THE RULE OF LAW AND HUMAN RIGHTS: A CASE STUDY

OF KENYA

BY

OTIENDE AMOLLO*

A PAPER PRESENTED TO THE LAW SOCIETY OF

ZIMBABWE DURING THE WALTER KAMBA RULE OF LAW
DAY

IN

HARARE ZIMBABWE,

06TH DECEMBER, 2012

* CMMR. OTIENDE AMOLLO, EBS, LL.B, LL.M, Advocate, Chairperson Commission on

Administrative Justice /Ombudsman, Chair of the Forum of Chairpersons of Constitutional
Commissions and Independent Office Hold ers, and former Member of the Committee of Experts
on Constitutional Review of the Rep ublic of Kenya.

1.0 INTRODUCTION
It gives me great pleasure to join you today as the Keynote Speaker on
this occasion to share my perspective on the rule of law and human rights
two concepts that are dear to me and indeed all of us as lawyers. I wish
to take this opportunity to thank and commend the Zimbabwe Law
Society for organizing this Forum and inviting me to be the Keynote
Speaker. I have noted from the concept note that the Society has had
this event for the past two years where outstanding members of the Legal
Profession have been honoured.
It is now universally accepted that the rule of law and respect for human
rights are indicators of good governance and form the foundation of a
civilized society. They provide the foundation upon which the values, and
substantive standards and processes of governance are based. Their
benefits are enormous as evidenced in their global adoption and
operationalization. These concepts have crystallized in many countries,
Kenya and Zimbabwe included, through the express acknowledgement
in the Constitution. Governance practitioners are unanimous that their
inclusion in the Constitution is in itself a manifestation of their importance in
modern society, even if in principle only. While these concepts exist in
some of the international and regional legal instruments as well as the
national constitutions, there still remains a significant gap in relation to
their realization. In all these cases, the Judiciary and the Legal Profession
play an important role; an unparalleled role in ensuring a comprehensive
framework of the rule of law and human rights in the legal system, and
further securing their realisation. This Paper seeks to examine the concepts
of the rule of law and human rights with a brief discussion of the theory
and practice in Kenya.
2.0 THE CONCEPT OF THE RULE OF LAW
The concept of the rule of law is one of the primary principles that
underpin good governance. It is a legal principle that posits that matters
of governance have to be based on established laws and principles
rather than the personal whims of the governors. The concept is believed
to have originated during the era of Aristotle with his extensive writings on

the subject.1 In one of his writings, Aristotle had underscored the

importance of the concept by stating that the rule of law is better than
that of any individual. The concept was further championed during the
period of enlightment by philosophers such as Hobbes, Locke, Rousseau,
Montesquieu, Kant and Hegel among others.2 Indeed, the essence of this
concept is evident in the case of Proclamations by Lord Justice Coke
when he stated that the King himself ought not to be subject to man, but
subject to God and the law, because the law makes him King. 3
In spite of the writings of the early scholars, the concept of the rule of law
as known today can be attributed to the 19th Century by British Jurist and
Constitutional Scholar A.V. Dicey. Dicey had examined the English
Constitution and found the concept of the rule of law as a central
feature.4 His exposition were to be recorded in his book, An Int roduction to
the St udy of the Law of the Constit ution, published in 1885, where he
argued that the concept entailed three main connotations. In the first
place, the concept meant that no man could be lawfully made to suffer
in body or in goods except for a distinct breach of law established in the
ordinary legal manner before the ordinary courts of the land. This
postulation largely reflected the Magna Carter, which had been
promulgated earlier and which provided that:5
No free man shall be seized or imprisoned, or stripped of his rights or
possessions, or outlawed or exiled, or deprived of his standing in any other
way, nor w ill we proceed with force against him, or send others to do so,
except by the lawful judgment of his equals or by the law of the land.

Diceys second connotation was that the concept meant that no man is
above the law and that every man, irrespective of his rank or condition, is
subject to the law of the state and amenable to the jurisdiction of
ordinary tribunals. The third meaning ascribed to the concept by Dicey
1

2
3

4
5

SA de Smith The New Commonwealth and its Constitutions (1964) 635 cited in J
Hatchard et al Comparative Constitutionalism and Good Governance in the
Commonwealth: An Eastern and Southern African Perspective (2004).
De Smith (No. 1 above).
(1610) 77 ER, 1352, cited in AJ Osogo, Oval Slides in Triangular Spaces? Anchoring
National Human Rights Institutions in Tripartite Commonwealth Africa, (2006), LLM
Dissertation, University of Pretoria, 2006.
A.V. Dicey, An Introduction to the Study o f the Law of the Constitution 1885, 23.
Magna Carter ch 39 in H Marsh, British Documents of Libert y (1971) 44-47.

was to be found in the English traditions, courts as well as the written

constitutions elsewhere as the basis for governing by those exercising
power on behalf of the populace. Having conceptualized the doctrine,
Dicey praised the concept as exemplified by the English Constitution, as a
sound concept and ordained it the distinguishing character of English
constitutionalism. He stated that:
Foreign observers of English manners, such for example as Voltaire, De
Lolme, de Tocqueville, or Gneist, have been far more struck than have
Englishmen themselves with the fact that England is a country governed,
as is scarcely any other part of Europe, under the rule of law

In as much as there have been varied interpretations of this concept ,

there is unanimity that it is a key element of constitutionalism that entails
amenability of all persons to the law and control of arbitrariness in exercise
of governmental power. In its most basic form, the rule of law refers to the
supremacy of the law and equality of all before the law. The hallmarks of
the rule of law include separation of powers, regular, free and fair
elections, independent and impartial judiciary, independent, fearless and
vibrant legal profession, free and independent media and equality of the
people before the law.
The concept was later adopted by the Charter of the United Nations and
other subsequent international human rights legal instruments.6 The
International Bar Association has identified twelve requirements of the
concept of the rule of law:
i)
there must be laws prohibiting and protecting against private
violence and coercion, general lawlessness and anarchy;
ii)
the government must be bound by the same laws that bind the
individual;
iii)
the law must possess characteristics of certainty, generality and
equality;
iv) the law must be and remain reasonably in accordance with
informed public opinion and there must be some mechanism for
ensuring that;
6

