Know your Labour Rights Vlogs Series

Are you employed or looking for employment? Then this is for you!

All you need to know about your labour rights!

You may watch your labour rights explained Haki Vlogs Series HERE>>

Termination of Labour

https://www.youtube.com/watch?v=n0EPwe3csqg

https://www.youtube.com/watch?v=l5ptiNo_DzU

  • An employer is required to give reason of termination to the worker. If the employer fails to do this, the termination will be considered unfair.
  • Before terminating the employment of an employee or summarily dismissing an employee, the employer should hear and consider any explanations or reasons which the employee may give.

Reasons for Termination

For specific reasons

  • The employee is incapable of performing the job
  •  After receiving a final warning letter, the employee continues with misconduct or indiscipline
  • The employee suffers from prolonged illness that makes him/her unable to perform his/her normal duties

Summary Dismissal

An employee may be summarily dismissed for gross misconduct. Gross misconduct includes:

  • Absence from the workplace without permission
  • Being drunk at the workplace
  • Neglecting to perform any assigned work
  • Use of abusive language or behaviour in the workplace
  • Failing to obey a lawful and proper command that is within the employee’s scope of work
  • Arrested for a crime that can lands the employee in jail and is not released within 14 days
  • Committing a criminal offense against the employer or his/her property
  • Summary dismissal takes place without a termination notice. It is immediate.

Redundancy

  • This means the loss of employment where the services of an employee are no longer needed
  • Before declaring an employee redundant, the employer must meet the following conditions:

The employer must notify the trade union if the employee belongs to one and the labour office in that area. In the notification, which is given one month before, the employer must include the reasons for the redundancy.

If the employee is not a member of a trade union, the employer notifies the employee personally in writing and the labour officer;

Before declaring an employee redundant, the employer has to consider the work experience, ability, job group and reliability of the employee

  • The employer should give the employee one month notice or one month’s salary in place of notice
  • The employer should pay for the remaining leave days in cash
  • The employer should pay the employee severance pay of 15 days salary for every year worked

Termination Notice

If you are paid daily – either the employer or the employee can terminate the contract at the end of any day without notice.

If you are paid periodically at intervals less than a month e.g every 2 weeks or 3 weeks – either the employer or employee can terminate the contract by giving notice in writing equivalent to the intervals of payment. So if you are paid every 2 weeks, give a 2 week notice in writing of termination of employment.

If you are paid at intervals of one month or exceeding one month – either the employer or employee can give a 28-day notice in writing of termination of employment.

However, if you have a contract that clearly states when your services end or the period needed to give a termination notice for your contract – then you should follow what your contract states.

If an employee who receives notice of termination is not able to understand the notice, the employer should orally explain the notice to the employee in a language the employee understands. The employee should have another employee or union representative of his/her choice present during this explanation.

If an employee or employer terminates a contract without notice, then the following happens:

  • Employer- must pay the employee what he/she would have earned during the notice period. e.g. If you are fired without notice, your employer must pay you one month full salary
  • Employee- if you decide to end your contract without giving notice to your employer – then you will pay your employer what he/she would have paid you during the notice period. e.g. If you leave without notice, you must pay your employer one month full salary

Grievance Procedure and Institutions to approach

https://www.youtube.com/watch?v=3q6Ng9t2A9M

  • If an employee is not a member of a trade union, he/she should present their complaint or grievance to the immediate supervisor.
  • If there is no action taken, the employee should set an appointment with management.
  • If the matter remains unresolved, then the employee should file a complaint at the nearest labour office.
  • However sometimes the employee is forced to go straight to the labour office or the Industrial Court.
  • If an employee has been dismissed unfairly, he /she should present a complaint to a labour office within 3 months of the date of dismissal.
  • The labour officer will give an opportunity to both the employer and employee to give their side of the story and give recommendations on how to settle the dispute.
  • The employee also has a right to go to the Industrial Court to present his complaint. If the complaint is because of a contractual agreement, the complaint should be filed in court within 6 years. If it is because of injury at work, then the complaint should be filed within 3 years.
  • The employee must be able to show that he/she was unfairly terminated and the employer must be able to show the justification for termination.
  • An employee under probation or who has been summarily dismissed while under probation cannot complain at the labour office or at the Industrial Court.

NOTE: At the Industrial Court you do not need an advocate to represent you.  You can be represented by a trade union representative or you can appear in person ( self-represent). You can also hire an advocate if you want.

Remedies for wrongful dismissal and unfair termination

  • Where there was no notice given, the employee is entitled to the salary he/she would have earned had he/she been given notice
  • Where an employee is dismissed before the contract is over and the contract was such that the employee gets paid at the end of the contract and after completing his/her services, the employee is entitled to:-
  1. payment for work done until the time he/she was dismissed
  2. payment for losses incurred as a result of the dismissal
  • payment for losses arising between the date of dismissal and the date of expiry of the notice period
  1. money he/she would have earned had notice been given

Where an employee is unfairly dismissed, he/she may:

  1. be reinstated and continues to work like as if he/she was never dismissed
  2. not be returned to his/her original position but may be given similar or suitable work and be paid the same wages (re-engaged)

Before any recommendations are given, the labour officer or Industrial Court consider the following:

  • the wishes of the employee
  • the circumstances in which the termination took place, including if the employee caused or contributed to the termination
  • if it is practical for the employee to be reinstated or re-engaged
  • the employee’s length of service with the employer
  • the reasonable expectation of the employee as to the length of time for which his/her employment might have continued had he or she not been terminated.
  • the opportunities available to the employee for securing similar or suitable employment with another employer
  • the value of any severance payable by law
  • the right of the employee to claim for any unpaid wages or expenses
  • any expenses reasonably incurred by the employee as a consequence of the termination
  • any conduct of the employee which to any extent caused or contributed to the termination
  •  any compensation, including ex gratia payment paid by the employer and received by the employee.

Sexual Harassment

https://www.youtube.com/watch?v=1wHdBmnGdXU

An employee is sexually harassed if the employer or a representative of that employer or a co-worker:-

(a) directly or indirectly requests that employee for sexual intercourse, sexual contact or any other form of sexual activity.

The sexual request may contain:

  • promise of preferential treatment in employment e.g if you have sex with me, I will give you a promotion
  • Threat of harmful or negative treatment in employment e.g if you do not let me touch your buttocks, I will ensure that you do not go on leave or I will make your life here a living hell
  • Threat about the present or future employment status of the employee e.g if you do not kiss me now, I will fire you
  • uses language whether written or spoken of a sexual nature
  • shows physical behaviour of a sexual nature that is unwelcome or offensive and which affects employment, job performance or job satisfaction.

