G34/3415/2022

Parliament enacted the Fair Administrative Action Act in 2015 to give effect to the provisions of Article 47 of the
Constitution 2010. Critically examine the strengths and weaknesses of the Act in implementing the provisions of
Article 47 of the Constitution and promoting access to administrative justice in Kenya today

CRITICAL EXAMINATION OF THE FAIR ADMINISTRATIVE ACTION ACT

The Fair Administrative Action Act (FAAA) was enacted in 2015 to give effect to Article 47 of the
Constitution which states that;

1. Every person has the right to administrative action that is expeditious, efficient, lawful,
reasonable and procedurally fair.
2. If a right or fundamental freedom of a person has been or is likely to be adversely
affected by administrative action, the person has the right to be given written reasons
for the action.
3. Parliament shall enact legislation to give effect to the rights in clause (1) and that
legislation shall;
a) provide for the review of administrative action by a court or, if appropriate, an
independent and impartial tribunal; and
b) promote efficient administration.

The act provides a framework and foundation to actualize these rights and fundamental
freedoms. It applies to all state organs and any other person or body that carries out
administrative action and stipulates the manner in which administrative action may be taken
including the standards which are to be employed in making a decision. An emphasis is placed
on the facilitation of provision of reasons for any administrative action; an extremely important
consideration in ensuring fairness. There is a strong correlation between the quality of reasons
given and the quality of the decision reached. Failure to provide reasons where required
constitutes an offence under this act

The act also provides steps for internal review of administrative action before it reaches the
court and this has helped avoid unnecessary legal challenges. FAAA was expected to
significantly enhance the ability of individuals to challenge arbitrary and unreasonable
administrative action, or an omission, that affects them. It has done this and more thus playing
a crucial role in ensuring that administrative actions in the country are conducted in a fair,
efficient, and lawful manner.

In many ways the Fair Administrative Action Act of 2015 stands as a cornerstone in Kenya's
legal framework, aiming to operationalize the constitutional provisions enshrined in Article 47.
However, its implementation and effectiveness in promoting administrative justice warrant a
comprehensive analysis, considering both its strengths and weaknesses.

Strengths of the Fair Administrative Action Act.

Clear and comprehensive legal framework for redress

The Act sets out the procedures that individuals can follow to seek redress for unfair
administrative actions, including the right to be heard, the right to reasons for a decision, and
the right to appeal. This helps to ensure that individuals have a fair and transparent process for
challenging administrative decisions that affect their rights and interests. It also provides a clear
legal framework delineating the rights and obligations of both public authorities and citizens in
administrative proceedings. By codifying these principles, it enhances legal certainty and
predictability, laying a solid foundation for promoting fairness and transparency.

Promotion of Accountability:

The Act’s emphasis on accountability is one of its notable strengths. Public authorities are
mandated to provide reasons for their administrative decisions. A breach of the provision of
reasons may be declared to be an additional ground of review.

This has fostered transparency and enabled affected parties to understand the rationale behind
administrative actions. This requirement has also become a deterrent against arbitrary
exercises of power.
 Procedural Safeguards:

By incorporating procedural safeguards, such as the right to be heard and the right to access
information, the Act empowers individuals to participate meaningfully in administrative
processes. These safeguards serve as bulwarks against procedural irregularities and ensure that
affected parties have a voice in decision-making, thus upholding the principles of natural
justice.

