CONSTITUTIONAL LAW II LLB I
Part 1 is taught by Prof Ben Sihanya; Part 2 by Dr Kiarie Mwaura (as indicated in the relevant
sections)
Prof Ben Sihanya, JSD (Stanford)
Scholar, Intellectual Property, Constitutionalism, and Education.
University of Nairobi Law School
Parklands Law Campus, Room B10
Box 1313, Sarit Centre, 00606 Nairobi, Kenya
Telefax (+254-20)2128272; +254 726020082 (O)
Email: sihanya@innovativelawyering.com; sihanya@sihanyamentoring.com (use both)
url: www.innovativelawyering.com
1. Title of Course: Constitutional Law II
2. Contact Hours: 45hrs
3. Objectives of the Unit:
Constitutional Law II intends to impart skills, knowledge, attitudes and values (SKAV) in three
major areas. These include:
1. Constitutional, social and political theory, values and principles with specific reference to
Kenya; and the role of constitutional theory, principles, doctrines, and law or rules in
political, social, cultural and economic organization, as well as in nationhood and
development in Kenya.
2. Knowledge of the rules of law – especially constitutional and related judicial rules
including the Bill of Rights;
3. Knowledge of the constitutional and related administrative law regarding the machinery
of government- including the organization and operation of the Executive, Parliament,
Judiciary; as well as Constitutional Commissions and independent offices; political
parties; administrative agencies, quasi-judicial tribunals, relevant civil society
organizations (CSO’s) and non governmental organizations (NGO’s)…
4. Expected Learning outcome(s)
1. That at the end of the semester students appreciate Constitutional, social and political
theory, values and principles with specific reference to Kenya;
2. That the students acknowledge and appreciate the significance of the rules of law –
especially constitutional rules;
3. That the students appreciate the role of constitutional theory, principles, doctrines, and
law or rules in political, social, cultural and economic organization, as well as in
nationhood and development in Kenya.
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4. That students be in a position to critically analyze and interrogate the role of
constitutional and related administrative law regarding the machinery of government (the
organization and operation of the Executive, Parliament, Judiciary; as well as
Constitutional Commissions and independent offices; political parties; administrative
agencies, quasi-judicial tribunals, relevant civil society organizations (CSO’s) and non
governmental organizations (NGO’s)…
5. Course content
The following are some of the themes and topics that constitute the content of the
Constitutional Process curriculum –
1. Defining constitutional process
2. Constitutional values, principles and safeguards in Kenya: issues in political analysis of
constitutional systems:
(a)
What are constitutional values? Safeguards?
(b)
Democracy and constitutionalism
(c)
Representative government and democracy;
(d)
The basic division of powers: horizontal separation of powers; two-tier
Parliament; devolution of powers; independence, impartiality, accountability, and
competence of the Judiciary.
(e)
The rule of law;
(f)
Fundamental rights, liberties and freedoms (the Bill of Rights)
(g)
Equal protection: nationality and citizenship; race, ethnicity, class and gender.
(h)
Autochthony: What is an autochthonous Constitution? How can a constitution
be home grown? Legitimate? The people, and their values; wananchi, “Wanjiku,
Amina, Akinyi, Naliaka, Mwikali, Chemutai …,” The myth of Africanity, etc]
(i) Law in development; law and rights; access to and control of resources: finance,
land, technology (IP and innovation in constitutionalism);
(j) Academic freedom: academics, students and the social and political process.
Democracy: the politics of the constitution, and quest for (political and social)
legitimacy and autochthony.
3. Separation or division of powers or functions, and checks and balances [limited or
efficient/facilitative government?]
4. Machinery of Government; the machinery of governance; the formulation, interpretation
and implementation (or execution) of law; service delivery; the administration &
governmental process; separation of powers; checks and balances in practice
5. Executive power of the Kenyan State
- The presidency
- The premiership
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- The Vice President
- The Cabinet
- The Administrative Bureaucracy
- The Commissions and Independent Offices
6. Decentralisation of executive, administrative and parliamentary powers under the
Constitution 2010
7. Legislative power of the state
8. Judicial power
9. Bill of Rights, constitutional applications and references, judicial review, ordinary
litigation, and prosecution(s); original and appellate jurisdiction, etc
10. Constitutional breakdown; cf. failed states
11. Control of Public Powers: interagency checks and balances; CIOC; Commissions: (CIC,
PSC, JSC, TSC, KACA/KACC, EACC)
12. Beyond the three arms of government: – political parties, coalitions, NGOs, tribunals,
commissions of inquiry, etc...
6. Learning and teaching methods
The learning and teaching methods include class lectures, discussions; Lecturer-student(s)
consultations; use of teaching materials and notes; further research by students and lecturer
outside class work; blog spot…
7. Instruction materials and equipment
These include:
1.
2.
3.
4.
5.
6.
7.
Verbal communications in class- lectures
Course outlines (annotated)
Syllabus of issues
Use of notices
Direct lecturer-students communications (verbal)
Use of letters and advisory notes
Books, articles, cases and casebooks, CD’s and DVD’s. See also core texts (item 8
below).
The equipment and facilities include, black/chalk boards; white boards; LCD projectors;
laptops; extension cables; internet; cell phones…
8.
1.
2.
3.
Mode of assessment
Continuous Assessment Tests (CATs) through course work assignments
In class assessment
End of semester examinations
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9. Core texts
NB: A summarized list of core reference and reading materials, books, articles are
provided in every topic as per the course outline.
1. Y.P. Ghai and J.P.W.B. McAuslan (1970, 2001) Public Law and Political Change in
Kenya, OUP, Nairobi.
2. Ben[jamin] O[bi] Nwabueze (1974) Presidentialism in Commonwealth Africa St.
Martin’s Press, New York.
3. Ben[jamin] O[bi] Nwabueze (1973) Constitutionalism in the Emergent States, C. Hurst &
Co., London
4. Vicki C. Jackson and Mark Tushnet (2006) Comparative Constitutional Law, Foundation
Press, New York (2nd ed.).
5. Lawrence Lessig & Cass R. Sunstein (1994) “The President and the Administration,” 94
Columbia Law Review pp. 1-123.
6. Ben Sihanya (2011) The Presidency and Public Authority in Kenya’s New Constitutional
Order, Constitution Working Paper Series No. 2 Society for International Development
(SID) Eastern & Central Africa, Nairobi
7. Jackton B. Ojwang (1990) Constitutional Development in Kenya: Institutional
Adaptation and Social Change, African Centre for Technology Studies (ACTS), Nairobi.
8. Paul Craig (2008; reprinted 2010) Administrative Law Sweet & Maxwell, London (6th ed)
8. Further reference and reading materials
NB: A summarized list of further reference and reading materials, books, articles
are provided in every topic as per the course outline.
1) Ben[jamin] O[bi] Nwabueze (1977) Judicialism in Commonwealth Africa C. Hurst &
Co., London.
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2) B[enjamin] O[bi] Nwabueze (1993) Ideas and Facts in Constitution Making, Spectrum
Books, Ibadan
3) Sammy Adelman & Abdul Paliwala (eds) (1993) Law and Crisis in the Third World,
Hans Zell Publishers, London
4) Mary Adhiambo Mbeo & Oki Ooko Ombaka (eds) (1989, 1997) Women and Law in
Kenya: Perspectives and Emerging Issues Public Law Institute, Nairobi (feminist
perspectives on constitutional law, etc)
5) G.W. Kanyeihamba (1975) Constitutional Law and Government in Uganda, EALB,
Nairobi.
6) Issa G. Shivji (ed) (1991) State and Constitutionalism: An African Debate on Democracy
SAPES Books, Harare, Zimbabwe
7) Walter Oyugi, Peter Wanyande & C. Odhiambo Mbai (eds) (2003) The Politics of
Transition in Kenya: From KANU to NARC Heinrich Boll Foundation, Nairobi.
8) H.B. Ndoria Gicheru and Kabuya Miano (1987) A Textbook of the Constitution and
Government of Kenya for Secondary Schools Sterling Publishers Private Ltd., Nairobi.
9) E.S. Atieno Odhiambo & John Lonsdale (eds) (2003) Mau Mau and Nationalism:
Authority, Arms, and Narration, James Currey, Oxford, EAEP, Nairobi, Ohio UP,
Athens.
10) Sihanya, Ben and Duncan Okello (2010) “Mediating Kenya’s Post-Election Crises: The
Politics and Limits of Power Sharing Agreement,” in Dr Karuti Kanyinga and Duncan
Okello (eds) Tensions and Reversals in Democratic Transitions: The Kenya 2007
General Elections, Institute of Development Studies (IDS), University of Nairobi, and the
Society for International Development (SID) Eastern & Central Africa, Nairobi.
11) Walter O. Oyugi, E.S. Atieno Odhiambo, Michael Chege & Afrifa K. Kitonga (eds)
(1988) Democratic Theory and Practice in Africa, Portsmouth, NH, USA & Heinemann,
London.
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12) B.A. Ogot & William R. Ochieng (eds) (1995) Decolonization and Independence in
Kenya, 1940-93, James Currey, London, EAEP, Nairobi, Ohio UP, Athens
13) William R. Ochieng (1989) (eds) A Modern History of Kenya, 1895-1980: in honour of
B.A. Ogot, Evans Brothers Ltd, London and Nairobi
14) Goran Hyden, Dele Olowu, & H.W.O. Okoth-Ogendo (eds) (2000) African Perspectives
on Governance Africa World Press, Inc., Trenton, NJ & Asmara, Eritrea
15) Goran Hyden & M. Bratton (eds) (1992) Governance and Politics in Africa Lynne
Rienner Publishers, Boulder, Colorado.
16) Elone J. Nwabuzor & Martha Mueller (1985) An Introduction to Political Science for
African Students Macmilllan Publishers Ltd, London (Low Price Edition, 1987)
17) Paul Jackson & Patricia Leopold (2001) O. Hood Phillips and Jackson’s Constitutional
and Administrative Law, Sweet & Maxwell, London (8th ed).
18) A.V. Dicey (1959) An Introduction to the Study of the Constitution, (10th Edition).
19) Stanley A. de Smith (1989) Constitutional and Administrative Law, Penguin Books,
London (Sixth Edition).
20) E.C.S. Wade & A.W. Bradley, (1985) Constitutional and Administrative Law, Longman,
London and New York (Tenth Edition).
21) K.C. Wheare (1966) Modern Constitutions, OUP, London.
22) Charles A. Beard (1954) An Economic Interpretation of the Constitution of the United
States, The MacMillan Company, New York.
23) Kathleen Sullivan & Gerald Gunther (2003) Constitutional Law Foundation Press, New
York (This is a major text on American constitutional law. See also latest edition)
24) Laurence Tribe (1988) American Constitutional Law Foundation Press, Mineola, New
York (2nd ed).
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25) Jack N. Rakove (1996) Original Meanings: Politics and Ideas in the Making of the
Constitution Vintage Books, New York (US constitutional history and law)
26) Clinton Rossiter (ed) (1961, 1999) The Federalist Papers: Alexander Hamilton, James
Madison & John Jay New American Library (Penguin Putman), New York.
27) CC Thach (1969) The Creation of the President, 1775-1789 Johns Hopkins University
Press, Baltimore, Md.
28) L.D. Duchacek (1973) Power Maps: Comparative Politics of Constitutions Clio Press,
London.
29) G. Marshall (1971) Constitutional Theory, Clarendon Press, Oxford.
30) Douglas Greenberg, Stanley N. Katz, Melanie Beth Oliviero, & Steven C. Whealey (eds)
(1993) Constitutionalism and Democracy: Transitions in the Contemporary World
Oxford University Press, New York.
31) J. Elster & R. Slagstad (1988) Constitutionalism and Democracy Cambridge University
Press, Cambridge.
32) S. E. Finer (1979) Five Constitutions Penguin, Harmondsworth (UK)
33) S.E. Finer, V. Bogdanor, & B. Rudden (eds) (1995) Comparing Constitutions Clarendon,
Oxford.
34) Jan-Erik Lane (1996) Constitutions and Political Theory Manchester University Press,
Manchester.
35) Henc Van Marseveen & Ger Van der Tang (1978) Written Constitutions: A Computerised
Comparative Perspective Oceania Publications, Dobbs Ferry, New York.
36) C.M. Zoethout, Carla M. Zoethout, Marlies E. Pettermaat-Kros, & P.S. Akkermans (eds)
1996) Constitutionalism in Africa: A Quest for Autochthonous Principles Quint, Gouda.
37) H.J. Spiro (1959) Government by Constitution: The Political System of Democracy
Random House, New York.
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38) J.S. Wunsch & Dele Olowu (eds) (1990) The Failure of the Centralised State:
Institutions and Self Governance in Africa ICS Press, San Francisco
39) I.W. Zartman (ed) (1995) Collapsed States: The Disintegration and Restoration of
Legitimate Authority Lynne Rienner Publishers, Boulder, Colorado (USA).
40) Evgeny B. Pashukanis (1989) Law and Marxism: A General Theory Pluto Press, London
(3rd impression)
41) Max Weber (1954) Max Weber on Law in Economy and Society Harvard U.P.,
Cambridge, MA (Max Rheinstein, ed; translated by Edward Shils & Max Rheinstein).
42) David H. Rosenbloom, Robert S. Kravchuk, & Richard M. Clerkin (2009) Public
Administration: Understanding Management, Politics, and Law in the Public Sector,
McGraw-Hill, New York.
43) Muna Ndulo (ed) (2006) Democratic Reform in Africa: Its Impact on Governance &
Poverty Alleviation James Currey, Oxford
44) Willy Mutunga (1999) Constitution Making from the Middle: Civil Society and
Transition Politics in Kenya, 1992-1997, Mwengo, Harare
Prof Ben Sihanya, JSD (Stanford)
Scholar, Intellectual Property, Constitutionalism, and Education.
University of Nairobi Law School
Parklands Law Campus, Room B10
Box 1313, Sarit Centre, 00606 Nairobi, Kenya
Telefax (+254-20)2128272; +254 726020082 (O)
Email: sihanya@innovativelawyering.com; sihanya@sihanyamentoring.com (use both)
url: www.innovativelawyering.com
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CONSTITUTIONAL PROCESS COURSE OUTLINE AND TEACHING MATERIALS
LLB I, Second Semester, 2011/12 Academic Year
Revised June 29, 2012
Prof Ben Sihanya, JSD (Stanford)
Scholar, Intellectual Property, Constitutionalism, and Education.
University of Nairobi Law School
Parklands Law Campus, Room B10
Box 1313, Sarit Centre, 00606 Nairobi, Kenya
Telefax (+254-20)2128272; +254 726020082 (O)
Email: sihanya@innovativelawyering.com; sihanya@sihanyamentoring.com (use both)
url: www.innovativelawyering.com
Revised March 2012
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TABLE OF CONTENTS
Course Description (summary)
A. Lectures
B. Basic Course work and sample questions
B. 1 Preparation of Coursework Essays
B. 1.1 Rules of Law
B.1.2 Identifying Relevant Issues
B.1.3 Depth of Analysis
B.1.4 Use of the Works of Others
B.1.5 Format of Essays
C. BASIC READING MATERIALS
D. BASIC WORKS OF REFERENCE
D1 Basic Books
D2 Constitutional and statutory materials
D3 International and regional instruments with constitutional significance in
Kenya, the UK and the US
D 4 UK constitutional instruments
D 5 Political party and other constitutions
D 6 Constitutional instruments from other countries
D 7 Coalition Government instruments- Kenya
D 8 Constitutions of pressure groups and relevant social welfare groups
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UNIVERSITY OF NAIROBI LAW SCHOOL
CONSTITUTIONAL PROCESS: COURSE OUTLINE AND TEACHING MATERIALS,
LLB March 2012 (Semester II)
1.
COURSE DESCRIPTION (summary)
This course focuses on Constitutional Process. In the first semester you studied Constitutional
Theory. The two are closely linked, and the articles cited or distributed in the First semester are
still very relevant. We intend to impart skills in four major areas. These include:
5. Constitutional, social and political theory, values and principles with specific reference to
Kenya;
6. The significance of the rules of law – especially constitutional rules;
7. The role of constitutional theory, principles, doctrines, and law or rules in political,
social, cultural and economic organisation, as well as in nationhood and development in
Kenya.
8. The constitutional and related administrative law regarding the machinery of government
(the organisation and operation of the executive, legislature, judiciary; political parties; as
well as CSOs, NGOs, administrative agencies, quasi-judicial tribunals, relevant civil
society organizations, etc)
In drafting this Course Outline and Reading List I have benefited from the work of Justice (Prof)
J.B. Ojwang who for long taught the subject and who now sits on the Supreme Court Bench.
Abbreviations and Acronyms (some common ones)
A-G
Attorney-General
CAJ
Commission on Administrative Justice
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CEO
Chief Executive Officer
CIC
Commission for Implementation of the Constitution
CIOC
Constitutional Implementation Oversight Committee
CJ
Chief Justice
CKRC
Constitution of Kenya Review Commission
COMESA
Common Market for Eastern and Southern Africa
CRA
Commission for Revenue Allocation
CS(O)
Civil Society (Organisation)
DPP
Deputy Public Prosecutor
DPP
Director of Public Prosecutions
EACC
Ethics and Anticorruption Commission
EALS
East African Law Society
E-LSRCC
Expanded Legal Sector Reform Coordinating Committee
GJLOS
Governance, Justice, Law and Order Sector
GNP
Gross National Product
ICJ Kenya
Kenyan Section of the International Commission of Jurists
IEBC
Independent Electoral Boundaries Commission
IPPG
Inter Parties Parliamentary Group (Kenya)
J
Judge
JA
Justice of Appeal
JSC
Judicial Service Commission
KACA
Kenya Anti Corruption Authority (defunct)
KACC
Kenya Anti-Corruption Commission (defunct)
KANU
Kenya African National Union
KLRC
Kenya Law Reform Commission
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KNHREC
Kenya National Human Rights and Equality Commission
KNHRC
Kenya National Human Rights Commission
KUDHEIHA
Kenya Union of Domestic, Hotel, Educational Institutions, Hospitals, and
Allied Workers
LSK
Law Society of Kenya
LSRCC
Legal Sector Reform Coordinating Committee
MP
Member of Parliament
NARA
National Accord and Reconciliation Act, 2008
NARC
National Rainbow Coalition
NCC
National Constitutional Conference
NCIC
National Cohesion and Integration Commission
NGO
Non Governmental Organisation
PA
Provincial Administration
PSC
Public Service Commission
PSC
Parliamentary Service Commission
SRC
Salaries and Remuneration Commission
TI (Kenya)
Transparency International (Kenya)
TI
Transparency International
TJRC
Truth, Justice and Reconciliation Commission
TRC
UNDP
Truth and Reconciliation Commission
United Nations Development Programme
UNTESU
Universities Non Teaching Staff Union
A.
LECTURES
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One lecture a week is the norm; but an exception could be made where necessary. The lecture
sessions give the lecturer an opportunity, first, to bring to the attention of the students the
substance of the material that forms the core of the courses; and second, to apprise the students
of relevant analytical perspectives. From these presentations the most topical or compelling
issues will readily suggest themselves. The lectures are accompanied by class discussions to
afford the students an opportunity to follow up such issues.
B.
COURSEWORK AND SAMPLE QUESTIONS
I have designed model questions which should guide discussions, and for coursework submittal.
Please note the importance of coursework, for your overall assessment at the end of the course.
One failing to submit coursework, will have to be assessed solely on the basis of the formal
examination. A course work or a sitting CAT will be administered as occasion demands.
B. 1 Preparation of Coursework Essays
B. 1.1 Rules of law
The main focus of most of the questions will be legal and institutional. The first principle to be
observed is that of relevance. The question must be well understood, and all discussion must be
relevant to its primary concern. It is not possible to analyse a rule of law unless one knows and
states the rule itself. Once this has been clearly and concisely stated, one may then proceed to
explain its various facets and to bring out any ambiguities, obscurities, contradictions or potential
difficulties – insofar as these are demanded or necessitated by the question itself.
However, it must at the same time be remembered that a rule of law operates in reality. It works
within the framework of important institutions and policies. These are to be concisely set in
place, according to the nature of the question and its specific demands. But, it should be noted
that one will have failed to do a proper or acceptable legal analysis, if all one did was to address
oneself to political, economic or other general issues (which are better understood in other
disciplines such as political economy; and which have their scholastic requirements not to be
over-looked), without also saying what the relevant constitutional or legal position is, or how it
fits into the broadest societal context. The analysis would then not be a constitutional or legal
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analysis, because it would be saying little about the constitutional or legal question to which one
is expected to address oneself.
B.1.2 Identifying relevant issues
Whenever a problem-type question is to be answered, or an essay is to be written, the first task is
to identify the main issues which must have been contemplated by the examiner. If a question
would entail some remarkable ambiguity or absurdity, this must also be identified, before an
answer is attempted. The answer, in a situation where ambivalence, an ambiguity or absurdity
exists, should respond in a manner that suits the situation posed by the ambiguity or absurdity.
In carrying out the discussion, one should follow some systematic (or “natural”) course. For
example, something that falls before another in historical sequence should be discussed in the
order – unless some other mode of classification has consciously been adopted. Discussion could
also follow an arrangement by logical themes; or it could follow the order of importance – in
terms of the ultimate argument of the study. At any rate, the more fundamental matters should be
discussed before the relatively minor ones. Once a clear framework of discussion has been
conceived, it is desirable to commit oneself to it, and to avoid wandering tendencies.
An effective presentation centres on the more eminent ideas and situations, as nobody wants to
spend long periods perusing a whole lot of inconsequential details which have usurped the place
of the real issues. It is desirable, therefore, to be selective on examples, once a uniform
framework and background have been laid. The definitely trifling facts and details should be
overlooked and those which may have some significance, albeit marginal, should be footnoted.
The logical flow of the argument should not be interrupted by ill-planned graftings, nor by abrupt
downgrading of important material from text to footnote.
B.1.3 Depth of analysis
As far as possible, each issue, once identified, should be exhaustively dealt with. It is desirable
that all ideas should be expressed simply and clearly, but with imagination and originality. All
general principles and all reflections should be brought down to specific illustration, using
concrete case law, fact-situations or anecdotes in the context of the three key types or
methodology of authorities: Constitutional or statutory text, case law or judicial decisions or
authority, and academic or juristic authority. In case analyses, it is instructive to use the
methodology of Issues, Facts, Law, Analysis and Conclusion approach (IFLAC).
B.1.4 Use of the works of others
It is expected that students will make it their most basic scholastic duty to familiarise themselves
with all the authoritative works in the discipline in general, and on the specific topic involved in
their subject. If they do not do this, their “knowledge” will be only insecure and general; the
relevant material which sets the art will not have formed part of them, and they will be unable to
relate to it.
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It follows that students, in the course of preparing their written work, will have to make reference
to the important works that address their subject and their topic of research. It is tempting, and
indeed is a common pitfall among students, to use a writer’s work without having the modesty or
decency to cite the source, or to acknowledge the intellectual indebtedness. Such conduct is
known as plagiarism and is the most serious scholastic offence a person can ever commit. It also
constitutes copyright infringement, which is a civil wrong and a criminal offence. Not only does
it take away the validity of the study being offered; it also shows the person concerned as
intellectually inept, dishonest and parasitic.
Students should adopt the culture of intellectual honesty and courtesy. When you use someone
else’s work, for example by extracting a part of it, or paraphrasing from it, you have a duty to
cite the source of your facts, or of the inspiration for the argument you are proffering.
It should also be noted that long quotations of other people’s works will not make an effective
essay. Any quoted source must be used only as an aid to your independent assessment and
commentary.
As a related point you should note that, since the question formulated for you will presuppose
original thinking, chunks of a text-book or other material which will not adjust to suit the
expectation of the examiner are unlikely to furnish an effective answer. Hence quotations, in
their length, must be as sparing as possible.
B.1.5 Format of essays
The question must be answered in all its parts. Presentation must be clear and concise, not
exceeding the indicated pages in length. This may include your reference section (i.e.)
footnotes), which can be as detailed as may be necessary. All sources of references used must be
fully documented in footnotes with all citations in standard form. Careful preparation must
precede the writing-up. The essay must be neatly planned. Writing must be legible. And
presentation must be in good grammatical form.
C. Basic reading materials (see also course outline and readings prepared for Comparative
Constitutional Law, revised 28/2/2012)
The following are essential materials which all students should acquire for their own use, or have
ready access to –
(a)
(b)
(c)
(d)
(e)
Constitution of Kenya 2010
1969 Constitution of Kenya with all amendments to date.
Constitution of Kenya (Amendment) Act 2008
National Accord and Reconciliation Act, 2008
Constitutions of the registered political parties.
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(f) National Assembly Booklet.
(g) Statutes relating to National and Civic elections.
(h) Statutes relating to Political Parties, e.g. Political Parties Act 2011(also 2009), Societies
Act, etc. (cf. Political Parties Bill, 1995 ….)
(i) Elections Act, 2011; IEBC Act 2011; National Assembly and Presidential Elections Act,
Cap. 7 (repealed and replaced)
(j) Constitution of Kenya Review Act, Cap. 3A
D. Basic works of reference
Certain works of reference have a relevance to the basic core of the course, which requires that
students should have ready access to them. The following list (which does not pretend to be
exhaustive) may serve as a guide:
D1. Basic books and Articles
No single textbook adequately addresses the issues in this course. Students should consult those
in the following list, and especially Ghai & McAuslan (1970), Ojwang (1990), Nwabueze
(1973), Nwabueze (1974), Nwabueze (1977), Paul Craig (2008; 2010) and Paul Jackson &
Patricia Leopold (2001) (No. 20 below). Some important readings, including those cited in the
various sections, are available in the Law Library, as well as in the boxes and files bearing the
following names: Okoth-Ogendo, J.B. Ojwang, Githu Muigai, Ben Sihanya (see Ben Sihanya:
Constitutional Studies), etc.
Below we cite some of the key materials. We have cited other materials and indicated in the
Course Outline where some of these books are absolutely important.
9. Y.P. Ghai and J.P.W.B. McAuslan (1970, 2001) Public Law and Political Change in
Kenya, OUP, Nairobi.
10. Vicki C. Jackson and Mark Tushnet (2006) Comparative Constitutional Law, Foundation
Press, New York (2nd ed.).
11. Ben[jamin] O[bi] Nwabueze (1973) Constitutionalism in the Emergent States, C. Hurst &
Co., London
12. Ben[jamin] O[bi] Nwabueze (1974) Presidentialism in Commonwealth Africa St.
Martin’s Press, New York.
13. Lawrence Lessig & Cass R. Sunstein (1994) “The President and the Administration,” 94
Columbia Law Review pp. 1-123.
14. Ben Sihanya (2011) The Presidency and Public Authority in Kenya’s New Constitutional
Order, Constitution Working Paper series No. 2 Society for International Development
(SID) Eastern & Central Africa, Nairobi
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15. Jackton B. Ojwang (1990) Constitutional Development in Kenya: Institutional
Adaptation and Social Change, African Centre for Technology Studies (ACTS), Nairobi.
16. Paul Craig (2008; reprinted 2010) Administrative Law Sweet & Maxwell, London (6th ed)
Other Reference Materials
45) Ben[jamin] O[bi] Nwabueze (1977) Judicialism in Commonwealth Africa C. Hurst &
Co., London.
46) B[enjamin] O[bi] Nwabueze (1993) Ideas and Facts in Constitution Making, Spectrum
Books, Ibadan
47) Sammy Adelman & Abdul Paliwala (eds) (1993) Law and Crisis in the Third World,
Hans Zell Publishers, London
48) Mary Adhiambo Mbeo & Oki Ooko Ombaka (eds) (1989, 1997) Women and Law in
Kenya: Perspectives and Emerging Issues Public Law Institute, Nairobi (feminist
perspectives on constitutional law, etc)
49) G.W. Kanyeihamba (1975) Constitutional Law and Government in Uganda, EALB,
Nairobi.
50) Issa G. Shivji (ed) (1991) State and Constitutionalism: An African Debate on Democracy
SAPES Books, Harare, Zimbabwe
51) Walter Oyugi, Peter Wanyande & C. Odhiambo Mbai (eds) (2003) The Politics of
Transition in Kenya: From KANU to NARC Heinrich Boll Foundation, Nairobi.
52) H.B. Ndoria Gicheru and Kabuya Miano (1987) A Textbook of the Constitution and
Government of Kenya for Secondary Schools Sterling Publishers Private Ltd., Nairobi.
53) E.S. Atieno Odhiambo & John Lonsdale (eds) (2003) Mau Mau and Nationalism:
Authority, Arms, and Narration, James Currey, Oxford, EAEP, Nairobi, Ohio UP,
Athens.
54) Sihanya, Ben and Duncan Okello (2010) “Mediating Kenya’s Post-Election Crises: The
Politics and Limits of Power Sharing Agreement,” in Karuti Kanyinga and Duncan
Okello (eds) Tensions and Reversals in Democratic Transitions: The Kenya 2007
General Elections, Institute of Development Studies (IDS), University of Nairobi, and the
Society for International Development (SID) Eastern & Central Africa, Nairobi.
55) Walter O. Oyugi, E.S. Atieno Odhiambo, Michael Chege & Afrifa K. Kitonga (eds)
(1988) Democratic Theory and Practice in Africa, Portsmouth, NH, USA & Heinemann,
London.
18
56) B.A. Ogot & William R. Ochieng (eds) (1995) Decolonization and Independence in
Kenya, 1940-93, James Currey, London, EAEP, Nairobi, Ohio UP, Athens
57) William R. Ochieng (1989) (eds) A Modern History of Kenya, 1895-1980: in honour of
B.A. Ogot, Evans Brothers Ltd, London and Nairobi
58) Goran Hyden, Dele Olowu, & H.W.O. Okoth-Ogendo (eds) (2000) African Perspectives
on Governance Africa World Press, Inc., Trenton, NJ & Asmara, Eritrea