An employer who employs twenty or more employees should have a sexual harassment policy at the workplace.

Sexual Harassment Policy

This Policy will contain:

  • Definition of sexual Harassment
  • A statement explaining that;
  • every employee is entitled to employment that is free of sexual harassment
  • the employer shall take steps to ensure that no employee is subjected to sexual harassment;
  • the employer shall take disciplinary measures against any person guilty of sexual harassment
  • how complaints of sexual harassment may be brought to the attention of the employer
  • the employer will not disclose the name of the complainant or the circumstances related to the complaint except during investigations or if the employee wants to take disciplinary action

Judgement

Anyone found guilty of sexual harassment will be imprisonment for not less than three years or will have to pay a fine of not less than one hundred thousand shillings or both imprisonment and payment of a fine.

For more information on your labour rights write to info@kituochasheria.or.ke mhaki@kituochasheria.or.ke or SMS 0700777333

Kituo cha Sheria

We Care for Justice

 

Advertisements

Devolution and Governance in Kenya

Opinion Blog

Devolution and Governance: Introduction to Devolution as a Governance Tool

The new constitution of Kenya 2010 entrenches devolution as a governance tool in Kenya. It states that, the sovereign power of the people is exercised at the national level and the county level.[1] By the above provision of the constitution, it is law that the counties shall have governments but under the national government.

Devolution may be defined as the process of transferring power to legal and elected local governments. In Kenya those are the county governments.[2] Devolution is therefore the actual transfer of administrative, political and also political power from the central government to the elected local governments which are constitutional and in tandem with the new constitution of Kenya 2010.[3]

Public participation, accountability and responsiveness of the county governments to the citizens at the local level has been realized to some level with the birth of devolution as it has also enhanced national unity by reducing corruption and economic stagnation.[4]

The effects of devolution on everything that pertains to national development cannot be ignored since from the time Kenya attained independence, the then government had the sole purpose of possessing all the power to those who formed the government and they ensured that this happened by coming up with countless amendments to the independence constitution. For example the 1964 amendment unified the head of state and the government. One can only imagine the kind of power such an amendment awarded to the head of state and other state officials dancing to the tune of the head of state.[5]

Decentralization of governance has for a long time been seen as a means to ensure that there is public participation and democracy and even accountability on the part of the government. This will see to it that even the marginalized communities that have not felt the closeness of the government feel like they have a voice, democratically and in all other aspects. That they will and are accommodated by the government and fully represented as Kenyans whose rights are covered under the constitution of Kenya 2010.[6]

The County Government Act was enacted to ensure that power is decentralized down to the people of Kenya who are sovereign by providing for example that any person has the power to petition the county assembly to consider any matter that is within its authority which includes enacting, amending and even repealing any of its legislation.[7] This provision by the County Government Act seeks to ensure that there is public participation in quite a number of areas with regard to governance at both the local and nation level.

The Act goes ahead to grant some powers to the people by providing that the electorate in a county ward have the power to recall a member, their member rather of the county assembly before the end of the term of the member on certain grounds. One of the grounds for example is that when a member is found to be in violation of the provisions of Chapter six of the constitution of Kenya 2010.[8]

The Act makes public participation mandatory and makes provision to ensure that the process is smooth under Part VIII and also provides that the process of planning shall be clear and not ambiguous. This ensures that the public within the territory of a local government are aware of the plans the county government has and participate in the whole process.[9]

This provision of the constitution of Kenya 2010 in Article 1 (4) gives authority to and also establishes county governments as a form of a governance tool in Kenya with an aim of bringing the government closer to the sovereign people of Kenya to realize transparency and quality leadership as well.

The constitution proceeds to provide that the territory of Kenya is divided into the counties specified in the First schedule.[10] The constitution also provides that the governments at the national and county levels are distinct and interdependent and shall conduct their mutual relations’ on the basis of consultations and cooperation.[11]

Devolution is a form of decentralization founded on the principle of subsidiarity.[12] It therefore refers to restructuring or re-organization of authority that there is a system of co-responsibility between institutions of governance at the central, regional and local levels according to the principle of subsidiarity.[13]

This clearly illustrates that devolution has become a governance tool in Kenya with the sole purpose or rather aim of decentralizing resources and contribute to the participation of the public in governance. Decentralization therefore involves the transfer of authority for specific decision-making, financial and management functions by administrative means to different levels under the same jurisdictional authority of the central government.

It is therefore the transfer of authorities to autonomous lower level units legally constituted as separate governance bodies. Transfer of functions, powers and authority to such units is often referred to as devolution and is the most common understanding of genuine decentralization.[14] The General elections of Kenya 2013 for the first time gave Kenyans the authority and power to elect chief executive officers and legislators for the newly formed county governments. These governments fall within Kenya’s devolved structure.

The cardinal rule of devolution is to decentralize administrative, financial and political power to the local level in order to enhance the efficiency and effectiveness of government. In effect, devolution is envisioned to provide opportunity for greater citizen participation in local developments and permits the government to respond quickly to local needs.[15]

Devolution is therefore a legal means through which power that was centralized in the old Kenyan regime of the old constitution is now legitimately brought down to the people through their locally elected government to ensure public participation, accountability, equitable development, responsive governance, representation and the wholesome development of the nation at large. This is the goal and aim of devolution of power otherwise known as decentralization.

Management of Public Finance

Public finance is a field of economics concerned with how a government raises money, how that money is spent and the effects of these activities on the economy and the society. It studies how governments at all levels, national, state and local, provide the public with desired services and how they secure the financial resources to pay for these services. Public finance deals with the finances of public bodies. The performance of these functions leads to expenditure.[16] Public finance is the study of the role of the government in the economy.[17] Public finance is the branch of economics which assesses the government revenue and government expenditure of the public authorities and the adjustment of one or the other to achieve desirable effects and avoid undesirable ones. The purview of public finance is therefore considered to be threefold; efficient allocation of resources, distribution of income and macroeconomic stability.[18]

Public finance management basically deals with all aspects of resource mobilization and expenditure management in government. Just as managing finances is a critical role of management in any organization, similarly public finance management is an essential part of the governance process. Public financial management therefore includes resource mobilization, prioritization of programmes, the budgetary process, efficient management or resources and exercising controls.[19]

In Kenya, we have the Public Financial Management Act under which the Parliamentary Budget Officer is required to respect the principle of public participation at all times. [20] The cabinet secretary in charge of finance and also the county executive committee member for finance are also required to respect public participation in the process of coming up with the budget.[21]

When it comes to matters of public finance, the law is clear on its provisions and requires even the accounting officer of an urban area or city to ensure that the members of the public are given an opportunity to participate in the preparation process of the annual budget estimates.[22]

The Constituency Development Act also lays down rules to be followed with regard to the management of public finance. The public can participate in this as they can nominate a person to serve in the Constituency Development Fund Committee and a member of the public can even participate by submitting proposals for community development projects to the committee.[23]

Different authors have different definitions for public finance. Bastable for instance states that whether crude or highly developed, some provisions of the kind are necessary and there for supply and application of state resources constitute the subject matter of a study which is best entitled in English as Public Finance.[24]

Dalton however defines public finance as one of those subjects which lie on the border line between economics and politics. He says that it is concerned with the income and expenditure of public authorities and with the adjustment of one to the other.[25] Dalton’s definition uses the word public authorities to refer to the government or state at all levels.

