CONSTITUTIONAL LAW COURSE OUTLINE AND...

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CONSTITUTIONAL LAW COURSE OUTLINE AND TEACHING MATERIALS LLB I,

Second Semester, 2014/15 Academic Year

Revised 11/9/2013; 14/10/2013; 5/6/2014; 26/6/2014; 30/6/2014

Prof Ben Sihanya, JSD (Stanford)

Scholar, Intellectual Property, Constitutionalism, and Education.

University of Nairobi Law School

Professor-in-residence, Public Intellectual, Poet, Mentor & Advocate

Sihanya Mentoring & Innovative Lawyering

Parklands Law Campus, Room B10

Box 1313, Sarit Centre, 00606 Nairobi, Kenya

Telefax (+254-20)2128272; +254 726020082 (O)

Email: [email protected]; [email protected]; (use both)

url: www.innovativelawyering.com

© Ben Sihanya

Revised 11/9/2013; 14/10/2013; 5/6/2014; 26/6/2014; 30/6/2014

mailto:[email protected]


http://www.innovativelawyering.com/

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TABLE OF CONTENTS

Course Description (summary)

A. Lectures

B. Basic Course work and sample questions

B. 1 Preparation of Coursework Essays

B. 1.1 Rules of Law

B.1.2 Identifying Relevant Issues

B.1.3 Depth of Analysis

B.1.4 Use of the Works of Others

B.1.5 Format of Essays

C. BASIC READING MATERIALS

D. BASIC WORKS OF REFERENCE

D1 Basic Books

D2 Constitutional and statutory materials

D3 International and regional instruments with constitutional significance in

Kenya, the UK and the US

D 4 UK constitutional instruments

D 5 Political party and other constitutions

D 6 Constitutional instruments from other countries

D 7 Coalition Government instruments- Kenya

D 8 Constitutions of pressure groups and relevant social welfare groups

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UNIVERSITY OF NAIROBI LAW SCHOOL

CONSTITUTIONAL LAW: COURSE OUTLINE AND TEACHING MATERIALS, LLB

June 2014 (Semester II)

Title of Course: Constitutional Law I

Contact Hours: 90hrs

1. COURSE DESCRIPTION (summary)

This course focuses on Constitutional Process. In the first semester you studied Constitutional

Theory. The two are closely linked, and the articles cited or distributed in the First semester are

still very relevant. We intend to impart skills in four major areas. These include:

1. Constitutional, social and political theory, values and principles with specific reference to

Kenya;

2. The significance of the rules of law – especially constitutional rules;

3. The role of constitutional theory, principles, doctrines, and law or rules in political,

social, cultural and economic organisation, as well as in nationhood and development in

Kenya.

4. The constitutional and related administrative law regarding the machinery of government

(the organisation and operation of the executive, legislature, judiciary; political parties; as

well as CSOs, NGOs, administrative agencies, quasi-judicial tribunals, relevant civil

society organizations, etc)

In drafting this Course Outline and Reading List I have benefited from the work of Justice (Prof)

J.B. Ojwang who for long taught the subject and who now sits on the Supreme Court Bench.

Abbreviations and Acronyms (some common ones)

A-G Attorney-General

CAJ Commission on Administrative Justice

CEO Chief Executive Officer

CIC Commission for Implementation of the Constitution

CIOC Constitutional Implementation Oversight Committee

CJ Chief Justice

CKRC Constitution of Kenya Review Commission

COMESA Common Market for Eastern and Southern Africa

CRA Commission for Revenue Allocation

CS(O) Civil Society (Organisation)

DPP Deputy Public Prosecutor

DPP Director of Public Prosecutions

EACC Ethics and Anticorruption Commission

EALS East African Law Society

E-LSRCC Expanded Legal Sector Reform Coordinating Committee

GJLOS Governance, Justice, Law and Order Sector

GNP Gross National Product

ICJ Kenya Kenyan Section of the International Commission of Jurists

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IEBC Independent Electoral Boundaries Commission

IPPG Inter Parties Parliamentary Group (Kenya)

J Judge

JA Justice of Appeal

JSC Judicial Service Commission

KACA Kenya Anti Corruption Authority (defunct)

KACC Kenya Anti-Corruption Commission (defunct)

KANU Kenya African National Union

KLRC Kenya Law Reform Commission

KNHREC Kenya National Human Rights and Equality Commission

KNHRC Kenya National Human Rights Commission

KUDHEIHA Kenya Union of Domestic, Hotel, Educational Institutions,

Hospitals, and

Allied Workers (now KUSU)

KUSA Kenya University Students Association

KUSU Kenya Universities Staff Union

LSK Law Society of Kenya

LSRC Legal Sector Reform Coordinating Committee

MCA Member of the County Assembly

MP Member of Parliament

NARA National Accord and Reconciliation Act, 2008

NARC National Rainbow Coalition

NCC National Constitutional Conference

NCIC National Cohesion and Integration Commission

NGO Non Governmental Organisation

PA Provincial Administration

PSC Public Service Commission

PSC Parliamentary Service Commission

SCK Supreme Court of Kenya

SRC Salaries and Remuneration Commission

SONU Student Organisation of Nairobi University

TI (Kenya) Transparency International (Kenya)

TI Transparency International

TJRC Truth, Justice and Reconciliation Commission

TRC Truth and Reconciliation Commission

UNDP United Nations Development Programme

UNTESU Universities Non Teaching Staff Union (now KUSU)

A. LECTURES One lecture a week is the norm; but an exception could be made where necessary. The lecture

sessions give the lecturer an opportunity, first, to bring to the attention of the students the

substance of the material that forms the core of the courses; and second, to apprise the students

of relevant analytical perspectives. From these presentations the most topical or compelling

issues will readily suggest themselves. The lectures are accompanied by class discussions to

afford the students an opportunity to follow up such issues.

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B. COURSEWORK AND SAMPLE QUESTIONS

Course work and exams

The assessment of this course will be as follows:

(a) 30%: This may be a sit-in CAT or take-home coursework essay. There wil be

agreement on which: Either way, the marks are earned from a written analytical essay

based on the topics we have covered. It must be your original work – not plagiarized

from any other person or source or from the Internet. Clear argumentation; proper

citation; maximum 4000 words;

I take-away coursework, then it must be one-and-a-half spacing; full and accurate

citation; footnotes and bibliography; submit personally to the secretaries, Commercial

Law Department and sign for it.

(b) 70% earned from a written sit-in 2 hour examination administered at the end of the

second semester exams (beginning 6/5/2013).

Think Piece, Issues, Paper and Working Paper to follow, including by way of blog.

There are model questions which should guide discussions, and for coursework submittal. Please

note the importance of coursework, for your overall assessment at the end of the course. One

failing to submit coursework, will have to be assessed solely on the basis of the formal

examination. A course work or a sitting CAT will be administered as occasion demands.

B. 1 Preparation of Coursework Essays

B. 1.1 Rules of law

The main focus of most of the questions will be legal and institutional. The first principle to be

observed is that of relevance. The question must be well understood, and all discussion must be

relevant to its primary concern. It is not possible to analyse a rule of law unless one knows and

states the rule itself. Once this has been clearly and concisely stated, one may then proceed to

explain its various facets and to bring out any ambiguities, obscurities, contradictions or potential

difficulties – insofar as these are demanded or necessitated by the question itself.

However, it must at the same time be remembered that a rule of law operates in reality. It works

within the framework of important institutions and policies. These are to be concisely set in

place, according to the nature of the question and its specific demands. But, it should be noted

that one will have failed to do a proper or acceptable legal analysis, if all one did was to address

oneself to political, economic or other general issues (which are better understood in other

disciplines such as political economy; and which have their scholastic requirements not to be

over-looked), without also saying what the relevant constitutional or legal position is, or how it

fits into the broadest societal context. The analysis would then not be a constitutional or legal

analysis, because it would be saying little about the constitutional or legal question to which one

is expected to address oneself.

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B.1.2 Identifying relevant issues

Whenever a problem-type question is to be answered, or an essay is to be written, the first task is

to identify the main issues which must have been contemplated by the examiner. If a question

would entail some remarkable ambiguity or absurdity, this must also be identified, before an

answer is attempted. The answer, in a situation where ambivalence, an ambiguity or absurdity

exists, should respond in a manner that suits the situation posed by the ambiguity or absurdity.

In carrying out the discussion, one should follow some systematic (or “natural”) course. For

example, something that falls before another in historical sequence should be discussed in the

order – unless some other mode of classification has consciously been adopted. Discussion could

also follow an arrangement by logical themes; or it could follow the order of importance – in

terms of the ultimate argument of the study. At any rate, the more fundamental matters should be

discussed before the relatively minor ones. Once a clear framework of discussion has been

conceived, it is desirable to commit oneself to it, and to avoid wandering tendencies.

An effective presentation centres on the more eminent ideas and situations, as nobody wants to

spend long periods perusing a whole lot of inconsequential details which have usurped the place

of the real issues. It is desirable, therefore, to be selective on examples, once a uniform

framework and background have been laid. The definitely trifling facts and details should be

overlooked and those which may have some significance, albeit marginal, should be footnoted.

The logical flow of the argument should not be interrupted by ill-planned graftings, nor by abrupt

downgrading of important material from text to footnote.

B.1.3 Depth of analysis As far as possible, each issue, once identified, should be exhaustively dealt with. It is desirable

that all ideas should be expressed simply and clearly, but with imagination and originality. All

general principles and all reflections should be brought down to specific illustration, using

concrete case law, fact-situations or anecdotes in the context of the three key types or

methodology of authorities: Constitutional or statutory text, case law or judicial decisions or

authority, and academic or juristic authority. In case analyses, it is instructive to use the

methodology of Issues, Facts, Law, Analysis and Conclusion approach (IFLAC).

B.1.4 Use of the works of others It is expected that students will make it their most basic scholastic duty to familiarise themselves

with all the authoritative works in the discipline in general, and on the specific topic involved in

their subject. If they do not do this, their “knowledge” will be only insecure and general; the

relevant material which sets the art will not have formed part of them, and they will be unable to

relate to it.

It follows that students, in the course of preparing their written work, will have to make reference

to the important works that address their subject and their topic of research. It is tempting, and

indeed is a common pitfall among students, to use a writer’s work without having the modesty or

decency to cite the source, or to acknowledge the intellectual indebtedness. Such conduct is

known as plagiarism and is the most serious scholastic offence a person can ever commit. It also

constitutes copyright infringement, which is a civil wrong and a criminal offence. Not only does

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it take away the validity of the study being offered; it also shows the person concerned as

intellectually inept, dishonest and parasitic.

Students should adopt the culture of intellectual honesty and courtesy. When you use someone

else’s work, for example by extracting a part of it, or paraphrasing from it, you have a duty to

cite the source of your facts, or of the inspiration for the argument you are proffering.

It should also be noted that long quotations of other people’s works will not make an effective

essay. Any quoted source must be used only as an aid to your independent assessment and

commentary.

As a related point you should note that, since the question formulated for you will presuppose

original thinking, chunks of a text-book or other material which will not adjust to suit the

expectation of the examiner are unlikely to furnish an effective answer. Hence quotations, in

their length, must be as sparing as possible.

B.1.5 Format of essays The question must be answered in all its parts. Presentation must be clear and concise, not

exceeding the indicated pages in length. This may include your reference section (i.e.)

footnotes), which can be as detailed as may be necessary. All sources of references used must be

fully documented in footnotes with all citations in standard form. Careful preparation must

precede the writing-up. The essay must be neatly planned. Writing must be legible. And

presentation must be in good grammatical form.

C. Basic reading materials (see also course outline and readings prepared for Comparative

Constitutional Law, revised 18/5/2012)

The following are essential materials which all students should acquire for their own use, or have

ready access to –

(a) Constitution of Kenya 2010

(b) 1969 Constitution of Kenya with all amendments to date.

(c) Constitution of Kenya (Amendment) Act 2008

(d) National Accord and Reconciliation Act, 2008

(e) Constitutions of the registered political parties.