59) Goran Hyden & M. Bratton (eds) (1992) Governance and Politics in Africa Lynne
Rienner Publishers, Boulder, Colorado.
60) Elone J. Nwabuzor & Martha Mueller (1985) An Introduction to Political Science for
African Students Macmilllan Publishers Ltd, London (Low Price Edition, 1987)
61) Paul Jackson & Patricia Leopold (2001) O. Hood Phillips and Jackson’s Constitutional
and Administrative Law, Sweet & Maxwell, London (8th ed).
62) A.V. Dicey (1959) An Introduction to the Study of the Constitution, (10th Edition).
63) Stanley A. de Smith (1989) Constitutional and Administrative Law, Penguin Books,
London (Sixth Edition).
64) E.C.S. Wade & A.W. Bradley, (1985) Constitutional and Administrative Law, Longman,
London and New York (Tenth Edition).
65) K.C. Wheare (1966) Modern Constitutions, OUP, London.
66) Charles A. Beard (1954) An Economic Interpretation of the Constitution of the United
States, The MacMillan Company, New York.
67) Kathleen Sullivan & Gerald Gunther (2003) Constitutional Law Foundation Press, New
York (This is a major text on American constitutional law. See also latest edition)
68) Laurence Tribe (1988) American Constitutional Law Foundation Press, Mineola, New
York (2nd ed).
69) Jack N. Rakove (1996) Original Meanings: Politics and Ideas in the Making of the
Constitution Vintage Books, New York (US constitutional history and law)
70) Clinton Rossiter (ed) (1961, 1999) The Federalist Papers: Alexander Hamilton, James
Madison & John Jay New American Library (Penguin Putman), New York.
71) CC Thach (1969) The Creation of the President, 1775-1789 Johns Hopkins University
Press, Baltimore, Md.
19
72) L.D. Duchacek (1973) Power Maps: Comparative Politics of Constitutions Clio Press,
London.
73) G. Marshall (1971) Constitutional Theory, Clarendon Press, Oxford.
74) Douglas Greenberg, Stanley N. Katz, Melanie Beth Oliviero, & Steven C. Whealey (eds)
(1993) Constitutionalism and Democracy: Transitions in the Contemporary World
Oxford University Press, New York.
75) J. Elster & R. Slagstad (1988) Constitutionalism and Democracy Cambridge University
Press, Cambridge.
76) S. E. Finer (1979) Five Constitutions Penguin, Harmondsworth (UK)
77) S.E. Finer, V. Bogdanor, & B. Rudden (eds) (1995) Comparing Constitutions Clarendon,
Oxford.
78) Jan-Erik Lane (1996) Constitutions and Political Theory Manchester University Press,
Manchester.
79) Henc Van Marseveen & Ger Van der Tang (1978) Written Constitutions: A Computerised
Comparative Perspective Oceania Publications, Dobbs Ferry, New York.
80) C.M. Zoethout, Carla M. Zoethout, Marlies E. Pettermaat-Kros, & P.S. Akkermans (eds)
1996) Constitutionalism in Africa: A Quest for Autochthonous Principles Quint, Gouda.
81) H.J. Spiro (1959) Government by Constitution: The Political System of Democracy
Random House, New York.
82) J.S. Wunsch & Dele Olowu (eds) (1990) The Failure of the Centralised State:
Institutions and Self Governance in Africa ICS Press, San Francisco
83) I.W. Zartman (ed) (1995) Collapsed States: The Disintegration and Restoration of
Legitimate Authority Lynne Rienner Publishers, Boulder, Colorado (USA).
84) Evgeny B. Pashukanis (1989) Law and Marxism: A General Theory Pluto Press, London
(3rd impression)
85) Max Weber (1954) Max Weber on Law in Economy and Society Harvard U.P.,
Cambridge, MA (Max Rheinstein, ed; translated by Edward Shils & Max Rheinstein).
86) David H. Rosenbloom, Robert S. Kravchuk, & Richard M. Clerkin (2009) Public
Administration: Understanding Management, Politics, and Law in the Public Sector,
McGraw-Hill, New York.
20
87) Muna Ndulo (ed) (2006) Democratic Reform in Africa: Its Impact on Governance &
Poverty Alleviation James Currey, Oxford
88) Willy Mutunga (1999) Constitution Making from the Middle: Civil Society and
Transition Politics in Kenya, 1992-1997, Mwengo, Harare
See also materials and statutory instruments cited in Ben Sihanya, “The quest for legality,
validity, and legitimacy in Kenya’s constitutional review, 1964-2010,” working paper presented
at the Kenyan Section of International Commission of Jurist’s (ICJ’s) Public Lecturer on
Constitutional Review March 14, 2004, The Grand Regency Hotel, Nairobi, etc.
D 2 Constitutional and statutory materials (endeavour to study them)
Constitutions and Constitutional Instruments
Constitution of Kenya, 1963 (Independence Constitution) (Kenya Independence Order in
Council, 1963, Extraordinary Issue, Kenya Gazette Supplement No. 105, 10/12/1963, Legal
Notice No. 718, Statutory Instruments, 1963 No. 1968, Kenya’s Independence Order in Council
1963 (made 4/12/1963; to be laid before Parliament 4/12/1963; Coming into operation
12/12/1963); At the Court at Buckingham Palace, the 4th day of December 1963, Queens’s Most
Excellent Majesty in Council…)
Constitution of Kenya, Act No. 5 of 1969 (Consolidating amendments from 1964)
Constitution of Kenya 2010 (Ratified in a referendum, 4/8/2010; promulgated 27/8/2010)
Constitution of Kenya (Amendment) Act No. 1 of 2008
National Accord and Reconciliation Act, 2008 (NARA)
Judicature Act, 1967, Cap 8
Statutory materials
Commissions of Inquiry Act, Cap 102
Constitution of Kenya (Amendment) Bill, 2004, Kenya Gazette Supplement, Bills, 2004,
(Nairobi, 9th March, 2004) (Special Issue, Kenya Gazette Supplement No. 9 (Bills No. 1)
Constitution of Kenya Review Act, Cap 3A (as amended)
Constitution of Kenya, 1963 (the Independence of Constitution)
Constitution of Kenya Review (Amendment) Bill, 2004, Kenya Gazette Supplement Bills, 2004,
Nairobi, 9th March, 2004 (Special Issue, Kenya Gazette Supplement No. 10 (Bills No. 2) (one of
the two “Kiraitu Bills”)
21
Draft Constitution by the Law Society of Kenya, launched March 16, 2004
Draft Constitution by the Ufungamano Group, January 2004
Draft Constitution of Kenya, 2002 (drafted by the Constitution of Kenya Review Commission
(CKRC), October 2002)
Draft Constitution of Kenya, 2004 (adopted by the National Constitutional Conference at Bomas
of Kenya, March 15, 2004) (edition dated March 22, 2004, etc,)
Election Offences Act, Cap. 66 (repealed and replaced)
Interpretation and General Provisions Act, Cap 2
Judicature Act, Cap 8
Kenya Law Reform Commission Bill, 2002
Law Reform Commission Act, 1982, Cap 3
National Assembly Standing Orders (Kenya) (Revised Edition 1998) (as amended up to and
including November 10, 1997)
National Assembly Remuneration Act, Cap. 5
National Assembly (Powers and Privileges) Act, Cap. 6
National Assembly and Presidential Elections Act, Cap 7 (repealed and replaced)
Parliamentary Pensions Act, Cap. 196
Presidential Retirement Benefits Act, 2003 (Act No. 11 of 2003) (commencement 9/1/2004)
Statutes of the University of Nairobi, and Rules and Regulations of the Faculty of Law –
especially relating to admission, registration, examinations, and discipline (suspension,
expulsion, disciplinary proceedings…)
University of Nairobi Act, Cap 210
Zero Draft of the Constitution of Kenya, February 11, 2004 (as revised February 27, 2004)
See also the integrity or anti corruption legislation (which regulate the exercise of public power)
Public Officer Ethics Act, 2003
Anti Corruption and Economic Crimes Act, 2003; 2011
National Cohesion and Integration Act 2008
Truth, Justice and Reconciliation Act 2008
Anti-Counterfeit Act 2008
Kenya Communication Act 2008
Political Parties Act (2011) (replaced PPA 2007)
Constitutional amendments and reform 2008-2012
Constitution of Kenya Amendment Act 2008
National Accord and Reconciliation Act 2008
Constitution of Kenya Review Act 2008
Any other? Consider proposed amendments to the 2010 Constitution on election date; on the one
third gender rule.
D 3 International and regional instruments (with constitutional significance in Kenya, the UK
and the US)
Amsterdam Treaty (European integration)
AU Charter (formerly AU; and other AU instruments)
22
Common Market for Eastern and Southern Africa (COMESA) agreement
East African Community (EAC) Treaty
European Constitution (due June 2004?)
International Covenant on Civil and Political Rights, 1966
International Covenant on Economic, Social and Cultural Rights, 1966
Maastricht Treaty (European integration)
Montevideo Convention on the Rights and Duties of States, 1933.
Treaty of Rome (European integration); Amsterdam; Maastricht etc.
UN Charter, 1945
Universal Declaration of Human Rights (UDHR), 1948
World Trade Organisation (WTO) Agreement incorporating the Agreement on Trade Related
aspects or Intellectual Property (TRIPs)
African instruments on democracy, electoral justice, human rights….
D 4 UK Constitutional Instruments (Some have come from the European Union; also see
statutes which devolved powers to Scotland and to Wales)1
Act of Settlement, The, 1701 (UK)
Act of Union, The, 1707
Bill of Rights, The, 1698 (UK)
Magna Carta, The, 1215 (The Great Charter) (UK)
Petition of Right, 1628
Human Rights Act 1998
Instruments devolving power to Scotland and Wales
D 5 POLITICAL PARTY AND OTHER CONSTITUTIONS
Alliance Party of Kenya (APK)
Democratic Party (DP)
Forum for Restoration of Democracy Kenya (FORD-K)
Ford People
Grand National Union (GNU)
Kenya African National Union (KANU)
Labour Party of Kenya (LPK)
Liberal Democratic Party (LDP)
National Rainbow Coalition (NARC-K)
New FORD-Kenya
National Party of Kenya (NPK)
National Vision Party (NVP)
Party of Action (POA)
Party of National Unity (PNU)
Orange Democratic Movement (ODM)
United Democratic Forum (UDF)
United Democratic Movement (UDM)
United Republican Party (URP)
Wiper Democratic Movement (formerly ODM-Kenya)
1
Discussed in Jackson & Leopold’s O’Hood Phillips and Jackson’s Constitutional and Administrative Law
23
Cf. Political Parties are required to register and comply with the Political Parties Act by April 30,
2012. After this date, a full list of all the officially recognised political parties should be
available.
D 6 CONSTITUIONAL INSTRUMENTS FROM OTHER COUNTRIES
US Constitution, 1789
Declaration of Independence, 1776
German Basic Law (as amended)
Constitution of South Africa 1996
Constitution of the Federal Republic of Nigeria 1999
Constitution of Egypt (amended 2011)
Constitution of China 1982 (updated 22/3/2004)
Constitution of Ivory Coast
Grand Coalition Instruments (UK, Germany, Kenya)
Constitution of Nigeria 1999
Constitution of Uganda 1995; as amended
Constitution of Zambia, 1996
D 7 Coalition government instruments- Kenya
MoU among Ford-K, DP, and NPK, etc (NAK MoU) (see also NAK, NPK constitutions)
MoU between LDP and NAK (NARC MoU)
National Rainbow Coalition (NARC)
ODM/PNU Grand Coalition 2008
D 8 CONSTITUTIONS OF RELEVANT PRESSURE GROUPS & SOCIAL WELFARE
GROUPS
(and the related social norms of communities)
You may wish to consult the constitutions of the following entities:
1. Trade unions eg. the Universities Academic Staff Union (UASU), University Non
Teaching Staff Union (UNTESU), Kenya Union of Domestic, Hotel, Educational
Institutions, Hospitals, and Allied Workers (KUDHEIHA), and Kenya National
Union of Teachers, (KNUT));
2. Students’ union constitutions (eg KLSS, SONU, KUSA, MUSO);
3. Non-Governmental Organisations (NGOs) Constitutions, etc.; Constitutions and
Charters of intergovernmental organisations, eg International Centre for Inspect
Physiology and Ecology (ICIPE), African Centre for Technology Studies (ACTS),
etc.
E. The course outline
E 1 Basic content
24
The unitisation of the Constitutional Law Course has broken it into two separate (but
interdependent) units for purposes of instruction. These are:
(i)
(ii)
Constitutional Theory, and
Constitutional Process
The first unit is intended to introduce students to the theory of constitutions, i.e. the coherent
sets of propositions and fundamental principles that go into the making and operationalisation of
the various types of constitutions in use. The second unit, that is Constitutional Process, is
intended to familiarise students with the operational institutions and structures of the
constitutional order, and their modes of operation.
The following are some of the themes that constitute the content of the Constitutional Process
curriculum –
13. Defining Constitutional process
14. Constitutional values and safeguards
15. Constitutional Founding of the Kenyan State
16. Separation or division of powers or functions, and checks and balances [limited or
efficient/facilitative government?)
17. Machinery of Government; the machinery of governance; the formulation, interpretation
and implementation (or execution) of law; the administration & governmental process;
separation of powers; checks and balances in practice
18. Executive Power of the State
19. Decentralisation of Executive, Administrative and Parliamentary powers under the
Constitution 2010
20. Legislative Power of the State
21. Judicial Power.
22. Bill of Rights, Constitutional applications and references, judicial review, ordinary
litigation, and prosecution(s); original and appellate jurisdiction, etc
23. Constitutional breakdown; cf. failed states
24. Control of Public Powers: interagency checks and balances; CIOC; Commissions: (CIC,
PSC, JSC, TSC, KACA/KACC, EACC)
25. Prospects for a wider institutional base in governance – parties – coalitions – NGOs etc
26. Constitutional values and safeguards: issues in political analysis of constitutional
systems:
(g)
What are constitutional values? Safeguards?
(h)
Democracy and constitutionalism
(i)
Representative government and democracy;
(j)
The basic division of powers: horizontal separation of powers; two-tier
Parliament; devolution of powers
Independence, impartiality, accountability, and competence of the Judiciary
(k)
The rule of law;
(l)
Fundamental rights, liberties and freedoms (the Bill of Rights)
(g)
Equal protection: nationality and citizenship; race, ethnicity, class and gender.
25
(h)
Autochthony: What is an autochthonous Constitution? How can a constitution
be home grown? Legitimate? The people, and their values; wananchi, “Wanjiku,
Amina, Akinyi, Naliaka, Mwikali, Chemutai …,” The myth of Africanity, etc]
(k) Law in development; law and rights; access to and control of resources: finance,
land, technology (IP and innovation in constitutionalism);
(l) Academic freedom: academics, students and the social and political process.
Democracy: the politics of the constitution, and quest for (political and social)
legitimacy and autochthony
1. INTRODUCTION
 Lecturer’s and Students’ expectations;
 Syllabus of issues; readings: books; articles;
 Constitution; constitutional instruments; statutes and regulations; case law: anecdotes,
policy
2. INTRODUCING CONSTITUTIONAL PROCESS IN KENYA
 Conceptualizing and theorizing Kenyan constitutional process:
 Constitutional concepts & doctrines e.g. constitution, state, society, community, nation,
nation State, state nation, nationalism, government, executive, parliament, judiciary,
President, PM, V-P, DP, cabinet
 Administration bureaucracy… (Under the relevant Kenyan constitutional provisions &
laws).
Readings
Walter Murphy (1993) “Constitutions, constitutionalism and democracy,” in Douglas Greenberg,
Stanley N. Katz, Steven C. Wheatley, & Melanie Beth Oliviero (1993) Constitutionalism and
Democracy: Transitions in the Contemporary World, Oxford University Press New York, pp. 37.
H.W.O. Okoth-Ogendo (1999) “The quest for constitutional government,” in Goran Hyden, Dele
Olowu & H.W.O. Okoth-Ogendo (1999) African Perspectives on Governance, Africa World
Press, Trenton, pp. 33-60.
Jackton B. Ojwang (1990) Constitutional Development in Kenya: Institutional Adaptation and
Social Change African Centre for Technology Studies (ACTS), Nairobi.
Ghai & McAuslan (1970, 2001) Public Law and Political Change in Kenya, q.v.
3. CONSTITUTIONAL FOUNDING OF THE KENYAN STATE:
 The conquest state; the protectorate; the colony (Constitutional & legal provisions…)
26