Harold Groves also defines public finance as a field of enquiry that treats the income and out goes of the government’s federal states and even locals.[26] Harold Groves’ definition on the other hand outlines the types of governments whose finances are studied in public finance.

P.E Taylor defines public finance as the fiscal science, its policies are fiscal policies and that its problems are fiscal problems. According to Taylor, public finance studies the manner in which the state through its organ, the government, raises and spends the resources required.[27] Public finance is thus concerned with the operation and policies of the state treasury.

Mrs. Ursula Hicks states that the main content of public finance consists of the examination and appraisal of the methods by which governing bodies provide for the collective satisfaction of wants and secure the necessary funds to carry out this purpose.[28] Mrs. Hicks therefore highlights the satisfaction of collective wants which in turn leads to the need to secure necessary resources.

C.S Shoup also writes that the discipline of public finance describes and analyses the government services, subsidies and welfare payments and methods by which the expenditure to these ends are covered through taxation, borrowing, foreign aid and creation of new money.[29] This definition enlarges the scope of public finance for modern governments to include different types of expenditure and different types of revenue.

From the definitions of public finance above, it is therefore safe to conclude that public finance is an inquiry into the facts, techniques, principles, theories, rules and policies which shape, direct, influence and govern the use of scarce resources with the alternative uses of the government.

The Collection of sufficient resources from the economy in an appropriate manner along with allocating and use of these resources efficiently and effectively constitute good financial management. Resource allocation, resource generation and expenditure management (resource utilization) are the essential components of a public financial management system.[30]

The constitution of Kenya 2010 ensures that public finances both at national level and county level (the county governments) shall be managed in accordance with the principles of public finance to ensure openness and accountability at all times by providing that there shall be openness and accountability, including public participation in financial matters.[31] This the constitution provides to ensure that the public is satisfied and informed on issues concerning public funds managed by both the national government and the county governments as well.

Due to the fact that some counties might produce more revenue than others, the constitution caters for that by ensuring equitable sharing as it provides that, revenue raised nationally shall be shared equitably among national and county governments[32] and that expenditure shall promote the equitable development of the country, including by making special provision for marginalized groups and areas.[33]

Without the above provisions of the constitution, various counties would develop at a higher rate and be advantaged to the detriment of the marginalized ones and as a result there would be unequal development in the country which is something the constitution tries to avoid.

Public finance is closely connected to issues of income distribution and social equity. Governments can reallocate income through transfer payments or by designing tax systems that treat high income and low income households differently.

Collection of sufficient resources from the economy along with allocating and use of these resources efficiently and effectively constitute good financial management. Resource generation, resource allocation and expenditure management (resource utilization) are the essential components of a public financial management system.

Applicability of Fiscal Decentralization under the 2010 Constitution

Fiscal decentralization involves shifting some responsibilities for expenditures and/or revenues to lower levels of government. One of the important factors in determining the type of fiscal decentralization is the extent to which the sub national entities are given autonomy to determine the allocation of their expenditures. (The other important factor is their ability to raise revenue.)[34]

The constitution of Kenya 2010 makes provision for fiscal decentralization.[35] The constitution provides that one of the objects of the devolution of government is to facilitate the decentralization of state organs, their functions and services, from the capital of Kenya and to enhance checks and balances and the separation of powers.[36]

This provision shows the intention of devolution which is to decentralize power from the central government down to the people at local level through the county governments and as such promote the principle of separation of powers.

The constitution also provides under the principles of devolved government that the county governments established under this constitution shall have reliable sources of revenue to enable them to govern and deliver services effectively.[37] This will see to it that the county governments perform the functions that were previously controlled by the national government like tax collection and thereby making it a reality the decentralizing such functions is of benefit and will make it more efficient in terms of service delivery.

It’s also a provision of the constitution that every county government shall decentralize its functions and the provisions of its services to the extent that is sufficient and practicable to do so.[38] This will give sub-national government’s autonomy which is the key factors with regard to decentralization of functions from the national government to the sub-national governments. According to the constitutions provision, the county governments shall decentralize their functions and the provisions of their services to a point that is suitable for the needs of each specific county.

The constitution further provides that a function or power of government at one level may be transferred to a government at the other level by agreement between the governments.[39] Some local governments may be in a position to perform some functions way better than the others.[40] The constitution makes provision for this and facilitates a situation where this kind of power or function can be transferred to the other level of government in an effort to ensure better service delivery to the people.

The constitution also provides for cooperation between national and county governments.[41] It provides that government at either level shall perform its functions and exercise its powers in a manner that respects the functional and institutional integrity of government at the other level, and respects the constitutional status and institutions of government at the other level and, in the case of county government, within the county level.[42] This provision seeks to ensure the smooth operations between levels of government and even the national government and the county governments.

The constitution of Kenya 2010 in article 2 (1) provides that it is the supreme law of the republic and binds all persons and all state organs at both levels of government. This means that even the county governments which are the local governments are under the authority of the constitution. Fiscal decentralization as illustrated above is entrenched in the constitution of Kenya 2010 to see to it that the principles of fiscal decentralization are realized and respected.

The potential of Fiscal Decentralization for Responsive Governance, Equitable Development and Effective Service Delivery

The constitution of Kenya 2010 provides that all revenue raised both at the national and county level shall be shared equally.[43]The constitution also provides for openness and also accountability in financial matters.[44]This provision by the constitution will go a long way in ensuring that there is equality in terms of development in the country at large unlike the era of the old constitution where revenue was divided with the discretion of the president and thereby leaving some parts of the country with nothing.

