THE ELECTORAL PROCESS
Role of the Independent Electoral and Boundaries Commission in Kenya.
- The Commission is responsible for conducting or supervising referenda and elections to any elective body or office.
- It is responsible for continuous registration of citizens as voters and regular revision of the voters’ roll.
- It Prescribes and reviews electoral boundaries in constituencies and wards at intervals of not less than eight years, and not more than twelve years. The constitution provides for 290 constituencies established under the following considerations;
- Community of interest, historical, economic and cultural ties
- Geographical features and urban centres
- Means of communication
- It is responsible for regulation of the process by which parties nominate candidates for elections.
- The commission is responsible for settlement of electoral disputes, including disputes relating to or arising from nominations. However it does not handle election petitions and disputes subsequent to the declaration of election results.
- The registration of candidates for election.
- Educate/informs the public on the requirements for voters and contestants
- Facilitation of the observation, monitoring and evaluation of elections.
- It is responsible for regulation of the amount of money that may be spent by or on behalf of a candidate or party in respect of any election.
- Identifies, appoints and trains election officials.
- Verifies and announces election results
- Prepares ballot papers and other election materials.
- Identifies and recommends polling stations.
Types of elections
There are three types of elections in Kenya;
- General elections. These are elections held after every five years. Initially they were meant to be held on the second Tuesday in August on the fifth year. But this has since been altered due to the delay in new constitution implementation process
- By elections. These are elections of new leaders to fill vacant seats left following deaths of occupants, resignation or annulment of their election through successful petition in court.
- Re –run elections- this are elections held exactly one month after the general elections involving only two presidential candidates in case of no clear winner in the general election.
Why Kenyans elect their representatives to parliament every five years
- It is a constitutional requirement that Kenyans elect MPs after every five years.
- The elections give Kenyans a chance to practice their democratic right of choosing their representatives.
- It enables Kenyans control their elected representatives i.e. the fear of losing election ensures that elected representative serve the electorate well.
- It enables Kenyans choose between representatives and between parties that express the policies that they agree with.
- Through periodic elections, Kenyans are able to participate in activities of their government
The following methods have been used in elections in Kenya.
- Mololongo (queueing)
- Secret ballot.
THE 2007 ELECTIONS IN KENYA
The electoral process that was adopted by the ECK under the stewardship of Samuel Kivuitu in the 2007 election was very unfair and yielded false results. This caused the outbreak of violence, bloodshed, destruction and loss of property. The Kreigler commission that was formed to look into the causes of the 2008 violence reported the following weaknesses.
- Irregularities in the voter register which excluded 30% of the potential voters the register contained names of deceased persons. Women who had attained the voting age were found to be under represented.
- Imbalanced distribution of registered voters among constituencies. Some constituencies like Embakasi had over 200, 000 registered voters while others like Mandera East had less than 20,000 registered voters.
- Rampant cheating where in some cases the votes cast were more than 100% of the registered voters.
- Existence of exclusive strongholds with some electoral areas being out of bounds for some political parties.
- There was a defective system of voter tallying and relaying of information. Some of those declared winners finally lost their seats through election petitions.
- Incompetence of the ECK officials with even the chairmen stating clearly that it was impossible to establish who won the elections.
- The results relayed sometimes faced integrity queries. Some officials relayed cooked results.
- The composition of the ECK raised suspicion especially among the opposition.
The principles that govern the electoral process in Kenya.
- All citizens have the freedom to exercise their political rights
- Not more than two-thirds of the members of elective public bodies shall be of the same gender.
- Persons with disabilities must receive fair representation.
- There must be universal suffrage based on the aspiration for fair representation and equality of vote.
- The elections should be free and fair and will be by secret ballot, free from violence, intimidation, improper influence or corruption.
- The elections will be conducted by an independent body, transparent; and administered in an impartial, neutral, efficient, accurate and accountable manner.
Legislation on Elections
The following legislations govern the electoral process in Kenya.
- The constitution of Kenya-that is a sovereign state and republic with the people owning all sovereign power directly or through democratically elected leaders.
- The national assembly and presidential elections Act- it outlines the steps to be followed in the registration of voters, nomination of candidates, polling and counting of votes and other related processes.
- The local government act- it gives the procedure and rules for conducting elections for county, municipal and town councils.
- The electoral offences Act. – it lays out the election offences like bribing of voters, threatening voters, voting more than once or causing violence on polling day or during campaigns.
Qualifications of a voter in an electoral process in Kenya.
- One must be an adult citizen at least 18 years old.
- He/she must be a Kenyan citizen in possession of an identity card or passport.
- He/she must be a registered voter.
- He/she must been registered at only one registration centre
- One must not be an insane person.
- He/she must have been convicted of an election offence during the Preceding five years.
Voter and civic education.
Voter education refers to the provision of information, materials and programmes to voters with the intention of informing them about the specifics of voting process for a particular election. For example, information on who is eligible to vote, where and how to register.Civic education is aimed at conveying knowledge to the citizens about the country’s politica l system and context. For example, information about the system of government, the nature and powers of the elective offices, to be filled in an election.
Nomination of candidates. There are two categories of Nominations
- Party nominations
- IEBC nominations
This refers to the selection of political party candidates to contest in an election. It is done through queuing, acclamation or secret ballot. It may involve nomination for county, parliamentary or presidential elections.
Once the political parties have nominated their candidates, they are presented to the IEBC for formal nomination to contest the presidential, parliamentary or county/civic elections.
A person is eligible to stand as an independent candidate under the following conditions;
- The person should not be a member of a registered political party and should not have been a member for atleast three months immediately before the date of elections
- He/she must be a registered voter.
- He/ she must satisfy the educational, moral and ethical requirements as per the constitution or act of parliament.
- In case of national assembly elections, he/she must attract the support of atleast 1000 registered voters in the constituency.
- In case of the senate, one must attract the support of atleast 2000 registered voters in the county.
Conditions that must be met by one wishing to be elected Member of Parliament.
- A person is eligible for election as a Member of Parliament if the person is registered as a voter.
- If the person satisfies any educational, moral and ethical requirements prescribed by the Constitution or by an Act of Parliament.
- if he is nominated by a political party, or is an independent candidate who is supported in the case of election to the National Assembly, by at least one thousand Registered voters in the constituency; or in the case of election to the Senate, by at least two thousand registered voters in the county.
Disqualifications for one from being elected a Member the National Assembly.
- If the person is a State officer or other public officer, other than a Member of Parliament.
- If a person has, at any time within the five years immediately preceding the date of election, held office as a member of the Independent Electoral and Boundaries Commission.
- If a person has not been a citizen of Kenya for at least the ten years immediately preceding the date of election.
- If a person is a member of a county assembly.
- If one is of unsound mind.
- If one is declared bankrupt.
- Is subject to a sentence of imprisonment of at least six months, as at the date of registration as a candidate, or at the date of election.
- If one is found, in accordance with any law, to have misused or abused a State office or public office.
An elected MP may lose his/her seat in parliament under the following circumstances.
- When he/she ceases to be a Kenyan citizen.
- He /she receive a jail sentence exceeding 6 months or death penalty from a court of law.
- When he/she resign, through writing to the speaker, from the national assembly.
- When he/she is declared bankrupt by a court of law.
- When he/she is found to be of unsound mind.
- When he/she resigns from the sponsoring political party or as an MP.
- When he/she fails to attend 8 consecutive sessions during the life of a particular parliament without permission from the speaker.
- When he/she defects from one party to another.
- When he/she having been elected to parliament as an independent candidate, decides to join a political party.
The campaign periods starts immediately after IEBC nomination of candidates and ends 12 hours before the polling day. The main purpose of campaigns is to give the voters chance to assess aspiring candidates and their party policies and strategies and then decide the right candidate.
Voting is done in the polling station. It takes place from 6.00am to 6.00 pm on the Election Day.Counting of votes begins after the closure of the exercise. The presiding officer then announces the number of votes garnered by each candidate.
The returning officer, the election officer in the constituency then tallies the total votes from all the polling stations and announces per candidate in the constituency. He/she declares the elected mp for the constituency and councilors of each ward. He announces the number of votes per candidate for the presidential elections.
The IEBC then declares the validly elected candidates for the presidential, National Assembly and Senate.
Factors likely to interfere with free and fair elections in Kenya.
- Ethnic loyalties/polarization/Party loyalties. People may be compelled to vote along tribal lines, in total disregard of the leadership records or accomplishment of those they elect.
- Illiteracy of some voters. This curtails their ability to mark the ballot papers correctly.
- Inadequate civic education. The lack of adequate sensitization of the voters can lead to ineffective election process.
- Violence. Harassment of voters by rival groups/ Insecurity/fear instilled in candidates. All forms of chaos makes accessibility to voting stations by voters difficult.
- Corruption of candidates and their supporters. This is through bribing of voters to vote for certain candidates.
- Incompetent election officials. Some election officials are partisan and therefore unable to preside over elections competently.
- Rigging. On many occasions aspiring candidates or their agents have complained of rigging.
- Transport difficulties. The electoral process in Kenya has been faced with the problem of Inaccessibility of some polling stations
- Communication problems. During the voting day, some remote areas experience communication problems between the headquarters’ and the polling stations.