(f) National Assembly Standing Orders (Kenya) (Revised Edition 1998) (as amended up to

and including November 10, 1997)

(g) National Assembly Booklet.

(h) Statutes relating to National and Civic elections.

(i) Statutes relating to Political Parties, e.g. Political Parties Act 2011(also 2009), Societies

Act, etc. (cf. Political Parties Bill, 1995 ….)

(j) Elections Act, 2011; IEBC Act 2011; National Assembly and Presidential Elections Act,

Cap 7 (repealed and replaced)

(k) Constitution of Kenya Review Act, Cap.

(l) Judicature Act Cap 8 Laws of Kenya

(m) County Government Act No.17 of 2012

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(n) Division of Revenue Act No.31 of 2013

(o) Intergovernmental Relations Act No.2 of 2012

(p) National Government Co-ordination Act No.1 of 2013

(q) Public Finance Management Act No.18 of 2012

(r) Transition to Devolved Government Act No.1 of 2012

(s) Transition County Allocation of Revenue Act No.6 of 2013

(t) County Government Public Finance Management Transition Act No.8 of 2013

(u) Transition County Appropriation Act No.7 of 2013

(v) Urban Areas and Cities Act No.13 of 2011

(w) Constituencies Development Fund Act No.30 of 2013

(x) Basic Education Act No.14 of 2013

(y) Public Procurement and Disposal Act 2005

D. Basic works of reference Certain works of reference have a relevance to the basic core of the course, which requires that

students should have ready access to them. The following list (which does not pretend to be

exhaustive) may serve as a guide:

D1. Basic books and Articles

No single textbook adequately addresses the issues in this course. Students should consult those

in the following list, and especially Ghai & McAuslan (1970), Ojwang (1990), Nwabueze

(1973), Nwabueze (1974), Nwabueze (1977), Nwabueze (2003), Paul Craig (2008; 2010) and

Paul Jackson & Patricia Leopold (2001) (No. 20 below). Some important readings, including

those cited in the various sections, are available in the Law Library, as well as in the boxes and

files bearing the following names: Okoth-Ogendo, J.B. Ojwang, Githu Muigai, Ben Sihanya (see

Ben Sihanya: Constitutional Studies), etc.

Below we cite some of the key materials. We have cited other materials and indicated in the

Course Outline where some of these books are absolutely important.

Key Books

1. Benjamin Obi Nwabueze (2003) Constitutional Democracy in Africa Vol. 1, Spectrum

Books, Nigeria.

2. Benjamin Obi Nwabueze (1974) Presidentialism in Commonwealth Africa, St. Martin’s

Press, New York.

3. Benjamin Obi Nwabueze (1973) Constitutionalism in the Emergent States, C. Hurst &

Co., London.

4. Yash P. Ghai & J.P.W.B. McAuslan (1970) Public Law and Political Change in Kenya,

OUP, Nairobi.

Other essential Books, Monographs, Book Chapters and Journal Articles 1. Vicki C. Jackson & Mark Tushnet (2006) Comparative Constitutional Law, Foundation

Press, New York (2nd

ed.).

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2. Jackton B. Ojwang (1990) Constitutional Development in Kenya: Institutional

Adaptation and Social Change, African Centre for Technology Studies (ACTS), Nairobi.

3. Ben Sihanya (2013) “Constitutional implementation in Kenya, 2010-2015: challenges

and prospects,” A study under the auspices of the Friedrich Ebert Stiftung (FES),

Occasional Paper No. 5, Nairobi, January 2013, ISBN: 9966-957-20-0.

4. Karuti Kanyinga & Duncan Okello (eds) (2010) Tensions and Reversals in Democratic

Transitions: The Kenya 2007 General Elections, Society for International

Development(SID) & Institute for Development Studies (IDS), University of Nairobi,

Nairobi, Kenya.

5. H.W.O. Okoth-Ogendo (1999) “The quest for constitutional government,” in Goran

Hyden, Dele Olowu & H.W.O. Okoth-Ogendo (1999) African Perspectives on

Governance, Africa World Press, Trenton, pp. 33-60.

6. Benjamin Obi Nwabueze (1973) Constitutionalism in the Emergent States, C. Hurst &

Co., London.

7. Ben Sihanya (2013) “Constitutionalism and the rule of law in Kenya’s electoral process,”

Handbook on Elections Disputes in Kenya under the auspices of the Judiciary Working

Committee on Elections Preparation and the Law Society of Kenya, Handbook on

Election Disputes in Kenya under the auspices of the Judiciary Working Committee on

Elections preparation and the Law Society of Kenya, Nairobi.

Journal Articles

8. Ben Sihanya (2013) “Public participation and public interest lawyering under the Kenyan

Constitution: theory, process and reforms,” Vol 9 (1) (2013) Law Society of Kenya

Journal 1-32.

9. Ben Sihanya & Duncan Okello (2010) “Mediating Kenya’s Post-Election Crises: The

Politics and Limits of Power Sharing Agreement,” in Dr Karuti Kanyinga and Duncan

Okello (eds) Tensions and Reversals in Democratic Transitions: The Kenya 2007

General Elections, Institute of Development Studies (IDS), University of Nairobi, and the

Society for International Development (SID) Eastern & Central Africa, Nairobi.

10. Ben Sihanya (2011) “The Presidency and Public Authority in Kenya’s New

Constitutional Order,” Constitution Working Paper series No. 2 Society for International

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Development (SID) Eastern & Central Africa, Nairobi Printed by The Regal Press Ltd,

Nairobi, at http://www.sidint.net/docs/WP2.pdf.

11. Lawrence Lessig & Cass R. Sunstein (1994) “The President and the Administration,” 94

Columbia Law Review pp. 1-123.

12.

Reference materials

13. Charles Hornsby (2012) Kenya: A History Since Independence I. B. Tauris Publishers,

London.

14. Peter Mwangi Kagwanja (2012) Kiraitu Murungi: An Odyssey in Kenyan Politics, East

African Educational Publishers, Nairobi.

15. Macharia Munene (2012) Historical Reflections on Kenya: Intellectual Adventurism,

Politics & International Relations, University of Nairobi Press, Nairobi, Kenya.

16. Daniel Branch (2011) Between Hope and Despair 1963-2011 Yale University Press, New

Haven, Connecticut.

17. Ben Sihanya (2013) “Public participation and public interest lawyering under the Kenyan

Constitution: theory, process and reforms,” Law Society of Kenya Journal.

18. Benjamin Obi Nwabueze (1977) Judicialism in Commonwealth Africa, C. Hurst & Co.,

London.

19. Goran Hyden, Dele Olowu & H.W.O. Okoth-Ogendo (eds) (2000) African Perspectives

on Governance, Africa World Press, Inc., Trenton, NJ & Asmara, Eritrea.

20. Walter O. Oyugi, E.S. Atieno Odhiambo, Michael Chege & Afrifa K. Kitonga (eds)

(1988) Democratic Theory and Practice in Africa, Portsmouth, NH, USA & Heinemann,

London.

21. Laurence Tribe (1988) American Constitutional Law, Foundation Press, Mineola, New

York (2nd

ed).

22. David H. Rosenbloom, Robert S. Kravchuk, & Richard M. Clerkin(2009) Public

Administration: Understanding Management, Politics, and Law in the Public Sector,

McGraw-Hill, New York.

23. Muna Ndulo (ed) (2006) Democratic Reform in Africa: Its Impact on Governance &

Poverty Alleviation James Currey, Oxford.

http://www.sidint.net/docs/WP2.pdf

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24. Willy Mutunga (1999) Constitution Making from the Middle: Civil Society and

Transition Politics in Kenya, 1992-1997, Mwengo, Harare.

25. Paul Craig (2008) Administrative Law, Sweet & Maxwell, London (6th

ed.).

26. Peter Kaluma (2009) Judicial Review: Law, Procedure and Practice, Law Africa,

Nairobi.

27. B. A Ogot & W.R Ochieng (eds) (1995, 1996) Decolonisation and Independence in

Kenya, 1940-93, James Currey, London, EAEP, Nairobi, & Ohio UP, Athens.

28. Walter O. Oyugi (ed) (1994) Politics and Administration in East Africa, East African

Educational Publishers, Nairobi.

29. Kathleen Sullivan & Gerry Gunther (2010) Constitutional LawFoundation Press, New

York (17th

ed.) (University Casebook)

30. Toobin, Jeffrey (2012) The Oath: The Obama White House and the Supreme Court,

Anchor Books, New York.

31. Toobin, Jeffrey (2001) Too close to call: The Thirty-Six-Day Battle to decide the 2000

Election, Random House Trade Paperback, New York.

32. Toobin, Jeffrey (2007) The Nine: Inside The Secret World of the Supreme Court, First

Anchor Books Inc, New York.

33. Larry Diamond (2008) The Spirit of Democracy: The Struggle to Build Free Societies

Throughout the World, Holt Paperbacks, New York.

Consult other relevant Constitutional commentaries; Administrative bureaucracy and

administrative justice; policy making, the policy process and policy instruments;

presidential and related biographies…

1. Njuguna Ng’ethe & Wasunna Owino (eds) (1999) From Sessional Paper No. 10 to

Structural Adjustment: Towards Indigenising the Policy Debate Institute of Policy

Analysis and Research (IPAR), Nairobi.

2. Salim P. Ndemo (2007) Epitome of State Power: The Provincial Administration in Kenya

Regional Institute for Cooperatives Development Management (, Nairobi, presumably).

3. Christopher Gitari Ndung’u (ed) (n.d.; 2008?) Election Petition Case Digest ICJ-Kenya,

Nairobi.

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4. Nicholas Henry (2010) Public Administration and Public Affairs PHI Learning Private

Ltd, New Delhi.

5. R. K. Sapru (2010) Public Authority: Art and Craft of Policy Analysis, PHL Learning

Private Ltd, New Delhi.

Michael Howlett & M. Ramesh (2003) Studying Public Policy: Policy Cycles and Policy

Subsystems, OUP, Oxford (2nd

ed).

See also materials and statutory instruments cited in Ben Sihanya, “The quest for legality,

validity, and legitimacy in Kenya’s constitutional review, 1964-2010,” working paper presented

at the Kenyan Section of International Commission of Jurist’s (ICJ’s) Public Lecturer on

Constitutional Review March 14, 2004, The Grand Regency Hotel, Nairobi, etc.