Kenya under colonialism (including the boundary changes under colonialism, the Maasai
agreements: constitutional & legal provisions; Ole Njogo case).
Kenya’s independence struggle (The radicals v. constitutionalists or liberals):
Various revolts and movements against colonialism (Nandi resistance, Dini ya Msambwa,
Piny Owacho etc); some arguments on Mau Mau.
The Lancaster process. Kenya as post or neo-colonial state;
Various constitutions since 1895; statutes: case law.
Readings
J.B. Ojwang (1990) “Constitutionalism in classical terms and in African nationhood,” Lesotho
Law Journal, 1990, Vol. 6 No. 1, pp. 57-74.
Okoth-Ogendo, H.W.O. (1996) “Governance beyond government: a rejoinder to Justice Breyer
(U.S. Supreme Court) and Professor Frank Michelman (Harvard Law School),” Comment on
“Constitutionalism, Privatization and Globalization” made at Roundtable on “Constitutionalism,
Constitutional Rights and Challenging Civil Society” organized by the U.S. Association of
Constitutional Law in conjunction with Cardozo, Columbia and NYU Law Schools, November
19-21, 1998, New York.
Okoth-Ogendo, H.W.O. (1999) “Constitutions without constitutionalism: reflections on an
African political paradox,” in Issa Shivji (ed) (1991) State and Constitutionalism: An African
Debate on Democracy, Southern Africa Political Economy Series (SAPES) Trust, Harare, pp. 326 (also in Douglas Greenberg, et al. q.v.; Jackson & Tushnet, q.v.)
Okoth-Ogendo H.W.O. (1999) “The quest for constitutional government,” in Goran Hyden, Dele
Olowu & H.W.O. Okoth-Ogendo (1999) African Perspectives on Governance, Africa World
Press, Trenton, pp. 33-59.
Ben Sihanya (2011) “Reconstructing the Kenyan Constitution and State, 1963-2011: lessons
from British, American, German and African constitutionalism,” thoroughly revised version of
the article published in Law Society of Kenya Journal in 2010.
Carlos S. Nino (1992) “The complexity of constitutional democracy,” in Carlos S. Nino (1996)
The Constitution of Deliberative Democracy, Yale University Press, New Haven.
4A. Executive I
 Government Structure, system & processes
 Constitutional values, principles and safeguards under Constitution 2010
 Values and principles in general
 Values and principles on Executive; values on public services & resource(s) e.g. public
finance; values on admin justice
27