- Extreme weather conditions. Delivery of polling materials has sometimes been affected by bad weather.
- Gender insensitivity. For a long time, women have not been given a fair share in the electoral process in Kenya.
- Use and misuse of mass media. Some politicians own some media houses, sometimes they have subjected them to misuse. There has been also the problem of imbalance when it comes to media coverage of elections.
Electoral guidelines and regulations that may help minimize irregularities.
- Whatever voting method is used, the system must be simple, accurate, verifiable, secure, accountable and transparent.
- The votes cast must be counted, tabulated and the results announced promptly by the presiding officer at each polling station.
- The results from the polling stations must be openly and accurately collated and promptly announced by the returning officer.
- Appropriate structures and mechanisms to eliminate electoral malpractices must be in place, including the safekeeping of electoral materials.
The following must be observed as pertains to election disputes:
- Electoral petitions, other than in a presidential election, must be filed within 28 days after the declaration of the election results by the IEBC.
- Service of a petition may be direct or by advertisement in a newspaper with national circulation.
The following are the officers appointed by the IEBC to assist in administering elections.
- District election coordinators - Officials responsible for all electoral matters at district level. They act as a link between people at the grassroots level and the IEBC headquarters.
- Registration officers. –they register voters in each constituency and issue them with voter’s card.
- Returning officers. – are in charge of elections in a constituency which has several polling stations. They perform the following functions:
- They set up polling booths in each polling station.
- They receive nomination papers from prospective candidates
- They distribute ballot papers and boxes to polling stations.
- They supervise the voting and counting of votes in the constituency.
- They appoint the presiding officers in each polling station.
- Announcing the results of the elections.
- Presiding officers. –in charge of polling stations. And perform the following duties;
- They conduct the polls in an orderly, free and fair manner at the polling station.
- They ensure that every eligible voter votes only once.
- They help illiterate voters mark ballot papers.
- They seal the ballot boxes and transfer them to a central point in the polling station where the votes will be counted.
- They maintain law and order at polling stations and report any irregularities to the returning officer.
- They ensure that there is impartiality in conducting.
- Polling clerks. On the polling day, they assist and guide voters, particularly those who are illiterate.
- Security personnel. –police officers maintain law and order during the polling and counting of votes.
- Counting clerks. –they sort out ballots and then count the ballots per candidate.
- Party agents. – they represent candidates or political parties in a polling station or counting hall to ensure that the polling and counting procedures are transparent , orderly , free and fair.
- Observers. –these are neutral persons who make observations and write reports on the polling and counting exercise to indicate if the elections were free and fair or not.
FORMATION OF GOVERNMENT
Kenyans directly or indirectly exercise their sovereign or absolute power through their democratically elected representatives. This power is delegated to the state organs or arms of government namely;
- The parliament and the legislative assemblies in the county assemblies.
- The national executive and the executive structures in the county government.
- The judiciary and independent tribunals.
The process of National government formation.
After every election, the party with the majority of seats in the house forms the government by appointing cabinet secretaries from among professionals (not among elected MPs) with the approval of the National Assembly. The president then appoints the judiciary with the a dvice of the JSC. The president-elect is sworn in by the chief Justice and the members of the three arms of government also take oath.The three arms of government operate independently and work on checks and balances
The executive is responsible for running the country by developing and implementing policies that lead to national development.Even after dissolution of parliament after its expiry, the cabinet exists until a new one is appointed. This is to ensure that there is no power vacuum and that government operations continue.
Role of government in Kenya
- Government ensures that social and economic development is undertaken – by putting in place policies to improve schools, hospitals, agriculture, trade, housing and industry.
- It upholds human rights and freedoms and ensures that all citizens live in peace and harmony through the administration of justice and maintaining law and order.
- Government organizes an effective defence force to protect the country from internal and external aggression.
- It also has a duty to establish sound foreign policies to promote international cooperation with other countries by setting up foreign embassies and high commissions.
- It has a duty to foster national unity by recognizing diversity and ensuring equitable sharing of national and local resources.
- Government protects and promotes the interests and rights of the minorities and marginalized communities.
The county government is composed of County assemblies, county executive committees and county public service and exist in each of the 47 counties throughout Kenya.
A county government consists of;
- Members (one member per ward) elected by the registered voters of the wards in a general election in Kenya.
- The Speaker, who is an ex officio member.
- Members appointed by the county governor, with the approval of the county assembly, from among persons who are not members of the assembly.
The structure of the executive arm of the county government
The executive authority of the county is vested in the county executive committee. The committee consists of;
- The county Governor and the Deputy County Governor who are the chief executive and deputy chief executive of the county respectively.
- Members who are not members of the assembly and appointed by the County Governor, with the approval of the assembly. They should be not more than ten other. If the assembly has less than thirty members, the members should be One-third of the number of members of the county assembly.
- Members of a county executive committee are accountable to the county governor for the performance of their functions and exercise of their powers.
- The appointed members of the county executive committee cease to hold office once the office of the county governor falls vacant.
The election of a county governor
The county governor is directly elected by the voters registered in the county at a general election for a term of 5 years. To be eligible for election as county governor, a person must be eligible for election as a member of the county assembly. If re-elected, can serve for another final term of 5 years.
Each candidate for election as county governor nominates a person as his/her running mate to be the deputy governor.
Removal of a County Governor from office
A governor may be removed from office under the following grounds;
- Gross violation of the Constitution or any other law.
- When the county governor commits a crime under national or international law.
- When the governor abuses office or is accused of gross misconduct.
- When he/she suffers from Physical or mental incapacity that hinders performance of the functions of office.
The office of the county governor falls vacant when the holder of office;
- Resigns, in writing, addressed to the speaker of the county assembly.
- Is convicted of an offence punishable by imprisonment for atleast twelve months.
- Ceases to be eligible to be elected as a county governor.
- Is removed from office under the constitution.
The deputy county governor assumes office as a county governor for the remainder of the term of the county governor when a vacancy arises. Where the deputy governor is unable to act or his office is also vacant, the speaker acts as governor and elections must be held within sixty days after the speaker assumes office.
THE COUNTY ASSEMBLY
The composition of a County Assembly in Kenya is as follows;
A county assembly consists of
- Members (one member per ward) elected by the registered voters of the wards in a general election.
- Members of special seats (no more than two-thirds of the membership of the assembly is of the same gender.)
- Members of marginalized groups, including persons with disabilities and the youth.
- The Speaker, who is an ex officio member.
Nb-The members for special seats and marginalized communities are nominated by political parties in proportion to the seats received in the election in a particular county.
The functions of a county assembly
- County assemblies make laws for the effective performance of the county government.
- It acts as a watch dog over the county executive committee.
- It receives and approves plans and policies for managing and exploiting the county’s resources, and, developing and managing the infrastructure and institutions.
Conditions that must be met by a person seeking for election to a County Assembly
- The person must be a registered as a voter in his/her county.
- The person must have been a Kenyan citizen for atleast ten years before the elections.
- The person must be able to read and write in English and Kiswahili.
- He or she must be of sound mind.
- The person must be of unquestionable morals and ethics
- If a public officer, he/she must relinquish his/her public work.
- The person must be nominated by a political party
- If he/she is an independent candidate, must be supported by at least five hundred registered voters in the Ward concerned.
- The person must not have been declared bankrupt.
- The person must not have served a sentence of imprisonment of more than six months.
- The person must not have misused or abused a State or public office.
Vacancy in the office of member of county assembly may happen if the member;
- Is absent from eight sittings of the assembly without permission, in writing, of the speaker of the assembly and is unable to offer satisfactory explanation for the absence.
- Resigns, in writing, addressed to the speaker of the county assembly.
- After being elected to the assembly as a member of a political party, he/she resigns from the party, or is deemed to have resigned from the party, or after being an independent candidate, the member joins a political party.
- Gets to the end of the term of the assembly
- Becomes disqualified for election after the court rules in favour of an election petition made against him/her.
Speaker of County Assembly
The speaker is elected by the county assembly from among persons who are not members of the county assembly. The speaker presides over the county assembly. Another member of the assembly may be elected to play the role of a speaker in case of the absence of the speaker.
STRUCTURE AND FUNCTIONS OF THE NATIONAL GOVERNMENT.
The three arms of government are:
The two components of the Kenyan Parliament/legislature are;
- The National Assembly.
- The Senate.
The Composition and membership of the National Assembly.
The National Assembly consists of;
- Two hundred and ninety members, each elected by the registered voters of single member constituencies.
- Forty-seven women, each elected by the registered voters of the counties, each county constituting a single member constituency.
- Twelve members nominated by parliamentary political parties according to their proportion of members of the National Assembly to represent special interests including the youth, persons with disabilities and workers.
- The Speaker, who is an ex officio member.
Membership of the Senate
The Senate consists of;
- forty-seven members each elected by the registered voters of the counties, each county constituting a single member constituency
- Sixteen women members nominated by political parties according to their proportion ofmembers of the Senate elected.
- Two members, being one man and one woman, representing the youth.
- Two members, being one man and one woman, representing persons with disabilities.
- The Speaker, who shall be an ex officio member.
The official languages of parliament are English, Kiswahili and Kenyan sign language.
