Kenya

Justice Sector and the Rule of Law

Patricia Kameri Mbote and Migai Akech

A review by AfriMAP
and the
Open Society Initiative for Eastern Africa

March 2011
 2011 Open Society Foundations

This publication is available as a pdf on the Open Society Foundations website or the AfriMAP website under
a Creative Commons licence that allows copying and distributing the publication, only in its entirety, as long
as it is attributed to the Open Society Foundations and used for noncommercial educational or public policy
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Published by:
The Open Society Initiative for Eastern Africa

ISBN: 978-1-920489-18-2

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AfriMAP
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South Africa

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[email protected]

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Contents
List of boxes vi
Acknowledgements vii
Preface viii

Part I Kenya Justice Sector and the Rule of Law

Discussion Paper 1
Introduction 3
1 Consolidating the legal and institutional framework to
advance rule of law principles 5
2 Promoting mechanisms that guarantee greater independence
of judges 7
3 Breaking a long tradition of government disrespect for the
rule of law 9
4 Transforming a largely unfair criminal justice system 11
5 Enhancing mechanisms for a broader access to justice 15
6 Ensuring national accountability of external funding in the
justice sector 16
7 Conclusion 18
Part II Kenya Justice Sector and the Rule of Law
Main Report 19
1 Justice and the rule of law ideal: Theory and practice 21
A.The rule of law ideal 22

2 Legal and institutional framework 27

A. Compliance with international (human rights) obligations 27
B. The constitution and international human rights standards 33
C. The structure of the court system 42
D. Law reform 45
E. Recommendations 52

3 Government respect for the rule of law 54

A. The executive and respect for the rule of law 55
B. Parliament and respect for the rule of law 69
C. Recommendations 73

4 Management of the justice system 74

A. Strategic planning 74
B. Financial management 79
C. Court administration 81
D. Access to information about the law and the courts 92
E. Recommendations 97

5 Independence of judges and lawyers 99

A. Judges 99
B. Lawyers 114
C. Recommendations 118

6 Criminal justice 119

A. Protection from crime 119
B. The politics of policing 125
C. The Attorney General and prosecutions 137
D. Non-state action against crime 140
E. Fair trial 142
F. Appropriate remedies and sentencing 144
G. Prisons 150
H. Recommendations 155
7 Access to justice 156
A. Knowledge of rights 156
B. Physical access 157
C. Financial access 158
D. Right to appear: Jurisdictional restrictions 164
E. Reasonable delay 169
F. Mechanisms to assert rights outside the court system 169
G. Traditional and other non-state justice systems 174
H. Recommendations 176

8 The role of development partners 178

A. An overview of development assistance to the justice sector 178
B. Transparency and accountability in development assistance 180
C. The procurement regime of the GJLOS Reform Programme 187
D. Human rights and development assistance 189
E. Recommendations 189

References 190

kenya: Justice sector AND the rule of law v

List of boxes
Enactment and implementation of the Sexual Offences Act 50
The Grand Regency Hotel scandal 57
The Kisya Investments case 62
Getting information from the judiciary 97
The radical surgery of the judiciary 110
Peter Nganya v. Credit Bank Ltd 166

vi kenya: Justice sector AND the rule of law

Acknowledgements
The preparation and completion of this report has been made possible by the collaborative efforts
of a number of people and organisations to whom we owe our most sincere gratitude. Firstly, we
would like to thank a number of researchers who assisted in putting together different parts of
the report: Sarah Kinyanjui for her immense contribution to the criminal justice chapter; Kamau
Mubuu for his great job in the preparation of the research instruments and in the the analysis of
the survey data; Steadman (now Synovate) for assistance with the administration of the survey
questionnaire; Nkatha Kabira, Evelyne Asaala and Wilson Kamande for their research assistance
at different stages in the preparation of the research report; and Pauline Nyamweya and Kithure
Kindiki for their participation in the initial stages of the research.
Secondly, we would like to thank the judiciary, particularly the Honourable Chief Justice
Evans Gicheru, for allowing us to engage with judicial officers in the execution of the project.
The High Court Registrar, Lydia Achode, also deserves our gratitude for her assistance in linking
us with the judiciary and facilitating our meetings with judicial officers.
Thirdly, the staff of the Open Society Initiative for Eastern Africa (OSIEA) and the broader
Open Society Initiative family for engaging with us in intense discussions on the project, their
general support and superb logistical arrangements throughout the preparation of the report.
Mugambi Kiai, Binaifer Nowrojee, Pascale Kambale, Ozias Tungwarara, Juliana Osodo and Mary
Gathegu deserve special mention here.
Fourthly, we are also indebted to OSIEA for providing the financial resources necessary to
carry out this research.
Finally, and not least importantly, for their generous sharing, we are grateful to all the
representatives we interviewed from Kenya’s development partners, civil society organisations,
the judiciary, prisons and police. We also thank those who attended the validation workshops for
their comments which greatly enriched the report.

kenya: Justice sector AND the rule of law vii

Preface
This report assesses Kenya’s justice sector with a view to pointing out ways in which it promotes
the attainment of the rule of law ideal. It is carried out in the context of growing interest in
issues of good governance, democracy, human rights and the rule of law in African countries
and has been prepared for the Open Society Initiative for Eastern Africa (OSIEA) and the
Open Society Foundations’ Africa Governance Monitoring and Advocacy Project (AfriMAP).
Established in 2004 by the African foundations of the Open Society Foundations, AfriMAP has
been monitoring the compliance of African states with the new commitments undertaken by
the African Union since 2000 in the field of good governance, democracy, human rights and
the rule of law. The report evaluates Kenya’s respect for international standards in relation to the
justice sector and the rule of law.
The overall objective of the report is to assess the efficacy, accountability, responsiveness
and legitimacy of the justice sector in Kenya and suggest policy and legislative interventions. In
particular, the report:
• Assesses whether, and the extent to which, Kenya is in compliance with its international
human rights obligations, including the extent of incorporation of international human
rights standards into national law;
• Reviews the historical evolution of the justice sector;
• Reviews the practice of constitutionalism and the rule of law in Kenya, with a view to
identifying shortcomings and suggesting possible solutions;
• Reviews the efficacy, accountability and responsiveness of the administrative/
institutional framework for the administration of justice;
• Assesses the adequacy of established frameworks in facilitating the independence,
efficacy and accountability of the justice sector;
• Assesses the technical capacity of actors in the justice sector;
• Reviews the effectiveness, accessibility and accountability of the criminal justice system;
• Establishes whether, and the extent to which, Kenyans have access to justice (physical,
financial, normative and procedural);
• Reviews the role of development partners in the justice sector; and
• Suggests policy and legal interventions that would enhance the efficacy, accountability,
responsiveness and legitimacy of the justice sector.

viii kenya: Justice sector AND the rule of law

The report proceeds from the premise that the attainment of the rule of law in Kenya is integral
to the realisation of Vision 2030, a policy blueprint which was launched in June 2008. This
policy spells out Kenya’s development aspirations in the next 20 years and specifically seeks to
transform the country from a developing to a medium-income economy by the year 2030. The
second pillar of this vision, the social pillar, seeks to create and build a just, cohesive society, with
equitable social development, in a clean and secure environment. The political pillar also has
implications for the realisation of the rule of law by aiming for ‘a democratic political system
that nurtures issue-based politics, the rule of law, and … all the rights and freedoms of every
individual in society’.
The justice sector in Kenya has been going through major changes. The different arms of
the sector have been the subject of intense interrogation and there are concrete proposals for
reform of the legal and institutional framework supporting the rule of law, the justice system, the
executive, the legislature, the criminal justice system and the Bar. Most notably, this research was
carried out at a time when the confidence in these institutions had ebbed and after the disputed
presidential poll in 2007 in which, according to the Commission of Inquriy into the Post-Election
Violence (October 2008), an estimated 1 300 people were killed and 350 000 displaced. There
were also gross human rights violations including physical and sexual molestation, rape and
restrictions on the freedoms of movement during the two months of sporadic but violent inter-
ethnic fighting pitting the Party of National Unity (PNU) and the Orange Democratic Movement
(ODM) supporters against each other. The violence ended with the signing of the Agreement on
the Principles of Partnership of the Coalition Government by Mwai Kibaki and Raila Odinga on
28 February 2008. This led to the establishment of a coalition government whereby Odinga of
the ODM became prime minister as Kibaki of the PNU retained the presidency. The agreement
comprised of four agenda items:
1. Stop the violence and restore fundamental rights and liberties.
2. Address the humanitarian crisis occasioned by the massive displacement by resettling
internally displaced people (IDPs) and promoting reconciliation and healing.
3. Overcome the political crisis.
4. Address and find solutions to the long-standing issues including constitutional, legal
and institutional reform; land reform; poverty, inequity and regional imbalances;
unemployment, particularly among the youth; consolidating national cohesion; and
bringing about transparency, accountability and acting against impunity.

These issues, especially the implementation of point 4, are critical to the realisation of the rule
of law in Kenya.

Methodology
This study was carried out using a variety of methods. The authors used both primary and
secondary data. Secondary data was used to assess the status of the legal and judicial sector. The
authors reviewed statutory law, case law, the reports of various studies on the legal and justice
sector and the reports of commissions established over the years to review different aspects of

kenya: Justice sector AND the rule of law ix

the sector. They also took into account on-going reform initiatives in the legal and judicial sector.
Most notable were the reforms being carried out under the aegis of the governance, justice, law
and order sector (GJLOS).
Beyond secondary data, primary data was sought through various means:
• Interviews with key informants in the legal and judicial sector including judges;
magistrates; employees of human rights bodies including non-governmental
organisations; Kenya National Commission on Human Rights and non-governmental
organisations; police officers; law reform officials; and other actors in the legal sector
such as legal scholars, lawyers’ staff of the National Council for law reporting, and
police officers. The judges and magistrates interviewed were from different stations.
• A survey of the legal and judicial sector was carried out through the Steadman Omnibus
National Survey carried out in December 2008. The main objective of the survey for
this study’s purpose was to tease out Kenyans’ opinions and views on core aspects
pertaining to the rule of law, access to justice and the security situation in the country.
2007 respondents participated in this survey drawn from all Kenyan provinces, social
classes, cultural groupings and occupations. Most importantly, consideration for age
and gender variables was given.

The majority of respondents in the Steadman Survey were drawn from the Rift Valley (24%),
followed by Nyanza and Eastern with 15% each. Another 13% and 12% of the respondents were
drawn from the Central and Western Provinces respectively, while 3% hailed from the North-
Eastern Province (see Table 1).

Table 1: Distribution of respondents by province

Province No. of respondents Percentage (%)
Nairobi 161 8
Central 256 13
Coast 179 9
Eastern 310 15
Nyanza 310 15
Rift Valley 483 24
Western 241 12
North-Eastern 68 3
Total 2007 100

In terms of age distribution of respondents, the majority of them were in the 15–17 and 18–24
year-old categories with a combined score of 70% while the rest, up to the age of 44, comprised
30% of the respondents. There were no respondents older than 44 (see Table 2).

x kenya: Justice sector AND the rule of law

Table 2: Distribution of respondents by age
Age bracket of respondents No. of respondents Percentage (%)
15–17 yrs 574 29
18–24 yrs 823 41
25–34 yrs 351 18
35–44 yrs 259 13
Total 2007 100.0

Regarding religion, the overwhelming majority of respondents were Christians, accounting for
over 90% of the survey sample. These respondents belonged to various denominations, but largely
included Catholic and Protestant. Muslims and other religions comprised 7.1% and 2.1% of the
sample respectively.

Table 3: Distribution of respondents by religion

Religion No. of respondents Percentage (%)
Christian 1823 90.8
Muslim 140 7.1
Other 43 2.1
Total 2007 100.0

The majority (52%) of the survey respondents were married, 38% were single while 6% and 3%
were separated and cohabiting respectively. Only a mere 1% did not respond to the question. The
majority of those interviewed in this study were women accounting for 51% while men accounted
for 49%.

Table 4: Distribution of respondents by gender

Gender of respondents No. of respondents Percentage (%)
Men 984 51
Women 1023 49
Total 2007 100.0

According to data elicited in this survey, the overwhelming majority of respondents had at least
attained some basic formal education. A very small category of those without formal education
accounted for only 0.6% of the sample. The majority of those who had attained formal education
had completed at least secondary education (35.2%). Those who had completed primary education
comprised 15.9% of the sample while those with some primary and some secondary education
accounted for 7.8% and 10.9% respectively. Those with post-secondary education accounted
for 27.4%. Among the latter, 19.2% had a tertiary education while 8.2% had received university
education (see Table 5).

kenya: Justice sector AND the rule of law xi

 Table 5: Distribution of respondents by highest level of education
Respondents’ level of education No. of respondents Percentage (%)
No formal education 44 2.2
Some primary education 157 7.8
Completed primary education 320 15.9
Some secondary education 219 10.9
Completed secondary education 706 35.2
Tertiary college education 385 19.2
University education 165 8.2
RTA 11 0.6
Total 2007 100.0

The results of the survey and the interviews were triangulated with the secondary data to bring out
a holistic view of the legal and judicial sector.

Summary of findings
The study’s main findings are that:
• Kenya has made good progress towards realising the rule of law, especially since 2003.
This progress is evidenced by a more robust human rights’ enjoyment context, the
establishment of the Kenya National Human Rights and Equality Commission, the
establishment of the National Commission on Gender and Development and the
revamping of the Law Reform Commission, among others.
• More recently, the establishment in 2008 of a National Cohesion and Integration
Commission and of a Truth, Justice and Reconciliation Commission also illustrate a
commitment to realise the rule of law. Kenya has made significant efforts to make the
judiciary a true guardian of the rule of law, as evidenced by the 2010 Report of the Task
Force on Judicial Reforms and the new constitution, which now needs to be implemented
urgently and sustained, with a view to establishing an autonomous and accountable
judiciary. There is a need to enhance and sustain the accountability of the executive and
the legislature to the people of Kenya, as the new constitution demands.
• Access to justice remains a mirage for most Kenyans. There is a need to enhance access
to justice by, for example, using traditional dispute resolution mechanisms as required
by the new constitution.

There is a need for a programme that addresses justice sector reforms in view of the provisions of the
new constitution, and the proposals of task forces and commissions established to inquire into the
activities of justice sector institutions such as the judiciary and the police. We hope that the proposals
of this report will inform the establishment and provide terms of reference for such a sector-wide
programme.