Preamble of the Charter of the United Nations of 1945, Preamble of the Universal
Declaration of Human Rights (UDHR) of 1948, International Covenant on Civil and
Political Rights (ICCPR) of 1966 and the International Covenant on Economic, Social
and Cultural Rights (ICESCR) of 1966.

v)
vi)
vii)
viii)
ix)
x)
xi)
xii)

there must be institutions and procedures that are capable of

speedily enforcing the law;
there must be effective procedures and institutions to ensure that
government action is in accordance with the law;
there must be an independent judiciary;
a system of legal representation is required, preferably by an
organized and independent legal profession;
the principles of natural justice (or procedural fairness) must be
obeyed in all hearings;
the courts must be accessible (without long delays and high costs);
enforcement of the law must be impartial and honest; and
there must be an enlightened public opinion.

3.0 THE CONCEPT OF HUMAN RIGHTS

The foundation of human rights can be traced to many centuries back
and predates the political society.7 Although, there has never been
consensus on the meaning of human rights, there is unanimity that human
rights are inherent to every individual. They are recognized legitimate
claims of individuals, which the society is legally and morally obligated to
respect, ensure, and realize.
Throughout the evolutionary history of human rights, three aspects of
human existence have sought to be safeguarded: human integrity,
freedom and equality, all of which are premised on the respect for the
dignity of the individual.8 The concept has crystallized globally through
codification as recognition of the inherent nature of human rights. Indeed,
within the municipal legal systems, the concept has been captured as
sovereignty of the people in the various constitutions, meaning that the
people should not be subordinated to anyone except themselves.
The Universal Declaration of Human Rights captures the philosophy of
human rights by proclaiming that all human beings are born free and
equal in dignity and rights. This philosophy was adopted in the
subsequent human rights instruments, mainly the ICCPR, ECSCR and
7
8

T, Buergental, International Human Rights, West Publishing Co. 1995, p.3-5.

A Eide Economic, Social and Cultural Rights as Human Rights in A Eide et al (eds)
Economic, So cial and Cultural Rights: A Textbook (1995) 24.

ACHPR.9 These instruments set the basic standard regarding the rights of
individuals and the obligations of states to promote and respect human
rights.
Human rights have been broadly categorized into three artificial
categories, commonly referred to as three generations of human rights.
These are the civil and political right s (First Generation), economic, social
and cult ural rights (Second Generation) and collective right s (Third
Generation). However, the categorization of human rights was
demystified during the Vienna World Conference on Human Rights in
1993, which declared that human rights are universal, indivisible, inter dependent and interrelated.10
It is instructive to note that the concept of human rights is closely related
to the concepts of democracy and good governance. Respect for
human rights and fundamental freedoms is taken as an important
element of democracy. 11
4.0 THE CONCEPT OF INDEPENDENCE OF THE JUDICIARY
The role of the Judiciary in the promotion and protection of the rule of law
and human rights cannot be overemphasized. In the configuration of
government, the Judiciary naturally plays the role of the custodian of the
rule of law and respect for human rights. Put differently, the Judiciary is the
bastion of constitutionalism and good governance. The primary role of the
Judiciary is to independently and impartially administer justice in society.
However, the effectiveness of the Judiciary in discharging its mandate is
invariably founded on the substantive and procedural independence
granted to it. As noted by the Special Rapporteur on the Independence
of Judges and Lawyers: 12

9
10
11
12

Buergental, (No. 7 above), p.28.

Vienna D eclaration and Programme of Action, World Conference on Human Rights,
Vienna U.N. Doc. A/CONF.157/24 (Part I) at 20 (1993) para. 5.
UNGA Resolution 2000/47.
P, Cumaraswamy, The Independence of the Judiciary: A Human Rights Priority
United Nations Background Note, 1996. The concept as enunciated by various legal
instruments and extant literature, requires States to establish independent and
impartial tribunals to give effective remedi es for the realisation of human rights. See,
for instance, Articles 8 and 10 of UDHR, Article 14 of ICCPR, Article 26 of ACHPR, Article

An independent judicial system is the constitutional guarantee of all

human rights. The right to such a system is the right that protects all other
human rights. Realisation of this right is a sine qua non for the realisation of
all other rights.

However, it is important to note that judicial independence goes beyond

the substantive and procedural independence to include the
independence of mind of the presiding judicial officers. The
independence of mind invariably means that judicial officers must have
grounded knowledge on constitutionalism to enable them make
appropriate decisions on matters before them. A lack of grounding may
be fat al as was clearly stated by Simmons that :
[T]he efficacy of legal and constitutional protection is limited. And
however much the law may seek to insulate a judicial officer from
pressure or influence, ultimately judicial independence can only be
guaranteed by the character, personal integrity and responsible
professional conduct of the judicial officer.13

5.0 THE ROLE OF THE LEGAL PROFESSION IN THE PROMOTION OF THE RULE OF
LAW AND HUMAN RIGHTS
The Legal Profession plays a critical role in ensuring the rule of law and
promotion of human rights. This is usually achieved in an environment
where the Judiciary is independent and impartial and the Legal Profession
is independent and proactive to participate in matters of public interest
without any fear or favour. In order to achieve this, t hey must be willing to
represent any party in judicial proceedings, initiate programmes including
policy, legal and administrative proposals to promote the rule of law and
promotion of human rights. The role of lawyers is aptly captured thus:14

13

14

1 of the Universal Charter of the Judge, 1999 and the Bangalore Principle on Judicial
Conduct, 2002.
D, Simmons, Issues of Judicial Independence in the Caribbean Court Room (2001) 14
Journal of the Commonwealth Magistrates and Judges Asso ciation 8. The concept of
judicial independence is conceptualised to include the freedom of a judicial officer
from the influence of superior judicial authorities and the officers peers.
Law Commission of India, One Hundred Third First Report on the Role of the Legal
Profession in Administration of Justice, 1988.

