after the proposal
Congress option
Rewriting
Two-third
e.g., unified or divided party control of the government) on aggregate veto usage by the president; 2)
the effect of veto usage on the popularity of the president, and 3) the overall effect of the president’s
veto power on bill content (including pork barrel legislation), the legislative productivity of Congress,
and the stability of public policy.
UHURU VETOES
1Kenya's President Uhuru Kenyatta has rejected a controversial media bill passed by parliament that
would have imposed regulation on journalists. 28 November 2013
NAIROBI, Kenya, Aug 5 – President Uhuru Kenyatta has rejected an amendment to the EACC Act in
which Members of Parliament wanted the commission’s secretary Halakhe Waqo and his deputy
Michael Mubea sacked.
he Public Audit Bill, 2015. Uhuru's proposal seeks to make the Auditor General's office
subservient to the Public Service Commission (PSC), which they believe will weaken the independent
office that exposes theft of public funds
dependence of the Auditor

General and his work, and therefore,
they had to be rejected
and send it back to Parliament with reservations—had to be "used carefully, selectively

how BOUT IF IT IS ILLEGTAL
Constitution 109 (1) Parliament shall exercise its legislative power through Bills passed by Parliament and
assented to by the President.
What is parliament legislative power
constitution 109 (5) A Bill may be introduced by any member or committee of the relevant House of Parliament,
but a money Bill may be introduced only in the National Assembly in accordance with Article 114.
Constitution 110 (2) (b) an ordinary Bill, which shall be considered under Article 112, in any other
case
Understanding: If the bill does not relate to elections or annual allocation then the speakers would
stamp the bill as “Ordinary Bill.”
Understanding: A bill considered as concerning the County may originate from both houses says
this law. For example if I’m in Embu County and have a concern that border insecurity is leading to
drugs into Kenya then this becomes an issue concerning the county government.
Constitution 109 (5) A Bill may be introduced by any member or committee of the relevant House of
Parliament, but a money Bill may be introduced only in the National Assembly in accordance with
Article 114.
Understanding: Any bill can originate from a committee or a member. A “Money bill,” is stated to
originate only from the National Assembly. The reason given in countries this is applied is that taxation
should originate from people who are taxed. The National assembly is the equivalent to peoples
representative whereas the County is a land area where people are settled. If a Money Bill was to
originate from the Senate it would be so hard to pass in the peoples representative house. This system
is adopted this way in many countries and states so as to make government funding achievable. The
Senate is supposed to adjust the bill to achieve regional equality.
Constitution 110 (1) In this Constitution, “a Bill concerning county government” means–– (a) a Bill
containing provisions affecting the functions and powers of the county governments set out in the
Fourth Schedule.
Understanding: The functions set in forth schedule include: Housing, farming, Disaster management
and others. Almost all bills passed will have something affecting the County either through land,
property in County and the access to homes of residents of a County. Again it is up to speaker of
Senate to decide if it affects Counties or not. The Speakers would then label the bill as one concerning
county governments.
Constitution 110 (b) a Bill relating to the election of members of a county assembly or a county
executive.
Understanding: This is direct and thus all laws that will affect the jobs would also be labeled as “Bill
Concerning County Government.”
Constitution 110 (c) a Bill referred to in Chapter Twelve affecting the finances of county governments.
Understanding: This is a bill that concerns finances of a County Government. The Division of
Revenue bill that is now the discussion should have been labeled as a “Bill Concerning County
Governments” by the two speakers.
Constitution 110 (2) A Bill concerning county governments is–– (a) a special Bill, which shall be
considered under Article 111, if it–– (i) relates to the election of members of a county assembly or a
county executive.
Understanding: This law says the bill concerning counties shall be also labeled Special Bill if it relates
to elections of County Government.
Constitution 110 (2) (a) (ii) is the annual County Allocation of Revenue Bill mentioned in Article 218.
Understanding: The recent bill of Kshs 210 billion was a special bill.
Constitution 110 (2) (b) an ordinary Bill, which shall be considered under Article 112, in any other
case
Understanding: If the bill does not relate to elections or annual allocation then the speakers would
stamp the bill as “Ordinary Bill.”
Constitution 110 (3) Before either House considers a Bill, the Speakers of the National Assembly and
Senate shall jointly resolve any question as to whether it is a Bill concerning counties and, if it is,
whether it is a special or an ordinary Bill.
Understanding: Both speakers are required by this law to jointly resolve whether the Bill (1.)
Concerns Counties (2.) Is a Special Bill and (3.) Is Ordinary Bill. The current problem in Kenya is
caused by failure of the Speakers to apply this constitutional law strictly.
Constitution 110 (4) When any Bill concerning county government has been passed by one House of
Parliament, the Speaker of that House shall refer it to the Speaker of the other House.
Understanding: Once a Bill is stamped Concerning Counties, Ordinary or Special Bill then once
passed by one house it would the next.
Constitution 110 (5) If both Houses pass the Bill in the same form, the Speaker of the House in which
the Bill originated shall, within seven days, refer the Bill to the President for assent.
Understanding: The Bill in this case passes without amendment in second house.
Constitution 111 (1) A special Bill concerning a county government shall proceed in the same manner
as an ordinary Bill concerning county government, subject to clauses (2) and (3).
Understanding: However if a bill is stamped, “Special Bill,” it would be subject to laws 111 (2) and 111
(3).
Constitution 111 (2) The National Assembly may amend or veto a special Bill that has been passed
by the Senate only by a resolution supported by at least two-thirds of the members of the Assembly
Understanding: The Senate and National Assembly both represent the people of Kenya. One as
equal proportions and one based on regions. The Veto power here should only seen from the context
that 67% of the Kenya citizens disagree with bill through their representatives. Indeed this law would
be stronger if each constituency had an equal proportion or representation. The 47 women county
representatives should be in the senate if a peoples representatives house is to be created. The
reason behind this law can be found in the current population distribution where a majority of counties,
24 counties, have 30% population. This law helps to protect the counties with large population from the
counties with small populations. The senate power comes from the regions and thus the reason why
the citizens of Kenya put this law so they are not overtaxed by counties with low population in
distribution of the money. Without this law 24 counties with 30% population could keep demanding
more and more without an end. This law helps balance population and regions.
Constitution 111 (3) If a resolution in the National Assembly to amend or veto a special Bill fails to
pass, the Speaker of the Assembly shall, within seven days, refer the Bill, in the form adopted by the
Senate, to the President for assent.
Understanding: The Senate should always make sure that they cannot be vetoed in any bill by having