Parliament quorum is 50 members for the national assembly and 15 members for the senate.
Office of parliament
The following are the officers of parliament;
Speakers and deputy speakers. Two Speakers, ex-officio member, one for each of the two houses. Each is elected by members of the respective house from among persons who are qualified to be elected as members of parliament but are not MPs.
A deputy speaker is elected from among members of each of the houses by the mps. Their offices become vacant when;
- A new house of parliament first meets after an election.
- When he/she resigns, dies.
- When a house resolution of two-thirds removes him/her from office.
The speakers Preside at any sitting of the house. In a joint meeting of the two houses, the speaker of the national assembly assisted by that of the senate presides over.
The speaker has no vote in parliament and in case of a tie, The question is lost.
The six speakers in Kenya since independence include;
- 2008-2013 - Kenneth Marende.
- 1993-2007- Francis Ole Kaparo
- 1991- 1992-Professor Jonathan Ngeno
- 1988- 1990-Moses Arap Keino
- 1970 – 1987-Fredrick Mbiti Mati.
- 1964-1969-Humphrey Slade became the first speaker of the single house.
- 1963- Muinga Chokwe (speaker of the upper house)
- 1963- Humphrey slade (speaker of the lower house).
Role of the speaker.
- He/she presides over the proceedings of the house and ensures that they are conducted in accordance with the rules of procedure. He enforces standing orders in the house.
- The speaker disciplines members of the house who violate standing orders by ordering such them to leave the house or be barred from attending three house consecutive sittings.
- Maintains order during debates and enforces rules which govern conduct of the house. The speaker interprets the rules of the house.
- He/she gives the MPs chance to contribute towards house debates to ensure that the minority are given a fair hearing before the will of the majority prevails.
- He/she represents and protects the authority of the house.
- He/she organizes and determines the business to be conducted in the house by receiving Bills, motions and questions for discussion in the house, and then prepares an order paper.
- He/she adjourns sittings if the house lacks a quorum.
- He/she keeps and maintains the attendance register and grants permission to MPs to be absent from sessions. MPs going out of the country must inform the speaker of their absence from Kenya.
- He/she heads the National Assembly department and takes charge of its general administration and welfare. He/she is responsible for preserving dignity and order and for the comfort and convenience of the members and staff within parliament buildings.
- He/she chairs the speaker’s committee, the committee of powers and Privileges and the Order Committee.
- The speaker issues orders and makes rules for the regulation of visitors to parliament and represent parliament in its relations with foreign countries.
- The speaker chairs the branches of the commonwealth Parliamentary Association, InterParliamentary Union and the Union of African Parliaments. He/she represents Parliament at the commonwealth speaker’s conference.
- He/she declares parliamentary seats vacant and issues writs for general elections and byelections.
- He/she receives and accepts letters of resignation from members of parliament.
- He/she swears in members of parliament before participating in the House deliberations.
- He, summons parliament to a new when parliamentarians are on recess.
As part of parliament officers, there is the leader of the majority party and leader of minority party.
The majority party leader is the person who is the leader in the national assembly of the largest party or coalition of parties.
The minority party leader is the person who is the leader in the national assembly of the second largest party or coalition of parties.
Role of party leaders
- They promote and uphold national unity through party activities.
- They enforce adherence to principles of good governance, democracy and upholding human rights and fundamental freedoms and gender equality and equity.
- The leaders work to advance the goals of the party and ensure their programme is carried out to the satisfaction of the party.
- The leader of the majority party has to ensure and maintain support for legislation.
- The leader of the minority party has to protect the rights of the minority.
- The leader of the majority party has to ensure accountability and transparency in the party and the government.
Functions of parliament in Kenya
- The elected members of parliament Represents the will of the people, and exercises their sovereignty.
- Parliament considers and passes amendments to the Constitution
- It has powers to alter county boundaries as provided for in the Constitution.
- Parliament has the duty to protect the Constitution and promote the democratic governance of the Republic.
- Parliament is the sole body that has the power to make provision having the force of law in Kenya
Functions of the National Assembly in Kenya.
- The national assembly represents the will of the people and expresses their sovereignty since it represents people from the 290 constituencies and special interest groups.
- The National Assembly deliberates on and resolves issues of concern to the people in the Constituencies and special interest groups.
- The National Assembly enacts legislation that affect the nation-not the county government. For example the money bill may be introduced only in the national assembly.
- The National Assembly determines the allocation of national revenue between the levels of government/it controls revenue and expenditure in the republic.
- It appropriates funds for expenditure by the national government and other national State organs/ it exercises oversight over national revenue and its expenditure.
- The National Assembly reviews the conduct in office of the President, the Deputy President and other State officers/It may initiate the process of removing them from office.
- The National Assembly approves declarations of war and extensions of states of emergency.
Functions of the Senate in Kenya
- The Senate represents the counties, and serves to protect the interests of the counties and their governments.
- The Senate participates in the law-making function of Parliament by considering, debating and approving Bills concerning counties.
- The Senate determines the allocation of national revenue among counties/It exercisesoversight over national revenue allocated to the county governments.
- The Senate participates in the oversight of State officers by considering and determining any resolution to remove the President or Deputy President from office.
The process of law making in Kenya.
What is law making?
This is the process of enacting new laws or amending the existing ones.
The two conditions for the start of a law making process are
- The presence of a speaker or his deputy.
- A quorum of fifty members of the national assembly.
- A quorum of 15 members of the senate.
What is a bill?
A bill is a proposed piece of legislation (law).
Bills originate in the National Assembly.
A Bill not concerning county government is considered only in the National Assembly, and passed in accordance with the Standing Orders of the Assembly.
A Bill concerning county government may originate in the National Assembly or the Senate, and is passed in accordance with the Standing Orders of the Houses.
Bills are classified into two;
these deal with matters of public policy that affect all citizens of Kenya. They are also categorized into two;
- Government Bill-introduced by cabinet secretaries.
- Private member’s Bill.-introduced by back-benchers in the national assembly
-this is a bill that affects a particular person, associations or people living in a small part of the country.
This a bill that has provisions dealing with taxes, payment of charges by public, appropriation , receipt ,custody or issue of public money, raising or guaranteeing of any loan, its repayment or other matters relating to such monies.
- The government departments and public offices to be affected by a bill consult first before it is drafted. A bill is then drafted by the government draftsman (the parliamentary counsel)in the attorney general’s chambers.
- When the cabinet is satisfied with the draft, it is published in the Kenya gazette at least fourteen days before it is introduced to parliament. The main purpose of this is to give the public chance to view and criticize the Bill. The draft proposal is also presented to parliament to give members chance to research on it on preparation for a debate in thefuture.
- A Bill is first introduced by any member or committee of the relevant House of Parliament, but a money Bill may be introduced only in the National Assembly.
- Before either House considers a Bill, the Speakers of the National Assembly and Senate jointly resolve any question as to whether it is a Bill concerning counties and, if it is, whether it is a special or an ordinary Bill.
- When any Bill concerning county government has been passed by one House of Parliament, the Speaker of that House refers it to the Speaker of the other House.
- If both Houses pass the Bill in the same form, the Speaker of the House in which the Bill originated shall, within seven days, refer the Bill to the President for assent.
- The National Assembly may amend or veto a special Bill that has been passed by the Senate only by a resolution supported by at least two-thirds of the members of the Assembly.
- Within fourteen days after receipt of a Bill, the President assents to the Bill; or refer the Bill back to Parliament for reconsideration by Parliament, noting any reservations that the President has concerning the Bill.
When a bill is referred back to parliament, the following procedure is followed;
- Parliament may amend the bill in light of the president’s reservations or pass the bill a second time without amendments.
- If parliament amends the Bill after consideration of the president’s reservations, the speaker must resubmit the bill to the president for assent.
- Parliament could pass the bill without amendments or with amendments that do not fully accommodate the president’s reservations if supported by;
- Two-thirds of the members of the national assembly, and
- Two-thirds of the delegations in the senate, if the bill requires approval of the senate.
- The bill then has to be submitted by the appropriate speaker to the president for assent within seven days.
- If the president fails to assent the bill within seven days, the bill will be considered acted upon and therefore considered null and void.
The process of the bill coming into force as a law
After presidential assent, a Bill becomes a law or an act of parliament. It is then published in the official gazette, the Kenya gazette, within seven days after assent.
Sections of it may also be published in the local dailies so as to publicize the law t o all residents in the country.The Act of parliament then comes into force as a law on the fourteenth day after its publication in the Kenya Gazette unless the Act specifies a different date or time when it will come into force. The law then binds everybody in the country.
Special Bills concerning county governments
Such Bills, when passed by senate, can only be amended or vetoed by National Assembly by a resolution of 2/3 of the members. When the veto or amend fails to pass, the speaker of the National Assembly must within seven days refer the Bill in the form adopted by the senate to the president for assent.
Ordinary Bills concerning counties
If one house passes an ordinary bill concerning counties and the second house rejects it , the Bill must be referred to the mediation committee.A mediation committee refers to a committee comprising equal number of members from both houses appointed by the speaker with the task of formulating a version of the Bill that both Houses could pass.