In democratic societies, lawyers surely fill an important role that no other

professional fills: the lawyer is the guardian of the rule of law...I n emerging
democracies, this role is especially important for lawyers, w ho have the
potential to become the great levelers between the powerful and the less
so.

Similarly, the ABA has aptly described the role of the lawyer as follows: 15
As advisor, a lawyer provides a client with an informed understanding of
the clients legal rights and obligations and explains their practical
implications. As adv ocate, a lawyer zealously asserts the clients position
under the rules of the adversary system. As a public citizen, a lawyer
should seek improvement of the law, access to the legal system, the
administration of justice...and further the publics understanding of and
confidence in the rule of law and the justice system. A lawyer should be
mindful of deficiencies in the administration of justice. Lawyers play a vital
role in the preservation of society. The fulfillment of this role requires an
understanding by lawyers of their relationship to our legal system.

The role of lawyers was further captured by Alexis De Tocqueville who

stated in relation to the United States of America that:16
When one visits Americans and when one studies their laws, one sees that
the authority they have given to lawyers and the influence that they have
allowed them to hav e in the Government form the most powerful barrier
today against the lapses of democracy.

Given the foregoing, some thought provoking questions one may ask
include, to what extent are the Judiciaries in our countries independent?
Are the legal and institutional frameworks conducive for the Judiciary and
the Legal Profession to operate effectively? To what extent is the Legal
Profession free from interference to ensure rule of law in society? How
effective have we been in discharging our legal mandate? Is the Legal
Profession a captive of its own making?

15
16

The American Bar Association, Model Rules of Professional Conduct: Preamble and
Scope. Available at www.americanbar.org.
A. De Tocqueville in KM Sullivan, The Good that Lawyers Do, (2000), Journal of Law
and Policy, Volume 4, 7.

6.0 THE RULE OF LAW AND HUMAN RIGHTS: THE FRAMEWORK AND PRACTICE
IN KENYA
Having discussed the conceptual framework and scope of the concepts
of the rule of law and human rights, this Paper now turns to the practical
experiences of implementation of these concepts in Kenya wit h a special
focus on the Kenyan Judiciary.
6.1 THE PRE-ADOPTION PERIOD OF THE NEW CONSTITUTION IN AUGUST 2010
Kenyas post -independence record in relation to the rule of law and
human rights was varied. Like other African countries, Kenya experienced
democracy deficits during the period after independence mainly
occasioned by constitutional amendments that concentrated state
power in the core executive and weakened other state institutions. The
upshot was democratic regression which facilitated autocracy,
patrimonialism, state capture, corruption, violations of human rights,
deference of state institutions to the Executive, disregard of the rule of law
and, above all, the creation of a criminal state. The Legal Profession and
the Judiciary were not spared. Their members were always harassed for
making decisions that were deemed unfavourable to the Executive or
agitating for democratic changes. For instance, judicial officers who
made decisions deemed unfavourable to the Executive were transferred
to other stations and ultimately in 1988 their security of tenure was
removed. Similarly, lawyers who defended individuals accused of political
detainees were always harassed and even detained.
The role and authority of the Judiciary declined and in some cases
usurped by other entities mainly the ruling party, the Kenya National
African Union. As has been stated by a commentator, the subordination
of the Judiciary not only undermined its development, but also exposed it
to political patronage taking the form of opaque political appointments;
nepotism, favoritism and tribalism in appointments and promotions; and

subservience by some judicial officers. 17 The Judiciary, for instance, failed

to enforce the Bill of Rights on the grounds that the Chief Justice had not
developed Regulations as envisaged under Section 84(6) of the repealed
Constitution;18 failed to secure the right of the accused persons to be
provided with reasons for detention;19 and incorrectly stated that the
operations of the ruling party could only be handled by the party itself.20
However, as noted by Brown, the period after 1991 witnessed remarkable
shift from autocracy to transition towards democracy with Parliament and
the Judiciary beginning to assert their independence and authority.21 In
spite of the decisions, the Judiciary still had challenges that could only be
addressed through radical changes. The Chief Justice aptly captured the
state of the Judiciary as at the time of assumption of office in June 2011
thus:22
We found an institution so frail in its structures; so thin on resources; so low
on its confidence; so deficient in integrity; so weak in its public support
that to have expected it to deliver justice w as to be wildly optimistic. We
found a Judiciary that w as designed to fail. The institutional structure w as
such that the Office of the Chief Justice operated as a judicial monarch
supported by the Registrar of the High Court. Power and authority were

17

18

19
20

21

22

O. Amollo, Processes and Pro cedures for Strengthening the Effi ciency of the Justice
Delivery System Through Judi cial Reforms: The Case of K enya, A Paper Presented to
the SADC Law Association Conference in Swaziland on 24t h August 2012.
Gibson Kamau Kuria vs Attorney General, High Court Misc. Case No. 550 of 1988,
Maina Mbacha and 2 Others v s Attorney General, High Court Misc. Application No.
356 of 1989.
Ooko vs Republic, High Court Civil Case No. 1159 of 1966
George Anyona vs Republic, Nairobi Law Monthl y, 1991. It is, however, important to
note that there were some isolated cases where the Judiciary remained steadfast
and interpreted the Constitution purposively. Some of these cases included the
Margaret Magiri Ngui vs Republic, Criminal Application No. 59 of 1985, High Court,
Nairobi; and Stanley Munga Githunguri vs Republic, High Court Criminal Appeal No.
271 of 285.
See S, Brown Theorizing Kenyas Protracted Transition to Democracy (2004) 22
Journal of Contemporary African Studies 325. The Judiciary also made landmark
decisions that upheld the rule of law and kept the Executive under checks. For
instance, in the case of Job Nyasimi Momanyi and 2 Others vs the Attorney General
and Another (2009) eKLR, the High Court stated that it was unconstitutional for the
Executive to create districts without due regard to the law.
W. Mutunga, Progress Report on the Transformation of the Judiciary: The First Hundred
and Twenty Days, 19t h October 2011.

highly centralized. Accountability mechanisms were weak and reporting

requirements absent.