Binaifer Nowrojee
Executive Director
Open Society Initiative for Eastern Africa
xii kenya: Justice sector AND the rule of law
Part I
Kenya Justice Sector and the Rule of Law
Discussion Paper
Introduction
The justice sector in Kenya has been the subject of major reform efforts in recent years. The
different arms of the sector have been the subject of intense discussion and there are concrete
proposals for reform of the legal and institutional framework undergirding the rule of law, the
justice system, the executive, the legislature, the criminal justice system and the Bar. Some of
the reform measures have resulted in positive changes in the implementation of the rule of law
in Kenya since the installation of a new government with a reforming agenda in 2003. This
is evident in, among other measures, the establishment of the Kenya National Commission
on Human Rights and the National Commission on Gender and Development, as well as
the revamping of the Law Reform Commission. Yet the National Rainbow Coalition (NARC)
government under President Mwai Kibaki soon fell away from its reforming commitments, and
by the end of its first term many promises for change had not been implemented.
The 2007–2008 post-election crisis in Kenya gave the law reform agenda a significant
impetus. The traumatic events witnessed during the crisis demonstrated a real need for the
evaluation and overhaul of fundamental institutions of governance. Above all, the inability of
the system to resolve the electoral disputes through a legal process re-emphasised the need to
transform Kenya’s justice system and make it genuinely independent of political interference.
Two commissions of inquiry with international representation – on the post-election violence and
on the election management system itself – highlighted issues of the rule of law and impunity
for abuses in their recommendations. The reinstated government of President Kibaki realised,
despite – or because of – its weak and contested mandate, that it must become more serious
about implementing the initial reforming agenda with which it had entered office in 2003.
Above all, the post-election crisis forced the government to return to its commitment to
complete Kenya’s long-standing quest for a new constitution. This time, a fresh review process
culminated in the endorsement of a new constitution by more than two-thirds of Kenyans in the
referendum held on the 4 August 2010. The new constitution includes many important reforms as
well as the symbolic and actual opportunity to make a new start in enshrining respect for the rule of
law. With respect to the justice sector, key reforms contained in the constitution include:
• Inclusion of the rule of law, equity, social justice, inclusiveness, equality, human rights
and non-discrimination among the national values and principles of governance
binding all state organs, state officers, public officers and others when applying or
interpreting the constitution; enacting, applying or interpreting any law; or making or
implementing public policy decisions.

disc u ssi o n P A P E R 3
 • The anchorage of a revamped Kenya National Human Rights and Equality Commission
with an expanded mandate.
• The specification of leadership and integrity requirements for public officers which can be
used to stem impunity and disregard for law by the executive, legislature and the judiciary.
• The right to fair administrative action to enable citizens to participate in, and hold to
account, governmental decision-making processes.
• Measures for greater independence of the judiciary including re-organisation, financial
and operational autonomy and a revamped Judicial Service Commission.
• The re-organisation of the policing agencies and the establishment of the National
Police Service Commission as a constitutional commission.
• The anchorage and elaboration of the rights of persons who are arrested, detained,
imprisoned or held in custody.
• Enhancing the objectivity and accountability in investigations and prosecutions by
assigning the state’s powers of prosecution to the office of the Director of Public
Prosecutions (DPP).
• The anchorage of access to justice and broadening of avenues for dispute resolution
through alternative means such as reconciliation, mediation, arbitration and traditional
dispute resolution.

However, for these important constitutional principles to translate into a concrete realisation
of the rule of law ideal, the government needs to pass enabling legislation and put in place
adequate administrative mechanisms to address a number of issues and align them to the new
constitutional dispensation. Some of these include:
• The ratification of key international and regional human rights instruments that have
not been ratified.
• The establishment of legislative and administrative mechanisms for realising the
objectives of human rights treaties and implementing the rulings of regional courts,
such as the African Commission on Human and Peoples’ Rights.
• The enacment of the Kenya Law Reform Commission Bill into law as soon as possible
to give the Commission operational autonomy and enable it to discharge its role in law
reform and execute the huge mandate it has under the fifth schedule of the constitution.
• The need for exploration of customary or informal systems of criminal justice, because
in some parts of Kenya, these are very prevalent and have been resilient despite efforts
over the years to eradicate them. They should be allowed to operate to the extent that
they are participatory, accountable, non-discriminatory and are not inconsistent with
the constitution and any other written law.
• The establishment of a national legal aid scheme to enable more Kenyans to access
justice given the levels of legal rights awareness and costs of legal services.
• There have been many proposals affecting actors in the legal and justice sector.
The changes needed in these sectors for improved effectiveness and to support the
attainment of the rule of law are known. The problem is implementation and follow-
through. This raises the need to catalogue the proposals for change over time and in

4 PART I kenya: Justice sector AND the rule of law

 the new constitution and track these reforms over time in the police force, the judiciary
and other actors in the sector. The tracking should go beyond ‘ticking boxes’ on what
has been done to linking the reforms to improvement in the attainment of rule of law:
• There should be synergy between the different legal and judicial sector actors to
ensure that reforms are carried out holistically.
• Research, training and capacity building are critical in moving from the old
constitutional dispensation to the new.

1. Consolidating the legal and institutional

framework to advance rule of law principles
A more effective domestication of international law
Kenya has ratified most of the important international and African human rights treaties, most
of them without a great delay from the time when they were adopted by the relevant international
bodies. Nonetheless, key international and regional human rights instruments need to be ratified by
the government, including the Protocols to the African Charter on Human and Peoples’ Rights on
the Rights of Women in Africa (the ‘Maputo Protocol’) and on the Rights and Welfare of the Child.
In line with the common law tradition, Kenya applies the dualist approach to international
treaties, which does not have direct effect in domestic law and require implementing legislation.
Since different legal norms apply, including customary law and international law provisions on
gender equality for instance, some have remained unimplemented despite Kenya ratifying the
United Nations Convention on the Elimination of All Forms of Discrimination Against Women
(CEDAW). The provisions of the new constitution offer some respite but the period before
implementation will leave a window open for gender discrimination.
The government has also in some cases taken deliberate action to domesticate treaty
obligations by enacting new laws. Examples include the Children’s Act of 2001, the Persons with
Disabilities Act of 2003 and the HIV/Aids Prevention and Coordination Act of 2006.
Kenya has been slow and irregular in following the reporting procedures related to the
international human rights treaties to which it is a party; though this has improved in recent
years. For example, after submitting its initial report on the International Covenant on Civil and
Political Rights to the Human Rights Committee in 1979, due in 1977, it then submitted its next
report (consolidating the second, third, fourth and fifth reports) only in 2004. The next report
was due in 2006 and is yet to be submitted. Kenya has so far failed to submit any report to the
Committee Against Torture despite acceding to the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment in 1997, which obliged it to submit reports at
intervals of four years from 1998. The report to the Committee on Economic, Social and Cultural
Rights submitted in 1992 was rejected by the Committee for being too scanty and not following
the established guidelines, and then only resubmitted in 2007. Kenya submitted its first report
to the African Commission on Human and Peoples’ Rights in 2006, combining all overdue
reports into one.

disc u ssi o n P A P E R 5
 The government has taken measures to enable it to improve its performance, including the
establishment in 2002 of an inter-ministerial committee on human rights reporting obligations,
whose responsibility is to prepare and produce country reports on human rights treaties. The
membership of this committee includes non-governmental organisations (NGOs). In addition,
the government has been consulting stakeholders such as civil society organisations working on
human rights in the process of preparing its reports. This has improved the quality of the reports
as more people are involved bringing in a broad range of competences.
Kenya has been the subject of several complaints to the African Commission on Human
and Peoples’ Rights (ACHPR), for being in violation of its obligations under the African Charter.
However, the government has a poor record of implementing the rulings of the Commission. In
the Ouko case, for example, the government failed to comply with the ruling that it ‘facilitate the
safe return’ of John Ouko, a student union leader who was forced to flee the country after being
subjected to arbitrary arrest, detention and acts of torture.
A more recent complaint is the Endorois case, involving violations resulting from the
displacement of the Endorois, an indigenous community, from their ancestral lands without
adequate compensation. In its decision, the ACHPR found that the government was in violation
of the rights to freedom of religion, property, health, culture, and natural resources under the
African Charter on Human and Peoples’ Rights. The court further recommended restitution
of Endorois ancestral land, recognition of the rights of ownership to the Endorois as well as
compensation for the loss suffered. The government is yet to comply with this ruling.

Strengthening the independence of the Kenya Law Reform

Commission
The Kenya Law Reform Commission (KLRC) has the mandate to keep all the laws of Kenya
under review to ensure their systematic development and reform. The KLRC works with other
sectors of society to identify areas that need legislative reform, they then conduct research and
recommend appropriate legislative action. The KLRC has been an important actor in the push
for reform, including the development of the Children Act of 2001 and the Sexual Offences Act
(SOA) of 2006, both milestones in the protection of the rights of women and children. These
new laws offer useful lessons both to the KLRC and to civil society organisations on successful
reform efforts, including the importance of sensitising important constituencies through an
effective media strategy and engaging in negotiations and displaying willingness to compromise.
However, the KLRC has also faced constraints on its work due to a lack of operational
independence. The body responsible for approving the KLRC’s work programmes (the Attorney
General) is different from the body responsible for controlling the funds allocated to it in the
government’s budget (the Ministry of Justice and Constitutional Affairs). The draft Kenya
Law Reform Commission Bill of 2006 would remedy this by providing the KLRC with full
institutional independence and the operational autonomy it requires. It should be enacted as
soon as possible to enable the KLRC to execute its task of law reform as required by the new
constitution. The implementation of the constitution requires the enactment of new laws as well
as a review and revision of others. A robust operational context for the KLRC will greatly facilitate
the performance of these tasks.

6 PART I kenya: Justice sector AND the rule of law

2. Promoting mechanisms that guarantee
greater independence of judges
The lack of independence of the judiciary has historically been one of the greatest threats to
the rule of law in Kenya. The lack of trust in the courts directly contributed to the post-election
violence of 2007/2008, and has undermined the rule of law in all aspects of national life.
The 1963 constitution gave the president complete discretion in the appointment and
dismissal of the Chief Justice; while the Chief Justice has had extensive administrative powers
over the functioning of the courts. Together, these powers have undermined the legitimacy of the
judiciary and the decisional independence of judicial officers. As a result, many judicial officers
are insecure in their positions. The system for appointing judges has also been open to abuse,
since it establishes no standards or criteria for vetting candidates. Accordingly, the individuals who
become judicial officers are not necessarily the most deserving. Arguably, such judicial officers
are likely to perceive it to be in their best interest to protect the interests, and even misdeeds,
of the appointing authority. Although the constitution required courts to be independent and
impartial, there were no constitutional provisions on immunity of judicial officers, thus judges
and magistrates were not ensured immunity from executive-branch pressure. Judges and
magistrates who acted with independence and impartiality to the executive’s detriment have
been penalised by transfers to outlying stations.
The constitution also failed to establish due process mechanisms to ensure that the process
of removal was transparent, impartial and fair. The importance of this issue was highlighted
by the Integrity and Anti-Corruption Committee established in 2003 to investigate corruption
in the judiciary (the Ringera Committee). While the purge of judges that followed the Ringera
Committee’s recommendations was partially welcomed, and it fulfilled the technical letter of
the 1963 constitution’s requirements for dismissal of judges, it was at the same time heavily
criticised for failing to respect basic due process and therefore for implicating some judges who
were not in fact guilty of corruption. Some judges were not even informed of the action that was
to be taken against them.
These various problems were identified by the 2010 Report of the Task Force on Judicial
Reforms. This latest task force, chaired by a judge of the High Court and with membership
drawn from the judiciary, civil society and government, highlighted critical changes that needed
to make the judiciary more effective in executing its mandate. These include: restructuring of
the Judicial Service Commission; need for merit-based appointment of judges and other judicial
officers; need to address the backlog and delay of cases; need to improve the administration of
the judiciary; need for a performance management system for judges and judicial officers; need
for ethical conduct and prevention of corruption in the judiciary; need to promote human rights
and access to justice; improved access to information and communication; and improvement of
terms and conditions of judicial officers.
The new constitution implements many of these recommendations. It seeks to enhance
judicial independence and accountability by dispersing judicial authority, giving the judiciary
autonomy from the executive, establishing transparent and accountable mechanisms for the

disc u ssi o n P A P E R 7
appointment of judges, and circumscribing the power to dismiss judicial officers. The 2010
constitution provides for the re-establishment of the Judicial Service Commission, with a new
mandate to ‘promote and facilitate the independence and accountability of the judiciary and
the efficient, effective and transparent administration of justice’, including by recommending
judges for appointment to the president. It also provides for due process in the removal of
judges, providing very limited grounds and requiring the adoption of legislation within one year
to regulate the use of these powers. The transitional provisions in the sixth schedule to the new
constitution require legislation within one year that will establish mechanisms to vet existing
judges and magistrates and remove those who are found not to be fit for office. The sitting Chief
Justice must vacate his office and may either retire from office or, subject to vetting, continue to
sit on the reconstituted Court of Appeal.
These measures are comprehensive and necessary as an effort to restore the legitimacy of
the judiciary in the perception of citizens. They provide the details for which the constitution sets
the framework and should therefore be seen as part and parcel of the reform package.
The independence of the judiciary is further threatened by its poor performance due to
the poor conditions of service, poor funding and severe shortage of qualified personnel. These
problems contribute both to poor quality decision-making and also to the backlog of cases in
the courts. The issue of resources will need to be urgently addressed by the new Chief Justice,
playing an advocacy role with the Minister for Justice and Kenya’s development partners for
increased support to the judicial system.
The constitution requires the reconstituted Judicial Service Commission to have regard for,
among other things, the promotion of gender equality in the judiciary, something that has been
notably lacking from the previous commission. The 2010 Task Force found that females were
grossly under-represented in the justice sector. There were no women designated in the Chief
Justice or Chief Court Administrator posts, neither were they present in the Court of Appeal as
judges or as Kadhis. There is a higher, but still insufficient, ratio of women in the magistracy.
An affirmative action legislative amendment was rejected by Parliament in 2007, although it
was followed by a presidential directive that at least one-third of all appointments to public office
should be of women. The Judicial Service Commission did not appear to have any policy to
actively increase the number of qualified women in the judiciary.
As the appointment procedures for judges are reviewed, including by the adoption of new
legislation on the judiciary, the appointment of more women to senior judicial positions should
be a priority. If the Chief Justice is a man, the Deputy Chief Justice should be a woman. It is
encouraging that the JSC has ensured gender representation by requiring, for instance, that of
the two advocates representing the Law Society of Kenya, one should be a man and the other a
woman. This is also the case with the two representatives of the public. One of the factors that
may keep women from the judiciary is the failure to make conditions conducive for them to
perform roles in public and in private as wives and mothers. For instance, frequent transfers are
likely to affect women who tend to be the anchors of homes and carers for their families. Such
transfers may affect children’s learning and discourage women from judicial service.
Finally, there is a need to review the powers of the judiciary to impose penalties for contempt
of court. While in theory a protection designed at ensuring respect for the judicial system, the

8 PART I kenya: Justice sector AND the rule of law

courts have in practice used the power to punish for contempt to squelch legitimate public
criticism of judicial conduct. The Republic v. Gachoka and Another case in 1999 relating to
allegations of corruption in the judiciary illustrates this problem. Here, the Attorney General
had instituted contempt of court proceedings against the respondents for publishing articles
in the Post of Sunday, alleging that they had contravened the sub judice rule by commenting
on an ongoing case, and that they were scurrilous and malicious attacks on the character of the
judiciary and the Chief Justice. The new legislation on the judiciary envisaged by the constitution
should also regulate the use of this power and ensure that punishment for contempt of court is
only imposed in such a way that it does not prevent reporting in the public interest on the courts.