Both houses will then vote to pass or reject the formulated version. The Bill is considered rejected if the committee fails to reach an agreed version within 30 days.If the second House passes it in an amended form, the bill must be taken back to the orig inating house for consideration. If the originating house passes it as amended; it is referred to the president for assent within seven days. If it rejects it, it is referred to the mediation committee.
Meaning of parliamentary supremacy
This refers to the sovereign power exercised by parliament which makes law for the country. Parliament is supreme because, through elections, it has the people’s mandate to legislate and govern on their behalf and is the only means through which people control government.
How parliamentary supremacy is upheld in Kenya.
- It is the only Body that makes and repeals laws. Technically, a constitutional court can overrule an act of parliament, but parliament can change the law to prevent that from happening.
- Parliament can remove the president from office by impeachment. A member of the national assembly, with the support of at least a third of all the members, may move an impeachment motion.
- Parliament through an amendment of the constitution, can limit the powers of the executive. It can also pass a vote of no confidence in the government, compelling the president and his/her cabinet secretaries to resign.
- Cabinet secretaries are accountable to the parliament for their activities in the ministries under their control. They have to answer questions in parliament about their ministries.
- Bills prepared by the cabinet have to be legislated by parliament, which is a law making body.
- Parliament has to approve government expenditure. The Cabinet secretary in charge of Finance annually presents the budget to parliament for approval by MPs. - the public accounts committee scrutinizes government expenditure. The Auditor and controllerGeneral check the expenditure of all ministries and reports to parliament.
NB; - The upholding of parliamentary supremacy however depends largely on the integrity and maturity of members of the national assembly.
Ways in which parliamentary supremacy in Kenya is limited.
- Parliament cannot make laws that contradict traditional customs and practices of the people, unless people want change.
- Parliament cannot pass a law that contradicts the constitution. /the supremacy of the constitution is upheld.
- Increased power of the cabinet can reduce parliament’s authority. If the cabinet is too powerful, it may influence parliamentary decisions.
- The president can limit the supremacy by making independent decisions. For example, the president has emergency powers which sidestep parliamentary supremacy. State of Emergency does not follow parliamentary directions.
- Parliament supremacy can be limited by the application of international laws. Parliament may be forced to ratify a law out of necessity; failure to ratify an international law may invite punitive actions on the country.
- Delegated legislation may also limit its powers, i.e. the operation of the county government by-laws may limit parliamentary supremacy although national legislation prevails over county legislation.
- Referendum may be used to decide important issues as opposed to parliamentary decisions.
Merits of parliamentary supremacy/parliamentary system.
- It increases harmony, since the legislature and the executive work together. This is realized when MPs, who represent the electorate, bring their views to the executive (cabinet secretaries) in the legislature.
- This system allows ordinary citizens to participate in the governing process by electing their representatives to articulate their views on issues of national interest.
- It ensures a responsible and responsive government since the cabinet is controlled by parliament in its actions. Cabinet cannot ignore public opinion, since people choose the MPs. Such could risk a vote of no confidence.
- It instills a sense of responsibility in the executive since cabinet secretaries have to sit and answer questions in the house.
- The system legitimizes actions taken by the government, particularly when such actions originate from recommendations passed by the MPs- the people’s representatives.
- A parliamentary system gives citizens a chance to participate in national political leadership through presenting themselves for election as members of parliament or county assemblies.
- It provides for regular elections, giving the electorate the chance to reject non performing MPs and elect others who can perform.
- Parliament is a training ground for effective leaders; the system enables Kenyans of ability and experience to prove their worth in parliamentary debates.
Demerits of parliamentary supremacy.
- It only works well where there are two parties; with one ruling while the other in opposition. In a case where there are more than two parties. A coalition government may be formed and this form of government is sometimes weak and unstable. Also where the legislature is dominated by one party, the cabinet tends to be dictatorial.
- Such government may not be effective in times of emergencies. The head of government has to consult with the cabinet and the legislature before acting.
- It weakens the executive. It compels the cabinet secretaries to spend most of their time in parliament instead of dealing with matters of their ministries.
“Terminative Role of Parliament” in Kenya.
This means that parliament has the power to impeach a president or pass a vote of no confidence in the government by a two-thirds vote majority of the national assembly, forcing the government to resign.
Functions of the Parliamentary Service Commission
- The Commission is responsible for providing services and facilities to ensure the efficient and effective functioning of Parliament
- It is responsible for constituting offices in the house.
- It prepares annual estimates of expenditure of the parliamentary service and submitting them to the National Assembly for approval, and exercising budgetary control over the service.
- It is responsible for undertaking, singly or jointly with other releva nt organizations, programmes to promote the ideals of parliamentary democracy.
- It performs other functions necessary for the well-being of the members and staff of Parliament; or prescribed by national legislation.
Meaning of the executive
This is the arm of government which deals with the implementation of laws made by parliament. It is charged with the administration of affairs of a country as well as affairs which affect the country from outside.
The National executive comprises;
- The president.
- The deputy president.
- The cabinet.
- The attorney general.
- The director of public prosecutions
- The public service.
He is the Chief Executive Officer of the republic of Kenya. He is the head of state and government in Kenya. He is the commander-in-chief of the Kenya Defence Forces. He is a symbol of national unity.He holds office for a five year term from the date of being sworn in to office and the term expires when the next candidate elected as president is sworn in. the constitution gives a twofive year term as the maximum period for the president’s position.
Qualifications for election as President in Kenya.
- A person qualifies for nomination as a presidential candidate if the person is a citizen by birth
- The person must be qualified to stand for election as a Member of Parliament.
- He or she must be nominated by a political party, or is an independent candidate and is nominated by not fewer than 2000 voters from each of a majority of counties.
NB;- A presidential candidate, whether affiliated to a political party or independent, must garner 50% plus one of all the votes cast in the election.A candidate must also attract 25% of the votes cast in more than half of the counties in kenya in order to qualify to be a president.
Disqualifications one from vying for election as a president in Kenya
- If the person owes allegiance to a foreign state.
- If he is a public officer, or is acting in any State or other public office.
Assumption of office of the president
The president-elect assumes office by taking two oaths namely;
- The oath of affirmation of allegiance
- The oath of affirmation for execution of the functions of office.
If the president-elect dies before assumption of office, the deputy president-elect is sworn in as acting president. A new fresh election to the office of president must be held within sixty days after death of the president-elect. The president must be sworn in public before the Chief Justice.
Importance of a presidential election
- The citizens get a chance to exercise their democratic right. It is the essence of democracy in a government. The people have a choice to elect a president directly, freely, and fairly.
- It is a means through which the people of Kenya give the president the mandate to rule the country and act on their behalf.
- It helps to check dictatorship. The president becomes responsible and accountable to the electorate. He cannot go against public opinion.
- The president enjoys legitimacy of power because it is derived from the people
Powers and functions of the president of Kenya as derived from the constitution of Kenya.
- As the Head of State, he performs the following functions;
- He represents the government and the people of Kenya both locally and internationally.
- He receives foreign diplomatic and consular reprentatives.
- He is the head of Government.
- He nominates a deputy president to deputize him.
- He nominates and, with the approval of the national assembly, appoints or dismisses cabinet secretaries, the attorney general, the Director of Public Prosecutions, the secretary to the cabinet, Principal secretaries, High Commissioners, Ambassadors, and diplomatic and consular representatives, the chief justice and the deputy and all the judges in line with the recommendations of the Judicial Service Commission
- He is the Commander-in-Chief of the Kenya Defence Forces
- He has powers to declare a state of emergency, declare war with the approval of parliament.
- He is the chairperson of the National Security Council of Kenya.
- The President has the duty to safeguard the Constitution, ensure the protection of human rights and fundamental freedoms and the rule of law, safeguard the sovereignty of the republic, promote and enhance unity of the nation and promote respect for diversity.
- The President has legislative powers to address the opening of each newly elected Parliament. He also addresses a special sitting of parliament once every year and any other time.
- The President chairs Cabinet meetings and assigns responsibility for the implementation and administration of any Act of Parliament to a Cabinet Secretary.
- He presides over national holidays during which he expounds on government policy.
- He confers honours in the name of people and republic on men and women of Kenya for outstanding achievements. E.g. OGH, OBS, DSM, HSC and EBS.
- He may, on petition of any person, exercise mercy powers in accordance with the advice of the advisory committee. E.g.;
- Grant a free or conditional pardon to a person convicted of an offence.
- Postpone execution of any punishment for an offender , for a specified period, or indefinitely
- Substitute a less severe form of punishment.
- Remit all or part of a punishment.
- The President ensures that the international obligations of the Republic are fulfilled through the actions of the relevant Cabinet Secretaries.
NB-the constitution provides the president with immunity from criminal proceedings during the tenure of office in respect of anything done or not done in exercise of the powers granted by the constitution. But this immunity does not extend to a crime for which the president may be prosecuted under any treaty to which Kenya is part to, and which prohibits such immunity.
The process of Removal of President by impeachment
A member of the National Assembly moves a motion for the impeachment of the President on the following grounds;
- A gross violation of a provision of the Constitution.
- President commits a crime under national or international law.
- For gross misconduct.
If a motion is supported by at least two-thirds of all the members of the National Assembly, the Speaker informs the Speaker of the Senate of that resolution within two days.
The President continues to perform the functions of the office pending the outcome of the proceedings.