By requiring administrative actions to adhere to principles of fairness, the Act safeguards

individuals from arbitrary or unjust decisions by public authorities. This promotes trust in the
public administration and upholds the rule of law

Establishment of Independent Review Mechanisms:

The Act provides for the review of administrative action by a court or an independent and
impartial tribunal such as the administrative review tribunal. This mechanism ensures that
administrative decisions can be scrutinized by an external body, promoting accountability and
fairness. It also serves as a check on the exercise of administrative power, ensuring that
decisions are made in accordance with the law and the principles of fair administrative action.
By establishing an independent review mechanism, the Act strengthens the administrative
justice system in Kenya thus enhancing public trust in it, facilitates impartial adjudication and
providing avenues for redress to aggrieved parties

Protection of citizens’ rights;

This legislation establishes a framework to safeguard individuals' rights in their interactions

with public authorities. In the event that an individual is affected by an administrative action he
or she has a right to attend the proceedings and also have legal representation regardless of
their status. It also recognizes the right to fair administrative action in Article 47 of the
Constitution of Kenya 2010, and entitles every citizen to administrative action that is
expeditious, efficient, lawful, reasonable, and procedurally fair. By promoting transparency and
accountability in decision-making processes, and providing avenues for redress through judicial
review, the Act plays a crucial role in upholding the rights of individuals and ensuring that they
are treated justly within the administrative system

Weaknesses of the Fair Administrative Action Act

Implementation Challenges:

Despite its laudable objectives, the Act faces implementation challenges. The Act contains a
provision that mandates the establishment of an independent and impartial tribunal for
reviewing administrative actions. However, insufficient resources and capacity have hindered
the implementation of this provision effectively. This problem has also been a major hinderance
for public authorities tasked with the enforcement of the act..

This has undermined the Act's effectiveness in safeguarding administrative justice. There have
also been instances of non-compliance and inadequate implementation of the Act by public
officers. This hampers the realization of its objectives and undermines the right to fair
administrative action.

Complexity of Procedures:

The procedural requirements stipulated in the Act may be overly complex and inaccessible to
the general populace, particularly those with limited legal knowledge or resources. This
complexity deters individuals from pursuing remedies. This becomes a barrier towards
accessing administrative justice, especially for marginalized groups.

While comprehensive, the Act can be complex and difficult to navigate. This challenge is
particularly significant for public servants who are responsible for implementing the Act's
provisions. The intricacies of its provisions may lead to confusion and inconsistencies in the
implementation and compliance of its requirements. This could potentially undermine the
effectiveness of the Act
 Limited Remedies:

While the Act sets out procedures that individuals can follow to seek redress for unfair
administrative actions, the remedies provided such as compensation and reversal of decisions
may be inadequate to address the full extent of harm caused by unjust administrative actions.
Section 9 (2) of the Act provides that a person aggrieved by an administrative action may apply
for judicial review of such action, but only after exhausting all remedies available under any
other written law. This requirement may delay the process of seeking redress, particularly
where administrative remedies are inadequate or ineffective.

Furthermore, the remedies provided by the Act may not always be available or accessible to
individuals due to factors such as cost, time, and complexity. This may leave aggrieved parties
without adequate recourse. These limitations may undermine the effectiveness of the Act in
providing redress for administrative injustices.

Inadequate Public Awareness and Education:

Despite efforts by various public bodies, there is still a lack of widespread public awareness
regarding the Act and the rights it guarantees. Most citizens are not aware that they can
challenge unjust administrative actions or gain access to information held by a public authority
under the Act, and request relevant documents to challenge a decision. Without a
comprehensive understanding of their rights and avenues for recourse, individuals may struggle
to navigate the administrative justice system, resulting in continued instances of injustice and
inequality in administrative processes.

Inadequate public awareness can also lead to underutilization of the Act's provisions and
become a barrier to accessing administrative justice, particularly for marginalized or vulnerable
groups who may face additional challenges in navigating the legal system perpetuating
disparities in access to justice.
The Fair Administrative Action Act represents a significant milestone in promoting access to
administrative justice in Kenya. The Act has a transformative potential in upholding the
principles of fairness, transparency, and accountability in administrative processes. However, its
effectiveness hinges on addressing the aforementioned strengths and weaknesses.
Strengthening implementation mechanisms, simplifying procedural requirements, expanding
available remedies, enhancing public awareness, and bolstering enforcement mechanisms are
crucial steps towards ensuring that this act fulfills its potential.