In spite of the positive changes, there was unanimity among stakeholders

that Kenya needed a new Constitution to provide a framework for
societal transformation. This led to the agitation for Constitutional Review
which was eventually realized in August 2010, mainly given impetus by the
events following the General Elections of 2007 where over 1,300 lost their
lives, over 600,000 displaced and massive destruction of property.
6.2 THE POST-ADOPTION PERIOD OF THE NEW CONSTITUTION IN AUGUST
2010
The post -election violence of December 2007 to February 2008 following
the mismanaged General Elections in Kenya created the impetus and
urgency for the re-examination of Kenyas governance system. Some of
the primary reasons for the post -election violence were the highly
concentrated state power in the core executive, weak state institutions
such as the Judiciary, widespread tribalism and the widespread culture of
impunity. There was a general consensus among all stakeholders that
Kenya needed a new governance framework to address her myriad
challenges. This was eventually realized in August 2010 when Kenyans
overwhelmingly adopted a new Constitution through a Referendum. 23
Although a number of mechanisms exist to enhance the rule of law and
human rights in Kenya, the Constitution is the most important of them all.
Accordingly, the subsequent part of this Paper will largely focus on the
Constitutional framework on the two concepts.
The Constitution marked a turning point in the history of Kenya and
radically transformed the governance structure and relations in the
country. It also crystallized constitutionalism and re-engineered the
political, legal, social, economic and administrative structures and
processes in Kenya thereby promoting the rule of law. In particular, the
Constitution has enhanced the rule of law and human rights in Kenya in
the following ways:
23

There had been a number of amendments to the Constitution prior to the adoption of
the Constitution in August 2010, which expanded the democratic space in the
country.

6.2.1 Recognition of the Sovereignty of the People

The Constitution creates a paradigm shift in governance by recognizing
the sovereignty of the people of Kenya and their right to selfdetermination. This is captured in the Preamble and Chapter One of the
Constitution. Article 1(1) of the Constitution, for instance, provides that all
sovereign power belongs to the people of Kenya and shall be exercised in
accordance with this Constitution. I n order to give effect to this principle,
the Constitution provides for its supremacy and binding nature on all
persons and State Organs at both the National and County levels of
Government and requires them to respect, uphold and defend the
Constitution. It has an obligation further provides that everybody in Kenya
has an obligation to respect, uphold and defend the Constitution. These
safeguards are important for the rule of law in that they serve as reminders
to everybody, particularly, those entrusted with power that sovereign
power belongs not to them, but to the people.
6.2.2 Prescription of National Values and Principles of Governance
The Constitution provides for national values and aspirations of the
Kenyan Society in its Preamble as a Government based on the essential
values of human rights, equality, freedom, democracy, social justice and
the rule of law. A comprehensive prescription of the national values and
principles of governance are to be found in Article 10 and includes
sharing and devolution of power, the rule of law, democracy,
participation of the people, human dignity, equity, social justice,
inclusiveness, equality, human rights, non-discrimination, protection of the
marginalized, good governance, integrity, transparency, accountability
and sustainable development. According to this Article, these values and
principles bind all State Organs, State Officers, Public Officers and all
persons in Kenya, as was emphasized in the Centre for Rights Education
and Awareness (CREAW) and 8 Others vs Attorney General and Another,
where the High Court declared unconstitutional the President's
appointment of County Commissioners for breaching the national values
among other grounds.24
24

(2012) eKLR, HCC (Nairobi) Petition Nos.207 & 208 of 2012. The national values and
principles of governance form part of the substantive part of the Constitution of Kenya
and all State Organs and persons are bound by them. This is in contrast to the
infamous decision of the Supreme Court of Ghana in the Re Akoto Case (1961) GLR

6.2.3 Re-Configuration of the Architecture of Government

The Constitution addresses the perennial bad governance that has
impeded national development and the enjoyment of rights and
performance of duties. It brings fundamental changes to the three arms
of Government and prescribes their functions, and principles of
governance and separation of powers among the State Organs to
facilitate constitutionalism. This is further buttressed by the decentralization
system in the form of county governments that not only enhances
democratic governance, but also public participation in governmental
matters.
6.2.4 Prescription of Tenets of Leadership and Integrity
One of the significant prescriptions of the Constitution is the leadership
and integrity requirements for State and Public Officers. The Constitution
lays the foundation for transformative and servant leadership that
conforms to the tenets of integrity and good governance. It is worth of
noting that Chapter Six on Leadership and Integrity is at the heart of the
Constitution and is one of the disqualifying grounds to appointment ,
election or holding of State or Public Office. The need for this kind of
leadership was borne out the historical leadership failures that had
bedeviled Kenya, and the need for accountability and respect for civil
liberties. It also requires objectivity and impartiality in decision making,
accountability to the public, integrity in public administration, discipline,
commitment in service and corruption free-service. Article 73, for instance,
states that the authority assigned to a state officer is a public trust that
should be exercised in a manner that is consistent with the Constitution;
demonstrates respect for the people; brings honour to the nation and
dignity to the office; and promotes public confidence in the integrity of
the office. Furthermore, such authority vests the responsibility to serve the
people, rather than power to rule them. The contents of this Chapter of
the Constitution have already been tested in the case of Trusted Society
of Human Rights Alliance vs Attorney General and 2 Others, where the

Part II, 523, where the Court supported the emasculation of the Constitution by the
Executive since, according to the Court, the values and principles were not binding,
but merely statements of aspirations of the citizens of Ghana.