Within seven days, the Speaker of the Senate convenes a meeting of the Senate to hear charges against the President. A special committee appointed by the senate investigates the matter; and report to the Senate within ten days.
If the special committee reports that the particulars of any allegation against the President have not been substantiated, further proceedings shall not be taken. If any of allegations against the President have been substantiated, the Senate, after according the President an opportunity to be heard, votes on the impeachment charges. If at least two-thirds of all the members of the Senate vote to uphold any impeachment charge, the President shall cease to hold office.
Reasons that may lead to a presidential by-election in Kenya.
- The president’s election may be nullified by court due to election offences.
- The serving president may die while in power.
- The president may resign.
- If the president becomes physically /mentally incapacitated.
- Parliament may pass a vote of no confidence in the president /government.
- If the serving president deserts/defects from the party that sponsored him to parliament.
- If the serving president ceases to be a Kenyan citizen.
THE DEPUTY PRESIDENT
The deputy president is nominated by the presidential candidate during a general election.
The process of Electing and swearing in of a Deputy President in Kenya.
- A candidate, (qualified for nomination for election as President) is nominated by each candidate in a presidential election.
- The Independent Electoral and Boundaries Commission then declare the candidate nominated by the person who is elected as the President as the Deputy President.
- The swearing in of the Deputy President-elect is before the Chief Justice or, in the absence of the Chief Justice, the Deputy Chief Justice and in public.
- The Deputy President-elect assumes office by taking and subscribing;
- The oath or affirmation of allegiance.
- The oath or affirmation for the execution of the functions of office.
Under the following circumstances, one can cease to hold the office of the Deputy President
- At the end of term of office when the person next elected President at an election is sworn in.
- When the Deputy President assumes the office of President.
- On resignation, death or removal from office of the Deputy President
Functions of the Deputy President in Kenya.
- The Deputy President is the principal assistant of the President and shall deputize for the President in the execution of the President’s functions.
- The Deputy President performs the functions conferred by the Constitution and any other functions of the President as the President may assign.
- When the President is absent or is temporarily incapacitated, and during any other period that the President decides, the Deputy President shall act as the President.
NB-The Deputy President is not permitted to hold any other State or public office.
The composition of The Cabinet in Kenya.
The Cabinet consists of
- the President;
- the Deputy President;
- the Attorney-General; and
- Not fewer than fourteen and not more than twenty-two Cabinet Secretaries.
The President nominates and, with the approval of the National Assembly, appoints Cabinet Secretaries.
A Cabinet Secretary should not be a Member of Parliament.
Secretary to the cabinet
This office is an office in the public service. The office holder is nominated and appointed by the president, with the approval of the national assembly.
He/she has the following responsibilities;
- Taking charge of the cabinet office.
- Arranging the business of the cabinet subject to its directions.
- Keeping minutes of the cabinet.
- Conveying decisions of the cabinet to the appropriate persons or authorities.
- Serving other functions as directed by the cabinet.
Each state department is under the administration of a principal secretary. He/she is nominated and appointed by the president from among persons recommended by the public service commission and approved by the national assembly.
This office is an office in the public service.
General Functions of the cabinet.
- The cabinet Advises and assists the president in governing the country.
- The cabinet Discusses matters of national and international concern with the president.
- The cabinet Formulates government policies and programmes. During parliamentary debates, the secretaries defend the same policies, interpret them to the people and ensure their implementation.
- The cabinet initiates new bills and table government bills in the National assembly.
- Cabinet secretaries on their individual capacity give direction to operations within their ministries.
- The secretary for finance formulates and prepares the national budget which he/she then presents to the National Assembly.
The principle of collective responsibility of the cabinet.
- The cabinet does not work in the light of day. Cabinet must abide by oath of secrecy.
- It requires that the cabinet must act together as a team. The cabinet must speak together with one voice on all matters of government policy.
- All cabinet members are collectively responsible to parliament and to the people through parliament. One act of a cabinet secretary is taken to be an act of all the members of the cabinet.
- A minister would resign if in his conscience he cannot abide by the principle of collective responsibility.
The functions of the Attorney-General in Kenya.
- The Attorney-General is the principal legal adviser to the Government.
- He represents the national government in court or in any other legal proceedings to which the national government is a party, other than criminal proceedings.
- He performs any other functions conferred on the office by an Act of Parliament or by the President.
- The Attorney-General has authority, to appear as a friend of the court in any civilproceedings to which the Government is not a party.
- The Attorney-General has duty to promote, protect and uphold the rule of law and defend the public interest.
The Director of public prosecutions
The DPP is nominated and with the approval of the National Assembly is appointed by the president to hold office for a term of eight years and can’t be re-appointed. He/she does not require the consent of any person or authority for the commencement of criminal proceedings. His/her powers may be exercised in person or by subordinate officers acting under general or special instructions.A person qualified to be appointed a DPP should have the qualifications to be appointed a judge of the High Court.
The functions of the Director of Public Prosecutions.
- The Director of Public Prosecutions has power to direct the Inspector-General of the National Police Service to investigate any information or allegation of criminal conduct.
- The Director of Public Prosecutions exercises State powers of prosecution and may institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed.
- He has powers to take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person orauthority, with the permission of the person or authority.
- He has powers to discontinue at any stage, before judgment is delivered, any criminal proceedings instituted by the Director of Public Prosecutions or taken over by the Director of Public Prosecutions.
THE PUBLIC SERVICE
The public service includes all state organs in both levels of government and all state corporations.
Values and principles of public service
- High standards of professional ethics.
- Efficient, effective and economic use of resources.
- Responsive, prompt, effective, impartial and equitable provision of services.
- Involvement of the people in the process of policy making.
- Accountability of administrative acts.
- Transparency and provision to the public, of timely, accurate information.
- Fair competition and merit as the basis of appointments and promotions
- Representation of Kenya’s diverse communities.
- Providing adequate and equal opportunities for appointment, training and advancement at all levels of the public service, for women and men, members of all ethnic groups and persons with disability.
The Public Service Commission.
This is the body charged with the responsibility of recruiting, promoting and managing the affairs of the public servants in Kenya in order to make it a motivated and an efficient workforce.The commission consists of a chairperson, a vice chair person and seven other members appointed by the president with the approval of the National Assembly.
The commission has a secretary who is the CEO and is appointed by the commission for a term of five years and is eligible for re-appointment.
The following persons do not qualify for appointment to the commission;
A person who in the proceeding five years, held office, or stood for elections as;
- A member of parliament or the county assembly.
- A member of the governing body of a political party.
- If the person holds any state office
- A holder of an office in a political organization that sponsors or supports a candidate for election as Member of Parliament or county assembly.
Functions and powers of the Public Service Commission.
- The Commission is responsible for establishment and abolishment of offices in the public service.
- It appoints persons to hold or act in Offices in the public service and confirm appointments.
- It exercises disciplinary control over and removes persons holding or acting in public offices.
- It promotes the values and principles throughout the public service.
- It investigates monitors and evaluates the organization, administration and personnelpractices of the public service.
- It has the duty to ensure that the public service is efficient and effective.
- It develops human resources in the public service.
- It reviews and makes recommendations to the national government in respect of conditions of service, code of conduct and qualifications of officers in the public service.
- It evaluates and reports to the President and Parliament on the extent to which the values and principles that govern public service are complied with in the public service.
- It hears and determines appeals in respect of county governments’ public service.
Offices in the public service that are exempted from the regulation and control of the public service commission;
- State offices.
- An office of high commissioner, ambassador or other diplomatic or consular representative of the republic.
- An office or position subject to:
- The Parliamentary Service Commission.
- The Judicial Service Commission.
- The Teachers Service Commission
- The National Police Service Commission.
- An office in the service of a county government, with the exception of powers to create and establish offices.
The commission can not appoint a person to hold office or act in any office on the personal staff of the president or retired president, except with the consent of the president or retired president.
Ways in which a public officer is protected by law while in service.
- A public officer shall not be victimized or discriminated against for having performed the functions of office in accordance with the Constitution.
- He/she shall not be dismissed, removed from office, demoted in rank or otherwise subjected to disciplinary action without due process of law.
Organs of national security
National security is the protection against internal and external threats to Kenya’s territorial integrity and sovereignty, its people, their rights, freedoms, property, peace, stability and prosperity.
Principles that promote and guarantee national security in Kenya
- National security is subject to the authority of the constitution and parliament.
- Operations of national security must be consistent with the law and must respect the rule of law, democracy, human rights and fundamental freedoms.
- In performing their functions and exercising their powers, national security organs must respect cultural diversity of the communities within Kenya.
- Recruitment by the national security organs must reflect the diversity of the Kenyan people in equitable proportions.
National security organs in Kenya
The national security organs are;
- The Kenya Defence Forces.
- The National Intelligence Service.
- The National Police Service.
National Security Council
This is a body whose main responsibility is to exercise supervisory control over national security organs
Composition of the National Security Council
The Council consists of
- The President.
- The Deputy President.
- The Cabinet Secretary responsible for Defence.
- The Cabinet Secretary responsible for foreign affairs.
- The Cabinet Secretary responsible for internal security.
- The Attorney-General.
- The Chief of Kenya Defence Forces.