Although fiscal decentralization has emerged as a focus of public sector reform in many less developed nations, the substantial body of theory and research on public finance in developing countries includes little substantive work on the fiscal role and performance of local government. Most analysis on this topic have been in the form of occasional case studies or chapters in study of national tax systems, usually conducted by special commissions or international development agencies.[45]

During the 1990s, fiscal decentralization and local government reform have become among the most widespread trends in development. Many of these wide-ranging and costly efforts, however, have made only modest progress towards meeting their stated goals. Given this uneven performance, there has been extensive debate about the desirability of fiscal decentralization and how to approach it.[46]

Decentralization has the potential to reduce accountability by breaking the links between the levels of taxation and expenditure. Major expenditure responsibilities are being transferred to the local or rather county governments in an effort to improve service delivery, but there are still few high revenue taxes which can be assigned to local governments without creating national economic distortions.[47]

The decentralization of the collection of revenue can serve to increase the costs of collection and compliance, both for the public sector and the private sector. There are usually fixed costs associated with collecting any tax and which have to be borne by the counties. Tax payers will also have to incur costs of compliance for all taxes levied and the possibilities for avoidance and evasion will increase with decentralization for some types of taxes.[48]

This will happen where the tax base is mobile or where also the tax base straddles more than one jurisdiction. In the latter case, there will need to be rules for allocating tax revenues among jurisdictions and therefore in their absence, a situation will arise where some tax bases may face either double taxation or not taxation at all. [49]

Prof. Musgrave argues that decentralization may improve governance in public service provision by improving the efficiency of resource allocation. He observes that sub-national governments are closer to the people than central governments and as a result have better knowledge about local preferences.

Local governments are therefore better placed to respond to the diverse needs of the local people. In addition, decentralization narrows down the social diversity and subsequently the variation in local preferences. As a result, countries are able to attain a higher level of efficiency in the allocation of public resources.[50]

It is however hard to achieve effective service delivery, responsive governance and equitable development when the national government is neglecting the county governments. The most important reason local governments have been neglected in developing countries like Kenya is that strong central governments often oppose decentralization. Some reasons for this reluctance are legitimate, such as the need for national building in ethically fragmented societies and central macroeconomic control in the fragile economies.[51]

In Kenya, the case is that there is no national building explanation advanced yet the national government is reluctant to release funds to the county governments and in such a situation there will be no equality in development, no effective service delivery and no responsive governance.

However, decentralization may stimulate equitable development and that local authorities have an important role to play in the management of development.[52] Some recent empirical evidence suggests that a negative effect of fiscal decentralization is on growth.[53]

The evidence on the improvement of service delivery due to fiscal decentralization is limited. Given the claims of service improvement are so central to the arguments of decentralization advocates that it is somewhat surprising that little research has been done to see if decentralization indeed increases the level of service delivered and their quality. Recent research has found that decentralization increased the total and subnational expenditures on public infrastructure.[54]

Decentralization also leads to effective service delivery. However, the extent to which decentralization improves accountability is mixed. There is certainly evidence that participation, in terms of elections and interactions between elections and local government officials, can be substantially increased by decentralization. This will in turn improve service delivery to an effective level.[55]

There is also some evidence that democratic decentralization can enhance the speed, quantity and quality of responsive actions from local governments.[56] The quality and distribution of participation however varies and it does not always result in improved accountability of the local government or the local residents. Several issues seem to matter here.

An enabling environment for fiscal decentralization can begin with constitutional or legal mandates for some minimum level of autonomy, rights and responsibilities for local governments. This provides a foundation on which to build decentralization, but it does not by any means guarantee successful fiscal decentralization.[57]

There are many countries with constitutional clauses and laws on local government that have not managed to decentralize successfully. A good example is Indonesia which became more fiscally centralized after a major decentralization law was passed in 1974.

Conclusion

Effective decentralization requires complementary adaptations in institutional arrangements for intergovernmental coordination, planning, budgeting, financial reporting and implementation. Such arrangements may encompass both specific rules and provision for regular intergovernmental meetings and periodic reviews of intergovernmental arrangements.

If the government has detailed central control over local use of funds, it is seldom appropriate. Instead, what is needed is transparency and accountability to local constituencies supported by strengthened higher level monitoring and reporting of local fiscal performance.

One can therefore conclude that decentralization guarantees neither local participation nor accountability of local governments to their constituents. Again, neither of these things comes about immediately or automatically as a result or decentralization. Some local benefits of decentralization can only be realized if the local governments are able to develop. Equitable development, responsive governance and effective service delivery should not be expected to occur rapidly. It typically requires a strategic, gradual implementation process of building trust between local government officials and their constituents.

BY:

Ephraim Kayere, Advocate

LAED-Kituo Cha Sheria

[1] See article 1 (4) of the constitution of Kenya 2010

[2] See ICJ Kenya, Handbook on Devolution

[3] See Peter Wanyande, ‘Devolution in Kenya, Challenges and the Future’ Series number 24

[4] See Cyprian Ouma Nyamwamu, From a Centralized System to a Devolved System: Past, Present and Future Dynamics, 2010

[5] See Kithure Kindiki, The Emerging Jurisprudence of Kenya’s Constitutional Law Review

[6] See Jan Erk (2006), Does Federalism Really Matter? Comparative Politics 39 (1)

[7] See Section 15 of the County Government Act

[8] See Section 27 of the County Government Act

[9] See Section 11 of the County Government Act

[10] See article 6 (1) of the constitution of Kenya 2010

[11] See article 6 (2) of the constitution of Kenya 2010

[12] See David .A. Bosnich: The principle of subsidiarity available at http//www.action.org/pub/religion-liberty/volume-6-number-4/principle-subsidiarity

[13] Onesimus Kipchumba Murkomen: Devolution and the Health System in Kenya

[14] Ibid

[15] See article by Transparency International Kenya, Understanding Devolved Governance

[16] See paper by Sri. Abdul Kareem, O.C, Public Finance

[17] See Gruber, Jonathan (2005): Public Finance and Public Policy

[18] See article: Public Finance, available at en.wikipedia.org/wiki/public-finance

[19] Ibid

[20] See Section 10 of the Public Financial Management Act

[21] See Section 35 and Section 125 of the Public Financial Management Act

[22] See Section 175 of the Public Financial Management Act

[23] See Section 24 of the Constituency Development Act

[24] See Charles F. Bastable (1892), Public Finance

[25] See Hugh Dalton (1992), Principles of Public Finance

[26] See Harold Groves, Principles of Public Finance

[27] See P E. Taylor, The Economics of Public Finance

[28] See Mrs. Ursula Hicks, Public Finance

[29] See C S. Shoup, Public Finance

[30] Supra n 19

[31] See article 201 (a) of the constitution of Kenya 2010

[32] See article 201 (b) (ii) of the constitution of Kenya 2010

[33] See article 201 (b) (iii) of the constitution of Kenya 2010

[34] See paper by The World Bank Group; Decentralization and Sub-national Regional Economics