3. Breaking a long tradition of government

disrespect for the rule of law
Successive governments in Kenya have circumvented the prescriptions of law when they found
them to be a hindrance to the attainment of their short-term political interests. The result
has been a self-destructive culture of impunity and lawlessness, as the law has ceased to be
authoritative. The current government has not been exempt from this disregard for established
rules and procedures. In 2003 for instance, the Minister for Tourism and Information defied a
court injunction restraining the government from taking over a building whose ownership was
in dispute. The same government minister subsequently defied a court order requiring him to
disband a committee he had constituted to investigate the affairs of a radio station. Again in
2003, the Minister for Local Government defied a court order which sought to prevent him from
revoking the nomination of a councillor of the Mombasa City Council. The same minister defied
a court order quashing the nomination of an individual to serve in the Kisumu City Council. No
action was taken against these defiant government ministers.
Parliament has also eroded the separation of powers by passing laws that give its members
executive powers and control over significant budgets. The Kenya Roads Board (KRB) Act of
1999 established a ‘Districts Road Committee’ for every district and provided that all MPs from
the district be members of this agency of government, thus conferring executive powers on
legislators. This was unconstitutional as it subverted the separation of powers doctrine by giving
legislators the power to enact and enforce the laws. The Constituency Development Fund (CDF)
Act 2003 gave MPs the power to expend public resources and account to Parliament for such
expenditure. In both cases Parliament did not take steps to amend such laws despite the High
Court’s rulings, in 2000 and 2005 respectively, that they are unconstitutional. Both laws should
be reviewed to ensure that they conform to the new constitution, and in particular to bar MPs
from administering funds that should be the province of the executive.
The new 2010 constitution includes within its bill of rights a new provision on ‘fair
administrative action’, stating that ‘every person has the right to administrative action that is
expeditious, efficient, lawful, reasonable and procedurally fair’ (article 47). It requires legislation
to be enacted within four years that would give force to this right, in particular by allowing for
review of all administrative action by a court or tribunal. Applying to all public officials and

disc u ssi o n P A P E R 9
agencies, this law would establish principles and procedures for controlling governmental power
to ensure that public authorities do not abuse the powers granted to them by the constitution
and acts of Parliament. It should regulate the procedures and acts of public administrators by, for
example, guiding the initiation of investigations of complaints against public functionaries, and
provide for remedies and applicable orders directing parties to conform to governing statutes or
rules. It should also entrench the principles of natural justice to ensure fairness and procedure
and reasonableness in decision-making.
Legislation on fair administrative action should be supplemented by stronger judicial action
on the failure, neglect or refusal of public officers to comply with court orders. In the well-known
Kisya Investments Ltd v. Attorney General & Another of 2005, the High Court has adopted an
interpretation of the Government Proceedings Act which precludes courts of law from issuing
orders ‘for enforcing payment by the government of any money or costs’. This precedent should
be directly addressed by the legislation on fair administration action requiring courts to interpret
the Government Proceedings Act and other relevant statutes in a manner that fulfils the broad
intentions of the new constitution, especially government respect for the rule of law.
The Kenyan government has, since independence, made frequent use of the appointment
of commissions of inquiry under legislation that is similar in many Commonwealth countries.
Such commissions are chaired by a judge or former judge, have quite broad powers of
investigation, and are appointed in response to public demand for action on a particular issue.
Since independence, successive presidents have established about 25 commissions of inquiry.
Though they may produce useful reports and recommendations, commissions of inquiry are
in many cases established as a means of containing public anger where it appears the executive
does not intend to implement their recommendations: the president is under no obligation to
make the reports of such commissions public nor to implement their findings. Moreover, since
successive presidents have tended to appoint sitting judges as heads of commissions of inquiry,
these judges are drawn into political controversies, while their determinations as members of
the commission may then be challenged in courts of law. As the Bosire Commission observed,
‘judges who serve in politically motivated inquiries run the risk of being dragged into politics and
having their reputation for impartiality ruined’.
There is a need for review of the Commissions of Inquiry Act, including the provisions
surrounding appointment of sitting judges as commissioners in non-judicial processes.
Commissions of inquiry are a tool used by the executive and therefore tend to be political in
nature. They are therefore not in the realm of judicial decision-making and can open judges
who sit on them to situations of conflict of interest if from the evidence, triable issues are raised.
Moreover, if matters raised in the commission are subjected to judicial review, there is the
likelihood of a High Court judge sitting in judgment over a matter overseen by a Court of Appeal
judge as the chair of the commission. In the circumstances, and to maintain the decorum of
the court, judges should not serve on commissions of inquiry. Such exemption is important for
enhancing the independence of the judiciary. In addition, new legislation should enhance the
autonomy, transparency and accountability of commissions.

10 PART I kenya: Justice sector AND the rule of law

4. Transforming a largely unfair criminal justice
system
There has been a rapid increase in the levels of crime in Kenya over the last two decades. These
high crime levels have been attributed to a number of factors, including rapid growth in urban
populations coupled with acute housing shortages, declining economic prosperity, rising urban
unemployment, the collapse of municipal institutions of governance, the emergence of vigilante
groups and perceptions of impunity among criminals. The Kenya Police Crime Report notes
the current threat to national security posed by organised criminal gangs like the Mungiki and
the sustained proliferation of firearms from countries such as Somalia and Southern Sudan.
Police and prison officers work under deplorable conditions and terms of service, which may
predispose them toward oppressing the public they are supposed to serve.
The criminal justice system is characterised by wide but unregulated discretionary powers
whose exercise often leads to the criminalisation of poverty and the persecution of citizens. A
majority of convicted prisoners are petty offenders, who could have been dealt with other than
by imprisonment. As of 31 May 2009 for instance, out of the 34 500 convicted offenders, 18 956
prisoners had been sentenced to less than three years imprisonment. The existing policy and
legal framework has served to ensure that public security agencies only serve the interests of the
political regime in power and the samaki kubwa (‘big fish’), the influential top few stakeholders,
to the detriment of the realisation of the rule of law for the majority.
The Kenya Police Force (KPF) is understaffed and the officers are not adequately equipped
in terms of resources to effectively perform their duties. The current 1:850 ratio of police officers
to citizens falls short of the UN recommended ratio of 1:450.
A number of critical reform measures have already been initiated, while the new constitution
should provide a firm anchorage for these reform measures. Nevertheless, there is a need for
many more measures to be taken in order to supplement the constitutional guarantees of a fairer
criminal justice system.

Improved intelligence and strategy on crime

One of the key factors that aggravate the deficit of effective criminal justice relates to the poor
quality of information about the crimes that are committed. There is little existing information
beyond official records produced by the criminal justice administration, which are hardly made
available to the public. These records are in any event not conclusive since many crimes are never
reported to the police.
Currently, several factors have contributed to the failure to report crimes. First, the reluctance
with which the police handle certain cases discourages the reporting of crimes. Some cases are
normally labelled as ‘unfounded’ claims even where investigations have not been instituted.
For example, domestic violence cases are trivialised and offenders are not always charged when
victims report them to the police. Secondly, the lack of adequate resources and infrastructure
impacts adversely on the efficiency of the police in responding to crime. For example, sexual
offences require immediate medical examination and collection of evidence for a conviction to

disc u ssi o n P A P E R 11
be made possible. However, some victims do not have easy access to police stations and hospitals
to obtain the required evidence in good time. The longer this takes the harder it is to obtain
sufficient evidence warranting a conviction. Low conviction rates thus discourage victims from
reporting such crimes.
These problems of low reporting rates are shared with many countries, even the richest.
Nevertheless, the Kenyan government and police could improve their response on the crimes
that most affect ordinary people by commissioning independent victim surveys to identify those
crimes that are most common and of most concern, and developing policing strategies designed
to address those problems.

Improving policing
Policing in Kenya is mainly the preserve of the Kenya Police Force (KPF). The Police Act also
provides for an Administration Police Force (APF), whose function is to ‘assist the provincial
administration in the exercise of their duties’.
Policing in Kenya has been characterised by poor performance and abuse. At the most
egregious level, the KPF has often been deployed as an instrument for the political repression of
the citizenry, as pointed out in the report of the Commission of Investigation into Post Election
Violence (CIPEV).
At the level of day-to-day policing, KPF officers frequently arrest and detain suspects they
do not intend to charge with any particular offences, especially through a practice known as ‘the
Friday Collection’. They make arrests on Friday evening, solicit bribes from those arrested and
tell those who refuse to pay that they cannot have access to a lawyer or magistrate until Monday.
Police officers have been accused of using firearms indiscriminately. A 2009 report by the
UN special rapporteur on extrajudicial, arbitrary or summary executions, Prof. Phillip Alston,
concluded that extrajudicial killings in Kenya appeared to be ‘widespread and some of the killings
are opportunistic, reckless or personal’. Police officers also commit or participate in criminal
activities. Between 2001 and 2004, 312 police officers were arrested for being involved in violent
crime. Further, they are often heavy-handed, insensitive and use excessive force in their dealings
with citizens. The international corruption watch organisation Transparency International has
consistently ranked the KPF as the most corrupt national institution in Kenya.
The key legislation governing the police, the Police Act of 1960 (revised in 2002) and the
Police Standing Orders of 1962 (revised in 2001) adopted under the Act, are out of date and
inadequate. For example, the Commission of Inquiry into Post-Election Violence argued that
their main weaknesses were: unclear responsibilities and confused lines of accountability;
constraints around the ability to place the right people in the right jobs; an inadequate system
for managing staff performance and discipline issues; little guidance to work with partner
agencies, domestically or internationally; and few supports to enable the use of modern policing
tactics.
To address these problems, the government should carry out a comprehensive vetting of
police staff, as recommended by the National Task Force on Police Reforms, appointed in 2005
to look into these issues. The institutional and legislative framework that has been promoted
thus far for the vetting process is not conducive to promoting positive codes of conduct among

12 PART I kenya: Justice sector AND the rule of law

the staff of the Kenya Police Force and the Administration Police. This framework needs to
be revisited and specific legislative instruments must be calibrated in order to ensure stricter
oversights over the forces and also, importantly, to require the training of these staff members
and to create clear legislative guidance on how to govern the vetting process. In particular, policing
needs to be democratised by sharing policing information with the citizenry, and by giving them
a voice and an influence in the decision-making process. Establishing civilian oversight bodies
constitutes one way of democratising the policing decision-making process. The establishment
in September 2008 of a Public Oversight Board was a giant step that acknowledged the need to
develop accountability mechanisms for the KPF. But the Board was not yet in operation and its
secretariat was yet to be set up at the time of writing this report. Moreover, the setting up of this
Board was not fully expected to address the underlying issues stemming from the fact that the
KPF was established, and continues to be based, upon a regime that does not demand police
accountability.
The National Task Force on Police Reforms also recommended that the conditions of service
and the welfare of police officers should be improved. Among other things, the Task Force has
asked the government to: improve the remuneration and allowances of police officers; take the
interests of family members into account when transferring police officers; provide medical and
life insurance cover; and improve the quality of their housing and accommodation.
After receiving the report of this Task Force, the government established a Police Reforms
Implementation Committee, which is currently preparing draft laws on civilian oversight of
policing, administration of policing and regulation of private security providers for consideration
by Parliament.

Appropriate sentencing
The current practice in sentencing convicted criminals is largely discretionary and highly variable,
while it does not provide adequate measures for non-custodial sentencing in the case of petty
offences. Section 35 of the Penal Code which addresses conditional discharges merely hints at
sentencing principles and directs the judicial officer to take into account the circumstances of the
offence and the character of the offender. Where only the maximum penalties are provided, but
not minimum, the judicial officers have wide discretionary powers on the appropriate sentences.
General sentencing principles are well-developed in case law in Kenya, but they should be
reviewed to bring them up-to-date and make sentencing more transparent. Comprehensive
sentencing guidelines should be established either in statutory or policy documents.
Where an offender has been convicted, the law allows courts to make probation orders in
place of custodial sentences. Furthermore, the court is entitled to commit offenders convicted of
an offence punishable by imprisonment for a term of up to three years to perform community
service. But courts have generally been reluctant to give non-custodial sentences, although this
trend is now beginning to change. Nevertheless, the use of non-custodial services demands
the enhancement of the capacity of the Probation Department to administer such sentences.
In addition, the community service orders programme should take into account the need to
rehabilitate offenders by, for example, counselling offenders.

disc u ssi o n P A P E R 13
Increasing the independence of the prosecution system
The new constitution seeks to enhance objectivity and accountability in investigations and
prosecutions. Section 26 of the old constitution vested in the Attorney General the power to
decide if and when an individual should be prosecuted for a criminal offence. Further, it gave
the Attorney General the power to take over and continue criminal proceedings that had been
instituted or undertaken by persons or authorities, and to terminate any prosecution. This power
was often abused, and resulted in individuals being prosecuted, only for charges to be dropped
along the way. The failure to regulate this power resulted in the law being used to persecute
innocent citizens, to the detriment of the legitimacy of the criminal justice system. In the context
of human rights violations and economic crimes, this power was often applied selectively, with
the result that the perpetrators of these crimes were hardly ever punished.
In the new constitution, the task of exercising the state’s powers of prosecution will now
be undertaken by the office of Director of Public Prosecutions (DPP) (article 157). The primary
functions of the Attorney General will be to give legal advice to the government and represent it
in legal proceedings (article 156). It is worth noting that the new constitution requires the current
Attorney General to vacate office not later than 12 months after it takes effect. This should be seen
as a vetting exercise, given that the Attorney General is considered to be ‘not just complicit in, but
absolutely indispensable to, a system which has institutionalised impunity in Kenya’, according
to the 26 May 2009 Report of the United Nations Special Rapporteur on Extrajudicial, Summary
or Arbitrary Executions. The DPP can only take over a criminal suit with the permission of the
person or authority who instituted it. In addition, the DPP can only discontinue a prosecution
with the permission of the court. And to preclude the abuse of the power to prosecute, the new
constitution requires that its exercise ‘shall have regard to the public interest, the interests of the
administration of justice and the need to prevent and avoid abuse of the legal process’.

Regulating informal systems of criminal justice

The deficiencies of the criminal justice system have led to the emergence of private modes of
security provision. Among the poor, vigilante groups have emerged to fill the vacuum created
by the state. And among the rich, there has been a proliferation of corporate security. A culture
of ‘mob justice’, which involves the lynching of criminals by the public, has also developed.
Thus in effect, the public have taken the law into their own hands due to the perception that
the police and the courts are unable to guarantee justice. The dark side to this has been the
resulting manifestation of vigilante groups. Examples include the Mungiki, Taliban, Jeshi la
Mzee, Baghdad Boys, Kagio, Kaya Bombo Youth and Sungu Sungu. Although these groups
often engage in criminal activities, sections of the citizenry perceive them to be an appropriate
response to crime in many cases, in particular when they operate to curtail the criminal activities
of other vigilante groups. In some cases, moreover, vigilante groups are touted as a form of
community policing, as they consult with police officers in their areas of operation.