- The Director-General of the National Intelligence Service.
- The Inspector-General of the National Police Service.
Functions of the National Security Council in Kenya.
- It exercises supervisory control over national security organs.
- It has duty to integrate the domestic, foreign and military policies relating to national security in order to enable the national security organs to co-operate and functioneffectively.
- It makes assessment and appraisal, the objectives, commitments and risks to the Republic in respect of actual and potential national security capabilities.
- The Council reports annually to Parliament on the state of the security of Kenya
- With the approval of Parliament, The Council is responsible for deploying national forces outside Kenya for regional or international peace support operations; or other support operations.
- It approves the deployment of foreign forces in Kenya.
The Kenya Defence Forces
The Kenya defence Forces comprises;
- The Kenya Army, established in 1963 and which protects the country against external land-based aggression.
- The Kenya Air force, established in 1963, disbanded in 1982 and renamed 82 Air force. It helps in the control of locust invasion.
- The Kenya Navy, based in Mombasa and created in 1964, patrols Kenya’s territorial waters and is always on the alert for sea-borne invasions, and for illegal landings and departure, and unauthorized fishing by foreign vessels in Kenyan waters.
Functions of the Kenya Defence forces
- The Defence Forces are responsible for the Defence and protection of the sovereignty and territorial integrity of the Republic.
- They assist and cooperate with other authorities in situations of emergency or disaster.
- They may be deployed to restore peace in any part of Kenya affected by unrest or instability only with the approval of the National Assembly.
- The forces also assist in the preservation of internal security. For example the handling of the attempted coup by the Kenya Army in 1982.
- They participate in nation building activities such as road and bridge construction.
- The military also assists the public during emergencies and calamities such as floods, famine, fire outbreaks, landslides and other disasters. For example during the E l Nino rains-construction of mobile bridge on Mombasa-Nairobi highway.
- The Navy specializes in detecting and fighting off criminals who use water masses like the Indian Ocean to commit crimes within the Kenyan territory. E.g. Somali Pirates.
- The Kenya Army takes part in peacekeeping Missions, such as the United Nations peace keeping operations in different parts of the world and also the African Union and Commonwealth.
The Kenya Defence Council
Its composition is as follows;
- The cabinet secretary responsible for defence is the chairperson.
- The Chief of the Kenya Defence Forces.
- The Three Commanders of the defence forces.
- The Principal Secretary in the ministry responsible for defence.
It is responsible for the overall policy, control and supervision of the Kenya Defence Forces.
Challenges facing the Kenya Defence Forces.
- There has being cases of indiscipline, such as the abortive coup attempt in 1982.
- There have been rampant cases of corruption facing some members of the Kenya Defence Forces, especially on matters of recruitment of new members into the defence forces, purchase of military and police equipment and deployment of officers on specialized duties.
- Tribalism, regionalism and nepotism have also been experienced in the Kenya Defence Forces, thereby demoralizing hardworking officers who are left out unfairly during promotions.
- Sometimes the Kenya Defence Forces faces the problem of lack of adequate funds to equip the forces with good equipment to facilitate their work.
- The majority of the military personnel are not provided with opportunities to acquire further education.
- Piracy and militia attacks and raids at the Kenyan Borders also present a major security challenge to the Defence Forces.
- Invasion of Kenya’s territorial waters by foreign fishermen and foreign fishing vessels from the big nations challenges the ability of the Kenya Navy to curb illegal fishing.
- The location of Moi Airbase at Eastleigh presents a big challenge to the air force. The Airbase was built by Britain in 1964 when the population in the area was scarce. Today the area has human congestion
- The defence forces also face challenges related to allegations on violations of human rights.
After the 2008 elections violence, the Kenya Army was deployed to restore peace in Mt. Elgon, where they were accused of violating human rights by killing people, destroying property, and sexually assaulting women.
The National Intelligence Service
Initially called the Special Branch, This is an independent civilian government agency dedicated to protecting the national security interests of Kenya and safeguarding its citizens from threats such as terrorism and corruption.
Function of the National Intelligence Service
- It is responsible for security intelligence and counter intelligence to enhance national security.
- It liaises with the National police CID to investigate some of the threats that have criminal implications e.g. terrorism. And lay the appropriate charges.
- Information gathered by the NIS assists the government in decision –making and planning.
- The NIS in its operations protects human rights issues and the individual freedoms.
Challenges facing the National Intelligence Service.
- Lack of trust from Kenyan citizens. The citizens are reluctant to provide information to NIS as they view it not to be any different from the former Special Branch which was known to be a tool of oppression and torture.
- The body lacks financial credibility and political independence. The extent to which NIS is Neutral in its handling of sensitive affairs is questionable.
- Lack of a clear distinction between accountability and necessary secrecy has sometimes brewed tension. It is difficult to audit the activities of the Body just like any other government organization, due to the nature of its tasks.
- The growing volumes and complexity of communications presents a significant security challenge for national intelligence and government agencies that seek to intercept, process monitor and analyze it.
- External and internal threats for example Al-shabaab militia from Somalia, Merille Warriors from Ethiopia and Al-Qaeda attacks. Internally, the refugees hosted in Kenya and the illegal migrants from Somali and Sudan are also a threat. The problem of drug trafficking is also a threat.
- Continuous capacity building training is a necessity, given the complexity of the task. However this remains a challenge.
- Limited financial and human resources since inadequate funds are allocated to the service. This limits its operations. Sometimes even the staff employed is incompetent.
- Political interference- with the aim of using the service to gain political mileage.
- Ignorance of the Kenyan people on the kind of tasks the service undertakes and the advice it gives to the government. For example, anytime the country has been faced with tension or violence as was the case in 2008, the public seem not to understand the role of NIS.
- The organ does not have implementation powers and is limited in terms of the ability to follow up an implementation of the advice given to the government.
The National Police Service
The East African Protectorate Police was first created in the 1890s. In 1920, it was renamed the Kenya Police. In 1953, control of the entire police force was placed under the Commissioner of Police. The National Police service was established in 2010 with a mandate to function throughout Kenya. It is headed by the Inspector-General who appointed by the president with the approval of the parliament.He / She exercises independent command over the national police service
The National polices Service Consists of;
- The Kenya Police Service, headed by a deputy inspector general also appointed by the president in accordance with the police service commission recommendations.
- The Administration Police Service, headed by a deputy inspector general also appointed by the president in accordance with the police service commission recommendations.
Functions of the National Police Service
- The National Police Service is responsible for the operations of the Kenya police service and the Administration police service in Kenya.
- It has the duty of ensuring the highest standards of professionalism and discipline among its members.
- It has the duty to prevent corruption and promote and practice transparency and accountability.
- It has the duty to ensure that organs operating under it comply with constitutional standards of human rights and fundamental freedoms.
- It ensures that the staff is trained to the highest possible standards of competence and integrity and to respect human rights and fundamental freedoms and dignity.
- It fosters and promotes relationships with the broader society.
Functions of the police service (Kenya police service and administration police service).
- The police maintain law and order to ensure that those who break the law are arrested.
- The police protect the law in order to safeguard both life and property.
- It investigates crime and prosecutes offenders in the court.
- The police confines suspected criminals in remand as they await the hearing and judgment of their cases in the court.
- The police regulate traffic and arrests traffic offenders. They also check for defective or unroadworthy vehicles on the road in order to safeguard life.
- Provides assistance and relief services to victims of natural calamities such as floods, fire outbreaks and other emergencies.
- Takes part in national projects such as road construction, bridges, hospitals and other national facilities.
- The police take a leading role during public holidays. They control the crowd and entertain people.
- They liaise closely with international police (Interpol), in order to investigate and arrest international criminals such as terrorists and notor ious Somali pirates.
Challenges facing the National Police Service
- The police lack adequate transport and communication equipment necessary to discharge their duties. Lack of facilities such as radios, motor vehicles etc.
- Frequent road accident and congestion on roads add pressure to police work.
- Many members of the public in Kenya have Negative attitude towards the police making it difficult for them to discharge duties.
- Poor conditions of work and remuneration demotivates the police force.
- The police force has been accused of Corruption, sometimes demanding for money from the public. This undermines the maintenance of law and order.
- Easy access to dangerous and sophisticated weapon by criminals makes police work more difficult.
- Terrorism is a serious challenge to the police in Kenya. Some of the terrorists have targeted members of the police force.
- Political interference in the work of the police compromises the integrity of the police force.
- Modernization and advancements in ICT also some with major challenges for the police. Incidents of cyber crimes have escalated in the world, including kenya.
- Lack of regular – in service training for police officers to cope with emerging challenges. This challenge is even compounded by the problem of recruiting of people with low academic qualifications into the force and who can’t deal with sophisticated cases.
The National Police Service Commission
The structure of the National Police Service Commission
The Commission consists of the following persons, each appointed by the President;
- A person who is qualified to be appointed as a High Court Judge, and who is appointed by the president.
- Two retired senior police officers, each of whom is appointed by the president.
- Three persons of integrity who have served the public with distinction, each of whom is appointed by the president.
- The Inspector-General of the National Police Service.
- Both Deputy Inspectors-General of the National Police Service.
Functions of the National Police Service Commission
- The Commission recruits and appoints persons to hold or act in offices in the service.