High Court annulled the appointment of the Chairperson of the Ethics and
Anti-Corruption Commission. The Court stated thus:25
In our view, it w ould be constitutional mockery to sanitize an appointment
process merely on the ground that it went through the procedural hoops
if, in fact, it turns out that the organs charged with the task of
appointment were merely going through the procedural motions. That
would be to empty the Constitution of its meaning and intent w hen it
bequeaths the appointment task to a government organ and lays down
an appointment procedure w hich is aimed at fulfilling the constitutional
objectivesKenyans were singularly desirous of cleaning up our politics
and governance structures by insisting on high standards of personal
integrity among those seeking to govern us or hold public officeThe
people of Kenya did not intend that these provisions on integrity and
suitability for public offices be merely suggestions, superfluous or
ornamental; they did not intend to include these provisions as lofty
aspirations. Kenyans intended that the provisions on integrity and
suitability for office for public and State offices should have substantive
bite. I n short, the people of Kenya intended that the provisions on integrity
of our leaders and public officers will be enforced and implemented.

The Leadership and Integrity Chapter of the Constitution is also the subject
of another case in the High Court that seeks to bar certain presidential
candidates from standing for the Office of the President on account of
their charges at the International Criminal Court for their alleged
involvement in the violence following the General Elections of December
2007.26
6.2.5 Prescription of Broad Bill of Rights
One of the distinguishing features of the Constitution is the prescription of
a broad range of rights and freedoms in the Bill of Rights Chapter, which is
an entrenched part of the Constitution. The Bill of Rights includes all the
three generations of rights civil and political rights; economic, social and
cultural rights; and group or collective rights. The scope of the rights and
freedoms is not limited to the prescription in the Constitution; by virtue of
Article 2(5&6) and 19(3)(b), it includes other rights and freedoms
recognized in law as long as they are consistent with the Constitution. The
25High
26

Court Petition No. 229 of 2012

Constitution requires the State, all State Organs and other persons to
observe, respect, protect, promote and fulfill the rights and freedoms in
the Bill of Rights. In order to ensure full enforcement of the Bill of Rights, the
Constitution has significantly whittled away the requirement of locus
st andi for instituting court proceedings in case of a violation or threat of
violation the rights or freedoms. 27 Furthermore, the Kenya National Human
Rights and Equality Commission has been established to ensure
implementation of the Bill of Rights.28
6.2.6 Facilitation of Public Participation in Governance
Public participation is an important element of governance. Governance
practitioners the world over are unanimous that one of the ways of
improving governance is through public participation. The purpose of
public participation is to facilitate the involvement of those potentially
affected by or interested in a decision. Persons affected by a decision
have a right to be involved in the process leading to the decision. It is in
this regard that the Constitution extensively institutionalizes public
participation in the governance process in Kenya. Some of these
provisions include sovereignty of the people, national values and
principles of governance, right of access to information, public access
and participation in parliamentary proceedings, right to petition
Parliament, Executive authority, Judicial authority, alternative forms of
dispute
resolution
mechanisms
including
traditional
resolution
mechanisms, devolution, participation in affairs of County Governments,
participation in public finance, and values and principles of public
service29 and Articles on appointment of individuals into state offices.
6.2.7 Establishment and Strengthening of Institutions Supporting Good
Governance
One of the fundamental features of the Constitution is the establishment
of institutions supporting good governance under Chapter Fifteen t o
buttress the tripartite configuration of Government and enhance
27
28

29

Article 22 of the Constitution of the Republic of Kenya.

In accordance with Article 59(4) of the Constitution, the Kenya National Human Rights
and Equality Commission has been restructured into three separate Commi ssions, that
is, the Kenya National Commission on Human Rights, the Commission on
Administrative Justice and the National Gender and Equality Commission.
Articles 1, 10, 35, 118,119, 129, 159(1), 159(2), 174, 196, 201 and 232 respectively of the
Constitution.

transparency and the rule of law. The institutions listed under that Chapter
are Constitutional Commissions and Independent Offices.30 The primary
aim of these bodies is to safeguard public interest by protecting the
sovereignty of Kenyans, promoting constitutionalism and securing the
observance of democratic values and principles. These bodies have
already begun to shape and influence the implementation of the various
aspects of the Constitution including the rule of law and the Bill of Rights.
For instance, the Commission on Administrative Justice (Office of the
Ombudsman) has already issued advisories on various issues that touch on
the rule of law, involved in human rights protection and adjudication
(litigation) on issues of national importance.31 The Commission has also
been vocal on the need to vet individuals seeking elective offices to
ensure that they comply with the constitutional provisions on leadership
and integrity.
6.2.8 Re-Engineering of Institutions on Administration of Justice
As has been stated elsewhere in this Paper, some of the main reasons why
Kenyans agitated for a new constitutional framework included the culture
of impunity and the weak institutions of governance that were unable to
enforce the law. One area where this was felt most was that of
administration of justice. As stated by Thomson in his seminal discourse, An
Introduction t o African Politics, the institutions in the administration of
justice in Kenya had been weakened to an extent that, by and large,
they were serving the interests of the Executive, other than the public.32
30

31

32

The Constitutional Commissions are the Commission on Administrative Justice,

Commission for the Implementation of the Constitution, Ethics and Anti -Corruption
Commission, Public Service Commission, National Gender and Equality Commission,
Kenya National Commission on Human Rights, Commission on Revenue Allocation,
Salaries and Remuneration Commission, National Police Service Commission, National
Land Commission, Teachers Service Commission, Independent Electoral and
Boundaries Commission, Parliamentary Service Commission and Judicial Service
Commission. The Constitutional Independent Offices are the Office of the Attorney
General, Office of the Director of Public Prosecutions, Auditor General and Controller
of Budget.
The Commission on Administrative Justice is established under Article 59(4) of the
Constitution and the Commission on Administrative Justice Act with the mandate of
addressing maladministration in Kenya through inquiries, investigations adjudication
and institutional capacity building. The Commission is also empowered to ensure
compliance with leadership and integrity requirem ents of the Constitution and resolve
inter-governmental conflicts in addition to promoting constitutionalism and human
rights.
A. Thomson, (2000) An Introduction to African Politics, Routlege, London: New York.