D 2 Constitutional and statutory materials (endeavour to study them)

Constitutions and Constitutional Instruments

Constitution of Kenya, 1963 (Independence Constitution) (Kenya Independence Order in

Council, 1963, Extraordinary Issue, Kenya Gazette Supplement No. 105, 10/12/1963, Legal

Notice No. 718, Statutory Instruments, 1963 No. 1968, Kenya’s Independence Order in Council

1963 (made 4/12/1963; to be laid before Parliament 4/12/1963; Coming into operation

12/12/1963); At the Court at Buckingham Palace, the 4th

day of December 1963, Queens’s Most

Excellent Majesty in Council…)

Constitution of Kenya, Act No. 5 of 1969 (Consolidating amendments from 1964)

Constitution of Kenya 2010 (Ratified in a referendum, 4/8/2010; promulgated 27/8/2010)

Constitution of Kenya (Amendment) Act No. 1 of 2008

National Accord and Reconciliation Act, 2008 (NARA)

Judicature Act, 1967, Cap 8

Key Statutes

Anti Corruption and Economic Crimes Act, 2003; 2011

Assumption of Office of President, 2012

Elections Act (No. 24 of 2011)

Election (Amendment) (No 2) Act (No 32 of 2012)

Election (Amendment) (No 3) Act (No 48 of 2012)

National Accord and Reconciliation Act 2008

Political Parties (Amendment) Act (No 10A) of 2012

Ethics and Anti-Corruption Act, No. 22 of 2011

Independent Electoral and Boundaries Commissions Act No. 9 of 2011

Independent Offices (Appointment) Act, No. 8 of 2011

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Inter-governmental Relations Act, No.2 of 2012

Judicature Act, Cap 8

Kenya Communication Act 2008

Media Act, 2007

National Assembly Remuneration Act, Cap 5

National Assembly (Powers and Privileges) Act, Cap 6

National Cohesion and Integration Act 2008

Non-Governmental Organisation Co-Ordination Act, No. 19 of 1990

National Government Co-Ordination Act, No. 1 of 2013

Political Parties Act, No 11 of 2011

Power of Mercy Act, No. 21 of 2011

Presidential Retirement Benefits Act, 2003, No. 11 of 2003, (commencement 9/1/2004)

Public Officer Ethics Act, 2003

Public Officer Ethics (management, Verification, and Access to Financial Declarations)

Regulations, 2011

Supreme Court Rules 2011

Transition to Devolved Government Act, No. 1 of 2012

Universities Act, No. 42 of 2012

Statutory instruments

Commissions of Inquiry Act, Cap 102

Constitution of Kenya (Amendment) Bill, 2004, Kenya Gazette Supplement, Bills, 2004,

(Nairobi, 9th

March, 2004) (Special Issue, Kenya Gazette Supplement No. 9 (Bills No. 1)

Constitution of Kenya Review Act, Cap 3A (as amended)

Constitution of Kenya, 1963 (the Independence of Constitution)

Constitution of Kenya Review (Amendment) Bill, 2004, Kenya Gazette Supplement Bills, 2004,

Nairobi, 9th

March, 2004 (Special Issue, Kenya Gazette Supplement No. 10 (Bills No. 2) (one of

the two “Kiraitu Bills”)

Draft Constitution by the Law Society of Kenya, launched March 16, 2004

Draft Constitution by the Ufungamano Group, January 2004

Draft Constitution of Kenya, 2002 (drafted by the Constitution of Kenya Review Commission

(CKRC), October 2002)

Draft Constitution of Kenya, 2004 (adopted by the National Constitutional Conference at Bomas

of Kenya, March 15, 2004) (edition dated March 22, 2004, etc,)

Election Offences Act, Cap 66 (repealed and replaced)

Elections Rules of Procedure on Settlement Disputes, 2012

Elections (parliamentary and County Elections) Petition Rules, 2013 (repealed by L.n. 54 of

2013)

Elections (General) Regulations, Notice of Formula for Allocation of Party Lists, 2013

Elections (parliamentary and County Election Rules, 2013

Interpretation and General Provisions Act, Cap 2

The Independent Electoral and Boundaries Commission (fund) Regulations, 2012

Kenya Law Reform Commission Bill, 2002

Law Reform Commission Act, 1982, Cap 3

http://www.kenyalaw.org/kenyalaw/klr_app/view_content.php?ContentHistoryID=30148





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National Assembly Standing Orders (Kenya) (Revised Edition 1998) (as amended up to and

including November 10, 1997)

National Assembly and Presidential Elections Act, Cap 7 (repealed and replaced)

Parliamentary Pensions Act, Cap 196

Statutes of the University of Nairobi, and Rules and Regulations of the Faculty of Law –

especially relating to admission, registration, examinations, and discipline (suspension,

expulsion, disciplinary proceedings…)

Supreme Court Act No. 7 of 2011

University of Nairobi Act, Cap 210 (repealed)

Zero Draft of the Constitution of Kenya, February 11, 2004 (as revised February 27, 2004)

See also the integrity or anti corruption legislation (which regulate the exercise of public power)

Anti-Counterfeit, Act 2008

Political Parties Act 2011 (replaced PPA 2007)

Statutory Instruments Act (No 3 of 2013)

Interpretation and General Provisions Act (Cap 2 Laws of Kenya)

Constitutional amendments and reform 2008-2013 (see statutes above)

Constitution of Kenya Amendment Act 2008

Constitution of Kenya Review Act 2008

Election (Amendment) Act, No 31 of 2012

Vetting of Judges and Magistrates (Amendment) Act (No 44 of 2012)

Any other? Consider proposed amendments to the 2010 Constitution on election date; on the one

third gender rule; on Senate….

Presidential and General Election Laws & Regulations

Constitution of Kenya 2010

Privileges and Immunities Act, Cap 179

Independent Electoral and Boundaries Commissions Act No. 9 of 2011

Elections Act (No. 24 of 2011)

Ethics and Anti-Corruption Act, No. 22 of 2011

Power of Mercy Act, No. 21 of 2011

Political Parties Act (No 11 of 2011)

Presidential Retirements Benefits Act, No. 11 of 2003

Limitation of Actions Act, Cap 22

Election Offences Act, Cap 66

Inter-governmental Relations Act, No.2 of 2012

Independent Offices (Appointment) Act, No. 8 of 2011

Commissions of Inquiry Act, Cap 102

Transition to Devolved Government Act, No 1 of 2011

Supreme Court Rules 2011

Supreme Court Act No. 7 of 2011

Magistrate Courts Act, Cap 10

The Media Act, 2007

The Assumption of Office of President, 2012

National Assembly and Presidential Elections Act, Cap 7 (repealed)

Universal Declaration on Human Rights (UDHR)

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International Covenant on Civil and Political Rights (ICCPR)

D 3 International and regional instruments (with constitutional significance in Kenya, the

UK, Germany, the US and China)

Amsterdam Treaty (European integration)

AU Charter (formerly AU; and other AU instruments)

Common Market for Eastern and Southern Africa (COMESA) agreement

East African Community (EAC) Treaty

European Constitution (due June 2004?)

International Covenant on Civil and Political Rights, 1966

International Covenant on Economic, Social and Cultural Rights, 1966

Maastricht Treaty (European integration)

Montevideo Convention on the Rights and Duties of States, 1933.

Treaty of Rome (European integration); Amsterdam; Maastricht etc.

UN Charter, 1945

Universal Declaration of Human Rights (UDHR), 1948

World Trade Organisation (WTO) Agreement incorporating the Agreement on Trade Related

aspects or Intellectual Property (TRIPs)

African instruments on democracy, electoral justice, human rights….

D 4 UK Constitutional Instruments (Some have come from the European Union; also see

statutes which devolved powers to Scotland and to Wales)1

Act of Settlement, The, 1701 (UK)

Act of Union, The, 1707

Bill of Rights, The, 1698 (UK)

Magna Carta, The, 1215 (The Great Charter) (UK)

Petition of Right, 1628

Human Rights Act 1998

Instruments devolving power to Scotland and Wales

D 5 POLITICAL PARTY AND OTHER CONSTITUTIONS

1. CORD Alliance

a) Orange Democratic Party (ODM)

b) Wiper Democratic Movement (formerly ODM-K)

c) Forum for the Restoration of Democracy-Kenya (Ford-K)

d) The Independent Party (TIP)

e) Chama cha Uzalendo

2. Jubilee Alliance

a) The National Alliance (TNA)

b) United Republican Party (URP)

c) National Rainbow Coalition (NARC)

d) Republican Congress Party of Kenya (RC)

1 Discussed in Jackson & Leopold’s O’Hood Phillips and Jackson’s Constitutional and Administrative Law

16

3. Amani Coalition

a) United Democratic Movement (UDM)

b) United Democratic Forum (UDF)

c) Kenya African National Union (KANU- changed name briefly to Kenya Alliance

of National Unity)

d) New Ford Kenya (NFK)

e) Vision Party

4. Eagle Coalition

a) Party of Action (POA)

b) Kenya National Congress (KNC)

5. National Rainbow Coalition-Kenya (NARC-K)

6. Safina Party

7. Alliance for Real Change (ARK)

8. Restore and Build Kenya (RBK) party

9. Grand National Union (GNU)

10. Alliance Party of Kenya (APK).

11. Alliance Party of Kenya (APK)

12. Democratic Party (DP)

13. Ford People

14. Grand National Union (GNU)

15. Labour Party of Kenya (LPK)

16. Liberal Democratic Party (LDP)

17. National Party of Kenya (NPK)

18. Party of National Unity (PNU)

Cf. Political Parties were required to register and comply with the Political Parties Act by April

30, 2012. After this date, a full list of all the officially recognised political parties was to be

available. How many political parties complied with the core provisions of the Constitution,

Political Parties Act, Elections Act, and IEBC Act? How did RPP and IEBC deal with issues of

compliance before, during and after the March 4, 2013 General Elections?

D 6 CONSTITUIONAL INSTRUMENTS FROM OTHER COUNTRIES

Basic Law of the Federal Republic of Germany and an amendment of December 1993

Constitution of South Africa 1996

Constitution of the Federal Republic of Nigeria 1999

Constitution of Egypt (adapted in a referendum 2012)

Constitution of China 1982 (updated 22/3/2004)

Constitution of Ivory Coast

Grand Coalition Instruments (UK, Germany, Kenya)

17

Constitution of the Republic of Ghana 1992

Constitution of Uganda 1995; as amended

Constitution of Zambia, 1996

Constitution of the United States of America 1787; (1991; as amended) Declaration of

Independence 1776

Constitutional Instruments of the United Kingdom

Act of Settlement 1701 (UK)

Act of Union 1707

Bill of Rights 1698 (UK)

Magna Carta 1215 (The Great Charter) (UK)

Petition of Right 1628

Human Rights Act 1998

Instruments devolving power to Scotland and Wales (1998)

D 7 Coalition government instruments – Kenya

CORD instruments

Jubilee instruments (TNA & URP) cf. Mudavadi and Uhuru Kenyatta agreement of December

2013 (revoked?)

Amani instruments

Eagle instruments

MoU among Ford-K, DP, and NPK, etc (NAK MoU) (see also NAK, NPK constitutions)

MoU between LDP and NAK (NARC MoU)

National Rainbow Coalition (NARC)

ODM/PNU Grand Coalition 2008

D 8 CONSTITUTIONS OF RELEVANT PRESSURE GROUPS & SOCIAL WELFARE

GROUPS

(and the related social norms of communities)

You may wish to consult the constitutions of the following entities:

1. Trade unions eg. the Universities Academic Staff Union (UASU), University Non

Teaching Staff Union (UNTESU), Kenya Union of Domestic, Hotel, Educational

Institutions, Hospitals, and Allied Workers (KUDHEIHA), and Kenya National

Union of Teachers, (KNUT));

2. Students’ union constitutions (eg KLSS, SONU, KUSA, MUSO);

3. Non-Governmental Organisations (NGOs) Constitutions, etc.; Constitutions and

Charters of intergovernmental organisations, eg International Centre for Inspect

Physiology and Ecology (ICIPE), African Centre for Technology Studies (ACTS),

etc.

E. The course outline

18

E 1 Basic content

The unitisation of the Constitutional Law Course has broken it into two separate (but

interdependent) units for purposes of instruction. These are:

(i) Constitutional Theory, and

(ii) Constitutional Process

The first unit is intended to introduce students to the theory of constitutions, i.e. the coherent

sets of propositions and fundamental principles that go into the making and operationalisation of

the various types of constitutions in use. The second unit, that is Constitutional Process, is

intended to familiarise students with the operational institutions and structures of the

constitutional order, and their modes of operation.

The following are some of the themes that constitute the content of the Constitutional Process

curriculum –

1. Defining Constitutional process

2. Constitutional values and safeguards

3. Constitutional founding of the Kenyan State

4. Separation or division of powers or functions, and checks and balances [limited or

efficient/facilitative government?)

5. Machinery of Government; the machinery of governance; the formulation, interpretation

and implementation (or execution) of law; the administration & governmental process;

separation of powers; checks and balances in practice

6. Executive Power of the State

7. Decentralisation of Executive, Administrative and Parliamentary powers under the

Constitution 2010

8. Legislative Power of the State

9. Judicial Power.

10. Bill of Rights, Constitutional applications and references, judicial review, ordinary

litigation, and prosecution(s); original and appellate jurisdiction, etc

11. Constitutional breakdown; cf. failed states

12. Control of Public Powers: interagency checks and balances; CIOC; Commissions: (CIC,

PSC, JSC, TSC, KACA/KACC, EACC)

13. Prospects for a wider institutional base in governance – parties – coalitions – NGOs etc

14. Constitutional values and safeguards: issues in political analysis of constitutional

systems:

(a) What are constitutional values? Safeguards?