14 PART I kenya: Justice sector AND the rule of law

5. Enhancing mechanisms for a broader access
to justice
Access to justice is quintessential to the realisation of the rule of law ideal. Yet many Kenyans
remain unaware of their basic rights while the courts are structured in a way that does not
facilitate equal access to justice. Court fees are high for an ordinary citizen and for many, legal
services are unaffordable. To promote access to justice it is of paramount importance that the
government and civil society should establish mechanisms for educating citizens on their rights
and assist them in accessing justice.
The government should establish a national legal aid scheme to enable more Kenyans to
access justice. Currently, the government provides minimum legal aid which does not cover all
people who cannot afford legal services. The state only provides legal aid for persons charged with
murder in the High Court, and conditional legal aid for a child offender having no other recourse
to legal assistance. The Civil Procedure Act also makes provision for pauper briefs where people
who do not have sufficient means may apply to the court to be allowed to sue as paupers. Such
applications are however dependent on the availability of lawyers to take up the brief. Most free
legal aid and associated clinics are consequently provided by non-governmental organisations
to disadvantaged groups of people especially children, women and the poor. However, free legal
advice from non-governmental organisations (NGOs) is restricted by the fact that they do not
have a countrywide presence. Some NGOs and the Kenya National Commission on Human
Rights (KNCHR) offer free legal aid clinics, but the assistance does not extend much further than
providing legal opinions. A national legal aid scheme would not only support the efforts of these
smaller organisations, but would effectively ensure a nation-wide knowledge of such access as
an entitlement, as at present many Kenyans are unaware that they have any rights to legal aid.
In most of the rural parts of Kenya, justice is sought through the use of non-state justice
systems such as a council of elders or extended family members, and religious institutions.
Cases which are most commonly brought to these institutions include matters to do with land
disputes, livestock disputes, marital and domestic matters as well as domestic violence. Some
crimes such as assault and sexual violence are also referred to the elders for resolution. Being
closer to ‘the people’, as well as much easier to access, much more familiar and less bureaucratic,
the governmental de jure recognition of customary systems of justice would be beneficial as a way
to increase access to criminal justice for all citizens.
The government should encourage and institutionalise alternative dispute resolution to
ease the backlog in courts and ensure expedient resolution of justice, as proposed by the 2010
report of the Task Force on Judicial Reform. Generally there has been no effort to formalise these
courts. As a result, there is no regulation to ensure that the proceedings before these courts
conform to international law and constitutional standards of due process. It is important to note
that the 2010 constitution requires the National Land Commission (section 67) ‘to encourage
the application of traditional dispute resolution mechanisms in land conflicts’ and thus the
crystallisation of alternative justice methods in a legal sense would indeed be a step forward in
the justice sector for increasing access to justice across the country.

disc u ssi o n P A P E R 15
 The court structure as it is does not afford equal access to justice for all. Most of the courts
are found in major towns and at times far from rural areas or vulnerable populations in refugee
camps. The 2010 Report of the Task Force on Judicial Reforms noted that in Northern Kenya
courts are situated as far as 500km away from the users and that in such marginal areas, there
is a dearth of legal service providers. It also pointed out that apart from a shortage of space,
there is also a personnel shortage. The staff establishment for the judiciary is 4 681 but there
are only 1 456 people in posts. With regard to judicial officers, the total number of magistrates
in post is 277 against an establishment of 554; 11 Court of Appeal judges out of an establishment
of 14 judges and 46 High Court judges out of an establishment of 70. The Judicial Service
Commission should ensure that there are enough judicial officers and in the interim, find
innovative ways of ensuring access to justice for all Kenyans. This could be through mobile
courts, moving judges and magistrates temporarily from courts with fewer cases to those with a
big backlog and reviewing court procedures and processes for faster justice.
The government should also implement the provisions of the new constitution and the
recommendations of the report of the Task Force on Judicial Reforms related to access to justice,
namely that :
• Physical facilities of courts be made more accessible to persons with physical disabilities
and other vulnerable groups;
• Courts administer substantive justice without undue regard to procedural technicalities;
• Rules of procedure of Kadhi courts be developed and enacted to standardise the
procedures and practices of the courts; and
• Court rules and procedures are reviewed regularly to ensure that they are efficient and
simple.

6. Ensuring national accountability of external

funding in the justice sector
While development assistance has contributed to the realisation of the rule of law in Kenya,
donors continue to set much of the agenda and the conditions for cooperation, even in the
context of sector-wide approaches (SWAps), such as the Governance, Justice, Law and Order
Sector (GJLOS) Reform Programme in Kenya. Here, there is a concern that donors continue
to exert too much influence as they are too involved in the detail of the programmes, which
can only work to the detriment of the SWAp objective of ensuring governmental leadership
and ownership of development assistance programmes. Furthermore, such donor influence
means that the main flow of accountability will continue to be outward, that is from the recipient
government and SWAp institutions to the development partners.
By far the most significant concern is the ambivalence of development partners over the
use of recipient government administrative procedures and accounting systems. While they
acknowledge the need to rely on national procedures and systems, donors are exceedingly
reluctant to do so, arguing that these procedures and systems are inefficient and corrupt. As a
result, they create parallel structures which only end up undermining national systems. Even

16 PART I kenya: Justice sector AND the rule of law

more worrisome, these parallel structures bypass national accountability mechanisms. In the
case of the GJLOS Reform Programme, for example, the private firm responsible for procuring
goods and services is entirely unaccountable to national constituencies. Thus in order to
circumvent this potential threat and enhance the effectiveness of aid in general and in promoting
the rule of law in particular, several measures need to be taken.
One such measure could consist of a mandate given to the government to keep an inventory
of all development assistance agreements and facilitate public access to those agreements. The
GJLOS Reform Programme is an important case to examine in this regard, as it was created to
strengthen the capacities of the institutions in the governance and legal sector to enable efficient,
accountable and transparent administration of justice. The principal document governing the
Reform Programme was a memorandum of understanding (MoU) between the government
of Kenya and the development partners. The MoU set out the funding arrangements for the
Programme. It provided that most of the development partners would provide funding through
a basket fund, the GJLOS Basket Fund, while others would do so on a bilateral basis. Further,
the MoU set out the terms and procedures for the joint management, funding, monitoring and
evaluation of the Programme. Thus it provided for the appointment of a Financial Management
Agent (FMA) to manage both the basket and non-basket funds, through a holding account in
a commercial bank. It also gave the government overall responsibility and accountability for
the implementation of the Programme. Nonetheless, one of the major shortcomings of this
Programme was related to the fact that it has not been sufficiently mainstreamed into the
government financial management processes. In particular, budgetary management and control
problems have been noted because of the poor linkage between the programme and the Ministry
of Finance, where the GJLOS is not well-known or understood.
Perhaps the most important unfulfilled expectation relates to the Programme’s efforts
to strengthen the government’s financial management and procurement capacities. Because
the development partners were convinced that the government’s financial management and
procurement systems are cumbersome and corrupt, they insisted on the appointment of the
FMA. In effect, therefore, they created financial management and procurement structures
that by-passed the national systems. With respect to financial management, whilst the FMA
is contracted to improve the government’s capacities, it appears that neither indicators nor a
timetable for doing so were provided. The review team thus found no evidence of the FMA
proactively identifying financial management capacity gaps and filling them. And a subsequent
review conducted some two years later reported that the participating government ministries
and departments were concerned about poor communication, procurement delays and –
perhaps most importantly – no real demonstrable evidence of financial capacity building.
Furthermore, bypassing the government’s financial management system is likely to weaken
the government’s financial management capacity since disbursements take place outside of
the governmental financial system. A vicious cycle – in which the government’s financial
management system is bypassed and weakened thereby justifying the continued demand for
an FMA – is thus formed. It is, however, encouraging that a consensus seems to be emerging
among the development partners towards moving to an arrangement under which the
Programme’s finances are managed by the Ministry of Finance through a special account. Thus

disc u ssi o n P A P E R 17
this Programme is an important marker of the real necessity for the government to enact a law
to govern the administration of all forms of aid as a way to not only streamline and make more
efficient the funding and consequently the administrative process, but it would also increase the
accountability of the institutions to the public.
The government should subject the private firms appointed as the FMAs of sector-wide aid
programmes to the requirements of the Public Procurement and Disposal Act of 2005. This Act
gives standing to ‘any person who claims to have suffered or to risk suffering loss or damage
due to the breach of a duty imposed on a procuring entity’. This need was further reinforced by
the experiences and bottlenecks of the GJLOS Reform Programme which illustrated the need
for a national law on the administration of aid, establishing clear institutional and accountability
frameworks, and also structuring the participation of all stakeholders. This would therefore
make the process more transparent and reduce the available channels for corruption since this
legal mechanism would attenuate the lines of accountability. Moreover, it would in effect create
a framework through which the local electorate can hold such governments to account if aid
funds have not been used for their intended purposes, further meaning that the electorate could
demand accountability directly from the development partners too.

7. Conclusion
Most of the recommendations in this paper expand on and are meant to facilitate full
implementation of the proposals of the 2010 Report of the Task Force on Judicial Reforms. They
also stem from the legal guarantees enshrined in the new constitution adopted in the 4 August
2010 referendum. The independence of the judiciary is key to the implementation of these
recommendations. It is also crucial to maintain a systematic process that enables the tracking of
the implementation of the proposals of the Report of the National Task Force on Police Reforms,
and the provisions of the new constitution on the reform of the criminal justice system. The
implementation of these recommendations would also require an adequate tracking of the
enactment of legislation required for the implementation of the new constitution, and auditing
existing legislation (including subsidiary legislation) to ensure that they adhere to the values and
principles of the new constitution.
Civil society groups should participate in and monitor the implementation of all these
reforms, including the drafting of the laws needed to transform the justice system. Civil society
actors, such as NGOs working on human rights, have played an influential role in getting
the government, as well as the concerned institutions, to meet their obligations to date. Their
ongoing involvement will be crucial to the advancement of the implementation process.

18 PART I kenya: Justice sector AND the rule of law

Part II
Kenya Justice Sector and the Rule of Law
Main Report
1
Justice and the rule of law ideal:
Theory and practice
As we understand it, the term ‘justice’ denotes what is right, fair, appropriate or deserved in social
relations. Typically, the need to determine what is right, fair, appropriate or deserved arises in the
context of competition for nature’s scarce resources. In the absence of mechanisms to determine
what is justly due to one human being in relation to another human being relative to a given
resource, it can be expected that ‘the natural lawlessness of human beings’ will lead to the strong
trampling over the weak. This is the basic reason why human beings need the institution of law.
As an instrument of social control, law establishes principles and procedures that, by facilitating
the equal treatment of human beings, will hopefully ensure that the scarce resources of nature
are shared fairly and legitimately, thereby enabling social stability. Where law leads to fair and
legitimate outcomes in this manner, a claim can then be made that law has delivered justice.
It is this stabilising function of law that is expressed in the popular concept of ‘rule of law’.
From this viewpoint, the justice sector comprises the institutions whose task it is to deliver
the rule of law. In this report, we use the term ‘institutions’ broadly to denote the established
rules, norms, practices and organisations that provide a structure to human actors to deliver
the rule of law. Rule of law organisations include the executive, the legislature, the judiciary, the
legal profession, prosecution services, prison services, civil society actors, traditional and other
non-state justice systems and development partners. In Kenya, the justice sector comprises the
following institutions, which assist in the administration of justice in one way or another: the
judiciary, State Law Office, police, Prisons Department, Children’s Department, Probation and
Aftercare Service Department, Law Society of Kenya, Kenya School of Law, university faculties or
schools of law, non-governmental organisations (NGOs) and civil society organisations.

1 . J U S T I C E A N D T H E R U L E O F L AW I D E A L 21
 While a claim can therefore be made that the primary task of the justice sector is to deliver
the rule of law, it should immediately be appreciated that the terms ‘justice’ and ‘rule of law’
are problematic concepts. Moreover, whether law functions to ensure or facilitate justice is a
controversial issue. Nevertheless, it is important for us to understand these two concepts and
their linkages if our study of the justice sector and the rule of law in Kenya is to be a useful tool
for policy advocacy.

A. The rule of law ideal

The essence of the rule of law ideal is that ‘people ought to be governed by law’.1 For this goal of
‘government by law, not by men’ to be realised, the rule of law ideal requires the establishment
of laws that meet a number of criteria.2 First, law must be universal or general, in the sense that
its prescriptions must be addressed to all citizens, and not to particular individuals. Second, law
must be promulgated to its subjects, whose conduct it can only guide if they know of its existence.
Third, law must prescribe modes of behaviour prospectively and not retroactively. Fourth,
the prescriptions of law must be clear so that its subjects understand how they are required
to behave. Fifth, the prescriptions of law must not be contradictory. Sixth, the prescriptions
of law must not require conduct that is impossible for the subjects to perform. Seventh, the
prescriptions of law must be stable over time. That is, while changes in the law are a good thing,
such changes must not be too frequent since many of the actions that law seeks to regulate
‘require advance planning, preparations and a certain level of guaranteed expectations about the
future normative environment’.3 Finally, the prescriptions of law must be applied consistently, in
the sense that there must be ‘considerable congruence between the rules promulgated and their
actual application to specific cases’.4 This criterion of the rule of law is particularly important, as
it implicates the day-to-day and practical application of law.
For the rule of law to be realised, there must be suitable ‘application mechanisms’, including
an independent and professional judiciary, easy access to litigation and reliable enforcement
agencies’.5 Its realisation also depends on access to power and economic resources, and this
explains why the rich and the powerful tend to have better access to the rule of law.
Where these criteria of the law are observed on a day-to-day basis, law’s promise of justice
can be attained. But where they are not observed, this promise is unlikely to be realised. A
question then arises as to why these noble criteria may not be observed. In this regard, the rule
of law should be seen as an empty vessel that can be filled with good or bad laws. In order for
law’s promise of justice to be attained, the rule of law vessel needs to be filled with the values
of a society, including its customs, culture, morality and religion. Looking at the rule of law
from the perspective of the law’s first function discussed above, it then becomes important to
appreciate that normative ordering in any given society works best where there is a desire among
its members to observe the rules and consider it to be in their interests to do so. Law therefore
claims and attains authority not because it is backed by threats of punishment against those who

1 Marmor (2003: 2).

2 Ibid.

3 Ibid. at 8.
4 Ibid.

5 Ibid.

22 PART II kenya: Justice sector and the rule of law

do not abide by its prescriptions, but because it commands the respect of the members of society.
In any case, threats of coercion do not work particularly well where lack of respect for law is
widespread. In such cases, the coercive apparatus of the state is often stretched beyond capacity,
and anarchy tends to take over.
In this regard, it is also important to see the rule of law as a culture that mandates adherence
to principles and procedures. Typically, law achieves its results by establishing the principles
and procedures that need to be followed by the persons to whom it is addressed. For example,
where the legislature proposes to make new laws, the culture of legality requires it to follow
certain uniform procedures. Similarly, the police are required to adhere to certain procedures
in conducting their investigations and prosecuting accused persons. And in order to facilitate
order on the roads, motorists and pedestrians are required by law to observe the rules of the
road whether or not someone is watching over them. Accordingly, procedures and processes
facilitate the proper and uniform application of law so that, for example, its prescriptions may
be predictable and stable over time.6 More significantly perhaps, consistent procedures and
processes preclude anarchy, which is the very antithesis of the rule of law. Thus, if Parliament
does not follow its own law-making procedures, then social ills such as corruption are
encouraged. Likewise, if motorists and pedestrians do not follow the rules of the road, then chaos
will prevail on the roads. Whenever rules are not applied consistently, people begin to lose faith
in their normative character or ability to regulate behaviour. The cumulative effect of such a lack
of a culture of respect for the rule of law is that lawlessness begins to be entrenched in society.
Thus, while the culture of legality may not always produce justice, it is an important attribute of
the rule of law in so far as it facilitates fidelity to law and, consequently, order in society.
Conversely, it also needs to be appreciated that dogmatic adherence to the dictates of law
may not be desirable. In particular, society should not be held captive by rules of procedure which
hinder the attainment of justice. There is thus a need to constantly review rules of procedure to
ensure that they lead to desired outcomes and do so in a way which is not only efficient but also
fair.7 Again, where people begin to perceive legal procedures and processes as being too rigid,
they may begin to lose faith in the law.
In either scenario, therefore, the law must inspire the confidence of the citizenry. As DJ
Galligan has observed, ‘[c]onfidence that the law has been properly applied or a discretion
reasonably exercised, depends to a significant degree on confidence in the procedures as the
means to those outcomes’.8 For Galligan, confidence is fundamental to the institution of law
since ‘legal processes are social processes where the object is to reach a sound practical judgment
about a matter in issue; a sound practical judgment for its part is one which can be explained and
which can be seen to be rational and reasonable, so that at the end we have a confidence in it’.9
The significance of public confidence in the law is also captured in the oft-cited expression that
‘justice should not only be done, but should manifestly and undoubtedly be seen to be done’.10 A
basic idea behind this expression is that established procedures, which have been tried and tested

