Constitution Of Kenya Research Articles

The Independence, Accountability, and Effectiveness of Constitutional Commissions and Independent Offices in Kenya

One of the concerns that animated the search for a new constitution in Kenya was how to build more effective mechanisms for accountability. Towards this end, the 2010 Constitution of Kenya establishes constitutional commissions and independent offices in an attempt to dismantle and democratize the Kenyan state. This paper proceeds on the basis that what determines whether an independent institution ends up as an effective force for accountability in governance is its institutional design. The paper thus interrogates the constitutional and statutory design of the regime meant to effectuate the independence, accountability, and effectiveness of these independent institutions to determine whether they can deliver on their mandate.

An Analysis of Walter Khobe’s ‘The Jurisdictional Remit of the Supreme Court of Kenya Over Questions Involving the Interpretation and Application of the Constitution’

This paper will analyse the arguments by Walter Khobe Ochieng’ in his paper, ‘The Jurisdictional Remit of the Supreme Court of Kenya Over Questions Involving the Interpretation and Application of the Constitution,’ in which he examines the jurisdictional limits of the Supreme Court of Kenya under article 163(4)(a) of the Constitution of Kenya, 2010 and where he powerfully argues that the Supreme Court of Kenya is entitled to assume what he terms a derivative jurisdiction. This paper will examine the position taken by Walter Khobe Ochieng’ but centring the analysis on the question of election laws. Walter Khobe Ochieng’ argues that this innovative (generic) jurisdiction is proper within the Constitution. This paper will examine the position taken by Walter Khobe in light of the Constitution’s apportioned scope of authority to the Supreme Court, vertically and horizontally, critically examining how the apportioned role is expected to be manifest in a democratic context. The paper will eventually reach the conclusion that the Supreme Court’s claim to a derivative (implied) jurisdiction is conceptually dicey and cannot be sustained under the Constitution.

The Islamic Law of Marriage and Inheritance in Kenya

AbstractArticle 24(4) of the Constitution of Kenya qualifies the right to equality “to the extent strictly necessary for the application of” Islamic law “in matters relating to personal status, marriage, divorce and inheritance”. Section 3 of the Marriage Act provides that, although spouses have equal rights during marriage and at its dissolution, “the parties to an Islamic marriage shall only have the rights granted under Islamic law”. The Law of Succession Act states that it is generally not applicable to the estate of a deceased Muslim. In this article, the author examines case law from the Kadhi's Court, the High Court and the Court of Appeal on issues of Muslim marriages and inheritance. These cases illustrate, in some instances, the tensions between Islamic law and human rights.

Dynamics of Land Use Changes on The Livelihoods of The Local Communities in Baringo County: Understanding The Drivers

This paper examined the dynamics of land use changes on the livelihood of the local communities in Baringo County. Land is a principal factor of production, a source of life and livelihoods. It provides a means of living and a variety of uses such as agricultural, human settlement, environmental conservation, urban and industrial development purposes among others. These uses compete for space in a fixed area, hence the rising land use conflicts and degradation. The situation has threatened lives and livelihoods, making it difficult to plan for the livelihood activities in the County. This is happening against the backdrop of land use policy changes including; sessional paper no 3 of 2009 on the National Land Policy, the Constitution of Kenya 2010, the Land Act, 2012, the Land Registration Act, 2012, the Community Land Act, 2016 and sessional paper no 1 of 2017 on National Land Use Policy that were intended to alleviate the situation. This situation is now a major threat to the livelihood of the local communities in Baringo County. This study, therefore, sought to examined the dynamics of land use changes on the livelihood of the local communities in Baringo county with specific objective to establish the drivers of the changes. A comprehensive desk review of existing literature was done, and land use changes were descriptively analyzed. The review spanned from pre-colonial (before 1895), colonial (1895 to 1963), independence (1963 to 2010) including the subsequent years of land reforms following the promulgation of the Constitution of Kenya 2010 onwards to 2020. The study found that the key drivers of land use changes originate from the change of land use policies from customary to European-like systems during the colonial era (1895 to 1963). These drivers revolve around the conflicts in the application of land use policies and laws, dual production system (different land use for registered private land in arable areas and the unregistered community land in non-arable areas within the county) occasioning wide productivity gap and economic disparity. Further the knowledge gaps associated with colonial perceptions, ideologies, and attitudinal practices, which led to misconception and wrong policies aggravated the situation. The consequences disorganize the local community land use and social system, broke down the traditional grazing and cropping patterns, depleted soils fertility & degraded the environment. In addition, the study found out that in the unregistered community land, land use conflicts were rampant, and characterized by invaded and claim interest as well as unscrupulous legal manipulation of land ownership records leading to dispossession. These two salient features are the main drivers of land use changes that led to continuous and frequent fatal inter-ethnic land use conflicts among the local communities; causing displacement and destruction of property among other atrocities working against politically weak local community. This scenario destabilized livelihood possibilities making it difficult for local communities to engage in basic livelihood activities and create uncertainty for future development. The study concluded that the security of land tenure perpetrates land use conflicts particularly in the unregistered community land. The government, therefore, need to register the community land to enhance land tenure security in the county.