(b) Democracy and constitutionalism

(c) Representative government and democracy;

(d) The basic division of powers: horizontal separation of powers; two-tier

Parliament; devolution of powers

Independence, impartiality, accountability, and competence of the Judiciary

(e) The rule of law;

(f) Fundamental rights, liberties and freedoms (the Bill of Rights)

19

(g) Equal protection: nationality and citizenship; race, ethnicity, class and gender.

(h) Autochthony: What is an autochthonous Constitution? How can a constitution

be home grown? Legitimate? The people, and their values; wananchi, “Wanjiku,

Amina, Akinyi, Naliaka, Mwikali, Chemutai …,” The myth of Africanity, etc]

(i) Law in development; law and rights; access to and control of resources: finance,

land, technology (IP and innovation in constitutionalism);

(j) Academic freedom: academics, students and the social and political process.

Democracy: the politics of the constitution, and quest for (political and social)

legitimacy and autochthony

1. INTRODUCTION

Lecturer’s and Students’ expectations;

Syllabus of issues; readings: books; articles;

Constitution; constitutional instruments; statutes and regulations; case law: anecdotes,

policy

2. INTRODUCING CONSTITUTIONAL PROCESS IN KENYA

Conceptualizing and theorizing Kenyan constitutional process:

Constitutional concepts & doctrines e.g. constitution, grundnorm, state, society,

community, nation, nation State, state nation, constitutional nomenclature, conceptual

framework, constitutional process, constitutional theory, constitutional politics,

constitutional lawyering, Constitutional Government v. Constitutional Democracy,

society and community, bureaucracy, human rights, rule of law, nationalism, government,

executive, parliament, judiciary, President, PM, DP (replaced V-P), DP, cabinet.

Administration bureaucracy… (Under the relevant Kenyan constitutional provisions &

laws).

Readings

Walter Murphy (1993) “Constitutions, constitutionalism and democracy,” in Douglas Greenberg,

Stanley N. Katz, Steven C. Wheatley, & Melanie Beth Oliviero (1993) Constitutionalism and

Democracy: Transitions in the Contemporary World, Oxford University Press New York, pp. 3-

7.

H.W.O. Okoth-Ogendo (1999) “The quest for constitutional government,” in Goran Hyden, Dele

Olowu & H.W.O. Okoth-Ogendo (1999) African Perspectives on Governance, Africa World

Press, Trenton, pp. 33-60.

Jackton B. Ojwang (1990) Constitutional Development in Kenya: Institutional Adaptation and

Social Change African Centre for Technology Studies (ACTS), Nairobi.

Ghai & McAuslan (1970, 2001) Public Law and Political Change in Kenya, q.v.

http://www.amazon.com/s/ref=ntt_athr_dp_sr_1?_encoding=UTF8&sort=relevancerank&search-alias=books&field-author=Douglas%20Greenberg

http://www.amazon.com/s/ref=ntt_athr_dp_sr_2?_encoding=UTF8&sort=relevancerank&search-alias=books&field-author=Stanley%20N.%20Katz

http://www.amazon.com/s/ref=ntt_athr_dp_sr_3?_encoding=UTF8&sort=relevancerank&search-alias=books&field-author=Steven%20C.%20Wheatley

http://www.amazon.com/s/ref=ntt_athr_dp_sr_4?_encoding=UTF8&sort=relevancerank&search-alias=books&field-author=Melanie%20Beth%20Oliviero

20

Yash P. Ghai (1993) “Constitution and governance in Africa: A prolegomenon,” in Sammy

Adelman & Abdul Paliwala (eds) Law and Crisis in the Third World, Hans Zell Publishers,

London, 51-75.

Eugene Kamenka (ed) (1983) The Portable Karl Marx,Penguin, New York.

H.W.O. Okoth-Ogendo, (1999) “Constitutions without constitutionalism: reflections on an

African political paradox,” in Issa Shivji (ed) (1991) State and Constitutionalism: An African

Debate on Democracy, Southern Africa Political Economy Series (SAPES) Trust, Harare, pp. 3-

26.

J.B. Ojwang’ (2013) Ascendant Judiciary in East Africa Strathmore University Press, Nairobi.

David Strauss (1999) “What is constitutional theory,” California Law Review, Vol 87, Issue 3, at

580-592.

Issa Shivji (ed) (1991) State and Constitutionalism: An African Debate on Democracy, Southern

Africa Political Economy Series (SAPES) Trust, Harare.

3. CONSTITUTIONAL FOUNDING OF THE KENYAN STATE:

The conquest state; the protectorate; the colony (Constitutional & legal provisions…)

Kenya under colonialism (including the boundary changes under colonialism, the Maasai

agreements: constitutional & legal provisions; Ole Njogo case).

Kenya’s independence struggle (The radicals v. constitutionalists or liberals):

Various revolts and movements against colonialism (Nandi resistance, Dini ya Msambwa,

Piny Owacho etc); some arguments on Mau Mau.

The Lancaster process. Kenya as post or neo-colonial state;

Various constitutions since 1895; statutes: case law.

Readings

J.B. Ojwang (1990) “Constitutionalism in classical terms and in African nationhood,” Lesotho

Law Journal, 1990, Vol. 6 No. 1, pp. 57-74.

Okoth-Ogendo, H.W.O. (1996) “Governance beyond government: a rejoinder to Justice Breyer

(U.S. Supreme Court) and Professor Frank Michelman (Harvard Law School),” Comment on

“Constitutionalism, Privatization and Globalization” made at Roundtable on “Constitutionalism,

Constitutional Rights and Challenging Civil Society” organized by the U.S. Association of

Constitutional Law in conjunction with Cardozo, Columbia and NYU Law Schools, November

19-21, 1998, New York.

Okoth-Ogendo, H.W.O. (1999) “Constitutions without constitutionalism: reflections on an

African political paradox,” in Issa Shivji (ed) (1991) State and Constitutionalism: An African

Debate on Democracy, Southern Africa Political Economy Series (SAPES) Trust, Harare, pp. 3-

26 (also in Douglas Greenberg, et al. q.v.; Jackson & Tushnet, q.v.)

21

Okoth-Ogendo H.W.O. (1999) “The quest for constitutional government,” in Goran Hyden, Dele

Olowu & H.W.O. Okoth-Ogendo (1999) African Perspectives on Governance, Africa World

Press, Trenton, pp. 33-59.

Ben Sihanya (2011) “Reconstructing the Kenyan Constitution and State, 1963-2011: lessons

from British, American, German and African constitutionalism,” thoroughly revised version of

the article published in Law Society of Kenya Journal in 2010.

Carlos S. Nino (1992) “The complexity of constitutional democracy,” in Carlos S. Nino (1996)

The Constitution of Deliberative Democracy, Yale University Press, New Haven.

Charles Hornsby (2012) Kenya: A History since Independence, I.B. Taurus & Co Ltd, London,

New York.

4A. Executive I: Constitutional Values, Principles and Safeguards

Government structure, system & processes

Constitutional values, principles and safeguards under Constitution 2010

Values and principles in general

Values and principles on Executive; values on public services & resource(s) e.g. public

finance; values on admin justice

Government mandate, values, principles; structure, systems & processes

Constitutional Implementation (key issues, key institutions, key timelines (especially

relating to executive)

Separation of powers; checks and balances in and under Constitution 2010

The basic division of powers and separation of powers

Indivisibility and non-hierarchical nature of Government; Functional and operational

division of power; What is the impact of 2008 and the 2010 Constitutions, the Accord,

and Njoya v. A-G on the basic division of powers between the Judiciary, on the one hand,

and the Executive, and Parliament on the other?

Separation of powers, checks and balances under Constitution 2010

Constitutional Commissions under Constitution 2010, (cf. independent offices)

Decentralization of Executive, Admin. and Parliamentary powers under Constitution

2010 (see devolution, class 7A)

Readings (also for decentralisation or “devolution” class 7A)

Ben Sihanya (2013) “Public participation and public interest lawyering under the Kenyan

Constitution: theory, process and reforms,” Vol 9 (1) (2013) Law Society of Kenya Journal 1 –

32.

22

Barkan, J. D. with Michael Chege (1989) “Decentralising the state: district focus and the politics

of reallocation in Kenya” Vol. 27 (3) Journal of Modern African Studies 431-53.

Ojwang (1981) Legislative Control of Executive Powers: a Comparative Study of the British and

French-derived Constitutions of Kenya and the Ivory Coast PhD dissertation, op cit.

Ghai & McAuslan (1970), Chap. II, “The development of the legislature and executive,” q.v.

J.B. Ojwang (1990), q.v. Chap. 1, “Introduction”

H.W.O. Okoth Ogendo (1984) “Development and the legal process: the role of law in the rural

development administration,” International Journal of the Sociology of Law, pp. 59-83.

Final Report of the Task Force on Devolved Government: A Report on the Implementation of

Devolved Government in Kenya, A report of the Ministry of Local Gov’t’s Task Force on

Devolved Government in Kenya (Interim report had been dated Wednesday, April 20, 2011).

Yash Ghai (2007) “Devolution: Restructuring the Kenyan State,” Lecture at the African

Research and Resource Forum (ARRF) at the Kenya International Conference Centre (KICC)

Nairobi, 23 November 2007.

Annette Omolo (2010) “Devolution in Kenya: a critical review of past and present frameworks,”

in Albert K. Mwenda (eds) (2010) Devolution in Kenya: Prospects, Challenges and the Future

Institute of Economic Affairs Research Paper Series No. 24, Nairobi.

Essential cases

International Centre for Policy and Conflict & 5 Others v. the Hon. Attorney-General & 4

Others [2013] eKLR. (on Uhuru Kenyatta and William Ruto’s eligibility).

Morrison v. Olson 487 U.S. 654 (1988)

Constitutional Commissions under Constitution 2010

Constitutional implementation

Key institutions

Key timelines (especially relating to executive)

Readings

Benjamin Obi Nwabueze (2003) Constitutional Democracy in Africa Vol. 1, Spectrum Books,

Nigeria, Chap 8-13, at 211-369.

Benjamin Obi Nwabueze (1974) Presidentialism in Commonwealth Africa, St. Martin’s Press,

New York, Chapter IX, at 255-294.

23

R.A. McKay (1924) “Coke Parliamentary Sovereignty or the Supremacy of the Law” Vol. 22

No. 3 Michigan Law Review pp. 215-47

Hamis R. Gray the Sovereignty of Parliament Today

J.B. Ojwang (1990) Constitutional Development in Kenya ACTS Press, Nairobi, pp. 75-107.

Y.P. Ghai and JPWB McAuslan, Public Law and Political Change in Kenya OUP, Nairobi,

1970, Chap. 6

B.H. Selassie, The Executive in African Governments Heinemann, London, 1974

S.A. de Smith, Constitutional and Administrative Law Penguin Books, Harmondsworth

Hamis R. Gray; The Sovereignty of Parliament Today

Ghai, Y.P. (1967) “Independence and safeguards in Kenya” 3 East African Law Journal 177-

217.

Okoth-Ogendo, H.W.O. (2000) “The quest for constitutional government,” in Goran Hyden,

Dele Idowu, & Okoth-Ogendo (eds) African Perspectives on Governance, q.v.

Okoth-Ogendo, H.W.O. (1972) “The politics of constitutional change in Kenya since

independence, 1963-1969” Vol. 71 No. 282 African Affairs (January) 9-34

4B. Executive II: Concepts, Theory and History, Mandate (Powers and Functions), and

Structure

Mandate (powers) & functions);

Life, resources, liberty, admin process and justice

Public finance and taxation, procurement, and public administration

Jobs: creation, employment, discipline, dismissal

Public service(s) & service delivery (health, food, education, security)

Infrastructure

Constitutional provisions; case law.

Readings

B.O. Nwabueze (1974) Presidentialism in Commonwealth Africa C. Hurst & Nwamife,

London & Enugu.

R.W. Muhoho (1986) The Concepts of State, Government, Nation in the Kenyan Experience

University of Nairobi, LL.B. Dissertation.