6 Galligan (1996: 5).

7 Ibid. at 6.
8 Ibid. at 66.

9 Ibid.

10 Republic v. Sussex Justices ex parte McCarthy (1924) 1 KB 256.

J U S T I C E A N D T H E R U L E O F L AW I D E A L 23
sufficiently, form a practical guide for the public to determine whether ‘the right or best outcome
has been reached and justice actually done’ in the particular case.11
Typically, whether or not a particular country has the rule of law is measured by the extent
to which its legal system possesses the criteria outlined at the beginning of this chapter. In the
main, these criteria are formalistic and say little about whether the legal system in question
provides justice to all. This approach to the rule of law, which largely perceives law as neutral
rules, fails to address a number of fundamental questions. For instance, who makes the
prescriptions of law? Is the process of making law inclusive and to what extent? How is the
polity in question organised? How accessible are the political processes in the polity? What are
the political power and economic resource dynamics in the polity? Where are the judges and
arbiters of the rules of law drawn from and what are their ideological predispositions? What
role does the political process play in the appointment of these judges and arbiters? All these
substantive questions have a bearing on the supply and demand of the rule of law. It is therefore
important to investigate whether and how the rule of law ideal ‘fits in different political, social
and institutional contexts’.12
In the international development policy context, the rule of law is perceived as an important
commodity that developing countries need to acquire if they are to develop. This explains why the
World Bank and the United States Agency for International Development (USAID), for example,
impose the attainment of the rule of law as a conditionality for the grant of development assistance.
Further, a number of treaties require nations and nation states to adopt the rule of law. For example,
the United States of America’s African Growth and Opportunities Act (AGOA), requires African
countries to establish the rule of law before they can be eligible for assistance under this Act. Indeed,
the rule of law has acquired the status of a standard by which the progress of nations and nation
states are to be assessed. In the African context, the New Partnership for Africa’s Development
(NEPAD) sees the rule of law as one of the prerequisites for sustainable development.13
What is ironic, however, is that strictly speaking not even the developed countries possess
some of the key formal attributes of the rule of law.14 As Frank Upham has pointed out, for
example, the United States judiciary ‘is permeated by politics’ and most state judges ‘belong to
political parties and are chosen for their allegiance to partisan platforms’.15 Even the process of
appointing federal judges in the United States is ‘overwhelmingly political’. The lesson from
the experience of such countries is that we should not be overly preoccupied with whether
or not a legal system strictly conforms to the formal criteria of the rule of law. Instead, what
should matter is that the social, cultural, political and economic context prevailing in a given
country facilitates the utilisation of the prescriptions of law to facilitate the realisation of justice
or fairness for all. Such an outcome would bode well for the legal system, as it would further its
legitimacy in the perceptions of the citizenry. Again, the United States provides a good example
of this phenomenon. In spite of the overt politicisation of the American judiciary, for example,
most Americans still perceive the legal system as fair, since, among other things, the political

11 Galligan,
supra note 6 at 72.
12 Upham (2002: 8).
13 New Partnership for Africa’s Development (NEPAD), para 80 (2001).

14 Upham, supra note 12 at 14.

15 Ibid.

24 PART II kenya: Justice sector and the rule of law

role of the judiciary is structured and managed in a manner that is democratic and fair.16 For
example, because political parties in the United States rotate in power, ‘the judiciary is not totally
dominated by one party or one political view’.17 Therefore, the United States possesses the rule
of law, not because its legal system embraces the formal characteristics of the rule of law, but
because it has political stability.18
Furthermore, a country may have the rule of law despite eschewing formal dispute
settlement mechanisms. Japan provides a good example. In this regard, Upham observes that
the Japanese developed a broad system of informal mechanisms to keep most disputes out of
the courts altogether.19 Yet the adoption of informal dispute settlement mechanisms has not
blocked Japan’s development path. More importantly, it cannot plausibly be claimed that Japan
does not possess the rule of law because it eschews formal dispute settlement mechanisms. For
developing countries, the important lesson from the Japanese experience is that no legal system
can succeed if the adoption of a formal rule of law results in the neglect or eradication of existing
informal means of social order.20
It is also important to appreciate the fact that in real life, far from being a body of neutral
rules, law is often a means that the rich and the powerful use to achieve their ends, irrespective of
whether such instrumental use of law produces injustice. Thus students of law in common law
jurisdictions, such as ours, are taught – and even encouraged – to view law instrumentally, and
to exploit loopholes in the rules. When they become lawyers, they often manipulate legal rules to
achieve results that favour their clients.21 Again, judges also often ‘reason instrumentally to lead
to particular outcomes when deciding cases’.22 The ends therefore justify the means.
It should also be noted that the prescriptions of law are often imprecise.23 We do not
always agree on the objectives of legislation, and written laws are therefore invariably the result
of a process of negotiation, if not horse trading. Novel situations may also call for creative
interpretation of existing prescriptions of law. This means that the laws made by the legislature
typically call for interpretation by administrators and courts of law, who therefore have wide
discretionary powers in many cases. For example, the law may require that any person who is
accused of a criminal offence must be tried ‘within a reasonable time’.
It is such vague legal prescriptions that allow lawyers and judges to apply law instrumentally.
But the application of law in this manner is detrimental to the binding quality of the rule of law.24
The susceptibility of the prescriptions of law to instrumentalism may serve to undermine the
authority and legitimacy of law, especially in divided societies where people see law in different
ways.25 In such societies, Brian Tamanaha contends that ‘legal decisions will be increasingly
fused with political disputes, will increasingly be based upon political judgments, and will

16 Ibid. at 19.
17 Ibid.

18 Ibid. at 20.
19 Ibid. at 22.
20 Ibid. at 32.

21 Tamanaha (2005: 131).

22 Ibid. at 131.

23 Endicott (1999: 5) (Observing that ‘vague language is a pervasive legislative tool’.)

24 Tamanaha, supra note 21 at 152.

25 Ibid. at 153.

J U S T I C E A N D T H E R U L E O F L AW I D E A L 25
increasingly be determined according to the political predispositions of the judges’ and that ‘as
a consequence of judges making what appear to be political rather than legal decisions, political
fights will increasingly break out over who will become judges’.26
What does all this mean for the justice sector and the rule of law in Kenya? As we interrogate
the justice sector institutions, it is important to appreciate that their interactions with the rule
of law are shaped by political, cultural, social and economic factors. More significantly, these
interactions determine whether or not the rule of law will produce perceptions of justice or
fairness among the citizenry. In the absence of such perceptions, it is arguable that many
citizens may not consider the justice sector to be legitimate or relevant. The immediate outcome
of an illegitimate or irrelevant justice sector would, for instance, be that the citizenry may
resolve their disputes and other legal affairs outside the established formal legal system. It is
therefore important for us to inquire into the nature of the rule of law that the justice sector in
Kenya promulgates and implements. It is also important to inquire into how and why the rule
of law was brought into being. From this perspective, it becomes necessary to interrogate the
professional training of lawyers and judges. Further, we also need to ask whether these rules
serve the public generally or only a section of Kenyan society.
In addition, it also becomes important for society to guard against the unbridled resort
to instrumentalism. If law is to be applied consistently, there must be suitable ‘application
mechanisms’ including an independent and professional judiciary, easy access to litigation and
reliable enforcement agencies.27 More importantly, perhaps, all groups in society need to be
accorded sufficient resources to enable them to participate in ‘the game’ of interpreting law. In
doing so, we need to appreciate that many social, political and economic battles are fought over and
through law, which is therefore a heavily contested terrain.28 Where this latter condition is not met,
it is easy to see why the rich and the powerful will have better access to the rule of law. Last but not
least, it is important for lawyers, judges and administrators who have the duty of interpreting the law
to adopt a culture of fidelity to it so that they appreciate that the instrumental application of the
law may be detrimental to its claim to authority and legitimacy.29 They need to appreciate that in
divided societies such as ours, if the instrumental use of law favours one interest group’s claim at
the expense of other groups, the binding authority of the law may be severely undermined. So that
as they interpret the law, they need to ask themselves what impact their interpretation will have on
society’s perception of, and respect for, the law. A culture of restraint in the interpretation of the
law that takes into account the prevailing social, cultural, economic and political circumstances of
a society is therefore required if a society is to have a meaningful rule of law.

26 Ibid.
27 Marmor, supra note 1 at 8.
28 In the United States, for example, Brian Tamanaha has given excellent examples of societal contests through law. He writes

that in the United States the context over and through law includes ‘systematic efforts to control and wield the law: through
careful ideological screening of prospective judges; by funnelling huge sums to pliable legislators who will enact desired
legislation; by securing the appointment of lobbyists to administrative positions who will then implement favourable regulatory
regimes and actions; by staffing law enforcement agencies like the Justice Department with ideologically motivated individuals;
by aggressively bringing provocative law suits before judges perceived as friendly to the same ends’. See Tamanaha (2008: 7).
29 Tamanaha, supra note 21 at 154 (Observing that ‘[t]he most important ingredient for the rule of law to function is that lawyers and

judges, in particular, must be imbued with the belief that at their core legal rules have a binding component.’) (emphasis supplied)

26 PART II kenya: Justice sector and the rule of law

2
Legal and institutional framework
The government has endeavoured to comply with its international obligations. This has mostly
been done through the enactment of new laws domesticating treaty obligations. Civil society
actors, such as non-governmental organisations (NGOs) working on human rights, have played
an influential role in spearheading the promulgation of such laws, and in getting government
to meet its reporting obligations under various human rights treaties. Nevertheless, such laws
have not always been implemented effectively due to factors such as the lack of political will,
which means that sufficient resources are not devoted to the establishment of the administrative
mechanisms required for the realisation of the objectives of human rights treaties. Another
drawback is that the country does not have legislative and administrative mechanisms for
implementing the rulings of regional courts, such as the African Commission on Human and
Peoples’ Rights, especially where such rulings require the government to act in a particular way.
However, an encouraging development is that the Kenya Law Reform Commission has begun to
assert its authority, and is making significant strides to fulfil its mission which is ‘to contribute to
systematic reform, harmonisation and simplification of the Laws of Kenya’.

A. Compliance with international (human rights) obligations

Ratification and domestication of treaties

Kenya has ratified many international and regional human rights instruments30 as illustrated
in Table 6. Kenya has ratified all the major human rights treaties, including the International
Covenant on Civil and Political Rights, the International Covenant on Economic, Social and
30 International human rights instruments are treaties or conventions consisting of the standards, principles, declarations,

bodies and procedures under international law developed by intergovernmental organisations to protect human rights. See
Nowak (2003: 67).

2 . L egal and I nstit u ti o nal F rame w o r k 27

Cultural Rights and the African Charter on Human and Peoples’ Rights. It has also ratified
instruments on the rights of women, children and minorities and those governing issues such
as criminal justice, administration of justice, torture and labour relations. Despite this impressive
record of ratification, many of the treaties are yet to be domesticated beyond being incorporated
into the national laws either as part of the constitution or as separate acts of Parliament. For
example, the absence of effective policy and institutional frameworks to facilitate and enhance
the fulfilment of legal provisions, and the absence of political good will, have hindered the full
realisation of various categories of human rights.31

Table 6: Status of international human rights instruments in Kenya

 Name  Status Date
International Covenant on Economic, Social and Cultural Rights Acceded 1 May 1972
International Covenant on Civil and Political Rights Acceded 1 May 1972
International Convention on the Elimination of All Forms of Racial
Acceded 13 Sep 2001
Discrimination
Convention on the Elimination of All Forms of Discrimination
Acceded 9 Mar 1984
against Women
United Nations Convention against Transnational Organised
Acceded 16 Jun 2004
Crime
Protocol to Prevent, Suppress and Punish Trafficking in Persons,
Especially Women and Children, supplementing the United
Acceded 5 Jan 2005
Nations Convention against Transnational Organised Crime
Preamble
Protocol against the Smuggling of Migrants by Land, Sea and
Air, supplementing the United Nations Convention against Acceded 5 Jan 2005
Transnational Organised Crime
Convention against Torture and Other Cruel, Inhuman or
Acceded 21 Feb 1997
Degrading Treatment or Punishment
Convention on the Rights of the Child Signed/ratified 30 Jul 1990
Optional Protocol to the Convention on the Rights of the Child on
Signed/ratified 28 Jan 2002
the Involvement of Children in Armed Conflicts
Convention concerning the Prohibition and Immediate Action for
Ratified 7 May 2001
the Elimination of the Worst Forms of Child Labour
Right to Organise and Collective Bargaining Convention Ratified 13 Jan 1964
Convention concerning Forced or Compulsory Labour Ratified 13 Jan 1964
Equal Remuneration Convention Ratified 7 May 2001
Abolition of Forced Labour Convention Ratified 13 Jan 1964
Discrimination (Employment and Occupation) Convention Ratified 7 May 2001
Convention relating to the Status of Refugees Acceded 16 May 1996
Protocol relating to the Status of Refugees Acceded 13 Nov 1981
Convention on the Non-Applicability of Statutory Limitations to
Acceded 1 May 1972
War Crimes and Crimes Against Humanity
Rome Statute of the International Criminal Court Signed/ratified 15 Mar 2005

31 Shadow Report on the Second Periodic Report of the Republic of Kenya to the Human Rights Committee on the International

Convention on Civil and Political Rights 5 (2005), edited and compiled by The Kenya Human Rights Commission.

28 PART II kenya: Justice sector and the rule of law

 Geneva Convention for the Amelioration of the Condition of the Ratified/
29 Sep 1966
Wounded and Sick in Armed Forces in the Field acceded
Geneva Convention for the Amelioration of the Condition of
Ratified/
Wounded, Sick and Shipwrecked Members of Armed Forces at 29 Sep 1966
acceded
Sea 
Ratified/
Geneva Convention relative to the Treatment of Prisoners of War 29 Sep 1966
acceded
Geneva Convention relative to the Protection of Civilian Persons Ratified/
29 Sep 1966
in Times of War acceded
Protocol Additional to the Geneva Conventions of 12 August 1949,
Ratified/
and relating to the Protection of Victims of International Armed 29 Sep 1966
acceded
Conflicts (Protocol I)
Protocol Additional to the Geneva Conventions of 12 August 1949,
Ratified/
and relating to the Protection of Victims on Non-International 29 Sep 1966
acceded
Armed Conflicts (Protocol II)
International Convention Against the Taking of Hostages Acceded 8 Dec 1981
International Convention for the Suppression of Terrorist Bombing Signed/ratified 27 Jun 2003
International Convention for the Suppression of the Financing of
Signed/ratified 27 Jun 2003
Terrorism
International Convention for the Suppression of Unlawful Seizure
Acceded 11 Jan 1977
of Aircraft
African Regional Conventions    
African (Banjul) Charter on Human and Peoples’ Rights Acceded 23 Jan 1992 
Convention Governing the Specific Aspects of Refugee Problems
Signed/ratified 23 Jun 1992
in Africa
Protocol to the African Charter on Human and Peoples’ Rights on
Signed  
the Rights of Women in Africa
Protocol to the African Charter on Human and Peoples’ Rights on
the Establishment of an African Court on Human and Peoples’ Signed  
Rights
African Charter on the Rights and Welfare of the Child Acceded 25 July 2000
Protocol on the Court of Justice of the African Union Signed  
Convention on the Elimination of Terrorism Signed/ratified 28 Nov 2001
The International Convention on the Protection on the Rights of
Signed July 2003
All Migrant Workers and Members of their Families
African Charter on Human and Peoples’ Rights on the Rights of
Signed 12 Dec 2003
Women in Africa 11 July 2003
Convention on the Rights of Persons with Disabilities 2006 Ratification 18 May 2008
Convention Against Torture 1997 Accession 12 Feb 1997
ILO Convention 138 on Employment Age Ratification 9 April 1979
African Charter on the Rights and Welfare of the Child Ratification 25 July 2000
Optional Protocol to CRC on Prostitution and Pornography Signed 9 Sept 2000
Source: University of Minnesota Human Rights Library (http://www1.umn.edu/humanrts/research/ratification-
kenya.html), The African Union’s official website: www.africa-union.org and http://lib.ohchr.org/HRBodies/UPR/
Documents/Session8/KE/KSC_UPR_KEN_S08_2010_KenyaStakeholdersCoalitionforUPR_Annex3.pdf.