[35] See chapter Eleven of the constitution of Kenya 2010

[36] See article 174 (h) and (I) of the constitution of Kenya 2010

[37] See article 175 (b) of the constitution of Kenya 2010

[38] See article 176 (2) of the constitution of Kenya 2010

[39] See article 187 (1) of the constitution of Kenya 2010

[40] See article 187 (1) (a) of the constitution of Kenya 2010

[41] See article 189 of the constitution of Kenya 2010

[42] See article 189 (1) (a) of the constitution of Kenya 2010

[43] See Article 201 of the Constitution of Kenya 2010

[44] Ibid

[45] See Ter-Minassian, T. (1997) Fiscal Federalism: Theory and Practice

[46] See Paul Smoke, Fiscal Decentralization in Developing Countries

[47] Supra n 34

[48] Ibid

[49] Ibid

[50] IEA research paper, Series No. 24, Devolution in Kenya: Prospects, challenges and the future

[51] See Cochrane, G. ‘Policies for Strengthening Local Government in Developing Countries’ World Bank Staff Working Paper No. 582, World Bank, Washington, DC, 1983

[52] See Kee W. “Fiscal decentralization and Economic Development”, Public Finance Quarterly, Vol. 5, No. 1, 1997

[53] See Zhang, T. and H. Zou, ‘Fiscal Decentralization, Public Spending and Economic Growth in China’, Journal of Public Economics, Vol 67, 1998

[54] See Estache, A. and S. Sinha “Does decentralization increase public infrastructure expenditure?’

[55] See Crook, R.  and J. Manor “Enhancing Participation and Institutional Performance: Democratic Decentralization in South Asia and West Africa

[56] Ibid

[57] See Smoke P.  “Fiscal decentralization in Indonesia. A New Approach to an Old idea.”

RAPE NOT A ‘COMMON GOOD’-Maslaha

Opinion Blog

This is in response to a sad story in Wajir where community leaders used Maslaha, an alternative form of dispute resolution, to settle a case where a 15 year old girl was repeatedly gang raped for 2 days by 3 men. [Daily Nation, 4th March 2018- https://www.nation.co.ke/counties/wajir/Goats-used-as-fines-for-rape-in-Wajir/3444790-4328392-nnkfxcz/index.html

Maslaha

The Legal term of Maslaha within Islamic Jurisprudence means ‘the common good’ or ‘in the public interest.’ This is unbelievable because now the question would be, ‘which public?’

Although Article 11 of the Constitution of Kenya recognises culture as ‘the foundation of the nation and as the cumulative civilization of the Kenyan people and nation’, rape is a crime against the victim and against humanity at large.

A person is deemed to commit the offence termed rape if – (a) he or she intentionally and unlawfully commits an act which causes penetration with his or her genital organs; (b) the other person does not consent to the penetration; or (c) the consent is obtained by force or by means of threats or intimidation of any kind. (3) A person guilty of an offence under this section is liable upon conviction to imprisonment for a term which shall not be less than ten years but which may be enhanced to imprisonment for life.

A crime of rape is an injury not only against the affected individual(s) but also against the society. Crimes are prosecuted by the state, which in so doing protects the social and constitutional rights of all citizens. The Constitution of Kenya 2010 recognizes the need for Alternative Dispute Resolution (ADR) to be employed in seeking justice rather than the much hostile court process. However, crimes like murder, rape, robbery with violence are crimes against humanity and as such the offenders/perpetuators must face the full force of the law and must not be accorded an opportunity to get away with their inhuman acts through the guise of traditional norm of ADR.

This is due to the fact that such traditional and customary agreements are repugnant to justice and morality and pursuant to Article 2(4) of the Constitution of Kenya 2010 which categorically states that ‘’Any law including Customary law that is inconsistent with this constitution is void to the extent of the inconsistency, and any act or omission in contravention of this constitution is invalid.’’ Therefore, at a minimum, the prosecution should be consulted before having the reconciliation agreements and customary laws applied in resolving the criminal cases.

The Criminal Procedure Code under Section 176 provides:

‘In all cases the court may promote reconciliation and encourage and facilitate the settlement in an amicable way of proceedings for common assault, or for any other offence of a personal or private nature not amounting to felony, and not aggravated in degree, on terms of payment of compensation or other terms approved by the court, and may thereupon order the proceedings to be stayed or terminated.’

The Director of Public Prosecutions is the custodian of prosecutorial powers. Prosecution of offences is a public policy concern, and in preserving this power to preserve the public interest, he/she cannot be by passed in negotiations concerning charges against an accused person as in the case of Juma Faraji Serenge alias Juma Hamisi v Republic [2007] eKLRMaraga, J. (the current Chief Justice) in his ruling stated:

‘To the best of my knowledge, other than in cases of minor assault in which a court can promote reconciliation under section 176…. of the Criminal Procedure Code and such minor cases a complainant is not allowed to withdraw a criminal case for whatsoever reason. In any case the real complainant in all criminal cases, and especially so felonies, is the state. The victims of such crimes are nominal complainants. And the state, as the complainant, cannot be allowed to withdraw any such case because the victim has forgiven the accused as happened in this case or any such other reason. The state can only be allowed to withdraw a criminal case under section 87A of the Criminal procedure Code or enter a nolle prosequi when it has no evidence against the accused or on some ground of public interest. And even then when it has convinced the court that the case should be so withdrawn”.

Maslaha, which is an alternative form of dispute resolution mechanism, is recognized under Article 159 (2) (c) of the Constitution which provides that:

‘In exercising judicial authority, the courts and tribunals shall be guided by the following principles—

(c) Alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3)

Clause (3) of the same article states:

‘Traditional dispute resolution mechanisms shall not be used in a way that:

(a) Contravenes the Bill of Rights;

(b) is repugnant to justice and morality or results in outcomes that are repugnant to justice or morality; or

(c) is inconsistent with this Constitution or any written law.

It should always be remembered that customary law is unwritten law but just a set of rules that exists in one’s mind and are passed on from one generation to another. This is due to the fact that there is nothing like customary law but what we have are customary laws as every community have a different set of beliefs all together. It is also imperative to note that despite the fact that the victims of offenses like rape subscribe to various customary laws that do not consider that injustice, they are still under the provisions of the constitution of Kenya 2010 and fully enjoy the rights of the said constitution. Therefore, the application of alternative dispute resolution mechanisms must be consistent with the Constitution and the written law of the land and check to ensure justice to both the offenders and the victims.