Lawrence Lessig & Cass R. Sunstein (1994) “The President and the Administration,” 94

Columbia Law Review 1-123

24

J.B. Ojwang (1983) “The nature and scope of executive power in English and French-

speaking Africa: A comparative perspective” 13 Verfassung und Recht in Ubersee, pp. 319-

337

Ben Sihanya (2011) The Presidency and Public Authority in Kenya’s New Constitutional

Order, Constitution Working Paper series No. 2 Society for International Development (SID)

Eastern & Central Africa, Nairobi

Y.P. Ghai and JPWB McAuslan, Public Law and Political Change in Kenya OUP, Nairobi,

1970, Chap. 6

Arthur M. Schlesinger (1973, 2004) Imperial Presidency, Houghton Mifflin Publishers, USA

Ben Sihanya (2013) “Constitutional implementation in Kenya, 2010-2015: challenges and

prospects,” A study under the auspices of the Friedrich Ebert Stiftung (FES), Occasional

Paper No. 5, Nairobi, January 2013, ISBN: 9966-957-20-0.

Jackton B. Ojwang (1990) Constitutional Development in Kenya: Institutional Adaptation

and Social Change, African Centre for Technology Studies (ACTS), Nairobi, at 75-80

5A. Executive III President and Prime Minister

President; presidential elections; election date; assumption of office; powers, rights,

privileges, immunity

Presidential and politics in constitutional process, 1963-2012

Key themes and trends on presidency; Kenyatta, Moi, Kibaki and Kenyatta Plus assumption

of office, powers, functions and performance, record (?); life, liberty & land (property)

Structure of government

The quest for ethnic, class, youth and gender inclusion in the Kenyan political economy

Historical injustices under Agenda 4 and the Constitution 2010

The issues for national dialogue a la CORD, 2014: tribalism and exclusion, insecurity,

corruption, high cost of living, quest for electoral justice (IEBC...)

Premier: Kenyatta I 1963-1964; Raila Odinga 2008-2013; assumption of office; role of

government and society…

NB Constitution 2010 provides for transition the 2008 scheme under which presidency/PM

shared power.

Readings

P. Anyang’ Nyong’o “State and Society in Kenya: The Disintegration of the Nationalist

Coalition and the rise of Presidential Authoritarianism 1963-78”


B.H. Selassie (1974) The Executive in African Governments Heinemann, London

25

S.A. de Smith, Constitutional and Administrative Law Penguin Books, Harmondsworth.

B.O. Nwabueze (1974) Presidentialism in Commonwealth Africa C. Hurst & Nwamife, London

& Enugu

R.W. Muhoho (1986) The Concepts of State, Government, Nation in the Kenyan Experience

University of Nairobi, LL.B. Dissertation

J.B. Ojwang (1980) “The nature and scope of executive power in English and French-speaking

Africa: a comparative perspective” 13 Verfasung and Recht in Uversee, 319-337

J.B. Ojwang (1976) Executive Power in Independent Kenya’s Constitutional Context, University

of Nairobi, LL.M. dissertation

Andrew Morton (1998) Moi: the Making of an African Statesman Michael O’mara Books Ltd,

London

Maranya (1984) Presidential Powers/Directives and Fundamental Human Rights – A Conflict?

University of Nairobi, LL.B. dissertation

Lawrence Lessig & Cass R. Sunstein (1994) “The President and the Administration,” 94

Columbia Law Review 1-123

J.B. Ojwang (1983) “The nature and scope of executive power in English and French-speaking

Africa: A comparative perspective” 13 Verfassung und Recht in Ubersee, pp. 319-337

Sam Kiplagat (2013) “Two judges dismiss case against five candidates,” The Star, Nairobi

February 28, 2013, at http://www.the-star.co.ke/news/article-109739/2-judges-dismiss-case-

against-five-candidates (accessed 1/3/2013).

Sihanya, Ben (2011) “The Presidency and Public Authority in Kenya’s New Constitutional

Order,” Constitution Working Paper series No. 2 Society for International Development (SID)

Eastern & Central Africa, Nairobi Printed by The Regal Press Ltd, Nairobi.

Sihanya, Ben and Duncan Okello (2010) “Mediating Kenya’s Post-Election Crises: The Politics

and Limits of Power Sharing Agreement,” in Karuti Kanyinga and Duncan Okello (eds) Tensions

and Reversals in Democratic Transitions: The Kenya 2007 General Elections, Institute of

Development Studies (IDS), University of Nairobi, and the Society for International

Development (SID) Eastern & Central Africa, Nairobi.

Winnie V. Mitullah (2005) “Exercise of executive powers in Kenya: the case of the prerogative

of mercy,” in Morris Odhiambo, Osogo Ambani, and Winnie V. Mitullah (eds) Informing a

Constitutional Moment: Essays on Constitution Reform in Kenya Claripress, Nairobi

The White House, Office of the Press Secretary (2011) “Fact Sheet: The President’s Regulatory

Strategy,” at http://www.whitehouse.gov/the-press-office/2011/01/18/fact-sheet-presidents-

regulatory-strategy (accessed 29/4/2011)

http://www.the-star.co.ke/news/article-109739/2-judges-dismiss-case-against-five-candidates

http://www.the-star.co.ke/news/article-109739/2-judges-dismiss-case-against-five-candidates

http://www.whitehouse.gov/the-press-office/2011/01/18/fact-sheet-presidents-regulatory-strategy

http://www.whitehouse.gov/the-press-office/2011/01/18/fact-sheet-presidents-regulatory-strategy

26

Nic Borain (2007) “SA Presidential Transition: Who can pass through the eye of the needle?”

Essential cases

John Harun Mwau & Others v. A-G and Others HC Constitutional Petition No. 65 of 2011

consolidated with Petition No. 123 of 2011 and 185 of 2011 (per Lenaola, Ngugi & Mjanja JJ;

delivered 13/1/2012)

International Centre for Policy and Conflict & 5 Others v. the Hon. Attorney-General & 4

Others [2013] eKLR. (on Uhuru Kenyatta and William Ruto’s eligibility).

Isaac Aluoch Polo Aluochier v. Independent Electoral and Boundaries Commission (IEBC) & 19

Others [2013] eKLR. (on State Officers running for seats)

Raila Odinga v. The Independent Electoral and Boundaries Commission & 3Others Petition No.

5 of 2013, Supreme Court of Kenya. (on the election process and ensuing results)

The Africa Centre for Open Governance (AFRICOG) v. Ahmed Issack Hassan & Another [2013]

eKLR. (Where High Court claimed it had no jurisdiction to grant application for order to stop

manual tallying of ballots without actual verification with the actual constituency based results in

the various forms).

Morrison v. Olson 487 US 654 (1988)

William Jefferson Clinton v. Paula Corbin Jones U.S. Supreme Court (1997)

George W. Bush, et al., v. Albert Gore, Jr., et al. Supreme Court of the United States (2000)

United States v. Nixon 418 U.S. 683 (1974)

Moi v. Mwau (2008) 2 KLR (EP); Imanyara v. Moi & 12 others (2008) 1 KLR (EP)

Nyamai & Another v. Moi & Others (2008) 1 KLR (EP); Akweya v. Moi & 8 others (2008) 1

KLR (EP); Orengo v. Moi & 12 others; Matiba v. Moi 1 KLR (EP); Kibaki v. Moi, etc.

Mwangi Stephen Muriithi v. AG 1983 KLR 1-50

Mwangi Stephen Muriithi v. Daniel Toroitich Arap Moi [2011] eKLR. (1 & 2)

Muslims for Human Rights (Muhuri) & 2 others v. Attorney General & 2 others [2011 EKLR

High Court at Mombasa Petition 7 of 2011.

Centre for Rights Education and Awareness (CREAW) & 7 Others v. Attorney General [2011]

EKLR High Court at Nairobi (Nairobi Law Courts) Petition 16 Of 2011

27

Republic v. Chief Justice of Kenya & 6 others Ex-parte Moijo Mataiya Ole Keiwua [2010]

eKLR.

Lewanika and Others v. Frederick Jacob Titus Chiluba (Constitutional Jurisdiction) (S.C.Z.

Judgment No. 14 of 1998) [1998] ZMSC 11 (10 November 1998)

Azanian Peoples Organization (AZAPO) and others v. President of the Republic of South Africa

and Others (CCT17/96) [1996] ZACC 16; 1996 (8) BCLR 1015; 1996 (4) SA 672 (25 July 1996)

Executive Council of the Western Cape Legislature v. President of the Republic of South Africa

1995 (4) SA 877 (CC), 1995 (10) BCLR 1289.

Hugo v. President of the Republic of South Africa & another 1996

S. v Zuma and Others (CCT5/94) [1995] ZACC 1; 1995 (2) SA 642; 1995 (4) BCLR 401 (SA);

1995 (1) SACR 568; [1996] 2 CHRLD 244 (5 April 1995)

National Director of Public Prosecutions v. Zuma (573/08) [2009] ZASCA 1; 2009 (2) SA 277

(SCA); 2009 (1) SACR 361 (SCA); 2009 (4) BCLR 393 (SCA) (12 January 2009)

Samuel Kaunda and Others v. The President of the Republic of South Africa and others (2004)

Jacob Gedleyihleskisa Zuma & Michael Hulley v. The National Director of Public Prosecutions

& Others (2008)…

Mistretta v. United States 488 U.S. 361 (1989)

Executive IV

Premier Kenyatta & Odinga: assumption of office or “appointment,” powers & functions;

performance

Executive V

Deputy President, VP (replaced by DP), DPMs, Cabinet

Secretary to the Cabinet, Principal Secretaries, Cabinet Secretaries, Directors and

equivalents under the 1969, 2008, 2010 constitutions

Readings

Raila Odinga with Sarah Elderkin (2013) The Flame of Freedom.

BA Ogot My Footprints in the Sands of Time

Joe Khamisi (2011) The Politics of Betrayal: Diary of a Kenyan Legislator, Trafford Publishers,

pp. 390.

Babafemi A. Badejo (2006) Raila Odinga: An Enigma in Kenyan Politics, Yintab Books, Lagos

and Nairobi, pp. 354

Morton (2010) Moi: The Making of an African Statesman, q.v.

28

5B. Executive VI: Administrative Bureaucracy

The administrative bureaucracy (the civil service; provincial administration; national

security).

Health, food rights & security, security

Administration process & justice

Parliamentary and administrative bureaucracy

Judicial administrative bureaucracy (Chief Registrar v. CJ in 2013)

Readings

Kempe Ronald Hope, Sr. (2001) “The new public management: context and practice in Africa,”

vol.4, pp 119-134.

Thomas H. Hammond and Jack H. Knott (1996) “Who controls the bureaucracy?: Presidential

power, congressional dominance, legal constraints, and bureaucratic autonomy in a model of

multi-institutional policy-making,” Vol. 12, No. 1, (Apr., 1996) Journal of Law, Economics, &

Organization 1, pp. 119-166.

Graham K. Wilson (2008) “Bureaucracy and policy making,” paper for the conference of the

structure and organization of Government Research Committee of IPSA, Gothenburg,

November, at http http://www.qog.pol.gu.se/working_papers/SOG%20papers/Wilson%20-

%20SOG%20Conference%20Nov08.pdf (accessed 15/3/2011)

Ronald McGill (1999) “Civil service reform in Tanzania: organization and efficiency through

process consulting,” Vol.12, No.5 Int. Jn’l of Public Mgt, 410-9.

Truphena Oduol (2006) “Towards the making of education policy in Kenya: conclusions and

implications,” 7(4) International Education Journal 466-479.

Maurice Amutabi (2006) “Development research and public administration in Kenya: assessing

the unexplored potential,” at

http://www.ossrea.net/index.php?option=com_content&view=article&id=309 (accessed

21/3/11).

Clay West Cott (1999) “Guiding principles on civil service reform in Africa: an emphirical

review,” IISM, vol.12, No.1, 145-170.