the required votes. Caucus of County representatives (Senate and National Assembly) would become
important at this stage.
Constitution 112 (1) If one House passes an ordinary Bill concerning counties, and the second
House–– (a) rejects the Bill, it shall be referred to a mediation committee appointed under Article 113;
or (b) passes the Bill in an amended form, it shall be referred back to the originating House for
reconsideration.
Understanding: This sets process to consider the views of both houses. The Key word here is
“Ordinary,” Bill.
Constitution 112 (2) If, after the originating House has reconsidered a Bill referred back to it under
clause (1) (b), that House–– (a) passes the Bill as amended, the Speaker of that House shall refer the
Bill to the President within seven days for assent; or (b) rejects the Bill as amended, the Bill shall be
referred to a mediation committee under Article 113.
Understanding: This sets the system in which the other House may accept and pass the bill onward
to the President for consent or create a mediation committee.
Constitution 113 (1) If a Bill is referred to a mediation committee under Article 112, the Speakers of
both Houses shall appoint a mediation committee consisting of equal numbers of members of each
House to attempt to develop a version of the Bill that both Houses will pass.
Understanding: A new version of a bill can be created that harmonizes the ideas of both houses. The
reason why we have regional and people’s representatives is for this system to make sure the counties
with less population are considered.
Constitution 113 (2) If the mediation committee agrees on a version of the Bill, each House shall vote
to approve or reject that version of the Bill.
Understanding: The new version is voted simultaneously. Many a time a new version will have the
number of votes.
Constitution 113 (3) If both Houses approve the version of the Bill proposed by the mediation
committee, the Speaker of the National Assembly shall refer the Bill to the President within seven days
for assent. (4) If the mediation committee fails to agree on a version of the Bill within thirty days, or if a
version proposed by the committee is rejected by either House, the Bill is defeated.
Understanding: This gives the end plan of passing or defeat.
Constitution 114 (1) A money Bill may not deal with any matter other than those listed in the definition
of “a money Bill” in clause (3).
Understanding: This protects unpopular issues being added to a money bill.
Constitution 114 (2) If, in the opinion of the Speaker of the National Assembly, a motion makes
provision for a matter mentioned in the definition of “a money Bill”, the Assembly may proceed only in
accordance with the recommendation of the relevant Committee of the Assembly after taking into
account the views of the Cabinet Secretary responsible for finance.
Understanding: A money bill has to have the views of the Cabinet Secretary.
Constitution 114 (3) In this Constitution, “a money Bill” means a Bill, other than a Bill specified in
Article Constitution 218, that contains provisions dealing with—(a) taxes; (b) the imposition of charges
on a public fund or the variation or repeal of any of those charges (c) the appropriation, receipt,
custody, investment or issue of public money; (d) the raising or guaranteeing of any loan or its
repayment; (e) matters incidental to any of those matters.
Understanding: This defines the raising of money and expenditure of the money.
Constitution 114 (3) (4) In clause (3), “tax”, “public money”, and “loan” do not include any tax, public
money or loan raised by a county.
Understanding: This means the Money Bill in the National Government does not make decisions
regarding tax, public money and loan raised by County.
Constitution 115 (1) Within fourteen days after receipt of a Bill, the President shall— (a) assent to the
Bill;
Understanding: The assenting of the bill means the president accepts the bill as so written.
Constitution 115 (1) (b) refer the Bill back to Parliament for reconsideration by Parliament, noting any
reservations that the President has concerning the Bill.
Understanding: The president after reading may find they are unable to execute the bill and may
send it back noting reservations for not passing. The reason here based on the feeling one cannot
execute the bill. It is the veto part but with explanation why.
Constitution 115 (2) If the President refers a Bill back for reconsideration, Parliament may, following
the appropriate procedures under this Part— (a) amend the Bill in light of the President’s reservations;
or pass the Bill a second time without amendment.
Understanding: Parliament can then amend bill per the President’s requirements or pass the bill
again without amendment.
Constitution 115 (3) If Parliament amends the Bill fully accommodating the President’s reservations,
the appropriate Speaker shall re-submit it to the President for assent.
Understanding: Parliament can amend bill per the President’s requirements and pass it and send it
to the President. It is this act of causing a bill to change that makes the President a Legislator.
Constitution 115 (4) Parliament, after considering the President’s reservations, may pass the Bill a
second time, without amendment, or with amendments that do not fully accommodate the President’s
reservations, by a vote supported— (a) by two-thirds of members of the National Assembly; and (b)
two-thirds of the delegations in the Senate, if it is a Bill that requires the approval of the Senate.
Constitution 115 (5) If Parliament has passed a Bill under clause (4)— (a) the appropriate Speaker
shall within seven days re-submit it to the President; and (b) the President shall within seven days
assent to the Bill.
Understanding: Parliament can pass the bill by two-thirds vote. This is the law that enables a
Parliament with one party controlling over two-thirds of the both houses to override the president.
However, this override is the current greed of salaries for MPs in Kenya.
Constitution 115 (6) If the President does not assent to a Bill or refer it back within the period
prescribed in clause (1), or assent to it under (5) (b), the Bill shall be taken to have been assented to
on the expiry of that period.
Understanding: This is where a President lets the bill become law without affecting their political
ideology. Thus during the campaign the President would not be tied to the bill. Where Parliament is
controlled by one party and the President controls the Executive many bills will pass through this
assent system.
Constitution 116 (1) A Bill passed by Parliament and assented to by the President shall be published
in the Gazette as an Act of Parliament within seven days after assent.
Understanding: The public gets to read the bill. If the public were totally in disagreement of the bill
then they could exercise their recall power and then appoint new representatives who could reverse
the bill.
Constitution 116 (2) Subject to clause (3), an Act of Parliament comes into force on the fourteenth
day after its publication in the Gazette, unless the Act stipulates a different date on or time at which it
will come into force.
Understanding: The act of parliament comes to force in 14 days.
Constitution 116 (3) An Act of Parliament that confers a direct pecuniary interest on members of
Parliament shall not come into force until after the next general election of members of Parliament.
Understanding: This law protects any additions that could be defined as leading to parliamentarians
getting extra benefits through abuse of legislative power and override under thislaw. The Parliamentary
budget of Kshs 19.1 billion will likely be evaluated closely and could become a legal battle in future if
this is violated.
Constitution 116 (4) Clause (3) does not apply to an interest that members of Parliament have as
members of the public.
Understanding: An interest that members of parliament have as members of public is exempted