Equally, the Judicature Act in section 3(2) stipulates and provides that the customary law is only applicable to civil cases. It states that:

‘The High Court, the Court of Appeal and all subordinate courts shall be guided by African customary law in civil cases in which one or more of the parties is subject to it or affected by it, so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law, and shall decide all such cases according to substantial justice without undue regard to technicalities of procedure and without undue delay.”

Therefore where the alternative dispute resolution mechanisms are to be used in the criminal matters, it is limited to misdemeanours and should not be considered on felonies.

By:

Jack Odiwa, Local Expert-AJS

AGCP-Kituo Cha Sheria

 

We need to get ‘Sports’ right…

Opinion Blog

Letter to the Kenyan Sports CS:

Dear Mr. Rashid Mohamed Echesa,

Allow me to congratulate you for your Nomination and Appointment as Kenya’s Cabinet Secretary for Sports and Heritage. This is indeed a great honor and privilege to be recognized as the men to head this docket with the responsibility of giving the President counsel as required by law and custom.  It is no doubt that you are competent enough, humble, self-driven with the ability to show accountability and transparency. Taken from President Kenyatta’s mouth, “to whom much is given, much is expected”. These are the expectations of a president- who is seeking to leave a legacy-, Kenyans who play and love sports and ultimately all Kenyans whom through the President have bestowed on to you in trust, the duty to lead them in the area of sports and heritage.

I must remind you that you are taking over this ministry at a time when it has witnessed massive failure and disproval from all corners. You must take note that a major private sector sponsor- Sportpesa, who have been massively funding sports in the country have reduced their funding due to disagreements with the National Government. This withdrawal of financial support has a trickle-down effect on all sports activities-football, boxing, rugby, etc. To illuminate the point properly, Gor Mahia and AFC Leopards-Kenyan clubs who are both in continental championships may not have funds to prepare and honor fixtures let alone do well. Keeping with the beautiful game, you must remember that Kenya lost the bid to host the CHAN championships due to an apparent lack of infrastructure and unpreparedness. This is despite the Jubilee Government’s promise of world class stadia. You are getting into a ministry that is traditionally marred with corruption, misappropriation and mismanagement of funds, scandals, wrangles and politics in the various sports federations and disillusionment.

I am therefore writing to you to tell you why we need to get sports right as a country. Why you need to do things differently and why sports may be one of the solutions for Kenya.

The Nature of the Sports docket

The first thing to get right is to understand the nature of the Sports Ministry. The “false start” we always have is the thought that sports is a “small” ministry. There is therefore a tendency by the leadership to allocate relatively less money to the ministry and to treat is as a token docket. This is the ministry where things like regional balance and gender equality may be looked at. I do not blame the political class but understand that this attitude is cultural and is carried on from a society that believes in white collar jobs as opposed to sports. This is a challenge that you need to take seriously. If you assert yourself properly, understand your working environment, instill discipline; you may just help in making a difference

The Ministry requires a delicate balance between international, regional and municipal interests. It requires a comprehensive knowledge on the working of federations, negotiation skills and a grasp of the law. By nature, sports is dovetailed by different sectors which require knowledge in sports management and governance. It is very hard for the Government to convince people that they care about the youth when they perform horribly in sports and before I conclude this part, take note that if properly managed and actualized, it may be the gold that Government needs. This is because success in sports translates to success in other areas.

Economic Success

Sports have huge economic benefits if you think of it as a business. It means selling sports and merchandise through contractual obligations. The ministry should therefore step up in terms of sponsorship deals and endorsements. I urge you to have the capacity to negotiate and grow sponsorship for our sports. Sports create job opportunities and lastly, hosting tournaments such as CHAN have huge economic benefits that have been taken for granted. Development of roads and infrastructure also leads to economic growth. If you want to know the extent to which Kenya is losing just take a look at countries that take sports seriously, you will notice the kind of money that changes hands and what it does to the economy. Sports is also connected to areas such as trade, foreign affairs and tourism which indirectly help to spur economic growth. All I am saying is; Kenya needs to stop the myopic thinking that we’re currently stuck with regarding issues sports.

Social-cultural dimension         

Kenyans are traditionally and culturally known for long distance running. The country is also earning the status of a world power house in Sevens Rugby. Through these, our beautiful culture and way of life gets out in the world.  More importantly however, is the role that sports plays in shaping our society. It is an effective medium of advocating for good in the society and eradicating what’s bad.

Scientific research has proven that participation in sports is a very effective way of keeping young boys and girls from drugs and substance abuse. It is also used for mentorship and gaining a better perspective in life. All these are affected when Sportpesa quits sponsorship and the Government is unable to allocate funds to sports activities. You may also recognize the role that sports plays in keeping people healthy and as they say…health is wealth.

Politics & Sports

I am sure we all have noticed that sports is one of the things that always takes “tribe” and negative ethnicity from Kenyans. It is at the moment when the Shujaa are running towards the try-box that Kenyans always feel most patriotic. Sports is one medium to national cohesion and unity. It has always been used to fight discrimination and negative politics as it is used to advocate for good politics. Sports bring people together. So, I know you will agree with me that getting sports right is in fact part of the Jubilee government’s Big Four Agenda.

Sports as a Human Right

As a lawyer I need to also inform you of sports as a human right. This mostly applies to children but it extends into building sports academies, parks and areas where children can play and nurture talent. The Sports Act provides for the creation and development of Sports Academies for development of talent. These require coordination, management and proper governance.

In conclusion, these are very important reasons why we need to fix Kenya sports and get it right. We need to develop our institutions and invest in our talent.

Wish you the very best, Waziri!

Yours Sincerely,

Ouma Kizito Ajuong’   

Advocate of the High Court of Kenya    

Political Parties as the Bedrock of Democracy and Good Governance in Kenya: Lessons from the African National Congress (ANC)

Opinion Blog

Political Parties in Kenya

While Political Parties in Kenya may be defined as loose ethnic organizations-based on personal vision and politics- that are formed as vehicles to get political power, the African National Congress (ANC) and political party politics in South Africa appear to operate on a  different tangent; an oasis in a large desert of political indiscipline, corruption, dishonesty and lack of vision. It is only in South Africa and the ANC that two Presidents have resigned, pushed out by the party due to allegation of corruption, mismanagement and abuse of office. Imagine for a minute, Kenya’s Jubilee Party asking President Kenyatta to step aside on account of failure to tackle corruption or the Orange Democratic Movement pushing for a vote of no confidence against Rt. Hon. Raila Amollo Odinga. This is not just laughable but impossible. It is against this backdrop that this article reflects on political parties’ culture in Kenya. This discussion based on five areas that Kenyan political parties may want to consider so as to be champions of democracy and good governance.