Legal Protection of Political Rights of Persons with Disabilities to be Elected as Candidates for Members of the House of Representatives in General Elections: A Comparative Study between Kenya and Indonesia

In this article, the researchers examine the legal protection of the political rights of persons with disabilities to become members of the House of Representatives in Kenya and Indonesia using a statute approach and a comparative law approach. This study aims to find a good and responsive form of legal protection to fulfil and enforce the political rights of persons with disabilities to be elected as candidates for members of the House of Representatives by comparing the Constitution and the General Election Law in force in Kenya and Indonesia. The statutory regulations as the objects of this study are the Constitution of Kenya of 2010, the Election Act of Kenya No. 24 of 2011, the 1945 Constitution of the Republic of Indonesia, and the Law of Republic of Indonesia No. 7 of 2017 about the General Election. This comparison allows the researchers to implement a legal construction of the Law of the Republic of Indonesia No. 7 of 2017 on the General Election. This can provide legal certainty and justice for the fulfilment and enforcement of political rights for persons with disabilities to be elected as candidates for members of the Indonesian Parliament or the House of Representatives (Provincial or Regional/City) in a democratic and just General Election.

Making and Remaking Kenya's Constitution

Kenya has undergone two major processes of constitutional review since 2000. In 2013 a new Constitution was adopted. Nonetheless it is currently considering a raft of constitutional amendments that would change the 2013 Constitution in fundamental ways. This chapter outlines the different processes followed to secure constitutional change and explores their successes and failures. A key question that runs through the chapter is how agreement that satisfies both the political elite and citizens generally can be reached on fundamental constitutional change.

Reform Strategy for Enhancing Service Delivery Using a Transformational Leadership Style in Kenya

National Police Service (NPS) is a public institution established by the Constitution of Kenya mandated to provide safety and security to all Kenyans and her visitors. However, there has been complaints over the quality-of-service delivery against the backdrop of police reforms agenda despite increased budgetary allocation. The study investigates the extent of transformational leadership style on the level of service delivery under the NPS reform. The study used a cross sectional of descriptive, explanatory method and structural equation modeling to collect and describe data. The method helps in reporting characteristics, relationships and meaning of the phenomenon under study. A sample size of 452 respondents was selected through stratified random sampling method from each stratum. The measures of centrality and dispersion, diagnostic tests were applied to test the closeness to normal distribution and goodness for factor analysis and fit of statistics. The transformational leadership style has significant influence on service delivery by a factor of 0.60 to the organization. Inspiring of juniors, sharing of vision, implementation of work plans, focusing on strategy issues and changes, building trust and rewarding juniors for performance in NPS are the key drivers of transformational leadership. In conclusion, NPS reforms agenda need to be effectively communicated across the organization by transformational leaders through inspiring the juniors to improve job performances, accept strategic changes and reward individuals and teams within the organization.