when the Member of Parliament is getting a benefit gotten from all by all citizens. For example
reduction in taxes of basic commodities leading to food prices reductions is a pecuniary benefit to
Members of Parliament as members of public.
KIBAKI
Ngilu health insurance bill
Hunting on national parks
ep 28, 2007 - Kenyan President Mwai Kibaki has vetoed a proposed law aimed at barring an anti-
graft agency from probing crimes committed before Ma
The Kenya Climate Change Authority Bill was passed by the country’s parliament in December.
The KCCA would have advised national and regional governments on how to cope with climate
change, punish environmental offenders and implement local and international agreements on climate
issue The president’s assertion about lack of public input has been disputed by groups involved in
crafting the law, including the Kenya Climate Change Working Group (KCCWG), a nongovernmental
organisation.
007-09-28 11:56
Nairobi - Kenyan President Mwai Kibaki on Thursday vetoed a proposed law aimed at
barring the national anti-graft agency from probing crimes committed before May 2003, after
some of the biggest corruption scandals took place.
Earlier this month, the parliament rejected government amendments to a law that would give
the Kenya Anti-Corruption Commission (KACC) powers to investigate graft allegations before
May 20 2003, after the unit was set up.
In addition, the MPs also rejected an amendment that would have made it mandatory for
public officials to disclose their wealth.
Kibaki's office said: "The specific amendments to the bill that the president refused to assent
include amendments to the Anti-Corruption and Economic Crimes Act, 2003 and
amendments to the Public Officer Ethics Act 2003."
The role of legislature is to enact laws, of the executive to ensure