Ben Sihanya (2011) The Presidency and Public Authority in Kenya’s New Constitutional Order,

Constitution Working Paper series No. 2 Society for International Development (SID) Eastern &

Central Africa, Nairobi

Berhanu Mengistu & Elizabeth Vogel (2006) “Bureaucratic neutrality among competing

bureaucratic values in an ethnic federalism: the case of Ethiopia,” Public Administration Review

6A. Executive VII: Administering and regulating security and criminal justice

Typology of security

http://www.qog.pol.gu.se/working_papers/SOG%20papers/Wilson%20-%20SOG%20Conference%20Nov08.pdf

http://www.qog.pol.gu.se/working_papers/SOG%20papers/Wilson%20-%20SOG%20Conference%20Nov08.pdf

http://www.ossrea.net/index.php?option=com_content&view=article&id=309

29

Security of the person – including in the workplace

Security of property

Security of the home

Security in society generally

Security administration in Kenya: Government security agencies

Kenya Police Service

Kenya Defence Forces (KDF)

National Intelligence Service (NIS)

Administration Police (AP)

General Service Unit (GSU); NYS? KWS?

Provincial Administration – role in security? (regional, (assistant) county

commissioners…)

Governors in security administration?

Efficiency of National Security System in Kenya

The emergence of (tribal) gangs, vigilantes and militia; mungiki, sungu sungu,

mwakenya, Sabaot Land Defence Force (SLDF), Mombasa Republican Council (MRC)

etc

Inter-ethnic clashes and feuds

Electoral violence

Emergence of drug trafficking

Territorial invasion: Al-Shabaab, Merille bandits invasion and other militia

Emergence of private security firms; security in institutions, homes, etc

Deterioration of public confidence in security system

Insecurity Issues in: Tana Delta, Kisumu, MRC, Suguta Valley, Garissa, Nairobi (the

grenade attacks, Westgate attack & hostage crisis, Bungoma, Busia, Kitili, Mandera,

Wajir, Garisa, Mpeketoni,

The role of the government in provision of security services.

National Security Administration and Regulation under the 2010 Constitution.

Constitutional Reforms

Administrative reforms

Security Administration and Regulation at the County

Relationship between county security system and National security system.

Security administration and regulation during transition and elections

Security issues during presidential, parliamentary and civic elections

- Electoral fraud, manipulation and related electoral offences

- Political violence before, during and after elections

Role of the Kenyan state in electoral violence and insecurity

Who has been responsible for security in during transition?

30

Reforming administration of security in elections

History, present and future of Kenya’s security system, administration and regulation

under Kenyatta

under Moi

under Kibaki

upon progressive and full implementation of 2010 Constitution

Essential readings

Kagwanja, Peter Mwangi (2005) “Power to Uhuru: Youth identity and generational politics in

Kenya’s 2002 elections,” 105 African Affairs 418.

Kagwanja, Peter Mwangi (2003) “Facing Mount Kenya of facing Mecca? The Mungiki, ethnic

violence and politics of the Moi succession in Kenya, 1987-2002,” African Affairs 25-24.

Katumanga, Musambayi (2010) “Militarized spaces and the post-2007 election violence,” in

Karuti Kanyinga and Duncan Okelo (eds) Tension and Reversals in Democratic Transition; The

Kenya 2007 General Elections.

Yash Pal Ghai (2013) “From colonial police to democratic police – and back?” The Star, August

31, 2013 at http://www.the-star.co.ke/news/article-134185/colonial-police-democratic-police-

and-back (accessed 5/12/2013). see revised version presented to Committee of Parliament?).

Kagari, Michele, “The Kenya Police Service Strategic Plan 2003-2007: A commentary,”

Commonwealth Human Rights Initiative (CHRI), at

http://www.humanrightsinitiative.org/programs/aj/police/ea/articles/strategic_plan_analysis.pdf

(accessed 29/2/2012).

Bonn International Center for Conversion (2005) “Security Sector Reform in Kenya,” Inventory

of security sector reform (SSR) efforts in partner countries of German development assistance,

Bonn International Center for Conversion, Bonn, at htttp://www.ssrnetwork.net/document

(accessed 1/2/2012).

Ghai, Yash (1993) “Constitution and governance in Africa: A prolegomenon,” in Sammy


London, 51-75.

Kagwanja, Peter Mwangi (2001) “Politics of marionettes: extra-legal violence and the 1997

elections in Kenya,” in Marcel Rutten, Alamin Mazrui & Francois Grignon (eds) Out for the

Count: The 1997 General Elections and Prospects for Democracy in Kenya.

Sihanya, Ben (2012) “Review of the National Government Function and Coordination Bill,”

Presentation to the Society for International Development (SID) on Devolving State Power:

Kenya’s Prospects and Challenges at the Intercontinental Hotel, Thursday, February 23, 2012.

31

Sihanya, Ben (2012) “Administering and regulating security,” Presentation to the Society for

International Development (SID) on Keeping the Promise of Democratically Controlled and

Accountable Security Sector, Intercontinental Hotel, Nairobi, February 2, 2012

Ben Sihanya (2014) “The Government approach to security from a constitutional perspective,”

Working Paper presented to a joint symposium between the University of Nairobi and USIU at

the United States International University-Africa (USIU) on the Government Approach to

Security from a Constitutional Perspective, Nairobi on June 20, 2014.

KNCHR (2008) On the Brink of Precipice: A Human Rights Account of Kenya’s Post Election

Violence KNCHR, Nairobi

Margaret Gathoni Gecaga (2007) “Religious movements and democratisation in Kenya: Between

the sacred and the profane,” in Godwin R. Murunga & Shadrack W. Nasong’o (eds) The Struggle

for Democracy, Zed Books, London & NY, 58-89 (Chap.3)

Mutahi, Patrick (2005) “Political violence in the elections,” in Herve Maupeu, Katumanga,

Musambayi & Winnie Mitullah (eds) The Moi Succession Elections 2002, q.v.…

Norrie, Alan W. (1993) “Criminal justice, the rule of law and human emancipation: a historical

comparative survey,” in Sammy Adelman & Abdul Paliwala (eds) Law and Crisis in the Third

World, ” Hans Zell Publishers, London, 76-101 (chap.4)

NEMU (1992) The Report of the National Election Monitoring Unit on The Multi-Party General

Elections in Kenya, 29 December 1992.

E.S. Atieno Odhiambo (2004) “Ethnic cleansing and civil society in Kenya 1969-1992,” 22:1

Journal of Contemporary African Studies, 29-42

“Security sector reform in Kenya” at http;//www.ssrnetwork.net/document (accessed 1/2/2012)

Throup, David & Charles Hornsby (1998) Multy-party Politics in Kenya: The Kenya & Moi

States and the Triumph of the System in the 1992.

Wamue, Grace Nyatugah (2001) “Revisiting our indigenous shrines through Mungiki,” African

Affairs 453-467.

Essential cases

Biwott’s case regarding Akiwumi Commission

ICC Pre-trial Chamber II (2012) The Decision on the Confirmation of Charges Pursuant to

Article 61(7) (a) and (b) of the Rome Statute.

Government reports

Republic of Kenya, The Kenya Police Service: Strategic Plan 2003-2007, Draft 2, at

http://www.humanrightsinitiative.org/program/a/police/ea/articles/draft

(accessed 28/2/2012).

32

Republic of Kenya (2009) Report of the National Task Force on Police Reforms, Government

Printers, Nairobi (Philip Ransley Report)

Republic of Kenya (1999) The Commission of Inquiry Report of the Judicial Commission

Appointed to Inquire into Tribal Clashes in Kenya Government Printers, Nairobi (The Justice

A.M. Akiwumi Report).

Republic of Kenya (2008) Report of the Commission of Inquiry into the Post Election Violence,

October 2008, Government Printer, Nairobi (Waki Report).

Republic of Kenya (2007) Report of the Independent Review on Election Committee on General

Elections of the December 27, 2007 Government Printers, Nairobi (Kriegler Report).

Republic of Kenya (2003) Report of the Committee to Recommend(?) the establishment of the

Truth Justice and Reconciliation Commission (TJRC) Government Printer (26/8/2008) (Makau

Mutua Report)

6B. Executive VIII: Power sharing arrangements in the National Accord and

Reconciliation

Power sharing – Conceptualising power sharing: coalition and alliance building and

operationalization; Jubilee coalition – how was it built? How is it governing? CORD

coalition – how was it built? What are its arguments? Inter- and intra- coalition issues…;

nationhood, national debates..

Power arrangements in the National Accord

Transition in the executive (presidency & administration) under the Constitution 2010 and

NARA.

6C. Executive IX: Constitutional Commissions under Constitution 2010 (see also class

4A&B)

Constitutional Commissions under Constitution 2010

Constitutional implementation (key issues, key institutions, key timelines (especially

relating to executive))

Readings

Jackton B. Ojwang (1990) Constitutional Development in Kenya: Institutional Adaptation and

Social Change African Centre for Technology Studies (ACTS), Nairobi, Chapter 5.

Jelvas Musau (2005) “Limitation of executive powers: delinking the civil service from the

executive,” in Morris Odhiambo, Osogo Ambani, and Winnie V. Mitullah (eds) Informing a

Constitutional Moment: Essays on Constitution Reform in Kenya Claripress, Nairobi.

Steve Schwalbe “Independent commissions: their history, utilization and effectiveness,”

NASPAA Initiatives, Volume 5, at

33

http://www.naspaa.org/initiatives/paa/pdf/Steve_Schwalbe.pdf (last accessed on March 15,

2011).

Ben Sihanya (2013) “Constitutional implementation in Kenya, 2010-2015: challenges and

prospects,” A study under the auspices of the Friedrich Ebert Stiftung (FES), Occasional Paper

No. 5 , Nairobi, January 2013, ISBN: 9966-957-20-0.

Mike Rowe & Laura McAllister (2006) “The roles of commissions of inquiry in the policy

process,” Public Policy and Administration.

Harrison Moore (1913) “Executive commissions of inquiry,” Vol. 13 No. 6 Columbia Law

Review, pp. 500-523

7A. DEVOLUTION (see also separation of powers class 4A)

Decentralization of executive, administrative and parliamentary powers under the

Constitution 2010.

Devolution as separation of powers; checks and balances.

Key issues in devolution: relationships between national and county government, among

county governments.

Devolution issues: Human resource development and management or administration; the

question of financial devolution; restructuring of the provincial administration.

Readings

Barkan, J. D. with Michael Chege (1989) “Decentralising the state: district focus and the politics

of reallocation in Kenya” Vol. 27 (3) Journal of Modern African Studies 431-53.

Ojwang (1981) Legislative Control of Executive Powers: a Comparative Study of the British and

French-derived Constitutions of Kenya and the Ivory Coast PhD dissertation, op.cit.

Ghai & McAuslan (1970), Chap. II, “The development of the legislature and executive,” q.v.

Interim Report of the Task Force on Devolved Government: A report on the implementation of

devolved government in Kenya, A report of the Ministry of Local Gov’t’s Task Force on

Devolved Government in Kenya, Wednesday, April 20, 2011(See at Final Report).

Dan Juma “Devolution of power as constitutionalism: The constitutional debate and beyond,”

at http://ssrn.com/abstract=1382821(accessed 11/5/2011).

Yash Ghai (2007) “Devolution: Restructuring the Kenyan State,” Lecture at the African

Research and Resource Forum (ARRF) at the Kenya International Conference Centre (KICC)

Nairobi, 23 November 2007 (see published version).

http://www.naspaa.org/initiatives/paa/pdf/Steve_Schwalbe.pdf

34

Annette Omolo (2010) “Devolution in Kenya: a critical review of past and present frameworks,”

in Albert K. Mwenda (eds) (2010) Devolution in Kenya: Prospects, Challenges and the Future

Institute of Economic Affairs Research Paper Series No. 24, Nairobi.

Richard C. Crook (2003) “Decentralization and poverty reduction in Africa: the politics of local–

central relations,” Public Administration and Development, pp. 77–88

Catherine Boone (2003) “Decentralization as political strategy in West Africa,” Comparative

Political Studies, Vol. 36 No. 4, pp. 355-380

Hans F. W. Dubois and Giovanni Fattore (2009) “Definitions and typologies in public

administration research: the case of decentralization,” Intl Journal of Public Administration, pp.

704–727.