Psychosocial Support for Newly Recruited Teachers of English Language in Kenya

Various forms of support frommore experienced teachers help Newly Recruited Teachers (NRTs) to quickly adjust to the expectations of the new job as well as the respective place of work.Today, support of NRTs is even more crucial considering that since 1998,the Teachers Service Commission (TSC) currently established under Article 273 (1) of the Constitution of Kenya (2012); the sole employer of teachers in Kenyaapplies a demand-driven-teacher recruitment formula. Teachers are recruited and posted subject to availability of vacancies in any part of the republic of Kenya. The posts are advertised and recruitment follows successful interview conducted in the schools with vacancies or of late in certain central venues that cater for particular sub counties.TheNRTs face a myriad of challenges given that many of them get employed in environments they are not familiar with and sometimes in counties that are far away from their counties of origin. Unfamiliar environments are bound to create heightened feelings in an individual. The NRTs are not an exemption to this. They obviously need psychosocial support:-opportunity to have someone to talk to and need to feel comfortable in asking for advice and assistance such as helping them feel at ease, attention for stress-relief, and stimulating self-confidence. This paper seeks to report the findings of a study with regard to such support strategies that various school managements use to get the NRTs acclimatize to their new schools in particular and the teaching profession in general. It also makes recommendations for improvement of such support in pursuit of better teaching environments for quality education in Kenya.

Constitutional Guardianship in Kenya’s Bicameral Legislature

The Constitution of Kenya of 2010 adopts a bicameral legislative structure, within a devolved system of governance, consisting of the National Assembly and the Senate. In keeping with the devolved structure of government, the Senate’s legislative mandate is to a large extent confined to considering, debating and approving Bills concerning counties as well as determining the allocation of national revenue among counties and providing oversight over the national revenue allocated to the 47 county governments. Over the last ten years, Kenya has witnessed a great consolidation of power by the National Assembly at the expense of the Senate especially with regards to the roles of the chambers over the process of enacting the Division of Revenue Bill. Such consolidation of power attempts to relegate the Senate to a peripheral role within the bicameral legislative institutional structure. Consequently, the Supreme Court has asserted its advisory power and the High Court its judicial review power to mete out this inter-institutional conflict between the National Assembly and the Senate. This paper interrogates the manner Kenyan courts have discharged the contested role of serving as guardians of a legislative institution in a conflict within the bicameral legislative system. It makes the point that while courts have the authority to intervene in inter-cameral conflicts, judicial intervention should be exercised as an option of last resort, only utilised after exhaustion of the constitutionally ordained intra-parliament mediation process.

Ending the Oppression Olympics: Promoting the Concomitant Political Participation of Marginalised Groups in Kenya

The 2010 Constitution of Kenya is laudable for its commitment to redressing the exclusion from political and public life experienced by marginalised groups. Articles 21 and 27 require that the state and public officials take legal and administrative measures to ensure marginalised groups’ participation in governance and other spheres of life. Moreover, Article 100 mandates the passing of a single legislation to provide for the representation in Parliament of women, youths, persons with disabilities, ethnic minorities and marginalised communities. These provisions evince an intention that their inclusion be redressed simultaneously.
 However, the equality debate appears to have become synonymous with gender equality or the implementation of the ‘two-thirds gender rule’ as it is popularly known. This rule requires that not more than two-thirds of any elective or appointive position be occupied by one gender. Women’s underrepresentation has dominated litigation on inclusion, academic writing and proposals for electoral reforms.
 This unitary approach to inclusion, which privileges one category of difference, makes other marginalised groups doubly invisible. Moreover, statistics demonstrate that despite privileging gender over other factors of exclusion, women’s participation remains marginal. Further, it causes the groups at the bottom to compete rather than cooperate, while still falling short of addressing the informal patterns of prejudice and discrimination that keep the majority of the marginalised on the fringes of public life.
 This research proposes the intersectionality approach to policy design to simultaneously promote political participation of the various groups. Intersectionality recognises the role of the various categories of difference as equally important yet conceptually different, examines the relationship between the various categories, and emphasises the interaction between individual and institutional factors in achieving equality. Intersectionality, therefore, provides the most effective approach to diagnosing the factors fuelling exclusion and ultimately providing an effective prescription.

Devolution as a Panacea to Deeply Divided Multi-Ethnic (National) States: The Continuing Kenyan Experiment