The main institutions in this regard included the law enforcement agencies
mainly the Police, Prosecution, State Law Office, Judiciary, Probation and
Correctional Services Institution.
However, the Constitution has fundamentally changed the configuration,
functions, powers and accountability of these institutions. For instance, an
independent Office of the Director of Public Prosecutions has been
established and the Judiciary re-engineered and elevated to the level of
Parliament and the Executive. Similarly, the institutional and operational
frameworks of the Police Service have been radically changed to enable
them serve the public efficiently and effectively. Two of the institutions
created include the National Police Service Commission to manage the
human resources of the National Police Service and the Independent
Policing Oversight Authority to handle policing matters within the National
Police Service.
6.2.9 Revolutionalization of the Appointment to Public Offices
One of the reasons advanced for the inadequate observance of the rule
of law was the nature of appointment of individuals to key institutions of
the State. Before the adoption of the Constitution, appointments to main
public offices were the preserve of the President. Some of the
appointments made by the President in some instances were criticized as
not conforming to the law. Indeed, t he Report of the Independent Review
Commission headed by Justice Johann C. Kriegler, commonly known as
the Kriegler Commission created after the disputed General Elections in
Kenya in 2007, found that the unilateral appointment of Commissioners to
the Electoral Commission of Kenya by the President just some few months
to the elections was one of the actions that undermined the integrity and
objectivity of the Commission to manage the elections effectively.
In order to address this challenge, the Constitution has provided for
transparent and competitive process of appointment of individuals to
State Offices. The process is rigorous and begins with the advertisement in
the Daily Newspapers and in some cases on the relevant Websites;
publication of names of the applicants in the Daily Newspapers where the
public are invited to give comments on the applicants, if any; public
interview of the applicants; appointment by the President in consultation
with the Prime Minister; vetting and approval of names by the National

Assembly; formal appointment and gazettment by the President ; and

swearing in before the designated officers. Some of the institutions where
such process has been followed include the Judiciary, Constitutional
Commissions and Independent Offices ( except the Attorney General),
Inspector-General of Police and his two Deputies (the process
appointment is currently underway) and Statutory Bodies such as
Universities and parastatals among others. This is important since it instills
professionalism, independence, transparency and accountability in the
Public Service. 33
6.2.10 Entrenchment of the Rule of Law and Human Rights
As noted by Thompson, one of the features of that distinguished the post independence Constitution was its mutilation to concentrate power in the
core executive and weaken the other state institutions.34 One of the
reasons for the amendments of the key Constitutional provisions was the
ease of carrying out amendments to the Constitution without the
participation of all the stakeholders. Indeed, in Kenya, one of the key
provisions that turned Kenya into a de jure one party state was the
insertion of Section 2A in the Constitution within a record of one hour
following the attempted coup in 1982. It is, therefore, with this realisation
that the Constitution has created entrenched provisions that cannot be
amended easily, without participation of the public through a
referendum. The entrenched Constitutional provisions as per Article 255(1)
include that on the supremacy of the Constitution, the territory of Kenya,
the sovereignty of t he people, the national values and principles of
governance, the Bill of Rights, the Term of Office of the President, the
independence of the Judiciary and the Constitutional Commissions and
Independent Offices, the functions of Parliament, the objects, principles
and structure of devolved Government and the Amendment formulae.
An amendment of these provisions would require a higher threshold
including a referendum for it to be effected. The entrenchment is
important for democratic consolidation, certainty and observance of the
rule of law.

33

34

In the C entre for Rights Education and Awareness (CREA W) and 7 Others vs Attorney
General, (2011) eKLR, HCC (Nairobi) Petition No. 16 of 2011, the High Court declared
as unconstitutional, the unilateral appointment of the Chief Justice, Attorney General,
Director of Public Prosecutions and Controller of Budget by the President.
Thomson (No. 32 above)

6.2.11 Re-Engineering of the Judiciary

The Judiciary is one of the institutions where the transformative nature of
the Constitution has been felt. The Constitution not only radically changed
the institutional structure of the Judiciary, but also changed its leadership
and composition. The Constitutional provisions were largely informed by
the challenges that the Judiciary had faced which hampered its ability to
deliver on its mandate. Some of the challenges included lack of
independence and autonomy, corruption and unethical conduct, poor
infrastructure, poor terms and conditions of work and delays in
dispensation of justice among others which eroded public confidence in
the Judiciary. Indeed, these were some of the reasons advanced by
various commentators to explain the escalation of the electoral tension
and violence during the 2007 General Elections. The Constitutional
provisions take cognizance of the primary role of the Judiciary in ensuring
constitutionalism by independently and impartially administering justice,
protecting and promoting human rights, ensuring the observance of the
rule of law and limitation of governmental power.
The Constitutional changes, therefore, sought to transform the Judiciary to
restore its role and place in Kenya as a repository of constitutionalism in
the following ways:
a) Restoration of the Role and Place of the Judiciary in the Architecture
of Government
The Constitution has restored the place and role of the Judiciary in
Kenyas governance system. It begins by vesting the Judicial Authority in
the Judiciary and granting the Judiciary the powers to adjudicate over
disputes in consonance with the Constitution and other relevant laws. In
so doing, the Constitution has elevated the Judiciary and placed it at par
with Parliament and the Executive insofar as the configuration of
Government is concerned. In addition, it allows the Judiciary to take its
natural place as the custodian of constitutionalism and determine issues
independently without any fear or favour.
b) Restructuring of the Judiciary
The Constitution has restructured the Judiciary by creating the Supreme
Court, re-organizing its leadership and decentralizing its operations. The
Supreme Court is at the apex of the Judiciary with the Chief Justice as its