Muna Ndulo (2006) “Decentralization: challenges of inclusion and equity in governance,” in

Muna Ndulo (ed) Democratic Reform in Africa: Its Impact on Governance and Poverty

Alleviation James Currey, Oxford & Ohio University Press, Athens

7B. REPRESENTATION & PARTICIPATION: PARTIES, ELECTIONS; Media;

CSOs

Political parties; profile, structure, elections, internal democracy.

Discipline role in presidential, gubernatorial, parliamentary (National Assembly, Senate)

& county elections…. under Constitution 2010 & Political Parties Act (PPA) 2011.

Elections Act 2011, Independent Elections and Boundaries Commission (IEBC Act

2011); party constitutions

Political party history in Kenya: in the beginning: district, ethnic-based political parties or

movements; at independence, the colonial administration reduced or removed restrictions.

Political party profile, 1963-64 multi- or dual-party state; 1964-66 de facto single party; 1966-69

dual party de facto; 1969-1982 de facto single party; 1982-91 de jure multi-party; 2002 coalition

of parties registered and wins elections …; 2004: Constitutionality of coalition of parties in 2012;

“Gov’t of national unity” – what’s the role of parties in it? In Parliament in this context?;

2007Political Parties Act; 2006/07 party reorganization; 2008 to date: Grand coalition

Government - which party is in the opposition? PAC, PIC etc... , 2010 Constitution, Political

Parties Act, Elections Act 2011 & IEBC Act on political parties. Role of Registrar of Political

Parties (RPP); Number of parties in 2012?

Role of party recruitment of President, DP, Cabinet, Governors, Senators, MPs, County

Assembly Members, Women’s Representatives under the 2010 Constitution; MPs, President,

Cabinet, councillors … s. 34, s. 40 and constitutional questions; cf. Under 2010 Constitution;

s.17(5) of Cap. 7 (National Assembly and Presidential Elections Act)

Kenyatta and the inactive KANU (party matters discussed in the Parliament and subject of

constitutional amendments); Shikuku, Seroney, Anyona: you want to kill Parliament the way you

killed KANU (1975) – detained cf. NA Powers and Privileges Act. Rise of presidential

35

authoritarianism in politics and in the Constitution led to decay of independent institutions

(checks and balances…)

Moi and the ubiquitous centrally controlled KANU;

Kibaki and coalition politics, or is it political paralysis and atrophy of parties? Back to

Kenyatta/Moi era, cooptation and personal rule to kill parties and organised politics; “parties

obsolete”; “Government of National Unity.” DP, PNU dead?

Kenyatta Plus and KANU, TNA debates; TNA v. URP debates; TNA moribund after presidential

(General) elections 2013? or revived only for bye-elections?

Outstanding party questions: regulating internal democracy, accountability, and funding; clubs?

Constitutionality of nomination rules; regulating and managing party coalitions ….

Elections:

Gubernatorial, MPs, Senate, County Assembly, Womens’ Representative

Qualifications for nomination; nomination procedures and process

Election: process and who is elected

Administration of elections: IEBC, returning officers, poll clerks, security, transport

Electoral disputes and petitions

Electoral violence (cf. Class on Administering Safety, Security and Criminal Justice)

Closure in 2007, 2013 elections….

Transition to devolved government: powers, finances, privileges (including Governors flying

the flag…)

Participation beyond formal institutions of governments: Art 1 (1), 1 (2), 1 (3) of the

constitution and the dialogue debate 2014.

Electoral Law, regulations, processes and procedures

Political parties Act 2011 (2007 repealed and replaced)

Elections Act 2012

IEBC Act 2011

Constitution of Kenya 2010

Readings

Ben Sihanya (2013) “Public participation and public interest lawyering under the Kenyan

Constitution: theory, process and reforms,” Law Society of Kenya Journal.


J.B. Ojwang & P.N. Okowa (1989) “The one-party state and due process of law: the Kenya case

in comparative perspective” 1 African Journal of International and Comparative Law 177-205

36

K.I. Laibuta (1986), Constitutionalism, Parties and Government in Post-Independent Kenya

University of Nairobi, LLB dissertation

Sihanya, Ben and Duncan Okello (2010) “Mediating Kenya’s Post-Election Crises: The Politics

and Limits of Power Sharing Agreement,” in Karuti Kanyinga & Duncan Okello (eds) Tensions

and Reversals in Democratic Transitions: The Kenya 2007 General Elections, Institute of


Development (SID), Eastern & Central Africa, Nairobi.

J.B. Ojwang (1984) “State and party: interdependence of the two constitutions,” Nairobi

University Law Journal – Journal of KLSS, 60-68

B.O. Nwabueze (1974) Presidentialism in Commonwealth Africa, op. cit.

S.A. de Smith, Constitutional and Administrative Law, 3rd

ed., pp. 130-136.

Nicolas van de Walle (2003) “Presidentialism and clientelism in Africa’s emerging party

systems,” Vol. 41 No. 2 The Journal of Modern African Studies pp. 297-321

J.B. Ojwang & P.N. Okowa (1989) “The one-party state and due process of law: the Kenya case

in comparative perspective,” 1 African Journal of International and Comparative Law, pp. 177-

205.

J.B. Ojwang (1984) “State and party: interdependence of the two constitutions,” Nairobi

University Law Journal, pp. 60-68

Ingrid van Biezen and Petr Kopecký (2007) “The State and the parties: public funding, public

regulation and rent-seeking in contemporary democracies,” Journal of Party Politics Vol. 13.

No.2 pp. 235–254.

Rodney Smith & Anika Gauja (2010) “Understanding party constitutions as responses to specific

challenges,” Journal of Party Politics Vol. 16. No. 6, 755–775

Matthijs Bogaards (2004) “Counting parties and identifying dominant party systems in Africa,”

European Journal of Political Research Vol. 43, 173–197

Joseph Lapalombara & Jeffrey Anderson (1992) “Political parties,” in Mary Hawkesworth and

Maurice Kogan (eds) Encyclopedia of Government and Politics Vol. I Chap. 25 pp. 393 – 412

Routledge, London

Vicky Randall and Lars Svåsand (2001) “Political parties and democratic consolidation in

Africa,” Paper for ECPR Joint Sessions of Workshops, Grenoble, April 6-11, 2001: Workshop

on Parties, party systems and democratic consolidation in the Third World

Alan Ware (1996) “Parties in government,” in Alan Ware Political Parties and Party Systems,

Chapter 12, Oxford University Press.

37

Cases

Centre for Rights Education & Awareness (CREAW) & 8 Others v. Attorney-General & Another

[2012] eKLR

Centre for Rights Education And Awareness (CREAW) & 7 Others v. Attorney-General [2011],

petition 16 of 2011 eKLR

Republic of Kenya Supreme Court Of Kenya Advisory Opinions Application 2 of 2012, In the

Matter of the Principle of Gender Representation in the National Assembly and the Senate[2012]

eKLR

Class 7C Constitutional democracy unusual: conceptualising revolutions, coups and related

changes in the constitution, state, state structure or government in Kenya and Africa

Nomenclature in constitutional democracy: constitution, state, government and cognate

expressions

Conceptualizing revolutionary changes in the constitution, state or government

Constitutional Stress, crisis & Breakdown

Assassinations (cf can right to life help – Art 26); Massacre; Coup attempt; sudden,

unconstitutional change not anticipated; can expediency and necessity justify?; Coup –

civilian v. military; emergency – insurrection, insurgency, floods, war; revolution – cf

Nwabueze’s Nigeria; Egypt.

What are the issues and arguments regarding presidential and state paralysis in Kenya?

What are the options for transformative or revolutionary constitutional democracy to

secure the rule of law, human rights, and constitutional democracy? Which politicians

and intellectuals can help lead the mass of the people through revolutionary democracy?

The five key problems identified by CORD and Kenyans are: tribal tyranny and

exclusion, insecurity, high cost of living, corruption and electoral fraud (IEBC, NIS

administrators close to the prudency.

Constitutions and constitutional instruments

Constitution of Kenya

AU on commerce and elections

International Covenant on Civil and Political Rights (ICCPR)

AU Constitutional Instruments

UN & AU resolutions on unconstitutional change of government

Reading materials

Ben Sihanya (2014) “Typology of constitutions, states and governments in Kenya and Africa:

Sovereignty, constitutional democracy and revolutions in S. Africa, Nigeria, Egypt, USA, UK

38

and Germany,” Sihanya Mentoring and Innovative Lawyering working Paper on Constitutional

Democracy.

Ben Sihanya (2010) “Reconstructing the Kenyan Constitution and State: lessons from German

and American constitutionalism,” Vol 6 No.1, Law Society of Kenya (LSK) Journal pp 1-35,

originally a presentation at the 60 Years of German Constitutionalism – constitutional debate in

Kenya, organized by the German Academic Exchange Service (DAAD) Regional Office for

Africa, at the University of Nairobi, Main Campus, Kenya, October 22, 2009.

Ben Sihanya & Duncan Okello (2010) “Mediating Kenya’s post-election crises: The politics and

limits of power sharing agreement,” in Karuti Kanyinga and Duncan Okello (eds) Tensions and

Reversals in Democratic Transitions: The Kenya 2007 General Elections, Institute of


Development (SID) Eastern & Central Africa, Nairobi.

Ben Sihanya (2013) “Constitutionalism and the rule of law in Kenya’s electoral process,”

Handbook on Elections Disputes in Kenya under the auspices of the Judiciary Working

Committee on Elections Preparation (JWCEP) and the Law Society of Kenya, at 22-56.

Yash Gahi (1993) “Constitution and governance in Africa: A prolegomenon,” in Sammy


London, 51-75.

Eugene Kamenka (ed) (1983) The Portable Karl Marx, Penguin, New York.

Dicey, A.V. (1952) Introduction to the Study of the Law of the Constitution, London

Freedman, Warren (2013) Understanding the Constitution of the Republic of South Africa, Juta

& Co., Cape Town at 6-7.

Hans Kelsen (2009) General theory of law and state, The Law Book Exchange ltd, Clark, New

Jersey.

Hans Keman (2003) “Constitutional Government,” Encyclopedia of Life Support Systems, Free

Universtiy at Amsterdam, Amsterdam Netherlands.

Issa Shivji (1976) Class Struggle in Tanzania Heinemann, London; Mahmoud Mamdani (1996)

“Introduction: Thinking through Africa’s impasse,” in Mahamoud Citizen and Subject:

Contemporary Africa and the Legacy of Late Colonialism, Princeton University Press.

Vicki Jackson & Mark Tushnet (2006) Comparative Constitutional Law Foundation Press, New

York (2nd

ed)

39

VI Lenin (1917) The State and Revolution, at https://www.marxists.org/ebooks/lenin/state-and-

revolution.pdf (accessed June 25, 2014).

Karl Marx, Friedrich Engels, Eleanor Mrax (1848) Revolution and Counter-revolution; Or,

Germany in 1848, C. H. Kerr & co.

Karl Marx (1859) A Contribution to the Critique of Political Economy, Progress Publishers,

Moscow.

Ben O. Nwabueze (1973) Constitutionalism in the Emergent States, C. Hurst & Co., London.

Ben O. Nwabueze (2003) Constitutional Democracy in Africa Vol. 1: Constitutionalism,

Authoritarianism and Statism, Spectrum Books, Nigeria.

B.O. Nwabueze (1992) Military Rule and Constitutionalism in Nigeria, Spectrum Law

Publishers,

B.O. Nwabueze (1974) Presidentialism in Commonwealth Africa, St. Martin’s Press, New York.

Pashukanis, E.B. (1924) The General theory of law and Marxism, Library of Congress, USA.

J.B. Ojwang’ (1990) Constitutional Development in Kenya: Institutional Adaptation and Social

Change African Centre for Technology Studies (ACTS), Nairobi.

Lawrence Tribe (1978, 2000) American Constitutional Law, Foundation Press, New York.

Max Weber (1954) Law in Economy and Society, Havard University Press,

8. A NOTE ON THE READINGS

(a) Although these readings are as comprehensive as possible, they do not claim to be

exhaustive; they do not include all that is relevant, and students should feel free to look

outside them.