2 . L egal and I nstit u ti o nal F rame w o r k 29

However, Kenya is yet to ratify the following notable treaties:
• The Optional Protocol to the African Charter on the Rights and Welfare of the Child;
• The Convention Governing Specific Aspects of Refugee Problems in Africa;
• The Protocol to the African Charter on Human and Peoples’ Rights (on the Rights of
Women in Africa – Maputo Protocol); and
• The 1948 International Labour Organisation (ILO) Convention 87 (Freedom of
Association and Protection of the Rights to Organise).32

Kenya’s record of complying with international obligations has recently been threatened
following the decision of the legislature to withdraw the country from the Rome Statute of the
International Criminal Court (ICC). This decision, which was made on 22 December 2010,
follows the indictment of senior politicians and civil servants by the ICC, on allegations that they
committed crimes against humanity during the post-election crisis of December 2007 to January
2008. Many members of the legislature contend that these indictments have been politicised,
and that the accused persons will not receive a fair trial at the ICC. They also argue that Kenya
now has a new constitutional order, which lays the basis for the establishment of an independent
local tribunal to try the persons responsible for crimes relating to the 2007 general elections.
Ironically, the ICC process was initiated precisely because the legislature refused to support the
establishment of such a local tribunal. What we now have is a situation where although article
2(6) of the new constitution states clearly that ‘[a]ny treaty or convention ratified by Kenya shall
form part of the law of Kenya’, the legislature has decided to withdraw the country from a treaty
it had ratified simply because it threatens extant political interests. While this provision of the
constitution does not prevent the country from withdrawing from treaties that, for example,
threaten or undermine the national interest, it is doubtful whether it permits withdrawals that
are clearly based on narrow political interests.

Poor reporting record

Kenya has neither been prompt nor regular in fulfilling its obligations under the international
human rights instruments that it has ratified, especially the submission of reports. For example,
Kenya submitted its initial report on the International Covenant on Civil and Political Rights to
the Human Rights Committee on 15 August 1979. This report should have been submitted on
22 March 1977. Again, the second periodic report, which was due for submission on 11 April 1986,
was only submitted on 27 September 2004. Further, the third, fourth, fifth and sixth reports
which were due on 11 April 1991, 11 April 1996, 11 April 2001 and 11 April 2006 respectively are yet
to be submitted.33
In addition, Kenya has not yet submitted any report to the Committee Against Torture
(CAT). These reports should have been submitted at intervals of four years from 1998. The first,
second and third reports were due on 22 March 1998, 22 March 2002 and 22 March 2006

32 Kenya National Commission on Human Rights (2007: 47).

33 Even though reports to the HRC should be submitted when requested, the normal interval is five years. Submitted second
through to fifth periodic reports due in 1986, 1991, 1996 and 2001 respectively in 2004. The ICCPR report was submitted on 15
March 2005. See ibid.

30 PART II kenya: Justice sector and the rule of law

respectively. The state has also not made any submissions to the Committee on Elimination of
All Forms of Racial Discrimination. It was supposed to submit its initial report on 13 October
2002, second periodic report on 13 October 2004 followed by the third and fourth periodic
reports after every two years.34
The state’s initial report to the Committee on Economic, Social and Cultural Rights (CESCR)
was submitted on 2 August 1993, but the second and third periodic reports due on 30 June 2000
and 2005 respectively were submitted in 2006.35 The initial report to the Committee on the
Rights of the Child (CRC) was due on 1 September 1992 but was only submitted on 13 January
2000. The second periodic report, which was supposed to be submitted on 1 September 1997,
was submitted on 20 September 2005, while the third and fourth reports which were due
in 2002 and 2007 respectively are yet to be submitted. Further, the initial report on the CRC
Optional Protocol which was due on 6 June 2004 is yet to be submitted. The second report was
submitted and came up for consideration in January 2007.36
From these examples, it is clear that the government has not met many of its reporting
obligations as numerous reports are long overdue. A number of factors explain why the
government is not up to date with its reporting, including the lack of technical and personnel
capacity and the multiplicity of reports. In addition, where reports have been submitted, they
have not been very detailed. For example, the report to the Committee on Economic, Social
and Cultural Rights submitted in 1992 was rejected for being too scanty and for not following
the established guidelines. This particular report was only resubmitted in 2007, and illustrates
the government’s tardiness in revising reports which have been considered by the relevant
committees.
Nevertheless, the government has sought to improve its performance. For example, in 2002
the Attorney General established an Inter-Ministerial Committee on Human Rights Reporting
Obligations, whose responsibility is to prepare and produce country reports on human rights
treaties.37 The membership of this committee includes NGOs. In addition, the government has
been consulting stakeholders such as civil society organisations working on human rights in the
process of preparing its reports. In some cases, these organisations also prepare shadow reports
which they present to the relevant committees alongside those of the government.38

Complaints filed against government before international

human rights bodies
In a number of instances, individuals have filed complaints against the government before
the African Commission on Human and Peoples’ Rights. These cases include Njoka v. Kenya
involving allegations of wrongful detention and torture,39 and B. v. Kenya involving allegations
by a Kenyan judge of violation of the principles of security of tenure and the independence of the

34 See ibid.
35 See ibid.
36 See ibid.
37 See Republic of Kenya (2004).
38 See e.g. NGOs’ Shadow Report (2005); Civil Society Organisations Parallel Report (2008).
39 African Commission on Human and Peoples’ Rights, Comm. No. 142/94 (1995).

2 . L egal and I nstit u ti o nal F rame w o r k 31

judiciary.40 The former case was dismissed for vagueness while the latter case was withdrawn
by the complainant.
Two cases that were considered are Kenya Human Rights Commission v. Kenya41 and John
D. Ouko v. Kenya.42 In the former case, the Kenya Human Rights Commission had filed a case
on behalf of officials of the Universities Academic Staff Union (UASU) after the government
had refused to register this union and had arrested and harassed its officials. Citing article 56
of the African Charter, the Commission dismissed the case on the grounds that the matter was
still pending before the courts of Kenya, meaning that the complainants had not exhausted all
available local remedies.
But the Ouko case was heard on its merits. Mr Ouko had been a student union leader at
the University of Nairobi. He alleged that the government had arrested, detained and tortured
him and forced him to flee the country due to his political opinions. Further, he alleged that by
these acts, the government had violated articles 5, 6, 9, 10 and 12 of the African Charter. The
Commission admitted his complaint, reasoning that he was ‘unable to pursue any domestic
remedy following his flight to the Democratic Republic of Congo for fear of his life, and his
subsequent recognition as a refugee by the Office of the United Nations High Commissioner
for Refugees’. On these facts, the Commission thought that his claim was ‘admissible based on
the principle of constructive exhaustion of local remedies’.
The government did not contest Mr Ouko’s claim, despite many requests made by the
Secretariat of the Commission. The Commission therefore based its decision on the facts as
presented by the complainant, and found that the government had violated his right to the
respect of his dignity and freedom from inhuman and degrading treatment under article 5; his
right to free expression under article 9; his right to freedom of association under article 10; and
his rights to freedom of movement and to egress and ingress under article 12 of the Charter. The
Commission then urged the government ‘to facilitate the safe return of the Complainant to the
Republic of Kenya, if he so wishes’. Unfortunately, because Kenya does not have legislative and
administrative mechanisms for the implementation of such rulings, it is not clear whether the
government facilitated the safe return of the complainant to the country.
There are also instances where communities have filed complaints against the government.
Here, the landmark case is the Endorois case,43 which involved violations resulting from the
displacement of the Endorois community from their ancestral lands. In this case, the Centre for
Minority Rights Development (CEMIRIDE) and Minority Rights Group International (MRG)
filed a complaint on behalf of the Endorois community. The indigenous community alleged
that they were displaced from their ancestral lands without adequate compensation. Further,
they alleged that the displacement was coupled with loss of property, the disruption of the
community’s pastoral enterprise and violations of the right to practise their religion and culture.
In its decision, the Commission found that the government was in violation of the rights to
freedom of religion, property, health, culture and natural resources under the African Charter

40 African Commission on Human and Peoples’ Rights, Comm. No. 283/2003 (2004).
41 African Commission on Human and Peoples’ Rights, Comm. No. 135/94 (1995).
42 African Commission on Human and Peoples’ Rights, Comm. No. 232/99 (2000).
43 African Commission on Human and Peoples’ Rights, Comm. No. 276/2003.

32 PART II kenya: Justice sector and the rule of law

on Human and Peoples’ Rights (ACHPR). Accordingly, the court recommended restitution
of Endorois ancestral land, recognition of the rights of ownership to the Endorois as well as
compensation for the loss suffered.

B. The constitution and international human rights standards

Amendment of the constitution

Since independence, Kenya’s constitution has been influenced by various political developments.
In the first two decades of the post-independence period, the Kenyatta regime did much to
ensure the concentration of political power in the presidency. The independence constitution
was therefore amended on numerous occasions to achieve this goal.44 These included
amendments fusing all executive power in the president, giving the president the power to
appoint and dismiss civil servants and establishing that the fundamental rights enshrined in
the constitution would not be violated if the president exercised his special emergency powers
including detention without trial. At the same time, these constitutional changes weakened the
authority of the legislature, undermined the independence of the judiciary and subordinated
holders of constitutional offices to the whims and pleasure of the president. The Kenyatta era
was characterised by political assassinations, the criminalisation of the freedoms of expression
and assembly and police brutality.
These practices were to continue unabated in the succeeding Moi regime. Indeed, they were
arguably enhanced following the unsuccessful coup d’état of 1982 which attempted to overthrow
Moi. For example, the legislature amended the constitution to make Kenya a de jure one-party
state.45 This amendment outlawed all opposition political parties, while giving the ruling party
(the Kenya African National Union or KANU) the monopoly of political power under the
stewardship of the president. It therefore strengthened the authoritarian presidential system
even further. A subsequent amendment removed the security of tenure of judges, the Attorney
General and the Controller and Auditor General.46 Although this amendment was later reversed,
its purpose of undermining and making these offices subservient to the president while it
was operative was successful. This period was also characterised by gross abuses of human
rights, including detention without trial and torture. The freedoms of movement, association,
expression of opinion and assembly were severely curtailed.
The situation improved somewhat when the Moi government succumbed to concerted
pressure from the international community and local civil society organisations to liberalise
national politics by amending the constitution to reintroduce plural politics.47 But the Moi
government did all within its immense powers to frustrate the emergence and growth of a
vibrant multi-party democracy.48 Among other things, the Moi regime effectively deployed a
highly authoritarian legislative and administrative framework to ensure that the newly formed

44 Muigai (2004).
45 The Constitution of Kenya (Amendment) Act No. 7 of 1982.
46 The Constitution of Kenya (Amendment) Act No. 14 of 1986.
47 The Constitution of Kenya (Amendment) Act No. 12 of 1991.
48 See e.g. Human Rights Watch (1994).

2 . L egal and I nstit u ti o nal F rame w o r k 33

opposition political parties did not threaten its hold on power. Thus the Office of Registrar of
Societies established by the Societies Act was successfully deployed to facilitate the disintegration
of the Forum for the Restoration of Democracy (FORD) party, which clearly threatened to depose
the Moi government. In addition, colonial-era laws such as the Preservation of Public Security
Act49 and the provisions of the Penal Code on sedition50 were deployed to prevent the budding
opposition parties from organising and soliciting public support. These laws made it exceedingly
difficult for opposition parties to hold political rallies. Opposition politicians were frequently
arrested, detained in police cells and arraigned in court on flimsy charges. At the inception of
multi-party politics, the Moi government was also firmly in control of the only public media
organisation, the Kenya Broadcasting Corporation, and also sought to control the liberalisation
and privatisation of the media. As a result, only the government’s voice could be heard as
opposition parties were denied airtime. Further, the private media was frequently harassed by
state security forces and some of their publications were banned. These circumstances ensured
that the opposition parties could not compete with the Moi regime’s political machine.
The dawn of multi-party politics in Kenya also witnessed the emergence of grand
corruption, as the Moi regime sought to marshal the financial resources that would enable it to
fend off the significant threat presented by the opposition parties. Kenya’s grandest corruption
scam, the Goldenberg scandal,51 was hatched and executed at this time. In addition, the advent
of multi-partyism was accompanied by a heightening of ethnicised politics and the re-emergence
of the controversial majimbo debate.52 One of the manifestations of this enhanced politicisation
of ethnicity was the emergence of land clashes leading to the death and displacement of people
perceived to be outsiders in regions such as the Rift Valley and the Coast Province, where land
clashes have been a defining feature of all the general elections held since 1992.53
The Moi regime was able to retain power in the general elections of 1992 and 1997, leading
the opposition parties to realise that the amendment of the constitution to allow multi-party
politics had only been a cosmetic change, and that fundamental constitutional and legal reforms
were required if Kenya was to become a real constitutional democracy in which political power
could be exchanged peacefully between ruling and opposition parties.54 It is out of this realisation
that civil society groups began to clamour for the review of the constitution.55 While the Moi
regime at first used highly draconian means, including the deployment of the state security
apparatus and authoritarian public order laws to resist the calls for constitutional law reform,
it later sought to manipulate the clamour for change, a tactic which led to the signing of an
Inter-Parties Parliamentary Group (IPPG)56 agreement and the enactment of the Constitutional
Review of Kenya Act57 to facilitate the process of reviewing the existing constitution.

49 The Preservation of Public Security Act, chapter 57, Laws of Kenya.

50 See sections 56, 57 and 58 of the Penal Code, which were repealed by Statute Law (Miscellaneous Amendments) Act 1997.
51 See e.g. Republic of Kenya, Report of the Judicial Commission of Inquiry into the Goldenberg Affair (2005).
52 See e.g. Human Rights Watch (1993).
53 Republic of Kenya (1999); see also Republic of Kenya (2008).
54 See e.g. Throup and Hornsby (1998); Institute For Education in Democracy (1997); Ndegwa (1998).
55 See Mutunga (1999).
56 See Constitution of Kenya Review Commission (2005).
57 Constitution of Kenya Review Act (1997).

34 PART II kenya: Justice sector and the rule of law

 The IPPG suggested a number of reforms that required constitutional amendments.
These included the appointment and powers of the Electoral Commission of Kenya; rules on
the nomination of MPs within a multi-party era and the rights of minority groups including
representation of such groups in appointive and elective positions. However, these suggestions
were never enacted into law.
The IPPG agreement also recommended the entrenchment of the multi-party system in the
constitution, and the amendment or repeal of many of the repressive laws and administrative
regulations (such as the Preservation of Public Security Act,58 the Public Order Act,59 the Penal
Code,60 the Chiefs’ Authority Act61 and the Societies Act).62 It also proposed the enactment of
a law to facilitate a comprehensive review of the constitution after the 1997 general elections.
Further, the IPPG agreement led to the amendment of section 82 of the constitution (which dealt
with discrimination) to include ‘sex’ as a basis for discrimination.63 Many of the IPPG proposals
did not, however, see the light of day because President Moi dissolved the legislature which could
not, therefore, enact them into law.
Towards the end of his tenure in the late 1990s, President Moi finally bowed to pressure
from local civil society actors and the donor community to initiate a process to review the
constitution. The clamour for a new constitutional dispensation was largely influenced by
a realisation that despite the formal reinstatement of multi-party politics in the early 1990s,
President Moi continued to enjoy immense structural advantages over his opponents. Many of
these advantages were found in the statutory order, including public order and security laws.
In 2001, the legislature enacted the Constitution of Kenya Review Act to guide the process
of review. What is interesting about this law is how it enabled the Moi regime to control both the
composition of the constitutional convention, and the process of constitution-making. The Act
established a three-step process for the promulgation of a new constitution: (1) public consultation
and initial drafting of a constitution by a body of experts known as the Constitution of Kenya
Review Commission; (2) deliberations on, and revision of, the draft by a national convention
known as the National Constitutional Conference; and (3) ratification by the legislature (or
Parliament). The National Constitutional Conference consisted of 629 delegates, and included
the members of the Commission as non-voting members, all members of the legislature,
representatives from each administrative district and political party and representatives from
religious, professional and other civil society organisations.
First of all, the Moi regime was able to establish criteria for membership in the National
Constitutional Conference that guaranteed it majority representation. Thus, most of the
delegates were drawn from the legislature and the districts, both predominantly controlled by
the government. Secondly, the government made sure that it controlled the decision-making
processes. Under the Act, once the Commission produced a draft constitution, it was required

58 Chapter 57, Laws of Kenya.

59 Chapter 56, Laws of Kenya.
60 Chapter 63, Laws of Kenya.
61 Chapter 128, Laws of Kenya.
62 Chapter 108, Laws of Kenya.
63 See e.g. Constitution of Kenya Review Commission, supra note 28; Heinrich Boell Foundation (2002).