The multiple designers of Kenya’s 2010 Constitution intended that devolution should address the many years of economic exclusion that many Kenyan communities had suffered. While this paper concedes that the design of the 2010 Constitution to a large extent achieves this role, the same constitution fails at engendering national multi-ethnic unity. This paper uses three broad approaches to assess Kenya’s devolution experiment under Kenya’s 2010 Constitution and ethnic unity: the first is Daniel Posner’s Institutional Politics approach, the second is Donald Horowitz’s Constitutional Ethnic Federalism approach, and the final one is Yash Pal Ghai’s Constitutional Autonomy approach. The author argues that limiting our focus to these three approaches as applied in this paper, there is no constitutional design that can easily achieve the lofty objective of national multi-ethnic unity in Kenya. This is because Kenya has had deeply ethnicised politics and social relations that are tied to ethnic political patrons and elites who are always at the forefront of constitutional design outcomes. This explains why even with the 2010 Constitution’s attempt to weaken the imperial presidency, many Kenyans still perceive ascendancy to the presidency as the zenith of social, economic, and political actualisation. The paper, therefore, concludes that the Posner and Horowitz approaches above have merits and demerits and have also been variously applied under the 2010 Kenyan Constitution. The Ghai approach has neither been contemplated nor applied in the 2010 Kenyan Constitution. It emerges that even if the demerits under the Posner, Horowitz, and Ghai approaches were eradicated, which might be quite difficult or even impossible, and yet the zero-sum competitive politics for the presidency persists, the politicisation of ethnicity and the conflicts that stem from this will persist.

Rethinking Patricia Asero Ochieng and Two Others v. The Attorney General and another

In 2012, the High Court of Kenya at Nairobi declared Section 2 of the Anti-Counterfeit Act (ACA) unconstitutional because its enforcement would limit access to affordable and essential drugs and medicines and thereby undermine the right to life, human dignity and health as guaranteed under the Constitution of Kenya. This case review revisits this important judgement by Justice Mumbi Ngugi with the aim of analysing it for legal soundness. Further, this review discusses the likely impact of the judgement on the fight against counterfeit drugs and access to drugs in Kenya. On the other hand, there will be a comparison between Kenyan legal system and some foreign laws. The review argues that the judge applied the wrong legal principles in making her determination, arriving at a legally flawed conclusion, thereby nullifying the balance between the rights of intellectual property rights owners and users as established under the Industrial Property Act.

Interrogating the Freedom of Expression in Kenya

Freedom of expression as guaranteed by international law and the constitution of Kenya 2010 is difficult to realize because of claw-back provisions in relevant statutes.

The Role of Alternative Dipute Resolution in Solving Electorate Disputes: A Case Study of Electoral Justice in Kenya

Finding ways to resolve electoral disputes is alternatively finding means to achieving electoral justice. The inception of the Kenyan Constitution and legislations thereafter brought with it a framework for resolving disputes effectively. Articles 47 on fair administrative justice, 48 on access to justice and 87 on electoral disputes and in finality 159(2) provide the basis of alternative dispute resolution (ADR) being inclusive of electoral dispute resolution mechanisms. These ADR mechanisms include mediation, arbitration, negotiation, conciliation and adjudication.

Traditional Justice System as Alternative Dispute Resolution Under Article 159(2)(C) of the Constitution of Kenya, 2010

There are various forms of justice. It cannot be limited to legal justice. This paper explores the potential of traditional justice systems under the Constitution. It illustrates the need for a multidisciplinary approach in order to fully realise the right to access justice. Through a comparative analysis as well as case law, the paper demonstrates how alternative dispute resolution is not limited to civil cases, but can be applied to criminal proceedings. Challenges are pointed out and recommendations made on how to improve and effectively manage traditional justice system

THE RIGHT TO EDUCATION IN KENYA

Kenya has ratified most international treaties that protect the right to education, which form part of the country’s laws. The Constitution of Kenya, in Article 53 (1) (b) state that every child has a right to free and compulsory basic education and Article 55 (a) the State shall take measures, including affirmative action programmes, to ensure that the youth access relevant education and training. Minorities and marginalized groups under Article 56 (b) have a right to be provided with special opportunities in the field of education. To give effect to the Constitution, the Basic Education Act (No 14 of 2013) has been passed into law to regulate the provision of basic education and adult basic education in the country. The Children’s Act also acknowledges and protects every child’s right to education. Other education laws guarantee the implementation of the right to education. In addition, Kenya adopted various general and specific policies on education. The most recent are the second Medium Plan Term of Vision 2030 (2013) and the Policy Framework for Education and Training (2012).