President, the Court of Appeal headed by a President Judge and the

High Court headed by a Principal Judge. This is intended to address the
problem of concentration of power in the Office of the Chief Justice that
was a feature of the old system. In addition, specialized Divisions of the
High Court have been created for purposes of efficiency and expeditious
resolution of disputes.
c) Vetting of the Sitting Judicial Officers
One of the unique features of the Constitution is the requirement of
vetting of judicial officers who were serving in the Judiciary as judges or
magistrates at the time of the adoption of the Constitution to determine
their suitability to continue to serve in the Judiciary35 (section 23 of the sixth
schedule). This is a transitional provision that was informed by the views of
Kenyans some of whom had sought the resignation of all the judicial
officers upon the adoption of the Constitution. An enabling legislation, the
Vetting of Judges and Magistrat es Act , was passed in 2011 and a Vetting
Board comprising of five Kenyans and three foreign nationals established.
Although the vetting process has not been completed, the Board has
already made determinations concerning a number of Senior Judges
serving in the Supreme Court, Court of Appeal and the High Court. Based
on the vetting process, at least eight Judges have been found to be
unsuitable to continue serving in the newly reformed Judiciary with the
issues ranging from corruption, delay delivering judgments, insensitivity t o
litigants, subservience to the Executive, case mismanagement, abuse of
judicial powers and unethical conduct.36
d) Operational and Financial Independence
One of the fundamental aspects of the Constitution is the independence
granted to the Judiciary to enable it function effectively. In particular,
Article 160 of the Constitution provides for the operational independence
of the Judiciary by stating that the Judiciary shall be subject only to this
Constitution and the law and shall not be subject to the control or
direction of any person or authority. It also protects judicial officers from
35
36

Section 23 of the Sixth Schedul e of the Constitution.

The Senior Judges include Justice Moham ed Ibrahim (Supreme Court), Justices
Samuel Bosire, Habel N yamu, Riaga Omollo and Emanuel Okobasu and Rosemary
Nambuye for the Court of Appeal and Justice Jeane Gacheche and Khaminwa (High
Court). However, the vetting process has run into difficulties w ith suits being instituted
in Court to determine the fairness of the Board in its operations.

any action for anything done or omitted in good faith in the lawful
performance of a judicial function; non-alteration of the terms and
conditions of work. Similarly, financial independence of the Judiciary is
provided for through the establishment of the Judiciary Fund for
administrative expenses of the Judiciary being administered by the Chief
Registrar of the Judiciary.
e) Reconstitution of the Judicial Service Commission
The Constitution has reconstituted the Judicial Service Commission by
expanding its composition and functions. The reconstitution provided for
transparency and inclusion of two members of the Bar Association and
two lay members to represent the public. 37 The reconstituted Judicial
Service Commission has been instrumental in initiating a number of
reforms in the Judiciary which include the appointment and promotion of
judicial staff, co-ordinating the functions of the Judiciary, improvement of
terms and conditions of service for judicial officers and asserting its
constitutional and statutory mandate and independence. For example,
the Commission asserted its authority in the unilateral appointment of the
Chief Justice by the President in February 2011, which alongside other
factors made the President to defer the matter to it.
6.3 THE ACTIVISM OF THE LAW SOCIETY OF KENYA
The Law Society of Kenya (LSK) has played a significant role in ensuring
good governance in Kenya. This was so even at the time of One-Party
dictatorship era where the enjoyment of rights and freedoms were greatly
suppressed and democratic principles undermined. Over the years, LSK
has played a leading role in challenging oppression, lawlessness, impunity
and bad governance in the count ry. Due to this, some members of LSK
were always harassed and even detained by the State which, by and
large, jeopardized the independence of the Judiciary. However, this did
not deter the Society from challenging the stat us quo and agitating for
constitutional and legal changes. The LSK has employed a number of
strategies to achieve its objectives which include advocacy, education
and litigation on matters of national importance. In the present set up, LSK
has played an important role in the governance process in Kenya,
37

Article 170 of the Constitution.

particularly, in ensuring full implementation of the Constitution, the

appointment of individuals to public offices, vetting of judges and legal
discourse.
7.0 THE IMPACT OF THE CHANGES IN THE JUDICIARY
Having seen these changes, how have they impacted on the rule of law
and human rights in Kenya? Although it is not possible to assess the impact
of these changes given the short duration since August 2010 and the
need for an in-depth assessment, the recent decisions of the Courts and
processes point towards an improvement of the realization the rule of law
and human rights in Kenya. The legal and administrative changes in the
Judiciary have greatly enhanced efficiency in its work systems through
reduction of technicalities and preference for substantive justice. In
addition, an institutional rebirth has been enacted with the adoption of
new leadership, institutional restructuring and development, and change
management approaches such as the introduction of Results Based
Management, strengthening of the National Council on Administration of
Justice comprising of institutions in the justice system, Judiciary Training
Institute for training of judicial officers, establishment of Judiciary
Ombudsman to receive and address complaints against judicial officers
by the public and adoption of participatory approaches involving various
publics in Kenya.
One of the immediate benefits has been an emergence of independent
and assertive Judiciary willing to determine matters that were hitherto not
dealt with by the Courts. This is illustrated by a number of decisions where
the Court has taken bold steps to uphold the rule of law and human
rights. In the Centre for Rights Education and Awareness (CREAW) and 7
Others vs Attorney General, the High Court declared unconstitutional, the
President's purported unilateral appointment of a new Chief Justice,
Attorney General, Director of Public Prosecutions and Controller of
Budget.38 In another case, Centre for Rights Education and Awareness
(CREAW) and 8 Others vs Attorney General and Another, the High Court
declared unconstitutional the President's appointment of County
Commissioners for acting outside the law and breaching the mandatory
38