- The commission confirms appointments, and determines promotions and transfers within the National Police Service
- It observes due process, exercises disciplinary control over and removes persons holding or acting in offices within the Service.
Possible solutions to challenges facing the national security organs.
- The security organs have acquired modern telecommunication equipment and vehicles to improve transport and communication in the security force.
- Introduction of the post of public Relations Officer/ Spokesman in the organs to coordinate and disseminate information.
- Raising of qualification requirements for anybody aspiring to join the security organs. This has paved way for employment of university graduates in the forces.
- Introduction of professional training programmes for officers with the aim of improving the effectiveness of the organs of national security.
- The terms and conditions of service for the members of the security organs have been improved
- Community policing has-been introduced to help the security forces to get information from the public through hotlines and suggestion boxes.
- There is increased patrolling by the Kenya navy as far north as Somali border to address maritime defence more seriously.
- The aviation experts have recommended the relocation of Moi Airbase from its current location which id congested.
The Correctional service Department in Kenya has its origins in the adoption of the India Prisons Act in Kenya in 1894 by the colonial government. Initially, prisons were under the supervision of the provincial Administration.In 1963 the Prisons Act was enacted to harmonize the treatment and conditions of offenders in Kenya’s penal institutions. The Act’s milestone provisions were;
- Youth corrective training centres
- Extra-mural and penal employment
- Provision for organization, discipline, power and duties of prisons officers.
Correctional services in Kenya are provided by the former Kenya Prisons Service.
The Kenya Prisons Reform Programmee in 2001 adopted The Open Door Policy under which the following reforms were initiated.
- Interactive collaboration with all stakeholders in the administration of criminal justice such as courts of law and members of the National Police Service.
- Improvement in the management and conditions of the prisons, including rehabilitation programmes, with a view to empower prisoners with knowledge and skill, hasten their reintegration into society and empower them to be law abiding citizens upon release.
The functions of Correctional Services in Kenya.
- They Rehabilitate/correct criminals through counseling.
- They deter known criminals from committing other crimes.
- They administer Punishment to sentenced criminals as prescribed by the court rulingsimplement the decisions of the courts regarding treatment of prisoners.
- They confine prisoners convicted by the courts of law to ensure that the rights and freedoms of the public are protected.
- They provide vocational training for prisoners in fields that they make them productive citizens of the country at the end of their jail term.
- They keep watch over he behaviors of suspected criminals whose cases are still pending in the law courts.
- They take care of the welfare of prisoners by providing them with the necessary medical attention.
- They confine suspected dissidents who are a threat to state security.
Challenges facing correctional services in Kenya
- The challenge of overcrowding in prisoners on the rise, overcrowding in correctional facilities has been inevitable. This results in poor living and sanitation conditions for inmates.
- Disease outbreak is a very common problem in our prisons mainly caused by inadequate and congested facilities. HIV and AIDS is rampant in prisons
- Mistreatment of inmates by warders. This has once happened at Kingongo when some inmates were allegedly tortured and killed by warders when they attempted to escape.
- Food shortage, inadequate medical facilities and poor clothing further compound the situation in prisons.
The following reforms have been undertaken to improve the conditions of correctional services in Kenya.
- Improvement in the quality of food, medical services and living conditions for prisoners.
- Provision of sufficient beddings and clothing.
- Introduction of extra-mural Penal employment for petty offenders to ease congestion in the prisons.
- There has been supply of new and comfortable motor vehicles for efficient transport in the correctional services department.
- Petty offenders have been constantly released to ease congestion in prisons. For example the release of a record 11,500 prisoners in December 2003. Death row inmates who have also been in jail for over ten years have been released.
- Easing of access to prisons/visits by members of the public/relatives.
- Introduction of public Relations office to disseminate information.
- Streamlining the hearing of cases with a view of keeping prisoners in remand for a short period before sentencing them.
- The national government has also become directly involved the affairs of those receiving correction services.
Judicial authority and legal system.
Judicial Authority is derived from the people and is vested in courts and tribunals established by the constitution.
Principles that guide Judicial Authority in Courts and Tribunals in Kenya.
- Justice must be done to all, irrespective of status.
- Justice shall not be delayed.
- Alternative forms of dispute resolution must be pursued including reconciliation, mediation, arbitration and even traditional dispute resolution mechanism.
- Justice shall be administered without undue regard to procedural technicalities.
- The purposes and principles of the constitution must be protected and promoted.
Ways in which the traditional Dispute resolution is limited in Kenya
- The mechanisms used in traditional dispute resolution should not contravene the Bill of RIGHTS.
- The traditional court should not operate in a way that is repugnant to justice and morality or results in outcomes that are regnant to justice or morality.
- The operations of the traditional courts should not be inconsistent with the constitution.
The structure of the judicial system in Kenya
The Hierarchy of the court system in the Kenyan judiciary is in accordance with;
- The seriousness of the cases the courts handle.
- The punishment they give out
- The geographical area of operation.
The courts have either original or appellate jurisdiction.
Difference between original and appellate jurisdictions.
- Original jurisdiction refers to the ability of a court to hear cases brought to a court for the first time.
- Appellate jurisdiction is the powers of a court to hear appeals brought in from a lower court.The Judiciary consists of the judges of the superior courts, magistrates, other judicial officers and staff. The Head of the Judiciary is the Chief Justice with the Deputy Chief Justice as the Deputy Head of the Judiciary.Chief Registrar of the Judiciary is the chief administrator and accounting officer of the Judiciary.
The System of courts is as follows
Supreme Court consisting of the Chief Justice who is the president of the court, the Deputy Chief Justice-the vice-president of the court; and five other judges.
Appointment to the Supreme Court requires the following qualifications;
- Degree in law from a recognized university or an advocate of the high Court of Kenya.
- Atleast fifteen years experience as a superior court judge or a distinguished academic, judicial officer, legal practioner and or other relevant legal field.
- High moral character, integrity and impartiality.
Supreme Court Judges retire at the age of seventy Five Years.
Functions of the Supreme Court of Kenya.
- The Supreme Court has exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of President.
- It has appellate jurisdiction to hear and determine appeals from the Court of Appeal; and any other court or tribunal.
- The Supreme Court gives an advisory opinion at the request of the national government, any State organ, or any county government with respect to any matter concerning county government.
- It has of right in any case involving the interpretation or application of the Constitution.
- All courts, other than the Supreme Court, are bound by the decisions of the Supreme Court
Court of Appeal
consisting of judges, not fewer than twelve, a president of the Court of Appeal elected by the judges of the Court of Appeal from among themselves. (The court of Appeal has membership of 30 Judges currently).
Each judge to be appointed to the court of Appeal should have ten years experience as a superior court judge or atleast ten years as a distinguished academic or legal practioner.The court of appeal does not have original jurisdiction except on an application for a stay of execution pending appeal to it on contempt proceedings.
Function of the Court of Appeal in Kenya.
The Court of Appeal has jurisdiction to hear appeals from the High Court; and any other court or tribunal as prescribed by an Act of Parliament.
headed by a Principal Judge of the High Court, who shall be elected by the judges of the High Court from among themselves.
Functions of the high court of Kenya
- The High Court has unlimited original jurisdiction in criminal and civil Matters.
- It has jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened.
- It has jurisdiction to hear an appeal from a decision of a tribunal appointed to consider the removal of a person from office. For example, appeals from the courts martial, Business and rental Tribunals on matters related to the constitution.
- It has jurisdiction to hear any question respecting the interpretation of the Constitution including the determination of the question whether any law is inconsistent with or in contravention of this Constitution;
- It determines any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government.
- The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court
- It listens to appeals from the lower courts when the parties involved are not satisfied.
- It deals with disputes that take place outside Kenya's territorial wate rs/maritime.
- It hears appeals from decisions made by professional disciplinary tribunals involving advocates of the high court and other members of the profession.
- It acts as a constitution court by determining whether a case brought before it is constitutional or unconstitutional.
- It listens to appeals from special courts when the parties are not satisfied with the decision made.
- It corrects/amends the irregularities in decisions made by lower courts.
- It hears cases that carry death sentences / involve large sums of money.
- It deals with cases that concern land/succession disputes.
- It hears election petitions.
- It exercises divorce jurisdictions in matrimonial matters,
- It hears appeals from tribunals E.g. Rent Restrictions, Business Premises Rent Tribunal.
Termination of the services of a judge from office.
A judge can be dismissed from service on the following grounds.
- Inability to perform the functions of the office arising from mental or physical incapacity.
- A breach of a code of conduct prescribed for judges or superior courts by an act of parliament.
- Gross misconduct or misbehavior.
The process of removal of a judge from office.
Such a process is initiated by the Judicial Service Commission on its own initiative or on petition of any person to it based on any of the dismissal grounds.The commission, if satisfied with the petition or initiative, forwards the matter to the president, who will suspend the said Judge, within Fourteen Days after receiving the petition and on advice of the Judicial Service Commission.A tribunal is then appointed to determine the case. If the Judge is aggrieved by the decision of the Tribunal, he/she may appeal to the Supreme Court within ten days after the tribunal has made its recommendation. The president will finally act in accordance with the recommendation of the tribunal.
a) The Magistrates courts.