National-based Political Parties

The first thing for Kenya is to grow her national political outfits as opposed to ethnic and personality-based organization. It may be true this situation was crafted and seeds planted by the colonialist however, it is over fifty years and it is important for Kenyans to step out of the colonialist fangs. The Constitution of Kenya, 2010 in Article 91 demands of political parties to have a national character. This means that they should be inclusive and seek the common good of all Kenyans. As much as politicians may not agree, parties in Kenya are aligned to tribes. They carry the aspirations and dreams of their tribes. This takes away national unity and objectivity in political parties. No wonder in Kenya, political parties are not about intergrity, fighting corruption. They are not about the rule of law; rather, it’s about tribal interests and power. National-based political parties also mean parties that have women, persons living with disabilities and minority groups. If they were not so much engrossed in tribalism, they would be pushing the agendas for these people as they include them in their decision-making organs and policies.

Issue-based political Parties

Kenyan political parties like the ANC must be based on issues. It is hypocritical to expect candidates to campaign on issues when the parties do not have a stand on certain ideologies. Political parties should not be a difference between class or tribe, but ideologies. What is the Jubilee Party’s position on Genetically Modified Foods, or Wiper Democratic Party’s position on reforestation? What about the Orange Democratic Movement’s policy on inclusivity, healthcare, job creation and eradication on poverty.  This explains why political parties have identical yet unrealistic manifestoes every election year. Their ideas do not resonate with the citizens. They often have no clue on what the ordinary citizens goes through. A good example is the primary schools laptops project. It is very absurd to buy laptops for children who do not have books, pencils, teachers, classrooms, etc. If parties stand for ideologies that resonate with the people, it will be easy to do issue-based politics.

Issue based politics also helps cure the culture of party- hopping. Legislation attempted to help by putting a time limit for changing parties however; this gave birth to independent candidates.  The point is political parties need to cultivate a culture of ideologies upon which its members must abide by, in that way, party hopping will naturally die off.

Institutionalized Political Parties

The other thing to learn from ANC is to strengthen party structures. Strong party structures means creating leadership that is autonomous and is guided by an acceptable value system. This is opposed to personality based political parties. Institutionalization of political party helps in growing membership, creating awareness and societal values, condemning vices and cultivating party democracy. There is a live debate on the inability of political parties to conduct proper primaries and how this eventually affects the general election. The answer to this is to take political power from specific people to independent structures and institutions. The ANC has   moved from the leadership of Oliver Thambo, to Nelson Mandela to Thabo Mbeki, Jacob Zuma and now Cyril Ramaphosa yet there are questions as to whether the Maendeleo ChapChap Party can survive without Governor Alfred Mutua.

How do political parties in Kenya discipline errant members? Kenyans have witnessed spectacular scenes from Members of Parliament and even Members of County Assemblies engaging in acts like physical fights in public and use of abusive language and hate speech, yet there is very little talk of discipline. If only this was taken as serious as it is with the ANC. Parties need to set standards for the members. It is very sad that in Kenya, politicians accused of corruption and abuse of office are protected rather than disciplined by their political parties.

Political Party Financing

For political parties to function properly there is need for financing. This however cannot be left for the elite and the party leadership. There needs to be a system that allows members to remit their contributions. In that way, all members get to own the projects by the parties. As this goes on the Government also need to be pro-active in checking their books of account and finances to ensure transparency and accountability. Legislation or Amendments to the Political Parties Act is necessary to regulate the moneys that are to be used in political activities. This is important as it helps in bring equity and equality in our politics.

Political Party Activities after Elections

What happens to political parties after elections? The ANC being majority in the House has always helped in holding the government to account, political parties in power in Kenya have always been a rubber stamp of the Government. The Constitution of Kenya, 2010 has given Parliament the power to oversight whether as a Jubilee or NASA affiliate. Political parties also play the role of pushing the agenda and representing the people’s needs, aspirations, desires and dreams. Political parties should be the avenue for citizens to speak out on governance issues. They need to be the space for a country to have dialogue. It is important for political parties to be a uniting factor rather than a dividing factor.

By:

Ouma Kizito Ajuong’-  Poet, Lawyer, Person with Disability, Advocate of the High Court of Kenya, LLB (Hon.) Kenyatta University, PGD KSL, Legal Practice.

The Samburu-Ilmisigiyoi Group Ranch Members fight for their land rights.

ELC PETITION 339 OF 2017 AT THE NYAHURURU ELC COURT- ILMISIGIYOI GROUP RANCH V LEMIYON LEPARMARAI & 8 OTHERS

Ilmisigiyoi 2

Kituo Cha Sheria is on record for a case concerning members of the Ilmisigiyoi Group Ranch who are from the Samburu community. Through our advocate Mr. John Mwariri we are representing a total of 600 families who form the Imisigyoi Group ranch and whose livelihoods are affected by the matter. Our clients are the owners and occupiers of the parcel of land situated in Lodokejek ward in Samburu County.

The dispute between the Ranch members and the defendants dates back to the time when the ranches were demarcated in the 1970s. During the said exercise beacons were erected and after a period of time the boundaries were illegally tampered with and as a result the Defendants who include the Kenya Broadcasting Corporation entered into our clients land illegally and have been occupying the piece of land.

The effect of this encroachment is that our clients have been dispossessed of their land with traditional boundaries and their livelihoods have also been affected as their grazing lands are now highly diminished. The matter filed at the Nyahururu ELC Court seeks to ascertain whether our clients are the lawful owners of the land identifiable by the aforesaid traditional boundaries and ensure that the parcels of land now occupied by the Defendants are returned back to the Samburu.

The matter came for hearing on the 13th February, 2018, when one of our witnesses, Mr. Lesingo Leiyagu testified and a further hearing is set for the 24th April, 2018.

RCKM

Kituo Cha Sheria

Defining ‘Independent Offices’ as Prescribed by the Constitution of Kenya, 2010

Opinion Blog‘Independent Offices’

The arrest, detention and ‘deportation’ of Mr. Miguna Miguna left many Kenyans shocked. This is because it has exposed the rot within the criminal justice system-something that characterized the dark days of the 80’s and 90’s in Kenya. While this is deliberately not a brief for Mr. Miguna, the uncouth, primitive, pedestrian, unprofessional and unlawful behavior of especially the Police Service left a lot to be desired. It was not only so embarrassing but also a manifestation of total disregard for Courts, Statute and Constitutional Human Right Law.