Government mandate, values, principles; structure, systems & processes
Constitutional Implementation (key issues, key institutions, key timelines (especially
relating to executive)
Separation of powers; checks and balances in and under Constitution 2010
The basic division of powers and separation of powers




Indivisibility and non-hierarchical nature of Government; Functional and operational
division of power; What is the impact of 2008 and the 2010 Constitutions, the Accord,
and Njoya v. A-G on the basic division of powers between the Judiciary, on the one hand,
and the Executive, and Parliament on the other?
Separation of powers, checks and balances under Constitution 2010
Constitutional Commissions under Constitution 2010, (cf. independent offices)
Decentralization of Executive, Admin. and Parliamentary powers under Constitution
2010 (see devolution, class 7A)
Readings (also for decentralisation or “devolution” class 7A)
Barkan, J. D. with Michael Chege (1989) “Decentralising the state: district focus and the politics
of reallocation in Kenya” Vol. 27 (3) Journal of Modern African Studies 431-53.
Ojwang (1981) Legislative Control of Executive Powers: a Comparative Study of the British and
French-derived Constitutions of Kenya and the Ivory Coast PhD dissertation, op cit.
Ghai & McAuslan (1970), Chap. II, “The development of the legislature and executive,” q.v.
J.B. Ojwang (1990), q.v. Chap. 1, “Introduction”
H.W.O. Okoth Ogendo (1984) “Development and the legal process: the role of law in the rural
development administration,” International Journal of the Sociology of Law, pp. 59-83.
Final Report of the Task Force on Devolved Government: A Report on the Implementation of
Devolved Government in Kenya, A report of the Ministry of Local Gov’t’s Task Force on
Devolved Government in Kenya (Interim report had been dated Wednesday, April 20, 2011).
Yash Ghai (2007) “Devolution: Restructuring the Kenyan State,” Lecture at the African
Research and Resource Forum (ARRF) at the Kenya International Conference Centre (KICC)
Nairobi, 23 November 2007.
Annette Omolo (2010) “Devolution in Kenya: a critical review of past and present frameworks,”
in Albert K. Mwenda (eds) (2010) Devolution in Kenya: Prospects, Challenges and the Future
Institute of Economic Affairs Research Paper Series No. 24, Nairobi.
28
Essential cases
Morrison v. Olson 487 U.S. 654 (1988)
Constitutional Commissions under Constitution 2010
 Constitutional implementation
 Key institutions
 Key timelines (especially relating to executive)
Readings
R.A. McKay (1924) “Coke Parliamentary Sovereignty or the Supremacy of the Law” Vol. 22
No. 3 Michigan Law Review pp. 215-47
Hamis R. Gray the Sovereignty of Parliament Today
J.B. Ojwang(1990) Constitutional Development in Kenya ACTS Press, Nairobi, pp. 75-107.
Y.P. Ghai and JPWB McAuslan, Public Law and Political Change in Kenya OUP, Nairobi,
1970, Chap. 6
B.H. Selassie, The Executive in African Governments Heinemann, London, 1974
S.A. de Smith, Constitutional and Administrative Law Penguin Books, Harmondsworth
Hamis R. Gray; The Sovereignty of Parliament Today
Ghai, Y.P. (1967) “Independence and safeguards in Kenya” 3 East African Law Journal 177217.
Okoth-Ogendo, H.W.O. (2000) “The quest for constitutional government,” in Goran Hyden,
Dele Idowu, & Okoth-Ogendo (eds) African Perspectives on Governance, q.v.
Okoth-Ogendo, H.W.O. (1972) “The politics of constitutional change in Kenya since
independence, 1963-1969” Vol. 71 No. 282 African Affairs (January) 9-34
4B. Executive II
 Mandate (powers) & functions);
 Life, resources, liberty, admin process and justice
 Public finance and taxation, procurement, and public administration
 Jobs: creation, employment, discipline, dismissal
 Public service(s) & service delivery (health, food, education, security)
 Infrastructure
 Constitutional provisions; case law.
29
Readings
 B.O. Nwabueze (1974), Presidentialism in Commonwealth Africa C. Hurst & Nwamife,
London & Enugu