LAW, RELIGION, AND THE POLITICIZATION OF SEXUAL CITIZENSHIP IN KENYA

AbstractIn Kenya, debates about sexual orientation have assumed center stage at several points in recent years, but particularly before and after the promulgation of the Constitution of Kenya in 2010. These debates have been fueled by religious clergy and by politicians who want to align themselves with religious organizations for respectability and legitimation, particularly by seeking to influence the nation's legal norms around sexuality. I argue that through their responses and attempts to influence legal norms, the religious and political leaders are not only responsible for the nonacceptance of same-sex relationships in Africa, but have also ensured that sexuality and embodiment have become a cultural and religious battleground. These same clergy and politicians seek to frame homosexuality as un-African, unacceptable, a threat to African moral and cultural sensibilities and sensitivities, and an affront to African moral and family values. Consequently, the perception is that homosexuals do not belong in Africa—that they cannot be entertained, accommodated, tolerated, or even understood. Ultimately, I argue that the politicization and religionization of same-sex relationships in Kenya, as elsewhere in Africa, has masked human rights debates and stifled serious academic and pragmatic engagements with important issues around sexual difference and sexual orientation while fueling negative attitudes toward people with different sexual orientations.

Access to Justice Under a New Constitutional Dispensation

This paper highlights the principle of access of justice in line with Constitution of Kenya 2010.

Political Environment and Biosocial Projects Performance in Informal Settlements in Nairobi County, Kenya

This research study strived to find out the influence of Political Environment on biosocial projects performance in informal settlements in the county of Nairobi. The extent to which political environment influence biosocial project performance. Biosocial projects are projects working with people with disabilities. Two theories, Theory of Constraint and diffusion were used in this field of study to support predictive and outcome variable respectively. Pragmatism paradigm and mixed research were adopted in this study projects. Quantitative data was collected through structured self-administered questionnaires while qualitative data was collected through interview guides. Collection of data was preceded by testing for validity of research instruments through reliability and content related method through test-retest criterion. In Nairobi County, a sample size of 183 individuals from 61 biosocial projects were selected from a target sample of 70 biosocial projects. Questionnaires were used to collect quantitative data from 61 beneficiaries of the biosocial projects and 61 staff members directly working for biosocial projects in the County of Nairobi. In- depth qualitative interviews with 61 state and non-state actors through purposive sampling technique were executed. Arithmetic mean and the standard deviation were the statistical tools of analysis that were used for descriptive data, whereas Stepwise Regression (R2) and Pearson’s Product Moment Correlation (r) were the statistical tools of analysis that were used for inferential statistics whereas F-tests were executed to test hypothesis. To avoid statistical analysis invalidation, statistical assumptions tests were executed before analysis of data. Null hypothesis after analysis of data analysis was rejected at r = 0.313, F = 8.988, p = 0.004<0.01. Conclusively, constitution of Kenya 2010 and the Persons with Disabilities Act, 2003 were some of the key legal legislation that were pointed out to be championing success of biosocial projects performance that champion for the rights of persons with disabilities.

Affordable Housing Programme in Kenya: Policy Guidelines and Milestones

The paper presents an overview of policy interventions and milestones by the Government of Kenya with regards to the Affordable Housing programme targeting civil servants, members of the Kenya Police Service and Kenyan Citizens. The programme was initiated by the Government to supply 500,000 homes over a period of 5 years in line with the Government’s Big Four Agenda, Kenya Vision 2030 and Kenya Constitution 2010. The paper presents a Financing Framework through which Citizens could eventually buy or rent a home cheaply. A highlight of the housing gap in Kenya is presented as well as the residential housing affordability challenges faced by most Kenyan Citizens. The paper highlights the eligibility criteria for affordable housing (through the Bomayangu online platform), the financing framework (for raising capital to buy a home) as well as partnerships between the Government of Kenya and other external stakeholders such as governments and private companies. Through the State Department of Housing and Urban Development, the Kenya Government has initiated several affordable housing projects in Nairobi and Kisumu Cities as well as Embu and Machakos Towns. In addition, slum upgrading programmes are on course in Kibera slums, Nairobi as well as other parts of Kenya. Lastly, the paper highlights the contribution to various stakeholders as well as housing finance theory where limited literature exists on such government initiated programmes. Keywords: Affordable Housing, Civil Servants, Civil Servants Housing Scheme, Housing Fund, Government Housing, Big Four Agenda and Kenya Vision 2030. DOI: 10.7176/PPAR/11-2-01 Publication date: March 31 st 2021