The funny bit of it is that at the end of it all, the Police appeared as more of the criminals as opposed to the treason-charged and self-proclaimed NRM general. Why should the Police Service behave this recklessly? Why play a game of cat and mouse with the High Court while breaking a myriad of fundamental provisions of the Human Rights Bill along the way? The answer to these questions is political interference. Interestingly however, the drafters of the Constitution of Kenya 2010- aiming to decentralize powers of the Executive- put safeguards in the name of Independent Offices, Commissions, the Judiciary and Parliament as a way to achieve both horizontal and vertical separation of powers.

Philosophically, Hans Kelsen assertions on a “sovereign” as one with ultimately all the power, someone who is not subject to anyone, doesn’t answer to anyone, yet everyone answer to them is frowned upon. Years of scholarship have emphasized that this “sovereign” doesn’t exist, especially in a democracy characterized by separation of powers. It is against this backdrop that Article 1 of the Constitution of Kenya, 2010 gives sovereign powers to the people of Kenya. It is carefully and deliberately crafted to bring out the rule of law and power of the people.  The President, Cabinet Secretaries, the Speakers, the Inspector-General of Police, the Attorney General are not therefore, sovereign but answerable to the Constitution and to the people of Kenya. This paper reflects on “Independent Offices” as a subject that has caused a back and forth since the promulgation of the supreme law.

The word “independence” ordinarily means separate. It denotes someone who is free and not controlled by anyone. Independent Offices as designed in the law however, have autonomy as much as they are accountable.

Simply put, these offices are deliberately designed this way, so that the holders can perform optimally without interference but also be properly accountable to other arms, organs, agencies and the people without passing blame. The Chief Justice for example, has the autonomy in managing and leading the Judiciary without interference by Parliament or the Executive but he is equally answerable to Parliament and Judicial Service Commission should there be questions. The Constitution of Kenya, 2010 majorly instituted Independent Commissions and others as discussed herein.

Independent Commissions (Chapter Fifteen)

Independent Commissions are so central to the working and administration of Government under the current regime. There are those that were created to cure historical injustices, while others have purely administrative functions dealing with different but important sectors of Government. They were created to decentralize presidential powers while promoting efficiency, accountability, constitutionalism and values and principles of the Constitution 2010. There have been a number of “conflicts” witnessed between some of these commissions and other organs of Government. These often undermine and interfere with the objects and independence of these Commissions. The National Land Commission set up under Article 67 for example, had a lot of tussles with the Ministry of Land over their functions and overlapping roles. Today the members of the commission are engulfed with accusations of corruption.

The Salaries and Remuneration Commission is another that has had a fairly hard time. Article 230(4) of the Constitution gave them the power to set and regularly review the remuneration of public servants as they advise both County and National Governments. This was brought in to ensure equity and equality in public service remuneration as they manage the wage bill. They had to face confrontations, conflicts and interference with their objects especially with parliament and it is not surprising that as the commission winds up, members of parliament are seeking more money in the name of car grants, mileage allowances, etc. The National Police Service Commission has also recently been on the spot for conducting interviews subject to presidential directions contrary to the Constitution and the law.

 Independent Boundaries and Electoral Commission (IEBC)

The drama and politics around the IEBC after the nullification of the August 8 Presidential election justifies this article in more than one way. As much as it is almost forgotten the Commission is still accused of contempt of court with regards to opening the servers. This emphasizes the earlier point that with independence and autonomy comes accountability. Away from this, NASA’s irreducible minimums and the Jubilee Party’s insistence on the repeat elections coupled with in-fighting within the Commission along political lines almost torpedoed Kenya’s political stability. This was tragic as both international and municipal laws insist on independence, neutrality, fairness, accuracy and credibility in the working of the electoral management body. Kenya’s electoral history paints a very dark picture when it comes to EMB’s especially the Samuel Kivuitu-led defunct ECK. However, the lessons that should have been learnt seem to have dried away like the morning dew.

Office of the Attorney General

The Office of the Attorney General is another Independent Office. This is because he/she is the principle legal adviser to the Government. He/she has the duty to appear and defend the Government in both civil and criminal case. The office’s autonomy is important for objectivity, professionalism and accountability. In the event that TV stations are shut down by Government in contempt of court orders, then the independence of the Office of the Attorney General comes to question. Article 156 (6) of the Constitution of Kenya 2010 states that the Attorney General is the guardian of the rule of law and public interest and that involves obeying court orders and respect to the due process of the law.

Office of the Director of Public Prosecution

This is a new office that was historically cut out of the office of the Attorney General. The idea behind this was to take the role of prosecution from the police and give it to lawyers. The DPP under Article 157 (10) has the authority to enter criminal proceedings without directions. He/she may also direct the Police Service and the Inspector General to conduct investigations on a case. The importance of independence of the office cannot be over-emphasized. The Office of the DPP should however obey the courts of law; contempt of court is the lowest any lawyer can get. The case of Mr. Miguna also raised questions as to the charge sheet and the role of the Police vis-a-vis the Office of the Director of Public Prosecution.

Office of Inspector-General of Police

This Office is a new creation of the Constitution of Kenya, 2010. It was designed to replace the office of the Police Commissioner. The Inspector General performs independent command of the Police Service pursuant to Article 245 (2) (b). In the efforts to transform the police force into a police service, there was need to create an independent police command structure which enables them to work effectively without interference but with accountability.

This underscores the need for the police to be neutral and professional in political matters. As for the command structure neither the President nor the Cabinet Secretary in charge has a right to direct the Inspector-General. He/ She takes full responsibility when civilians are killed or court orders are not obeyed.

Other Independent Offices

The doctrine of Separation of powers primae facie creates three independent but coordinating offices, thus office of the President, Chief Justice and President of the Supreme Court and Office of the Speaker from the two houses. The Governor’s office and the Country Assemblies under Chapter 11 of the Constitution of Kenya 2010 and the County Government Act also have independence and autonomy from the National Government. This point is further cemented by Schedule 4 giving the different functions to the County as well as National Government.

The Office of the Controller of Budget under Article 228(1) of the Constitution of Kenya, 2010 and the Auditor-General under article 229(1) are also independent offices meant to streamline public finances.

Checks and balances is the name of the game. This is one way to ensure efficiency and inclusivity in running the affairs of government. They must however work in cooperation and coordination. There is therefore a need to keep to the rule of law even as Kenya cultivates the culture of democracy.

“I am a Lawyer, I go for due process, I go for equity and equality, and these things mean a lot to me” -Mohamed Elbaradei.

By:

Ouma Kizito Ajuong’-  Poet, Lawyer, Person with Disability, Advocate of the High Court of Kenya, LLB (Hon.) Kenyatta University, PGD KSL, Legal Practice.