Its jurisdiction in both Civil and criminal cases is limited to geographical areas.
However the courts have unlimited Jurisdiction in proceedings concerning claims under customary law such as dowry, divorce, legitimacy, inheritance and the administration of estates of the deceased person.They have unlimited jurisdiction in dealing with matters related to land, adultery and inheritance. These are the courts responsible for sentencing persons who have broken law of the land.
Reasons why a person who has broken the law should be sentenced by a court.
- To deter the criminal from future crimes.
- To deter others from committing similar offences since they would have known the punishment for breaking the law.
- To secure for the public a period o protection from the offender who is in prison
- To reform the criminal through counseling and corrective training
- To satisfy the demands of the people for retribution through punitive justice.
b) The Kadhis’ courts.
The courts are headed by a Chief Kadhi and not fewer than three Kadhis
Qualifications for appointment as a Kadhi.
- One must profess the Muslim religion.
- One must possess such knowledge of the Muslim law applicable to any sects of Muslims.
The jurisdiction of the Kadhis Court is limited to the determination of questions of Muslim Law relating to personal status, marriage, divorce or inheritance in proceedings in which all concerned parties profess to the Muslim religion.
c) The Courts Martial.
This is a subordinate court that was established under the Armed Forces Act after the abortive ’82 Air force coup. It has penal or disciplinary powers to ensure discipline within the armed forces. they try cases involving assisting an enemy, cowardice, desertion, insubordination, neglect of duty, drunkenness, malingering and absence without leave.
There is no right to appeal to the high court against the decisions of the courts martial unless they involve constitutional cases.
The Judicial Service Commission.
Membership of the JSC is as follows.
- The Chief Justice who is the Chairperson of the Commission.
- One Supreme Court judge elected by the judges of the Supreme Court.
- One court of appeal judge elected by the judges of the court of appeal.
- One High Court Judge and one magistrate, of whom one must be a woman and one a man elected by members of the association of judges and magistrates.
- The attorney General.
- Two advocates , one woman and one man each with atleast fifteen years of experience, elected by members of the statutory body responsible for the professional regulation of advocates (LSK)
- One person nominated by the public Service Commission.
- One woman and one man to represent the public, not being a lawyer, appointed by the president with the approval of the national assembly.
- The chief registrar of the Judiciary, who will be secretary to the commission.
Members, except the AG and Chief Justice hold office for a term of 5 years and can be reappointed for one further term
Functions of the Judicial Service Commission
- The Judicial Service Commission promotes and facilitates the independence and accountability of the judiciary and the efficient, effective and transparent administration of justice.
- It recommends to the President persons for appointment as judges.
- It reviews and makes recommendations on the conditions of service of judges and judicial officers, other than their remuneration; and the staff of the Judiciary.
- It appoints, receives complaints against, investigates and removes from office or otherwisediscipline registrars, magistrates, other judicial officers and other staff of the Judiciary.
- It prepares and implements programmes for the continuing education and training of judges and judicial officers.
- It advises the national government on improving the efficiency of the administration of justice.
The concept of “Independence of the Judiciary” in Kenya.
- In the exercise of judicial authority, the Judiciary is subject only to the Constitution and the law and not to the control or direction of any person or authority.
- The office of a judge of a superior court cannot be abolished while there is a substantive holder of the office.
- A member of the Judiciary is not liable in an action or suit in respect of anything done or omitted to be done in good faith in the lawful performance of a judicial function. The Judicial Act protects Judges and Magistrates against any form of victimization and molestation.
- There is a separate system of command for the judiciary unlike other government departments.
- Appointment of the magistrates is done independently by JSC, which is independent of PSC. The president in consultation with the Judicial Service Commission appoints the Judges.
- The judges are bound by the Oath of Allegiance to perform their duties without fear or favour.
- Judges enjoy security of tenure.
- Statutes fix salaries and allowances of Judges.
Challenges facing the judiciary in Kenya.
- There is constant Conflict between the three arms of government. This hinders the just operation of the judiciary. Too much interference from the Executive has undermined the independence of the Judiciary.
- The long court processes have always delayed dispensation of justice in Kenya.
- Corruption. This is common among the Judges who sometimes compromise their integrity due to greed/ Public doubts of its impartiality due to rampant corruption
- Inadequate personnel. There are few qualified judges. For example in 2002, there were 47 judges serving a population of 30 million people. This causes delay in hearing of cases.
- There is constant termination of cases by the Attorney General thereby denying justice to some genuine cases.
- Poor co-ordination within the court system
- Incompetence of some judicial officers. E.g. poor and inconsistent judgments. This has been attributed to flawed appointments and promotion procedures.
- Lack of adequate funds to cater for the needs of the judiciary. This has led to inadequate court structures and facilities such as equipment, chairs, libraries etc.
- Lack of continuous legal education to keep them a breast of the latest legal development and skills in information technology.
- There is a lot of ignorance among the public in Kenya on judicial affairs and their legal rights/ignorance on the legal rights. Members of the public fear the courts and the court language.
- Information on the judiciary has not been made available to the public and it appears to be a preserve of a few.
- Litigation fees are high limits public’s access to the courts.
Solutions to the problems facing Kenya’s Judiciary.
- There has been increased legal education given to officers and members of the public by the judiciary and other bodies like Kituo Cha Sheria, which releases information booklets and offers free legal advice to people.
- The terms and conditions of service for judges and other officers were improved in 2002 in order to make them work better.
- The government also set up a committee led by Justice Aaron Ringera in what was famously referred to as Judicial Surgery, to investigate the conduct of judges. Those who were adversely mentioned in the report were suspended.
- The government has recruited more legal officers to reduce the backlog of cases in courts.
- The passing of the Vetting of Judges and Magistrates Act, 2011 (VJM Act) In March 2011, established the Judges and Magistrates Vetting Board, chaired by Sharad Rao ,which is carrying out the vetting exercise to restore public confidence in the Judiciary.
Some of the mile stone decisions undertaken to restore public confidence in the judiciary include;
- The suspension of Deputy CJ Nancy Baraza and her final resignation for harrassing an innocent security guard.
- Dropping of President of the Kenyan Appellate Court Justice Riaga Omollo for political bias and authoritarian demeanor while carrying out his activities on the bench.
- Dropping Judge Samuel Bosire for condoning torture of suspects during Coup trial in 1982.
- Dropping of Court of Appeal Judge Emmanuel Okubasu for being unsuitable to continue holding office. Joseph Nyamu
- Justice Mohammed Ibrahim, though Praised as impartial and immune to corruption, was dropped for having an overflowing in-tray of cases
- Appellate judge Roselyn Nambuye was kicked out due to delays in delivering more than 270 judgements and being too wordy in her ruling.
However Nambuye and Mohammed Ibrahim successfully appealed against the decision which once more saw their reinstatement on 21st September 2012 pending further investigations.
The Rule of Law
Meaning of ‘the Rule of Law’.
This is the absolute supremacy or predominance of regular law as opposed to arbitrary power.The concept is associated with the view of Albert Venn Dicey who published a book, The Law of the Constitution in 1895, in which he presupposes the supremacy of the law. That all persons whether individual or in government, are subject to the law.
In Kenya, all citizens and residents are subject to and governed by the same law irrespective of their status, race and religion
Elements of the rule of law.
- The principle of legality. The state can only exercise those powers granted to it by the law. It should be a government of laws and not of men.
- Separation of powers of the three arms of government. This refers to the practice of dividing the powers of government into the executive, legislature and judicial functions equally and putting in place a system of checks and balances to ensure they control each other. The three functions are to be independent of each other.
- Equality before the law. Everyone should be treated equally under the law.
- The judiciary must work without favour or the fear of intimidation in the administration of justice.
The principles of the Rule of Law.
Joseph Raz in an article titled, The Rule of Law and its Virtues outlines the following eight principles of the rule of law.
- All laws should be prospective and open. A new law should only apply in future.
- Laws should be durable and not changing every other day.
- No centre of power, and specifically parliament, should enjoy monopoly right in making laws for citizens of a country, the judiciary should scrutinize parliament.
- The independence of the judiciary should be protected.
- The principal of natural justice should form an important element in the judicial system of a country.
- There must be easy accessibility to the courts of law. They should neither be expensive nor intimidating.
- The security forces should not use force in contravention of the law.
Meaning of the concept of Natural Justice.
it refers to the requirement that the bodies that resolve disputes adhere to at least minimum standard of fair decision making
Two principles govern the Concept of Natural Justice.
- The person affected by an impending decision must have the right to a fair hearing prior to the decision being made.
- The person or body hearing the case should act in good faith and without Bias.
The right to fair hearing
- The accused must be given prior notice of the case against him and given a chance to respond.
- The accused must be given chance of knowing the case against him and stating his own case.
- The person charged should have opportunity to consider, challenge and contradict any evidence, being fully aware of the allegations leveled against him.
- The person has a right to legal representation by a legally qualified person.
- All legal decisions should have reasons within the law..
The rule against Bias
Full inquiry must be conducted into the circumstances involved before the Arbitrator makes a decision. The decision made should be impartial with the adjudicator lacking interest in the outcome.A person is presumed innocent until proven otherwise and the police have no right to beat up suspects.