securityand make provisions against invasion, etc., 4and of the
Judiciary simply to pass judgment upon disputes.He thought that
To concentrate more than more class of function in any one person
Or organ of government is a threat to individual liberty. He,
therefore,propounded that: (i)one organ of the government should
Not perform the function of another organ, (ii) one organ should
not control or interfere with the function and exercise of power of
Another organ, (iii) the same persons should not form part of more
Than one of the three organs of the state.
5

Constitutional Law I

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Constitutional Law I

Uploaded by

Copyright:

Available Formats

GPR 104 Constitutional Law I Lec: Mrs.

Pamela Oburu Ager

- Class postponed to Friday 2 pm.

Policies of a good constitution

Origin of the constitution

▪ They are elastic and adaptable to change as they can be easily

▪ There is greater protection of the fundamental rights and freedoms

o The merit of a presidential executive constitution is that there is clear

Next week: Constitutional Supremism

Notes for today are in handouts.

The doctrine of separation of powers

individual government such that none is subordinate to the other. Examples of

Parliamentary Executive constitutions and Presidential Executive constitutions

Class Handout – Constitutional Law 1

The Judiciary, Executive and Legislature

How far is the independence of the judiciary achieved?

The Doctrine of Separation of Powers

For purposes of constitutional analysis, the powers of government are traditionally

Criticisms of the doctrine of separation of powers

Doctrine of Supremacy of the constitution

Read cases (Kenyan and Overseas) and analyze

The rule of law

Dicey’s exposition of the rule of laws

Dicey gave the rule of law three meanings.

This means in the first place, the absolute supremacy or predominance of

This interpretation conveyed that no man is punishable or can be punished or

(iii) Constitution the result of ordinary law of the land:

Reema Maangi [1968] EALR 637

An African widow had applied for a letter or administration in the case of

Rep vs. AG & Police Commisioner Exparte Daniel Mwirigi M’Kirinani

Margaret Magiri Ngui vs. Rep

John Kimutai vs. AG

Okunda vs. Republic

Rep vs. El Mann

Crispus Karanja Njogu vs. AG

Andrea vs. Republic

Madhwa vs Nairobi City Council

Amendability of the Constitution

See Article 5 of the US constitution, Section 47 of the Kenyan Constitution. Article

Supremacy in the Kenyan Constitution

Section 3 of the Kenyan Constitution

Interpretation of the constitution

Notes copied from Paul

Nationality and citizenship

- Nationality is essentially a cultural phenomenon derived from the notion of

- Also see Commonwealth citizens (Sec 95).

Acquired by any person above 21 years with capacity. Someone may

- Read about political asylum and extradition.

Constitutional law, fundamental rights and freedoms

(i) Right to life.

(vi) Freedom from arbitrary search.

R vs. Kadhi of Kisumu Exparte (Nasreen) [1932] EALR 153

Kioko vs. R Crim. AC [1966]

- Section 73: Protection from slavery and forced labor.

Runyawa vs. R [1966] AER 693

Felix Njagi Mawete vs. Republic [1987] Kenya Times (Unreported)

Haridas Changanlan vs. Kericho Urban District Council [1985] EALR

refused by the council to erect a petrol station as this would constitute an

B.P. Bhutt vs. Habib Veshi Rashani [1958] EALR

Ogolla vs. Republic [1970] EALR 277

Charles Okang vs. Republic [1989] NHC CC 1189

Muyimba vs. Uganda [1969] EALR 533