R.W. Muhoho (1986), The Concepts of State, Government, Nation in the Kenyan Experience
University of Nairobi, LL.B. Dissertation

Lawrence Lessig & Cass R. Sunstein (1994) “The President and the Administration,” 94
Columbia Law Review 1-123

J.B. Ojwang (1983) “The nature and scope of executive power in English and Frenchspeaking Africa: A comparative perspective” 13 Verfassung und Recht in Ubersee, pp. 319337

Ben Sihanya (2011) The Presidency and Public Authority in Kenya’s New Constitutional
Order, Constitution Working Paper series No. 2 Society for International Development (SID)
Eastern & Central Africa, Nairobi

Y.P. Ghai and JPWB McAuslan, Public Law and Political Change in Kenya OUP, Nairobi,
1970, Chap. 6
5A. Executive III
 President; presidential elections; election date; assumption of office; powers, rights,
privileges, immunity
 PM, Presidential and premier politics in constitutional process, 1963-2012
 Key themes and trends on presidency; Kenyatta, Moi, Kibaki assumption of office, powers,
functions and performance, record (?); life, liberty & land (property)
 Structure of government
 The quest for ethnic, class, youth and gender inclusion in the Kenyan political economy
 Historical injustices under Agenda 4 and the Constitution 2010
Readings
P. Anyang’ Nyong’o “State and Society in Kenya: The Disintegration of the Nationalist
Coalition and the rise of Presidential Authoritarianism 1963-78”
J.B. Ojwang (1990) Constitutional Development in Kenya ACTS Press, Nairobi, pp. 75-107.
B.H. Selassie (1974) The Executive in African Governments Heinemann, London
S.A. de Smith, Constitutional and Administrative Law Penguin Books, Harmondsworth.
30
B.O. Nwabueze (1974) Presidentialism in Commonwealth Africa C. Hurst & Nwamife, London
& Enugu
R.W. Muhoho (1986) The Concepts of State, Government, Nation in the Kenyan Experience
University of Nairobi, LL.B. Dissertation
J.B. Ojwang (1980) “The nature and scope of executive power in English and French-speaking
Africa: a comparative perspective” 13 Verfasung and Recht in Uversee, 319-337
J.B. Ojwang (1976) Executive Power in Independent Kenya’s Constitutional Context, University
of Nairobi, LL.M. dissertation
Andrew Morton (1998) Moi: the Making of an African Statesman Michael O’mara Books Ltd,
London
Maranya (1984) Presidential Powers/Directives and Fundamental Human Rights – A Conflict?
University of Nairobi, LL.B. dissertation
Lawrence Lessig & Cass R. Sunstein (1994) “The President and the Administration,” 94
Columbia Law Review 1-123
J.B. Ojwang (1983) “The nature and scope of executive power in English and French-speaking
Africa: A comparative perspective” 13 Verfassung und Recht in Ubersee, pp. 319-337
Sihanya, Ben (2011) “The Presidency and Public Authority in Kenya’s New Constitutional
Order,” Constitution Working Paper series No. 2 Society for International Development (SID)
Eastern & Central Africa, Nairobi Printed by The Regal Press Ltd, Nairobi.
Sihanya, Ben and Duncan Okello (2010) “Mediating Kenya’s Post-Election Crises: The Politics
and Limits of Power Sharing Agreement,” in Karuti Kanyinga and Duncan Okello (eds) Tensions
and Reversals in Democratic Transitions: The Kenya 2007 General Elections, Institute of
Development Studies (IDS), University of Nairobi, and the Society for International
Development (SID) Eastern & Central Africa, Nairobi.
Winnie V. Mitullah (2005) “Exercise of executive powers in Kenya: the case of the prerogative
of mercy,” in Morris Odhiambo, Osogo Ambani, and Winnie V. Mitullah (eds) Informing a
Constitutional Moment: Essays on Constitution Reform in Kenya Claripress, Nairobi
The White House, Office of the Press Secretary (2011) “Fact Sheet: The President’s Regulatory
Strategy,” at http://www.whitehouse.gov/the-press-office/2011/01/18/fact-sheet-presidentsregulatory-strategy (accessed 29/4/2011)
Nic Borain (2007) “SA Presidential Transition: Who can pass through the eye of the needle?”
Essential cases
John Harun Mwau & Others v. A-G and Others HC Constitutional Petition No. 65 of 2011
consolidated with Petition No. 123 of 2011 and 185 of 2011 (per Lenaola, Ngugi & Mjanja JJ;
delivered 13/1/2012)
31
Morrison v. Olson 487 US 654 (1988)
William Jefferson Clinton v. Paula Corbin Jones U.S. Supreme Court (1997)
George W. Bush, et al., v. Albert Gore, Jr., et al. Supreme Court of the United States (2000)
United States v. Nixon 418 U.S. 683 (1974)
Moi v. Mwau (2008) 2 KLR (EP); Imanyara v. Moi & 12 others (2008) 1 KLR (EP)
Nyamai & Another v. Moi & Others (2008) 1 KLR (EP); Akweya v. Moi & 8 others (2008) 1
KLR (EP); Orengo v. Moi & 12 others; Matiba v. Moi 1 KLR (EP); Kibaki v. Moi, etc.
Mwangi Stephen Muriithi v. AG 1983 KLR 1-50
Mwangi Stephen Muriithi v. Daniel Toroitich Arap Moi [2011] eKLR. (1 & 2)
Muslims for Human Rights (Muhuri) & 2 others v. Attorney General & 2 others [2011 EKLR
High Court at Mombasa Petition 7 of 2011.
Centre for Rights Education and Awareness (CREAW) & 7 Others v. Attorney General [2011]
EKLR High Court at Nairobi (Nairobi Law Courts) Petition 16 Of 2011
Republic v. Chief Justice of Kenya & 6 others Ex-parte Moijo Mataiya Ole Keiwua [2010]
eKLR.
Lewanika and Others v. Frederick Jacob Titus Chiluba (Constitutional Jurisdiction) (S.C.Z.
Judgment No. 14 of 1998) [1998] ZMSC 11 (10 November 1998)
Azanian Peoples Organization (AZAPO) and others v. President of the Republic of South Africa
and Others (CCT17/96) [1996] ZACC 16; 1996 (8) BCLR 1015; 1996 (4) SA 672 (25 July 1996)
Executive Council of the Western Cape Legislature v. President of the Republic of South Africa
1995 (4) SA 877 (CC), 1995 (10) BCLR 1289.
Hugo v. President of the Republic of South Africa & another 1996
S. v Zuma and Others (CCT5/94) [1995] ZACC 1; 1995 (2) SA 642; 1995 (4) BCLR 401 (SA);
1995 (1) SACR 568; [1996] 2 CHRLD 244 (5 April 1995)
National Director of Public Prosecutions v. Zuma (573/08) [2009] ZASCA 1; 2009 (2) SA 277
(SCA); 2009 (1) SACR 361 (SCA); 2009 (4) BCLR 393 (SCA) (12 January 2009)
Samuel Kaunda and Others v. The President of the Republic of South Africa and others (2004)
32
Jacob Gedleyihleskisa Zuma & Michael Hulley v. The National Director of Public Prosecutions
& Others (2008)…
Mistretta v. United States 488 U.S. 361 (1989)
Executive IV
 Premier Kenyatta & Odinga: appointment, powers & functions; performance
Executive V
 Vice-President, Deputy President, DPMs, Cabinet
 Assistant Ministers
 Secretary to the Cabinet, Principal Secretaries, Secretaries, Directors and equivalents
under the 1969, 2008, 2010 constitutions
Readings
BA Ogot My Footprints in the Sands of Time
Joe Khamisi (2011) The Politics of Betrayal: Diary of a Kenyan Legislator, Trafford Publishers,
pp390
Babafemi A. Badejo (2006) Raila Odinga: An Enigma in Kenyan Politics, Yintab Books, Lagos
and Nairobi, pp. 354
Morton (2010) Moi: The Making of an African Statesman, q.v.
Mwai Kibaki, at http://www.britannica.com/EBchecked/topic/317237/Mwai-Kibaki (accessed
28/3/2012)
Oginga Odinga, at http://www.britannica.com/EBchecked/topic/425165/Oginga-Odinga
(accessed 28/3/2012)
Stephen Kalonzo Musyoka at
http://www.mykalonzomusyoka.com/news/newsdetails.aspx?NID=461 (accessed 28/3/2012)
Wycliffe Musalia Mudavadi, http://kenyaspirants.com/67/wycliffe-musalia-mudavadi/ (accessed
28/3/2012)
5B. Executive VI
 The administrative bureaucracy (the civil service; provincial administration; national
security).
 Health, food rights & security, security
 Administration process & justice
Readings
Kempe Ronald Hope, Sr. (2001) “The new public management: context and practice in Africa,”
vol.4, pp 119-134.
Thomas H. Hammond and Jack H. Knott (1996) “Who controls the bureaucracy?: Presidential
power, congressional dominance, legal constraints, and bureaucratic autonomy in a model of
multi-institutional policy-making,” Vol. 12, No. 1, (Apr., 1996) Journal of Law, Economics, &
Organization 1, pp. 119-166.
Graham K. Wilson (2008) “Bureaucracy and policy making,” paper for the conference of the
structure and organization of Government Research Committee of IPSA, Gothenburg,
November, at http http://www.qog.pol.gu.se/working_papers/SOG%20papers/Wilson%20%20SOG%20Conference%20Nov08.pdf (accessed 15/3/2011)
33
Ronald McGill (1999) “Civil service reform in Tanzania: organization and efficiency through
process consulting,” Vol.12, No.5 Int. Jn’l of Public Mgt, 410-9.
Truphena Oduol (2006) “Towards the making of education policy in Kenya: conclusions and
implications,” 7(4) International Education Journal 466-479.
Maurice Amutabi (2006) “Development research and public administration in Kenya: assessing
the unexplored potential,” at
http://www.ossrea.net/index.php?option=com_content&view=article&id=309 (accessed
21/3/11).
Clay West Cott (1999) “Guiding principles on civil service reform in Africa: an emphirical
review,” IISM, vol.12, No.1, 145-170.
Ben Sihanya (2011) The Presidency and Public Authority in Kenya’s New Constitutional Order,
Constitution Working Paper series No. 2 Society for International Development (SID) Eastern &
Central Africa, Nairobi
Berhanu Mengistu & Elizabeth Vogel (2006) “Bureaucratic neutrality among competing
bureaucratic values in an ethnic federalism: the case of Ethiopia,” Public Administration Review
6A. Executive VII: Administering and regulating security and criminal justice
 Typology of security
Security of the person – including in the workplace
Security of property
Security of the home
Security in society generally