2 . L egal and I nstit u ti o nal F rame w o r k 35

to submit it to the National Conference, which would then debate, amend it where necessary
and adopt it. The Commission was then required to submit the draft to the legislature for
enactment into law, or rejection. Looking at these decision-making processes, it is arguable that
the Act was deliberately designed to ensure that the review process would fail. For example, the
division of the power to make decisions between the legislature and the National Conference
simply led to a situation where decisions of the Conference could be vetoed by the legislature.
In addition, President Moi could derail the process by exercising his constitutional powers to
dissolve the legislature. Once the legislature was dissolved, the process could not proceed since
one third of the members of the National Conference were members of the legislature, who
would cease to hold office upon the dissolution of the legislature. This is exactly what President
Moi did in October 2002 as part of efforts to perpetuate his regime, although by this time the
Commission had produced a draft constitution (which later came to be known as the ‘Bomas
Draft Constitution’ after the venue of the National Constitutional Conference).
The general elections of December 2002 were therefore held under the existing constitution.
This election was largely a contest between the Moi regime and a hurriedly cobbled together
coalition of ethnic titans under the banner of the National Alliance Rainbow Coalition (NARC).
As part of the process of building this coalition, the two main factions of the NARC entered into
an informal memorandum of understanding (MoU), which, among other things, provided that
Mwai Kibaki of the National Alliance of Kenya (NAK) would be the coalition’s candidate for the
presidency and that once NARC took office he would create the post of prime minister for Raila
Odinga, the leader of the Liberal Democratic Party (LDP), one of the political parties that made
up NARC. This MoU was shaped by the Bomas Draft Constitution, which had proposed the
creation of the position of prime minister.
Once President Kibaki took office, however, he reneged on the MoU, claiming that it could
not be implemented under the existing constitution. Further, he now opposed the Bomas Draft
Constitution, which he had enthusiastically supported while in opposition. In particular, he
was vehemently opposed to the creation of the position of prime minister and the devolution
of power from the central government. His government thus began to derail the Bomas Draft
Constitution. In this endeavour, the courts were to play a critical role.
It should be noted that the courts were now operating in an environment characterised by a
more liberal judicial approach to standing, making it easier for an increasingly litigious citizenry
to take grand politics to the courts. While the denial of standing under the Moi regime in the
early 1990s could be interpreted as a means of denying regime opponents an opportunity to
use the courts as a forum to further their political causes, liberal standing had by now arguably
become, especially after the 2002 general elections, a useful political tool that could be employed
equally by regime actors and their political opponents. In either case, the suits are typically
prosecuted by a battery of lawyers, which makes for a sensational political spectacle.
The Kibaki regime’s litigation strategy was to question the process that produced the Bomas
Draft Constitution. Even before the National Conference could adopt the draft prepared by the
Commission, a number of citizens, arguably acting on the instructions of the government, filed
a suit in the High Court, in which they sought to stop the work of the National Conference and
prevent the legislature from enacting the draft constitution adopted by the conference. The

36 PART II kenya: Justice sector and the rule of law

applicants in Timothy Njoya & 6 others v. Attorney General & the Constitution Review Commission of
Kenya (hereinafter Njoya) sought declarations that the Constitution of Kenya Review Act vitiated
the constituent power of the people of Kenya, that it was unconstitutional to the extent that it
permitted the conference to discuss and adopt a draft bill to alter the existing constitution, that
the draft bill did not reflect the views of Kenyans, and that the conference should be suspended
pending compliance of the review process with the existing constitution. They deprecated the
equal representation of every district in the conference by three delegates irrespective of size and
population, and the intolerance to the views of members of the legislature in the deliberations of
the conference. The court decided that the applicants had been denied the opportunity to exercise
their constituent power to make a constitution through a constituent assembly and to ratify it
through a referendum.
Around the same time, other citizens who had issues with the constitutional review process
also went to the High Court, this time asking the court to stop the Commission from preparing
a draft bill, and prohibiting the Attorney General from receiving the final draft bill from the
Commission. The court obliged, with the result that although the Njoya court had decided that a
referendum was obligatory, there was now no document upon which such a referendum could
proceed. It therefore seemed that the constitutional review process had been paralysed.
The process was subsequently revived, once the key protagonists agreed to enact a
constitutional review law that complied with the decision in the Njoya case. This new law, the
Constitution of Kenya Review (Amendment) Act of 2004 empowered the legislature to amend
the Bomas Draft Constitution before submitting it to a referendum. This draft constitution was
thus amended, in ways that largely suited the fancies of the government. It was then submitted
to a referendum, where it was rejected by the majority of voters.
The government then put the matter of constitutional reform on the back burner, until
the post-election crisis of December 2007 to January 2008 gave new impetus and urgency
to the need to complete the process. The announcement of the result of the highly contested
presidential election on 30 December 2007 ‘precipitated the most severe human rights crisis in
Kenya’s independent history’.64 As described by the Kenya Human Rights Institute, ‘communal
riots and militia-driven violence broke out in various parts of the country resulting in killings,
rape, mob violence, forced evictions, looting, arson and the destruction of property’.65 Further,
local and international human rights groups accused security agencies of serious human rights
violations including extra-judicial executions. According to Human Rights Watch, for example,
‘the police response to demonstrations against the declared election results involved excessive
use of force, leading to hundreds of deaths’.66 As a result of the violence, about 1 200 people were
killed and 600 000 displaced from their homes.67
In the wake of this unprecedented mayhem, the country became ungovernable as it rapidly
became evident that state security actors were struggling to maintain law and order. At the
same time, the Orange Democratic Movement (ODM) party refused to accept the result of the

64 Kenya Human Rights Institute (2008).

65 Ibid.
66 Human Rights Watch (2008: 8).
67 Kenya Human Rights Institute, supra note 36 at 3.

2 . L egal and I nstit u ti o nal F rame w o r k 37

presidential election. The ODM also refused to take its grievance to the courts, which it claimed
were controlled by President Kibaki’s Party of National Unity and could not therefore be a neutral
arbiter. Accordingly, the ODM sought the intervention of the African Union and the international
community. The African Union then appointed a panel of eminent african personalities to assist
Kenya to resolve this national crisis through a mediation process, which came to be known as
the Kenya National Dialogue and Reconciliation (KNDR), and which was ably led by Kofi Annan,
a former Secretary General of the United Nations. The mediation process culminated in the
conclusion of an ‘agreement on the Principles of Partnership of the Coalition Government’,
which recognised the need to resolve long-standing issues such as constitutional reform.
Following this agreement, the legislature amended the repealed constitution and enacted the
Constitution of Kenya Review Act of 2008 to facilitate the attainment of a new constitution. The
people endorsed the product of this process in a referendum held on 4 August 2007. It was then
promulgated by the president at a public ceremony held on 27 August 2010, thereby bringing to
a close a 20-year quest for a new constitution.

Adoption of international human rights standards

Chapter IV of the new constitution incorporates most of the civil and political rights found in
the International Covenant on Civil and Political Rights. It therefore guarantees: fundamental
rights and freedoms of the individual (article 19), the right to life (article 26), the right to freedom
and security of the person (article 29), protection from slavery and forced labour (article 30),
protection from inhuman treatment (article 25), the right to property (article 40), the right to
privacy (article 31), freedom of conscience (article 32), freedom of expression (article 33), freedom
of assembly and association (articles 36 and 37), freedom of movement and residence (article 39)
and equality and freedom from discrimination (article 27).
According to article 24 of the constitution, these rights can only be limited by law, and then
only to the extent that such limitation is ‘reasonable and justifiable in a democratic society’,
taking into account factors such as the need to ensure that one individual’s enjoyment of these
rights does not prejudice the rights of others. However, article 25 of the constitution declares that
certain rights ‘may not be limited’. Rights falling in this category are: freedom from torture and
cruel, inhuman or degrading treatment; freedom from slavery or servitude; the right to a fair trial
and the right to an order to habeas corpus.
The constitution also protects social and economic rights, such as the rights to health,
housing, food, water, social security and education (article 43). Further, it prohibits all forms of
discrimination, including discrimination in matters of personal law such as adoption, marriage,
divorce, burial and succession (article 27).

Effectiveness of systems to challenge a law on the basis that it violates

international law or the constitution
The constitution grants the High Court jurisdiction to hear and determine applications for
redress of a denial, violation or infringement of, or a threat to, the rights in the Bill of Rights
(article 23). Further, this article requires Parliament to enact a law that will give jurisdiction to
subordinate courts to hear and determine such applications in appropriate cases. In addition,

38 PART II kenya: Justice sector and the rule of law

article 59 of the constitution establishes a National Human Rights and Equality Commission,
whose main function is to promote respect for human rights in the country.

Access to the Constitutional Court

Article 22 of the constitution accords a pride of place to individual rights and freedoms, and
therefore allows the individual direct access to the courts to seek redress where it is alleged that
these rights and freedoms have been denied, violated or threatened. It also allows persons acting
on behalf of others or the public interest to institute such proceedings. While the constitution
requires the Chief Justice to make procedural rules to regulate these proceedings, it states clearly
that the absence of such rules do not limit access of individuals to the courts to seek redress for
the violation of human rights.

Direct application of constitutional human rights in the courts

For a long time, the courts have been reluctant to apply principles of international law contained
in the international human rights instruments that Kenya has ratified, largely because they have
adopted an extreme dualist approach to the implementation of international law. Thus in Okunda
v. Republic,68 the Chief Justice ruled that international law and domestic laws are different legal
systems, explaining that ‘[t]he provisions of a treaty entered into by the government ... do not
become part of the municipal law of Kenya, save in so far as they are made such by the Laws
of Kenya’.69 This position continued to prevail, and has been upheld in the more recent case of
Pattni & Another v. Republic, where the High Court established that as much as international law
could be of persuasive value, it is not binding in Kenya, unless it has been incorporated into the
constitution or other written laws.70
Lately, however, this trend has begun to change and the courts have started to interpret
international human rights instruments dealing with fundamental human rights protected
by the constitution. For example, there are significant constitutional cases where either the
litigants have invoked the provisions of the international human rights instruments or the
courts have referred to such provisions. Thus in Rev. Timothy Njoya & 5 Others v. The Attorney
General, The Constitution of Kenya Review Commission, Kiriro wa Ngugi & Koimita Ole Kina, The
Muslim Consultative Council and Chamber of Justice (interested parties) and the Law Society of Kenya
(appearing as Amicus Curiae),71 the applicants invoked article 21 of the Universal Declaration of
Human Rights (UDHR) 1948 as being embodied and applied in section 82 of the constitution.
Their motion stated: ‘That a declaration be and is hereby issued declaring that article 21 of
the Universal Declaration of Human Rights (UDHR) 1948, which is embodied and implied
in section 82 of the constitution bars the respondents from constituting the constitutional
conference in a discriminatory manner.’ The High Court of Kenya at Machakos also applied
the provisions of CEDAW, the UDHR and the African Charter in Andrew Manunzyu Musyoka

68 (1970) EA 543.
69 Ibid.
70 (2001) Kenya Law Reports 262.

71 High Court of Kenya at Nairobi, Miscellaneous Civil Appeal No. 82 of 2004 (OS).

2 . L egal and I nstit u ti o nal F rame w o r k 39

(Deceased)72 in which it found customary law to be inconsistent with the constitution and
international human rights law. Other cases where the courts have interpreted provisions of
certain international human rights instruments include: Mw v. Kc,73 JAO v. Home Park Caterers
Ltd & 2 others74 and Republic v. Ibrahim Kariuki Maina.75
But there are also cases where the courts have given judgments which are inconsistent with
the human rights instruments. For example, in Rose Moraa & Another v. Attorney General,76 the
court held that in issues relating to the upbringing of a child born out of wedlock, the parental
responsibility of bringing up that child is in the first instance vested in the mother. This decision
is inconsistent with the principles and obligations on states as contained in the Convention on
the Rights of the Child (CRC), in particular, the best interests of the child and the principle that
both parents have a primary and common responsibility for the upbringing and development
of the child.77 The court also contravened articles 2(1) and (2) of the CRC, especially on the issue
of discrimination on the basis of sex, property and other status when it held that the parental
responsibility of a child born out of wedlock is vested in the mother.78
The courts have also applied international environmental law principles in national courts
and interpreted constitutional provisions to give effect to these principles. For instance, in
the case of Waweru v. Republic,79 the applicants, property owners in the town of Kiserian, had
been charged with the offence of discharging raw sewage into a public water source contrary
to provisions of the Public Health Act.80 The applicants filed a constitutional reference against
the charge, arguing that they had been discriminated against since not all land owners had
been charged. While agreeing with the applicants, the court sua sponte (without any of the
parties raising the issue) discussed the implications of the applicants’ action for sustainable
development and environmental management81 and held that the constitutional right to life as
enshrined in section 71 of the constitution includes the right to a clean and healthy environment.
It also noted that:
It is quite evident from perusing the most important international

instruments on the environment that the word life and the environment
are inseparable and the word life means much more than keeping body
and soul together.82

72 High Court of Kenya at Machakos, Succession clause No. 303 of 1998, (2005) eKLR, High Court of Kenya at Machakos, Judge

R Wendo, judgment of 15 December 2005.

73 Miscellaneous Application No. 105 of 2004, (2005) eKLR, High Court of Kenya at Kakamega, Judge GBM Kariuki, judgment

on 29 September 2005. Here the court interpreted article 25 of the UDHR and provisions of the Children Act 2001.
74 Civil Case No. 38 of 2003, (2004) eKLR, High Court of Kenya at Nairobi, Judge MG Mugo, judgment on 3 September 2004.

75 Criminal Case No. 19 of 2006, (2006) eKLR, High Court of Kenya at Nairobi, Nairobi Law Courts, Judge JB Ojwang, judgment

of 11 October 2006. In this case, the court dealt with murder vis a vis right to life.
76 Civil Case No. 1351 of 2002, High Court of Kenya at Nairobi, Judge JG Nyamu and M Ibrahim, judgment on 1 December 2006.

77 Convention on the Rights of the Child, articles 3(1) and 18(1).

78 Ibid.

79 (2006) 1 KLR. 677–700.

80 Chapter 242 of the Laws of Kenya.

81 Kameri-Mbote & Odote (2009: 30–38, 83–84).

82 (2006) 1 KLR. at 691.