No. 32 above.

requirement on gender and consultation.39 In the Kenya Section of the

International Commission of Jurists vs the Attorney General and 2 Others,
the High Court issued an arrest warrant against the President of Sudan on
account of war crimes under the International Criminal Court system.40
In addition, the integrity threshold for judicial officers has been raised to a
new level as recently witnessed in the case that led to the removal of the
Deputy Chief Justice (DCJ) Nancy Baraza from the Judiciary. The case
related to her conduct at one of the Shopping Malls in Nairobi on 31 st
December 2011 where she allegedly by-passed a security personnel
conducting body screening, pinched her nose and threatened to shoot
her. There was a public outcry after the saga was reported in the media.
The Judicial Service Commission called for an emergency session where it
ordered for speedy investigations. The DCJ recorded a statement with the
Police. Upon a Report being made to JSC, it recommended to the
President for a Tribunal to be set up to investigate the conduct of the DCJ.
The Tribunal was set up and Chaired by Justice Augustino Ramadhan,
former Tanzanian Chief Justice. It made a Report to the President with a
finding that the DCJ was unfit to hold office on account of gross
misconduct. The DCJ appealed to the Supreme Court, but later in
October 2012 she opted to resign from the Judiciary instead of pursuing
the matter further.41
8.0 THE RULE OF LAW AND HUMAN RIGHTS IN KENYA: ON OR OFF TRACK?
Based on the foregoing discourse, one may be tempted to believe that
the path to the realisation of the rule of law and human rights in Kenya is
without any obstacles, and that all stakeholders have embraced them.
Nothing can be further from the truth. The path to the realization of these
principles has not been and will never be smooth. A number of challenges
st ill exist and their impact is evident in Kenya. Some of the challenges, in
this regard, include failed leadership, widespread tribalism, little respect
for state institutions, little appreciation of the place and role of new State

39
40
41

(2012) eKLR, HCC (Nairobi) Petition Nos.207 & 208 of 2012.

Miscellaneous Criminal Application No. 685 o f 2010.

Organs, culture of impunity, disregard of court orders42, delay in

operational some laws43 and resistance to change. This was aptly
captured by the Chief Justice when he said: 44
Of course, there is resistance. The old order is too terrified not just of the
radical nature of the Constitution but also the assertive independence of
the Judiciary. Many people, particularly the political and economic elite,
hav ing been socialized in and benefited from a retrogressive culture have
neither the skill nor appetite for this new environment. They w ere used to a
CJ and a Judiciary they w ould call and do deals and bargains with. Not
anymore. They were used to a Judiciary that would be deliberately be
starved of resources as a blackmail strategy. Not anymore. They were
used to a Judiciary that w as very unpopular with the public, not anymore.
This has caused considerable frustration not just to these elite but also the
law yers who had established corrupt networks with judges and
magistrates.

9.0 CONCLUSION
The rule of law and human rights are as relevant to us today as they were
several decades ago. This is especially so for the African countries which
have experienced and continue to experience democratic deficit and
underdevelopment. As has been stated in this Paper, the Legal Profession
plays an important role in ensuring compliance with the rule of law and
human rights. This is primarily due to their daily interaction with the law as
judicial officers, public officers, private legal practitioners and academic
among others. Despite the challenges facing the profession and the
national political environment , the Legal Profession should remain
steadfast and play their role as expected by society since their abdication

42

43

44

This has increasingl y become a challenge in K enya where public offi cers disregard
court orders. This was witnessed ion the appointment of County Commissioners case
and creation of districts. It has taken the trend of some Members of Parliament
mobilize their constituents to the execution of court orders. This has made other
categories of other persons in Kenya to follow suit such as the Workers Unions and
Teachers Unions.
The two instances to illustrate this are the Privatization Act which was enacted in 2005
but operationalized in 2009; and the National Police Service Commission Act which
took one year to be operationalized after enactment in 2011.
Speech by the Chief Justice, Dr. Willy Mutunga, at the Centre for Strategic and
International studies, 7 September 2012, Washington DC.

to do so would lead to a complete shutdown of the democratic space.

As Bhagwati has warned: 45
It would be no exaggeration to state that human rights would remain
safe in a society governed by a written Constitution so long as its judges
are strong and independent, do not cave in to pressures, influences or
centres of power and are committed to the cause of human rights and
the rule of law.

The study of the Kenyan experience has provided insights of the renewed
hope for the realization of the rule of law and human rights based on the
new constitutional dispensation. You must keep the fire burning as you
alone can facilitate societal re-engineering and transformation. As one
commentator once stated true wealth of a country lies not in the dollar
worth of its economy, but in its people their commitment to the country
and community, t heir ability to think, achieve and excel. The Legal
Profession must lead society towards the realisation of these ideals.
Finally, I would like to remind you of the words of Abigail Adams that
these are the times in which a genius would wish to live. It is not in the still
calm of life, or the repose of a pacific station that great characters are
formed. The habits of a vigorous mind are formed in contending with
difficulties. 46 These words are still relevant to us today. We have an
opportunity, individually and collectively, to lead our society towards the
realisation of the rule of law and human rights. There is no doubt that we
have the capacity and capability to make a positive mark in our society.
Let us rise to the occasion for this is the legacy that we can bequeath our
society.

45
46

PN, Bhagwati, Inaugural Address made during the Commonwealth Judicial

Colloquium held in Bangalore, India between 14t h and 26t h February 1988.
Letter from Abigail Adams to John Quincy Adams quoted i n D McCullough John
Adams, 2006, 226.