(b) The readings, however, offer a framework for independent work by students, and a good

grasp of the material, within the framework, should give a fair direction capable of leading to

a good understanding of the subject.

https://www.marxists.org/ebooks/lenin/state-and-revolution.pdf

https://www.marxists.org/ebooks/lenin/state-and-revolution.pdf

40

(c) Some of the materials included in the readings, which are not primarily legal in character,

will be found in the main University Library, on the open shelves, or in the East African

Collections, in the periodicals Section, or on reserve. Students should adopt the habit of using

the main Library (The Jomo Kenyatta Memorial Library) as much as possible.

(d) Some of the materials listed in the readings will be found in the Law Library, or through the

library system.

(e) For materials published in International Journals, for which the Law Library has no

subscription, it is likely that the reserve will be holding several special copies. Students

should confirm this with the Law Librarians.

(f) It is not expected that students will be able to read each and all of the materials listed; but

they should endeavour to read as many of them as possible. I will indicate mandatory

readings.

(g) I will provide the essential readings which are not available in the Library(ies).

9. REVISION OR TRIAL QUESTIONS, OR ASSIGNMENTS

1. Briefly but critically discuss appropriate measures that need to be taken to ensure that the

Independent Electoral and Boundaries Commission (IEBC) conducts free, fair,

transparent, accountable and verifiable Presidential elections in Kenya. How can IEBC

do it without interference from the President, administrative elites and ethnic hegemons

around the President, the National Intelligence Service (NIS), the Police and the military

2. Critically assess the appointment, tenure, functions and powers of the Attorney-General

under the Constitution of Kenya 2010 including during the transition under the

Constitution.

3. People generally feel insecure in Kenya. Discuss the vesting and exercise of security

powers and functions in Kenya. Who is ultimately responsible for national security in

Kenya under the Constitution of Kenya 2010?

4. Critically assess whether security is devolved in Kenya. And who is ultimately

responsible for security at the county level?

5. “The Supreme Court of Kenya is yet to play its role under Article 163 of the Constitution

by developing or clarifying the law, especially on elections and governance.” Briefly and

critically discuss the contention.

41

6. Critically evaluate the constitutional and related laws that govern the sharing of natural

resources especially minerals. Is there a threshold that must be met for the National

Government to have a mandate on a natural resource in an individual’s land? How is the

natural resource to be shared with the individual and county?

7. To what extent can County Governments make law and policy? On what issues and at

what level: primary or principle as compared to subsidiary legislation or policy?

8. To what extent can County law have what Ben Sihanya calls “extra-county” effect,

meaning, applied beyond the relevant County?

9. Can a county have an office or representative in a foreign state or country? What are the

constitutional questions?

10. Critically review the differences and similarities between division of revenue and

allocation of revenue in the context of county government. Also assess the role of the

Senate and National Assembly in revenue division and allocation.

11. To what extent is constitutional law in Kenya the law of devolution? And to what extent

can the entire constitutional instrument, rather than only Chapter 11, be read as

provisions on devolution.

12. Define the term “Executive” and identify its operational form in Kenya’s constitutional

set-up.

13. Discuss, in a historical perspective, the law relating to the election of a President in

Kenya.

14. Critically discuss presidential powers under the 2010 Constitution.

15. Consider, in a historical perspective, the place of political party constitutions in the

general operation of Kenyan constitutional law.

16. Critically discuss some of the key presidential liberties, rights, privileges and immunity

under the 2010 Constitution.

17. What are prerogatives, and to what extent are they part of the constitutional law of

Kenya?

18. Compare and contrast the general profile of executive power in the colonial and the post-

colonial period in Kenya.

19. Compare and contrast the general profile of executive power under the Constitution of

Kenya 1969 vis-a-vis the Constitution of Kenya 2010.

42

20. Describe the machinery of implementation of the Executive’s decisions in Kenya.

21. What powers facilitate the functioning of such machinery, and to what extent are such

powers subject to control (rationalisation, legitimation, limitation)

22. . “Constant experience has shown that every man invested with power is liable to abuse

it, and to carry his authority as far as it will go …, to prevent this abuse, it is necessary

from the very nature of things that one power should be a check on another …” –

Montesquieu, De L’Esprit des Lois, livre XI, (The Spirit of the Laws),Chap. VI.

23. Assess the relevant provisions of the Kenya Constitution 2010 regarding the Executive’s

role in the National Assembly in the light of the above remark.

24. . Section 24 of the 1969 Constitution of Kenya provides:

“Subject to this Constitution and any other law, the powers of constituting and abolishing

offices for the Republic of Kenya, of making appointments to any such office and

terminating any such appointment, shall vest in the President.”

At the same time s. 107(1) of the 1969 Constitution states:

“Subject to this Constitution, the power to appoint persons to hold or act in offices in the

public service (including the power to confirm appointments), the power to exercise

disciplinary control over persons holding or acting in such offices and the power to remove

such persons from office shall vest in the Public Service Commission .…”

Using appropriate illustrations, attempt to reconcile the two provisions set out below – with

regard to appointment, discipline and dismissal in the Public Service. Focus on how the 2010

Constitution deals with the issue.

25. Assess, in historical perspective, the degree of preparedness for the task of executive

power control of the Kenya Parliament.

26. Set out the range of powers entrusted to the President of Kenya, in relation to the

Judiciary.

27. What do you see as the merits or shortcomings of the conferment of such powers – and

what remedy would you propose?

28. In what circumstances would it be open to a person to challenge in Court the election of a

President? Under the law, what procedures would the challenger have to follow?

29. Compare and contrast the extent of separation of powers between the three arms of

Government under the Constitution of Kenya 1969 vis-a-vis the Constitution of Kenya

2010.

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30. Discuss the appellate system in the Kenyan judicial system, indicating whether you think

it is an efficient device for the redress of grievances.

31. How far, in your view, does Chapter Four of the Constitution of Kenya provide a

safeguard for individual rights?

32. (a) Do political parties in Kenya have any power of constitutional significance?

(b) What are the implications of such power for the liberty of the individual?

33. To what extent do non-governmental institutions play a role in the exercise of public

power in Kenya?

34. Describe the institution of Ombudsman (or ombudsperson) and consider its possibilities

as a device of power control, with reference to one or more African countries.

35. To what extent, in your view, does the Kenya Constitution 2010 provide an effective

formula for balancing the powers of the three branches of Government.

36. The political party, in a one-party or dominant party state, assumes so much power that it

can be regarded as a fourth department in the constitutional structure. In what ways is

Kenya’s new multi-party system changing this situation?

37. In what circumstances could it be open to a person to challenge in court the election of

the President or an MP? What procedures would such a challenge have to follow?

38. In your view, what are the positive and negative implications of allowing Presidential and

Parliamentary candidates to vie independently without affiliation to a particular party?

39. Under what circumstances may the Grand Coalition Government in Kenya, formed in

2008, be dissolved? See Constitution of Kenya 2010, Constitution of Kenya Amendment

Act 2008, and National Accord and Reconciliation Act (NARA). Can either party,

principal or coalition parties push out the other? Can either party, principal or coalition

parties “resign”? What would be the consequences of dissolution?

40. What is the constitutional basis for the debate that the first presidential or general

elections under the 2010 Constitution be held in:

(a) August 2012?

(b) December 2012?

(c) March 4, 2013? Or any other date after 2012?

41. Who had the power to dissolve the tenth Parliament? What does it mean to say that

Parliament has to go to its full term? What is the constitutional basis for this under the

2010 Constitution?

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42. Compare and contrast the presidencies of Daniel T. Arap Moi and Mwai Kibaki with

regard to freedoms of assembly and association as well as the relationship between the

State and religious organizations.

43. Critically analyze how the Constitution of Kenya 2010 has reconstructed the powers and

functions of the President vis-a-vis the other organs or officials of the Government.

44. “Ethnic and regional inequality in Kenya have reached crisis proportions. Kenya’s post-

colonial Governments of Presidents Jomo Kenyatta, Daniel Arap Moi, and Mwai Kibaki

are responsible for this, albeit to varying degrees of responsibility.

Briefly discuss appropriate constitutional and legal measures for securing ethnic and

regional equity in the allocation of, and access to, public resources, appointments, and

tenders or contracts in Kenya.

45. How has the Constitution of Kenya 2010 addressed the previously existing limits to

judicial power?

What is the role of political parties in Kenya’s constitutional process under the 2010

Constitution and the relevant law?

6. How can Kenya ensure safety and internal security of the person, the home, the work

place, and public places under the Constitution of Kenya 2010?

7. “Electoral insecurity has been a major challenge since 1969, or before.” Critically assess

how the Constitution of Kenya 2010 has guaranteed or reformed security in the electoral

process. How does the Constitution of Kenya 2010 guarantee criminal justice for victims,

the general public, and the four suspects in the International Criminal Court cases? What

is the role of the Government of Kenya?

8. Political parties were required to register and comply with the Political Parties Act by

April 30, 2012. After this date, a full list of all the officially recognised political parties

was to be available. How many political parties complied with the core provisions of the

Constitution, Political Parties Act, Elections Act, and IEBC Act? How did RPP and IEBC

deal with issues of compliance before, during and after the March 4, 2013 General

Elections?

9. Comment on the eligibility of presidential candidates in the context of the following:

a) Holders of State office who were vying for the presidency.

b) ICC indictees vying for President and Deputy President vis-a-vis the requirements

on leadership and integrity.

c) Assess the High Court and Supreme Court decisions on eligibility or qualification

to vie for President.

10. What is the constitutionality and legality of Kibaki’s directive given in March 2013 that

Cabinet Ministers who had been elected in the March 4, 2013 General Elections resign

immediately? When should they resign according to the relevant laws?

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a) Upon announcement of their election?

b) Upon being sworn into their new positions?

c) Upon swearing in of the newly elected President?

d) Upon the swearing in of the Cabinet Secretaries under the 2010 Constitution

(following the CS’s nomination, approval, appointment)?

NB. In this case, it appears Mwai Kibaki told Kimemia who told Kariuki

(spokesperson?) to tell Coalition Partner and Co-Principal to “Supervise” exit of

Coalition of Ministers. (Cf. Arts 261 et seq; s. 12 of the Sixth Schedule; s. 3 and

15A of 1969 Constitution; NARA; Art 138)

11. Do the provisions of the National Police Service Commission Act give the National

Police Service Commission (NPSC) powers that overlap with those of the Inspector-

General (IG) of the National Police Service (NPS)? Are the proposed amendments more

likely to ensure independence of IG’s Office or poorer oversight? How has the IG

performed so far on key (political) issues….

12. Discuss the constitutionality and the legality of the National Security Council Act 2012,

including the powers and composition of the National Security Council (NSC) and the

National Security Advisory Council (NSAC).

13. Discuss the constitutionality and legality of the directive of the National Security

Advisory Council (NSAC) to CORD, banning countrywide rallies vis-a-vis the

constitutional right to peaceful and unarmed assembly (Art 37). Cf. Jubilee functions in

that period.

14. The Assumption of the Office of the President Act 2012 is unconstitutional. Discuss the

foregoing contention in light of:

(a) The composition of the Assumption of the Office of the President.

(b) The powers and functions of the organs under the Act.

(c) The implementation of the Act in the light of the transition changes in the

Constitution 2010, fraudulent elections 2013, including the fact of the presidential

election petition, and the powers and privileges enjoyed by Uhuru and Ruto in the

transition.

15. Discuss the process of transition to devolved government giving specific regard to the

following aspects:

a. Division of power

b. Finance: how is budgetary allocation from the national Government to be

determined? What are the challenges faced so far and how can they be mitigated

in future financial years?

c. Will Governors fly the flag?

*** FINISH*** Thu tinda!2 ***Wish U Success***

2 In “USA” this means I have told my story; may you grow tall (in wisdom) like the trees at my uncles’

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....the discourse continues....

Prof Ben Sihanya, JSD (Stanford), revised 11/9/2013; 4/6/2014; 30/6/2014

Email: [email protected]; [email protected]

URL: www.innovativelawyering.com



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