Security administration in Kenya: Government security agencies
NSIS
Kenya Police Service
Administration Police (AP)
General Service Unit (GSU)
Kenya Defence Forces (KDF)
Provincial Administration

Efficiency of National Security System in Kenya
The emergence of (tribal) gangs, vigilantes and militia; mungiki, sungu sungu,
mwakenya, Sabaot Land Defence Force (SLDF), Mombasa Republican Council (MRC)
etc
Inter-ethnic clashes and feuds
Electoral violence
Emergence of drug trafficking
Territorial invasion: Al-Shabaab, Merille bandits invasion and other militia
Emergence of private security firms; security in institutions, homes, etc
34
Deterioration of public confidence in security system

The role of the government in provision of security services.

National Security Administration and Regulation under the 2010 Constitution.
 Constitutional Reforms
 Administrative reforms
 Security Administration and Regulation at the County
 Relationship between county security system and National security system.

Security administration and regulation during transition and elections

Security issues during presidential, parliamentary and civic elections
-

Electoral fraud, manipulation and related electoral offences
Political violence before, during and after elections
 Role of the Kenyan state in electoral violence and insecurity
 Who has been responsible for security in during transition?
 Reforming administration of security in elections
History, present and future of Kenya’s security system, administration and regulation
 under Kenyatta
 under Moi
 under Kibaki
 upon progressive and full implementation of 2010 Constitution
Essential readings
Kagwanja, Peter Mwangi (2005) “Power to Uhuru: Youth identity and generational politics in
Kenya’s 2002 elections,” 105 African Affairs 418.
Kagwanja, Peter Mwangi (2003) “Facing Mount Kenya of facing Mecca? The Mungiki, ethnic
violence and politics of the Moi succession in Kenya, 1987-2002,” African Affairs 25-24.
Katumanga, Musambayi (2010) “Militarized spaces and the post-2007 election violence,” in
Karuti Kanyinga and Duncan Okelo (eds) Tension and Reversals in Democratic Transition; The
Kenya 2007 General Elections. (Publisher, city)
Kagari, Michele, “The Kenya Police Service Strategic Plan 2003-2007: A commentary,”
Commonwealth Human Rights Initiative (CHRI), at
http://www.humanrightsinitiative.org/programs/aj/police/ea/articles/strategic_plan_analysis.pdf
(accessed 29/2/2012).
Bonn International Center for Conversion (2005) “Security Sector Reform in Kenya,” Inventory
of security sector reform (SSR) efforts in partner countries of German development assistance,
35
Bonn International Center for Conversion, Bonn, at htttp://www.ssrnetwork.net/document
(accessed 1/2/2012).
Ghai, Yash (1993) “Constitution and governance in Africa: A prolegomenon,” in Sammy
Adelman & Abdul Paliwala (eds) Law and Crisis in the Third World, Hans Zell Publishers,
London, 51-75.
Kagwanja, Peter Mwangi (2001) “Politics of marionettes: extra-legal violence and the 1997
elections in Kenya,” in Marcel Rutten, Alamin Mazrui & Francois Grignon (eds) Out for the
Count: The 1997 General Elections and Prospects for Democracy in Kenya.
Sihanya, Ben (2012) “Review of the National Government Function and Coordination Bill,”
Presentation to the Society for International Development (SID) on Devolving State Power:
Kenya’s Prospects and Challenges at the Intercontinental Hotel, Thursday, February 23, 2012.
Sihanya, Ben (2012) “Administering and regulating security,” Presentation to the Society for
International Development (SID) on Keeping the Promise of Democratically Controlled and
Accountable Security Sector, Intercontinental Hotel, Nairobi, February 2, 2012
KNCHR (2008) On the Brink of Precipice: A Human Rights Account of Kenya’s Post Election
Violence KNCHR, Nairobi
Margaret Gathoni Gecaga (2007) “Religious movements and democratisation in Kenya: Between
the sacred and the profane,” in Godwin R. Murunga & Shadrack W. Nasong’o (eds) The Struggle
for Democracy, Zed Books, London & NY, 58-89 (Chap.3)
Mutahi, Patrick (2005) “Political violence in the elections,” in Herve Maupeu, Katumanga,
Musambayi & Winnie Mitullah (eds) The Moi Succession Elections 2002, q.v.…
Norrie, Alan W. (1993) “Criminal justice, the rule of law and human emancipation: a historical
comparative survey,” in Sammy Adelman & Abdul Paliwala (eds) Law and Crisis in the Third
World, ” Hans Zell Publishers, London, 76-101 (chap.4)
NEMU (1992) The Report of the National Election Monitoring Unit on The Multi-Party General
Elections in Kenya, 29 December 1992.
E.S. Atieno Odhiambo (2004) “Ethnic cleansing and civil society in Kenya 1969-1992,” 22:1
Journal of Contemporary African Studies, 29-42
“Security sector reform in Kenya” at http;//www.ssrnetwork.net/document (accessed 1/2/2012)
Throup, David & Charles Hornsby (1998) Multy-party Politics in Kenya: The Kenya & Moi
States and the Triumph of the System in the 1992.
Wamue, Grace Nyatugah (2001) “Revisiting our indigenous shrines through Mungiki,” African
Affairs 453-467.
36
Essential cases
Biwott’s case regarding Akiwumi Commission
ICC Pre-trial Chamber II (2012) The Decision on the Confirmation of Charges Pursuant to
Article 61(7) (a) and (b) of the Rome Statute.
Government reports
Republic of Kenya, The Kenya Police Service: Strategic Plan 2003-2007, Draft 2, at
http://www.humanrightsinitiative.org/program/a/police/ea/articles/draft
(accessed 28/2/2012).
Republic of Kenya (2009) Report of the National Task Force on Police Reforms, Government
Printers, Nairobi (Philip Ransley Report)
Republic of Kenya (1999) The Commission of Inquiry Report of the Judicial Commission
Appointed to Inquire into Tribal Clashes in Kenya Government Printers, Nairobi (The Justice
A.M. Akiwumi Report).
Republic of Kenya (2008) Report of the Commission of Inquiry into the Post Election Violence,
October 2008, Government Printer, Nairobi (Waki Report).
Republic of Kenya (2007) Report of the Independent Review on Election Committee on General
Elections of the December 27, 2007 Government Printers, Nairobi (Kriegler Report).
Republic of Kenya (2003) Report of the Committee to Recommend(?) the establishment of the
Truth Justice and Reconciliation Commission (TJRC) Government Printer (26/8/2008) (Makau
Mutua Report)
6B. Executive VIII
 Power arrangements in the National Accord
 Transition in the executive (presidency & administration) under the Constitution 2010 and
NARA.
6C. Executive IX (see also class 4A&B)
 Constitutional Commissions under Constitution 2010
 Constitutional implementation (key issues, key institutions, key timelines (especially
relating to executive))
Readings
Jackton B. Ojwang (1990) Constitutional Development in Kenya: Institutional Adaptation and
Social Change African Centre for Technology Studies (ACTS), Nairobi, Chapter 5.
Jelvas Musau (2005) “Limitation of executive powers: delinking the civil service from the
37
executive,” in Morris Odhiambo, Osogo Ambani, and Winnie V. Mitullah (eds) Informing a
Constitutional Moment: Essays on Constitution Reform in Kenya Claripress, Nairobi.
Steve Schwalbe “Independent commissions: their history, utilization and effectiveness,”
NASPAA Initiatives, Volume 5, at
http://www.naspaa.org/initiatives/paa/pdf/Steve_Schwalbe.pdf (last accessed on March 15,
2011).
Mike Rowe & Laura McAllister (2006) “The roles of commissions of inquiry in the policy
process,” Public Policy and Administration.
Harrison Moore (1913) “Executive commissions of inquiry,” Vol. 13 No. 6 Columbia Law
Review, pp. 500-523
7A. DEVOLUTION (see also separation of powers class 4A)
 Devolution as separation of powers; checks and balances
 Key issues in devolution: relationships between national and county government, among
county governments.
 Devolution issues: Human resource development and management or administration; the
question of financial devolution; restructuring of the provincial administration.
Readings
Barkan, J. D. with Michael Chege (1989) “Decentralising the state: district focus and the politics
of reallocation in Kenya” Vol. 27 (3) Journal of Modern African Studies 431-53.
Ojwang (1981) Legislative Control of Executive Powers: a Comparative Study of the British and
French-derived Constitutions of Kenya and the Ivory Coast PhD dissertation, op.cit.
Ghai & McAuslan (1970), Chap. II, “The development of the legislature and executive,” q.v.
Interim Report of the Task Force on Devolved Government: A report on the
implementation of devolved government in Kenya, A report of the Ministry of Local
Gov’t’s Task Force on Devolved Government in Kenya, Wednesday, April 20, 2011(See
at Final Report)
Dan Juma “Devolution of power as constitutionalism: The constitutional debate and beyond,”
at http://ssrn.com/abstract=1382821(accessed 11/5/2011).
Yash Ghai (2007) “Devolution: Restructuring the Kenyan State,” Lecture at the African
Research and Resource Forum (ARRF) at the Kenya International Conference Centre (KICC)
Nairobi, 23 November 2007 (see published version).
Annette Omolo (2010) “Devolution in Kenya: a critical review of past and present frameworks,”
in Albert K. Mwenda (eds) (2010) Devolution in Kenya: Prospects, Challenges and the Future
Institute of Economic Affairs Research Paper Series No. 24, Nairobi.
38
Richard C. Crook (2003) “Decentralization and poverty reduction in Africa: the politics of local–
central relations,” Public Administration and Development, pp. 77–88
Catherine Boone (2003) “Decentralization as political strategy in West Africa,” Comparative
Political Studies, Vol. 36 No. 4, pp. 355-380
Hans F. W. Dubois and Giovanni Fattore (2009) “Definitions and typologies in public
administration research: the case of decentralization,” Intl Journal of Public Administration, pp.
704–727.
Muna Ndulo (2006) “Decentralization: challenges of inclusion and equity in governance,” in
Muna Ndulo (ed) Democratic Reform in Africa: Its Impact on Governance and Poverty
Alleviation James Currey, Oxford & Ohio University Press, Athens
7B.
REPRESENTATION & PARTICIPATION: PARTIES, ELECTIONS
 Political parties; profile, structure, elections, internal democracy;
 Discipline role in presidential, parliamentary, National Assembly, Senate & county
elections…. under Constitution 2010 & Political Parties Act (PPA) 2011.
 Elections Act 2011, Independent Elections and Boundaries Commission (IEBC Act
2011); party constitutions
Political party history in Kenya: in the beginning: district, ethnic-based political parties or
movements; at independence, the colonial administration reduced or removed restrictions.
Political party profile, 1963-64 multi- or dual-party state; 1964-66 de facto single party; 1966-69
dual party de facto; 1969-1982 de facto single party; 1982-91 de jure multi-party; 2002 coalition
of parties registered and wins elections …; 2004: Constitutionality of coalition of parties in 2012;
“Gov’t of national unity” – what’s the role of parties in it? In Parliament in this context?;
2007Political Parties Act; 2006/07 party reorganization; 2008 to date: Grand coalition
Government - which party is in the opposition? PAC, PIC etc... ,2010 Constitution, Political
Parties Act, Elections Act 2011 & IEBC Act on political parties. Role of Registrar of Political
Parties (RPP); Number of parties in 2012?
Role of party recruitment of President, DP, Cabinet, Governors, Senators, MPs, County
Assembly Members, Women’s Representatives under the 2010 Constitution; MPs, President,
Cabinet, councillors … s. 34, s. 40 and constitutional questions; cf. Under 2010 Constitution;
s.17(5) of Cap. 7 (National Assembly and Presidential Elections Act)
Kenyatta and the inactive KANU (party matters discussed in the Parliament and subject of
constitutional amendments); Shikuku, Seroney, Anyona: you want to kill Parliament the way you
killed KANU (1975) – detained cf. NA Powers and Privileges Act. Rise of presidential
authoritarianism in politics and in the Constitution led to decay of independent institutions
(checks and balances…)
Moi and the ubiquitous centrally controlled KANU;
39
Kibaki and coalition politics, or is it political paralysis and atrophy of parties? Back to
Kenyatta/Moi era, cooptation and personal rule to kill parties and organised politics; “parties
obsolete”; “Government of National Unity.”
Outstanding party questions: regulating internal democracy, accountability, and funding; clubs?
Constitutionality of nomination rules; regulating and managing party coalitions ….
Elections:
 Gubernatorial, MPs, Senate, County Assembly, Womens’ Representative
 Qualifications for nomination; nomination procedures and process
 Election: process and who is elected
 Administration of elections: IEBC, returning officers, poll clerks, security, transport
 Electoral disputes and petitions
 Electoral violence (cf. Class on Administering Safety, Security and Criminal Justice)
 Closure in elections
Electoral Law, regulations, processes and procedures
Political parties Act 2007 (repealed), 2011
IEBC Act 2011
Constitution of Kenya 2010
Readings
J.B. Ojwang (1990) Constitutional Development in Kenya ACTS Press, Nairobi, pp. 41-107.
J.B. Ojwang & P.N. Okowa (1989) “The one-party state and due process of law: the Kenya case
in comparative perspective” 1 African Journal of International and Comparative Law 177-205
K.I. Laibuta (1986), Constitutionalism, Parties and Government in Post-Independent Kenya
University of Nairobi, LLB dissertation
Sihanya, Ben and Duncan Okello (2010) “Mediating Kenya’s Post-Election Crises: The Politics
and Limits of Power Sharing Agreement,” in Karuti Kanyinga & Duncan Okello (eds) Tensions
and Reversals in Democratic Transitions: The Kenya 2007 General Elections, Institute of
Development Studies (IDS), University of Nairobi, and the Society for International
Development (SID), Eastern & Central Africa, Nairobi.
J.B. Ojwang (1984) “State and party: interdependence of the two constitutions,” Nairobi
University Law Journal – Journal of KLSS, 60-68
40
B.O. Nwabueze (1974) Presidentialism in Commonwealth Africa, op. cit.
S.A. de Smith, Constitutional and Administrative Law, 3rd ed., pp. 130-136.
Nicolas van de Walle (2003) “Presidentialism and clientelism in Africa’s emerging party
systems,” Vol. 41 No. 2 The Journal of Modern African Studies pp. 297-321
J.B. Ojwang & P.N. Okowa (1989) “The one-party state and due process of law: the Kenya case
in comparative perspective,” 1 African Journal of International and Comparative Law, pp. 177205.
J.B. Ojwang (1984) “State and party: interdependence of the two constitutions,” Nairobi
University Law Journal, pp. 60-68
Ingrid van Biezen and Petr Kopecký (2007) “The State and the parties: public funding, public
regulation and rent-seeking in contemporary democracies,” Journal of Party Politics Vol. 13.
No.2 pp. 235–254.
Rodney Smith & Anika Gauja (2010) “Understanding party constitutions as responses to specific
challenges,” Journal of Party Politics Vol. 16. No. 6, 755–775
Matthijs Bogaards (2004) “Counting parties and identifying dominant party systems in Africa,”
European Journal of Political Research Vol. 43, 173–197
Joseph Lapalombara & Jeffrey Anderson (1992) “Political parties,” in Mary Hawkesworth and
Maurice Kogan (eds) Encyclopedia of Government and Politics Vol. I Chap. 25 pp. 393 – 412
Routledge, London
Vicky Randall and Lars Svåsand (2001) “Political parties and democratic consolidation in
Africa,” Paper for ECPR Joint Sessions of Workshops, Grenoble, April 6-11, 2001: Workshop
on Parties, party systems and democratic consolidation in the Third World
Alan Ware (1996) “Parties in government,” in Alan Ware Political Parties and Party Systems,
Chapter 12, Oxford University Press.
8.
A NOTE ON THE READINGS
(a) Although these readings are as comprehensive as possible, they do not claim to be
exhaustive; they do not include all that is relevant, and students should feel free to look
outside them.
(b) The readings, however, offer a framework for independent work by students, and a good
grasp of the material, within the framework, should give a fair direction capable of leading to
a good understanding of the subject.
(c) Some of the materials included in the readings, which are not primarily legal in character,
will be found in the main University Library, on the open shelves, or in the East African
Collections, in the periodicals Section, or on reserve. Students should adopt the habit of using
the main Library (The Jomo Kenyatta Memorial Library) as much as possible.
41
(d) Some of the materials listed in the readings will be found in the Law Library, or through the
library system.
(e) For materials published in International Journals, for which the Law Library has no
subscription, it is likely that the reserve will be holding several special copies. Students
should confirm this with the Law Librarians.
(f) It is not expected that students will be able to read each and all of the materials listed; but
they should endeavour to read as many of them as possible. I will indicate mandatory
readings.
(g) I will provide the essential readings which are not available in the Library(ies).
17. REVISION OR TRIAL QUESTIONS, OR ASSIGNMENTS
1. Define the term “Executive” and identify its operational form in Kenya’s constitutional
set-up.
2. Discuss, in a historical perspective, the law relating to the election of a President in
Kenya.
3. Critically discuss presidential powers under the 2010 Constitution.
4.
Consider, in a historical perspective, the place of political party constitutions in the
general operation of Kenyan constitutional law.
5. Critically discuss some of the key presidential liberties, rights, privileges and immunity
under the 2010 Constitution.
6.
What are prerogatives, and to what extent are they part of the constitutional law of
Kenya?
7. Compare and contrast the general profile of executive power in the colonial and the postcolonial period in Kenya.
8. Compare and contrast the general profile of executive power under the Constitution of
Kenya 1969 vis-a-vis the Constitution of Kenya 2010.
9. Describe the machinery of implementation of the Executive’s decisions in Kenya.
10. What powers facilitate the functioning of such machinery, and to what extent are such
powers subject to control (rationalisation, legitimation, limitation)
42
11. . “Constant experience has shown that every man invested with power is liable to abuse
it, and to carry his authority as far as it will go …, to prevent this abuse, it is necessary
from the very nature of things that one power should be a check on another …” –
Montesquieu, De L’Esprit des Lois, livre XI, (The Spirit of the Laws),Chap. VI.
12. Assess the relevant provisions of the Kenya Constitution 2010 regarding the Executive’s
role in the National Assembly in the light of the above remark.
13. . Section 24 of the 1969 Constitution of Kenya provides:
“Subject to this Constitution and any other law, the powers of constituting and abolishing
offices for the Republic of Kenya, of making appointments to any such office and
terminating any such appointment, shall vest in the President.”
At the same time s. 107(1) of the 1969 Constitution states:
“Subject to this Constitution, the power to appoint persons to hold or act in offices in the
pubic service (including the power to confirm appointments), the power to exercise
disciplinary control over persons holding or acting in such offices and the power to remove
such persons from office shall vest in the Public Service Commission .…”
Using appropriate illustrations, attempt to reconcile the two provisions set out below – with
regard to appointment, discipline and dismissal in the Public Service. Focus on how the 2010
Constitution deals with the issue.
14. Assess, in historical perspective, the degree of preparedness for the task of executive
power control of the Kenya Parliament.
15. Set out the range of powers entrusted to the President of Kenya, in relation to the
Judiciary.
16. What do you see as the merits or shortcomings of the conferment of such powers – and
what remedy would you propose?
17. In what circumstances would it be open to a person to challenge in Court the election of a
President? Under the law, what procedures would the challenger have to follow?
18. Compare and contrast the extent of separation of powers between the three arms of
Government under the Constitution of Kenya 1969 vis-a-vis the Constitution of Kenya
2010.
43
19. Discuss the appellate system in the Kenyan judicial system, indicating whether you think
it is an efficient device for the redress of grievances.
20. How far, in your view, does Chapter Four of the Constitution of Kenya provide a
safeguard for individual rights?
20B. (a) Do political parties in Kenya have any power of constitutional significance?
(b) What are the implications of such power for the liberty of the individual?
21. To what extent do non-governmental institutions play a role in the exercise of public
power in Kenya?
22. Describe the institution of Ombudsman (or ombudsperson) and consider its possibilities
as a device of power control, with reference to one or more African countries.
23. To what extent, in your view, does the Kenya Constitution 2010 provide an effective
formula for balancing the powers of the three branches of Government.
24. The political party, in a one-party or dominant party state, assumes so much power that it
can be regarded as a fourth department in the constitutional structure. In what ways is
Kenya’s new multi-party system changing this situation?
25. In what circumstances could it be open to a person to challenge in court the election of
the President or an MP? What procedures would such a challenge have to follow?
26. In your view, what are the positive and negative implications of allowing Presidential and
Parliamentary candidates to vie independently without affiliation to a particular party?
27. Under what circumstances may the Grand Coalition Government in Kenya, formed in
2008, be dissolved? See Constitution of Kenya 2010, Constitution of Kenya Amendment
Act 2008, and National Accord and Reconciliation Act (NARA). Can either party,
principal or coalition parties push out the other? Can either party, principal or coalition
parties “resign”? What would be the consequences of dissolution?
28. What is the constitutional basis for the proposal that the next presidential or general
elections be held in:
(a) August 2012?
(b) December 2012?
(c) March 4, 2013? Or any other date after 2012?
29. Who has the power to dissolve Parliament? What does it mean to say that Parliament has
to go to its full term? What is the constitutional basis for this under the 2010
Constitution?
44
30. Compare and contrast the presidencies of Daniel T. Arap Moi and Mwai Kibaki with
regard to freedoms of assembly and association as well as the relationship between the
State and religious organizations.
31. Critically analyze how the Constitution of Kenya 2010 has reconstructed the powers and
functions of the President vis-a-vis the other organs or officials of the Government.
32. “Ethnic and regional inequality in Kenya have reached crisis proportions. Kenya’s postcolonial Governments of Presidents Jomo Kenyatta, Daniel Arap Moi, and Mwai Kibaki
are responsible for this, albeit to varying degrees of responsibility.
Briefly discuss appropriate constitutional and legal measures for securing ethnic and
regional equity in the allocation of, and access to, public resources, appointments, and
tenders or contracts in Kenya.
33. How has the Constitution of Kenya 2010 addressed the previously existing limits to
judicial power?
34. What is the role of political parties in Kenya’s constitutional process under the 2010
Constitution and the relevant law?
35. How can Kenya ensure safety and internal security of the person, the home, the work
place, and public places under the Constitution of Kenya 2010?
36. “Electoral insecurity has been a major challenge since 1969, or before.” Critically assess
how the Constitution of Kenya 2010 has guaranteed or reformed security in the electoral
process. How does the Constitution of Kenya 2010 guarantee criminal justice for victims,
the general public, and the four suspects in the International Criminal Court cases? What
is the role of the Government of Kenya?
*** FINIS*** Thu tinda!2 ***Wish U Success***
....the discourse continues....
Prof Ben Sihanya, JSD (Stanford), revised June 29, 2012
Email: sihanya@sihanyamentoring.com; sihanya@innovativelawyering.com
URL: www.innovativelawyering.com
2
In “USA” this means I have told my story; may you grow tall (in wisdom) like the trees at my uncles’
45
Constitutional Process
Dr Kiarie Mwaura
School of Law
University of Nairobi
TITLE OF THE COURSE:
CONSTITUTIONAL LAW II
Course Code:
GPR 110
Lecture Hours:
45
Pre-requisites:
Constitutional Law 1
Purpose of the Course:
To gain an understanding of basic constitutional principles and their relationship with
government, to develop an appreciation of the process of constitution making and constitutional
change, to understand how public power is exercised and the controls and limits imposed upon it
by law and political practice.
Learning Outcomes:
By the end of the course, the learner should be able to:
1. Critically examine the different modes of constitutional design processes, their
foundational assumptions, actors involved and activities engaged in;
2.
Identify the conceptual issues involved in understanding constitution-making and
how outcomes relate to process, including the concept of public participation and its
linkage to outcomes;
3. Explain the concept of due process, amendment and ratification processes;
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4. Assess constitutional practices in the various constitutional models (Parliamentary
and Presidential);
5. Understand the different electoral systems as well as the role of Parliament and the
judiciary.
6. Understand the nature of judicial review and human rights law and some of their
limitations.
7. Develop an awareness of key themes of democratic control, transparency, and
accountability
Course Content:
Origins and nature of the modern state; process of constitution making and
constitutional change; machinery of government; separation of powers; executive
power of the state; legislative power of the state; judicial power and judicial review;
judicial and constitutional breakdown; control of public powers; prospects for a wider
constitutional base in governance; human rights; Constitutional Law I is a prerequisite.
Mode of Delivery:
Lectures, Group discussions, Tutorials and student-centered practical exercises that involve
written work, group discussion and role play alongside audio and visual presentations.
Institutional Materials and Equipment:
Text books, journal articles, handouts, bills, law reports, official gazettes, government reports,
parliamentary reports, e-journals (LexisNexis, heinonline, JSTOR).
White boards, flip charts, LCD projector and screen, laptop, LAN, DVDs, CDs
Assessment:
Type:
Weighting
Continuous assessment.
30%
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Examinations:
70%
Total
100%
Core Reading Materials
1.Constitution of Kenya 2010.
2.B. Hale ‘Equality and the Judiciary: Why should we want more women judges?’ Public
Law (2002) 489-504.
3.Dickson, Brice "The Role of Judges in the Development of Constitutions" (2006) 57
Northern Ireland Legal Quarterly 332-351.
4. Hilaire Barnett, Constitutional and Administrative Law, (Routledge Publishing, 2011).
5. PLO Lumumba et al, The Constitution of Kenya: Contemporary Readings, (Nairobi: Law
Africa, 2011).
6. Kivutha Kibwana, Fundamental Rights and Freedoms in Kenya (Oxford: Oxford
University Press, 1990) pp 1-14, 63-69, 70-82, 83-95.
7. YP Ghai and JC Ghai, Kenya’s Constitution: An Instrument for Change, (Nairobi: Katiba
Institute, 2011).
Recommended Reference Materials:
1. De Smith S. (1998). Constitutional and Administrative Law, Penguin Books.
2. Garvey, H. J. & Aleinikoff, A. T. (1994). Modern Constitutional Theory, Minnesota:
West Publication Company.
3. Ghai Y. P. & J. P. W. McAuslam (2001) Public Law and Political Change in Kenya, OUP.
4. Kanyeihamba, G. W. Constitutional and Political History of Uganda; Law Africa.
5. Nwabueze, Ben (2003). Constitutional Democracy in Africa, Vols. 1-5, Spectrum Books.
6. Stone R. G. (2009). Constitutional Law, Texas: Aspen publishers.
7. Tushnet, V. M. (1992). Constitutional Law, New York: New York University Press.
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Constitutional Process
Dr Kiarie Mwaura
School of Law
University of Nairobi
Class 8
Parliament
This session will focus on Parliament as an institution of government and will examine: the role
of Parliament in making laws and holding the executive to account; composition of Parliament;
the doctrine of parliamentary sovereignty; separation of powers; ingredients of an effective
electoral system; and the different types of electoral systems.
Questions:
1. What are the functions of Parliament?
2. Does the legislature control the executive or vice versa?
3. What is the purpose of a second/upper chamber?
4. What is the rationale for having cabinet secretaries who are not MPs?
5. To what extent does the electoral system under the Constitution of Kenya 2010 satisfy
the requirements needed for an electoral system to be effective?
6. Make a case for and against the first past the post system of election.
7. To what extent is Parliament democratic?
Required reading
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
YP Ghai and JC Ghai, Kenya’s Constitution: An Instrument for Change, (Nairobi: Katiba
Institute, 2011), Chapter 2 on “Overview of the Constitution” pp 16-30; Chapter 7 on
“The Executive and the Legislature” pp 91-107; Chapter 11 on “Electoral Democracy” pp
155-164.

PLO Lumumba et al, The Constitution of Kenya: Contemporary Readings, (Nairobi: Law
Africa, 2011), pp 181-201.

Hilaire Barnett, Constitutional and Administrative Law, (Routledge Publishing, 2011),
Chapter on Parliament (Electoral System).
Class 9
Judiciary
This session will reflect on the issues of judges and the judicial role, independence of the
judiciary, rationale of the criteria for appointment of judges, the suitability of judges taking
political decisions, judicial activism, general principles of judicial review, and judicial review in
action.
Practical exercise
Discuss the problem below and come to class prepared with arguments supporting Wekesa and
others supporting the Nairobi City Council. All arguments should be supported with solid legal
authorities. The lecturer will pick groups at random and assign them to present opposing
arguments in the case.
Problem
Nairobi City Council has certain licensing powers under the (fictitious) Street Traders
Licensing Act 2007 (‘the Act’). Under s. 12 of the Act, Nairobi City Council can licence a
‘street trader’ to ‘sell goods’ in ‘pedestrianised areas delineated by the Council’. The Act
also sets out certain types of permissible ‘street trader’ in s. 13(a), which are: ‘purveyors of
fruit and vegetables; meat; haberdashery items; artistic products; books and other written
materials’. S. 13(b) states that the list in s. 13(a) is ‘non-exhaustive’. By s. 14(a) of the Act the
licences are valid for one year only and renewable at the discretion of the Council. There is
no appeal process built into the Act.
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Additionally, under the (fictitious) Tourist Promotion Act 2010, Nairobi City Council has a
duty under s. 1(a), ‘to promote tourism within its jurisdiction’. S.2 (a) permits the council to
promote activities that, ‘draw attention to the particular artistic and historical attractions of
the area’. Under s. 2(a), Nairobi City Council launches a campaign to make Nairobi an
‘African Town of Culture’ in 2013.
Wekesa has run a bookstall within Nairobi for the last 3 years, the licence being renewed
annually. Last year, Wekesa started specialising in the works of John Mutembei. On 2nd
January 2012, Nairobi City Council refused Wekesa’s application to renew his licence on the
grounds that he had been engaged in activities that undermine the Council’s bid to make
Nairobi an ‘African Town of Culture’, drawing particular attention to the special offer
Wekesa was offering on copies of Mutembei’s poem ‘Nairobi’, which starts:
Come fiery bombs and fall on Nairobi!
It isn't fit for humans now,
There isn't grass to graze a cow.
Swarm over, Death!
Advise Wekesa.
Questions
1. How are judges appointed in Kenya?
2. What criteria should guide the selection of judges? Should the judiciary be representative of
society?
3. Is it possible to have a completely independent judiciary?
4. Carl Schmitt once quipped that in the “politicisation of law, politics had nothing to gain and
law had everything to lose”. Would Brice Dickson agree?
5. To what extent should judges have the power to make law or shape constitutions?
6. Debate the proposition that “In cases of national security, the judiciary should defer to the
democratically accountable branches of government.”
7. Critically assess the various factors affecting the independence of the judiciary.
8. What is judicial review?
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9. What do we mean when we say that judicial review is a review not an appeal? What are the
consequences of this?
10. Why do you think it is necessary to limit the scope of judicial review in such a way?
11. Who can bring an application for judicial review? What is the test for bringing an action?
Do you agree with this?
12. What bodies are amenable to judicial review? What is the test?
13. What were the grounds for review outlined by Lord Diplock in the ‘GCHQ’ case? Was this
an open or closed list?
Required Reading

Order 53 Civil Procedure Code.

Dickson, Brice "The Role of Judges in the Development of Constitutions" (2006) 57
Northern Ireland Legal Quarterly 332-351.

B. Hale ‘Equality and the Judiciary: Why should we want more women judges?’ Public
Law (2002) 489-504.

Le Sueur, A. "Judicial Power in the Changing Constitution" in J. Jowell and Dawn Oliver
(ed.) The Changing Constitution (Oxford: Oxford University Press, 2007)

Council of Civil Service Unions v Minister for the Civil Service [1985] A.C. 374 ‘GCHQ’
(Speech of Lord Diplock).

Associated Provincial Picturehouses v Wednesbury Corporation [1948] 1 K.B. 223

Wheeler v Leicester City Council [1985] 2 All E.R. 1106.

The sections on judicial review (grounds for review), from any Public Law or
Administrative Law textbook, (Barnett, O. Hood Phillips and Jackson; de Smith; Craig;
Wade & Bradley; Turpin etc.).
Class 10
Human Rights
One of the predominant features of the rash of constitution-making around the world in the last
two decades of the twentieth century (especially in Africa, Asia and Eastern Europe) has been a
stress on including fundamental human rights protections in the constitution. Most countries
have come to the conclusion that human rights cannot be left entirely to the actions of
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politicians but need to be clearly established in law and enforced by the courts. This week, we
will examine how human rights are protected and enforced in Kenya and the relevance of
international human rights law.
Practical exercise
Come to class prepared with an answer to the following questions: “To what extent is abortion
allowed under the Constitution of Kenya 2010?” The lecturer will pick groups at random and
assign them to present opposing arguments in the case.
Questions
1. What are human rights? Why are they important? Who grants human rights? What are
the origins of human rights?
2. How are human rights protected in Kenya? Is the method of protection different from
that of the UK?
3. What are the different classes of human rights?
4. What are the differences between proportionality and the doctrine of unreasonableness?
5. When are derogations from human rights legally permissible? What is the rationale for
this?
6. Should courts defer to the political authorities during times of national security?
7. Should Justice Ombija have deferred to the executive on whether President Al Bashir
should be arrested if he comes to Kenya?
8. What is the role of the Kenya National Human Rights Commission?
Required Reading

PLO Lumumba et al, The Constitution of Kenya: Contemporary Readings, (Nairobi: Law Africa,
2011), pp 61-97.
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
The Kenya Section of the International Commission of Jurists v AG & Minister of State for
Provincial Administration and Internal Security (President Al Bashir’s Case) [2011] eKLR
http://kenyalaw.org/CaseSearch/view_preview1.php?link=22777365484203679712203

Kivutha Kibwana, Fundamental Rights and Freedoms in Kenya (Oxford: Oxford University
Press, 1990) pp 1-14, 63-69, 70-82, 83-95.

*Lester, ‘The Human Rights Act 1998 – Five Years On’ (2004) European Human Rights Law
Review 258.

Ewing, ‘The Human Rights Act and Parliamentary Democracy’ 62 Modern Law Review (1999)
79 – 99

Lester, A. "The Utility of the Human Rights Act: a reply to Keith Ewing" (2005) Public Law
249-258

Ewing, “The Futility of the Human Rights Act” (2004) Public Law 829
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