40 PART II kenya: Justice sector and the rule of law

Kenya National Human Rights and Equality Commission
The Kenya National Human Rights and Equality Commission (KNHREC) is a human
rights watchdog established by article 59 of the constitution; it succeeds the Kenya National
Commission on Human Rights established by the Kenya National Commission on Human
Rights Act of 2002. Its functions include enhancing the promotion and protection of human
rights and investigating violations of human rights. Where such an investigation discloses that
human rights were violated or that there was negligence in preventing the violation of human
rights by a public servant, the practice has been for the Commission to recommend to the
Attorney General to prosecute such persons.
Under the statutory regime that is now being revised, the Commission has quasi-judicial
powers in relation to investigations and the remedying of human rights violations. It has
monitored government institutions, investigated alleged violations and provided redress to
those whose rights have been violated. The Commission has also advised the government on
how to enhance the promotion and protection of human rights. In carrying out its work, the
Commission has been required by the enabling law to ‘have regard to all applicable international
human rights standards and in particular, to the fact that human rights are indivisible,
interdependent, interrelated, and of equal importance for the dignity of all human beings’.
Since its establishment, the Commission has received complaints and investigated violations
of human rights. Between 1 July 2006 and 30 June 2007 it received and attended to reports from
2 274 persons alleging violations of their rights.83 In comparison, the Commission attended to
1 499, 1 412 and 411 people in the first three years of its existence – 2005/2006, 2004/2005 and
2003/2004 respectively.84
In exercise of its quasi-judicial jurisdiction, the Commission rendered judgment in the
precedent setting case of Peter Makori v. Attorney General and Others.85 The petitioner, a journalist,
alleged violations of his rights by state officials over a period spanning more than three years.
He alleged that he had been detained wrongfully and tortured by police officers, and that his
prosecution for murder was malicious. While the Commission took the view that the petitioner
had been detained lawfully, it found that the prosecution was malicious. Further, it found
that the Attorney General was liable for the malicious prosecution, noting that ‘it is a cardinal
responsibility of the Attorney General to foster respect for the rule of law’. It also established that
the petitioner’s freedom from torture was violated. In its judgment, the National Commission
awarded Peter Makori compensation of KES 5 million.
In the subsequent case of Medo Misama v. Attorney General and the Registrar of Societies,86 the
petitioner challenged the exercise of powers by the Registrar General after the Registrar declined
to register the applicant’s proposed political party, Chama Cha Mapinduzi. The Registrar had
refused to register the proposed party because she had ‘reasonable cause to believe that the
interests of peace, welfare or good order in Kenya would be likely to suffer prejudice’ if it were
registered. In its ruling, the Commission took the view that the Registrar owed the petitioner
83 Kenya National Commission on Human Rights (2007B: 2).
84 Ibid.
85 Complaint No. KNCHR/CHP/1/2006.
86 Complaint No. KNCHR/CHP/8/2006.

2 . L egal and I nstit u ti o nal F rame w o r k 41

a duty to furnish him with sufficient reasons for the denial of registration. According to the
Commission, the right of association ‘includes the right of citizens to associate as a lawful
political party, and that this includes the right to be registered as such, and that this can only be
qualified where clear, specific reasons are given that will reasonably show that the said association
will evidently cause a threat to peace, welfare and good order’. It ruled that the Registrar’s ‘reason
for refusal to register Chama Cha Mapinduzi was insufficient, unreasonable and amounts to
an infringement of a basic right’.87 It therefore ordered the Registrar to register the party. These
cases demonstrate that the Commission’s complaints hearing panels are gradually emerging as
a key forum where significant human rights issues will be canvassed.
The Commission has also been involved in other activities to promote human rights since
its inception. It has actively participated in training and capacity building of public officers on
human rights, promotion of accountability in the use of public resources and electoral process,
advising the government on the infusion of human rights principles into policy and legislation
such as the Media Bill 2007, the Bill on hate speech, the Bill on Constitutional and Electoral
Reforms, the Employment Bill, the Labour Relations Bill, the Occupational Safety and Health
Bill, the Work Injury Benefits Bill and the Labour Institutions Bill.
In the execution of these obligations, the Commission has encountered different challenges
such as slow political and governance reforms, inadequate finances and the lack of adequate
financial independence, poor accessibility to the Commission and high public expectations.

C. The structure of the court system

The constitution provides for the separation of powers between the executive, legislative and
judicial arms of government. Kenya’s laws were inherited from Britain with some modifications
to reflect local conditions. The Kenyan legal system is thus based on English common law but
has elements of customary law and religious law (mainly Islamic law).
Chapter 10 of the constitution sets out the system of courts. It establishes two categories of
superior courts. The first category consists of the Supreme Court, the Court of Appeal and the
High Court. The second category consists of special courts with jurisdiction over matters relating
to employment and labour relations, and the environment and land. These special courts have
the status of the High Court. It then establishes the following subordinate courts: magistrates
courts, Kadhi courts and courts martial. Further, the constitution allows the legislature to
establish other subordinate courts. The Supreme Court has exclusive original jurisdiction over
matters relating to the elections to the office of the president. Further, it has the power to issue
advisory opinions on matters concerning county government. It also has appellate jurisdiction
over appeals from the Court of Appeal. In turn, the Court of Appeal has jurisdiction to hear
appeals from the High Court and other courts or tribunals.
The Judicature Act, which now needs to be amended in view of the new constitution,
prescribes the laws to be applied by the courts in Kenya. It states that:
The jurisdiction of the High Court, the Court of Appeal and of all

subordinate courts shall be exercised in conformity with –

87 Kenya National Commission on Human Rights, supra note 3 at 36.

42 PART II kenya: Justice sector and the rule of law

 (a) The Constitution;
(b) subject thereto, all other written laws, including the Acts of Parliament of the United
Kingdom cited in Part I of the Schedule to this Act, modified in accordance with Part
II of that Schedule;
(c) subject thereto and so far as those written laws do not extend or apply, the substance
of the common law, the doctrines of equity and the statutes of general application in
force in England on the 12 August 1897, and the procedure and practice observed in
courts of justice in England at that date;
but the common law, doctrines of equity and statutes of general application shall apply
so far only as the circumstances of Kenya and its inhabitants permit and subject to such
qualifications as those circumstances may render necessary.88

The Act further provides 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.89

Magistrates’ courts are established under the Magistrates’ Courts Act. They are supervised and
controlled by the Chief Justice.90 Section 3 of the Act establishes resident magistrates’ courts
with jurisdiction throughout Kenya. These courts are subordinate to the High Court, and are
duly constituted when held by chief, senior principal, principal, senior resident and resident
magistrates. They have jurisdiction over criminal and civil matters. In the case of criminal
matters, the Criminal Procedure Code (chapter 75 of the Laws of Kenya) establishes the kinds
of offences that may be tried by the different categories of subordinate courts, while reserving
certain offences for the High Court.91 With respect to civil matters, the jurisdiction of resident
magistrates’ courts is limited to matters where the value of the subject matter in question does
not exceed KES 500 000.92 The resident magistrates are appointed by the Judicial Service
Commission. Resident magistrates’ courts have jurisdiction throughout the country but with
limited power of appellate jurisdiction.
District magistrates’ courts, established under section 8 of the Magistrates’ Court Act, also
have jurisdiction in criminal and civil proceedings. District magistrates are appointed by the
Judicial Service Commission. In civil proceedings, section 9 provides that a district magistrates’
court shall have and exercise jurisdiction and powers in proceedings of a civil nature where
either the proceedings concern a claim under customary law, or the value of the subject matter

88 The Judicature Act, Chapter 8, Laws of Kenya, section 3(1).

89 Ibid, section 3(2).
90 The Magistrates’ Courts Act, chapter 10, Laws of Kenya, section 19.
91 Ibid., section 4.
92 Ibid., section 5.

2 . L egal and I nstit u ti o nal F rame w o r k 43

in dispute does not exceed KES 5 000 (or KES 10 000 where the court is constituted by a district
magistrate having power to hold a magistrates’ court of the first class). District magistrates’ courts
are established for every administrative district but the Chief Justice may designate two or more
districts as one district. As far as criminal proceedings are concerned, they exercise powers and
jurisdiction as conferred on them by the Criminal Procedure Code or any other written law. In
civil matters, the pecuniary jurisdiction and powers are enshrined in section 9 of the Magistrates’
Courts Act. Only first class district magistrates’ courts have limited appellate jurisdiction.
With respect to customary law, the Magistrates’ Court Act provides that a magistrates’ court
‘may call for and hear evidence of the African customary law applicable to any case before it’.93
Traditional dispute settlement mechanisms which would be better suited to deal with customary
law are not formally recognised in the Kenyan system. However, these do exist and are headed
by community elders. They deal with such matters as land disputes, livestock disputes and some
crimes such as assault and rape.94 95

Court strata

Court strata Court strata in the 2010 Constitution

Supreme Court Supreme Court
Court of Appeal Court of Appeal
High Court High Court
Chief Magistrate Subordinate Courts
Senior Principal Magistrate Kadhi Court
Principal Magistrate
Senior Resident Magistrate
Resident Magistrate
Kadhi Court

Structure of subordinate courts

Resident magistrate court District magistrate court

Chief Magistrate District Magistrate I
Senior Principal Magistrate District Magistrate II
Principal Magistrate
Senior Resident Magistrate
Resident Magistrate

93 Ibid., section 17.

94 Because rape is a criminal offence under the Sexual Offences Act, traditional justice systems must hand the offenders to the
formal justice system. In some cases, local leaders have sought to get compensation for the aggrieved families and victims but
training of these leaders has been stepped up to sensitise them to the need to hand over rape suspects to the police.
95 www.judiciary.go.ke.

44 PART II kenya: Justice sector and the rule of law

D. Law reform
Law making is a function that is shared by Parliament and the executive. The law-making power
is exercisable by bills passed by Parliament, which consists of the National Assembly and the
Senate. Article 94 of the constitution provides guidelines on how laws are to be enacted. These
constitutional guidelines are buttressed by the National Assembly (Powers and Privileges) Act.96
The whole process is regulated by the standing orders of Parliament. The process gives MPs an
opportunity to examine the social, economic, political, civil and cultural rights and the means to
protect these rights through legislation.
There are two types of bills: public and private. A private members’ bill is simply a public bill
promoted by an MP who is not a member of the government.97 The purpose of a private bill is
to confer benefits upon, or advance the interests of, particular individuals or localities, whereas a
public bill, while seeking to alter the general law, may adversely affect private rights of particular
persons or bodies of persons as distinct from the public at large. 98
When promoting a public bill, the relevant ministry will involve the drafting department
of the State Law Office at the Attorney General’s chambers and the Kenya Law Reform
Commission.99 The bulk of the laws in Kenya are promoted by the government. Private
members’ bills are drafted by MPs who may get assistance from civil society organisations and
other interest groups. They are then allotted time for presentation to the floor by the House
Business Committee.100
Public and private members’ bills follow the same legislative procedure. Once the bill has
been prepared, it is published in the Kenya Gazette at least two weeks before presentation. It
is then taken through the first reading with no debate taking place. It then goes to the second
reading where debate is conducted on its contents. The bill then moves to the committee stage
where the committee responsible for the particular matter in Parliament is charged with the
responsibility of making any proposed amendments to the bill. The bill is then brought back to
Parliament for the third reading where, if necessary, minor adjustments are made. The bill is
then transmitted to the president for approval. If assented to, the bill becomes an act effective
from the date it is gazetted. If the president refuses to assent to a bill, it is brought back to
Parliament and if it is passed by the house, it becomes law.

The Kenya Law Reform Commission101

Kenya has a permanent law reform commission, namely the Kenya Law Reform Commission
(KLRC), which was established in 1982 by the Law Reform Commission Act.102 Its main objective
is to ‘[k]eep under review all the laws of Kenya to ensure its systematic development and reform,
including in particular the integration, unification and codification of the law, the elimination of
anomalies, the repeal of obsolete and unnecessary enactments and generally its simplification

96 Chapter 6, Laws of Kenya (1980), revised in 1998.

97 Jackson (1988).
98 Ibid.

99 Ibid.

100 Ibid.

101 Kenya Law Reform Commission (2005).

102 Chapter 3, Laws of Kenya.

2 . L egal and I nstit u ti o nal F rame w o r k 45

and modernisation.’103 It also has a role in the enactment of legislation to implement the new
constitution, which requires the Commission for the Implementation of the Constitution to
coordinate with the Attorney General and the KLRC in preparing such legislation (section 5(6),
sixth schedule, Constitution of Kenya).
The KLRC works with other sectors of society to identify areas that need legislative reform.
They conduct research and then recommend appropriate legislative action.104 It has worked
with government ministries, Parliament and non-state organisations such as the Law Society of
Kenya, the Institute of Certified Public Accountants of Kenya, the Kenya Private Sector Alliance,
the Certified Secretaries of Kenya and civil society organisations such as the Federation of
Women Lawyers in Kenya, the International Commission of Jurists, the Centre for Governance
and Development and the Institute for Education in Democracy.
In order to fulfil its mandate, section 3 of the Act requires the KLRC to:
• Receive and consider any proposals for the reform of the law that may be made or
referred to it;
• Prepare and submit to the Attorney General programmes for the examination of
different branches of the law with a view to reform, including recommendations as to
the agency by which the examination should be carried out;
• Undertake, pursuant to any programme approved by the Attorney General, the
examination of particular branches of the law and the formulation by means of draft
bills or otherwise, of proposals for reform therein;
• Prepare, at the request of the Attorney General, comprehensive programmes of
consolidation to facilitate the exercise by him/her of his/her powers under the Revision
of Laws Act, and to undertake the drafting of bills pursuant to any programme of
consolidation approved by him/her; and
• Provide advice and information to ministries and departments in the government with
regard to the reform or amendment of a branch of the law appropriate to that ministry
or department.

The KLRC performs its functions under the direction of the Office of the Attorney General,
which is required to approve the work programme proposed by the KLRC. In addition,
recommendations for law reform made by the KLRC are supposed to be submitted to the
Attorney General, who is mandated by law to take action to implement them by presenting them
to Parliament for enactment into law. Further, law reform proposals from the Commission are
translated into legislative drafts by a department of the Office of the Attorney General. It should
also be noted that since 2003, the KLRC has been an agency of the Ministry of Justice and
Constitutional Affairs (MoJCA). As far as the administrative and financial management of the
KLRC is concerned, therefore, the MoJCA is the parent ministry for the KLRC, and not the Office
of the Attorney General as was previously the case. This institutional arrangement has hindered
the KLRC in the performance of its duties. It means, for example, that the body responsible
for approving the KLRC’s work programmes (the Attorney General) is different from the body
103 Ibid., section 3.
104 International Commission of Jurists Kenya (ICJ-Kenya) (2005: 126).

46 PART II kenya: Justice sector and the rule of law

responsible for controlling the funds allocated to it in the government’s budget (the MoJCA). The
Commission therefore lacks operational autonomy.
Other constraints faced by the KLRC include:
• Lack of control over staff. Its employees are officers of the Public Service Commission,
who can be posted to and from the KLRC without consultation and without ascertaining
their suitability to the needs of the KLRC.
• Government ministries and departments have routinely engaged consultants to help
them reform laws governing their operations without consulting the Commission.
• The Attorney General has established special law reform task forces, which work
parallel to the Commission. Since 1990, the Attorney General has appointed about 15
task forces to recommend changes to various laws independent of the Commission.105

In order to address some of these constraints, there is a proposal to make the KLRC autonomous
through the enactment of a special constitutive law. These proposals are contained in the Kenya
Law Reform Commission Bill of 2006, which is yet to be enacted into law.
Despite these constraints, the KLRC developed numerous bills which have been enacted
into law. Indeed, the KLRC is now taking a leading role in law reform, thanks to concerted and
ongoing efforts to enhance its capacity and autonomy. In the recent past, for example, the KLRC
has either taken the lead or been actively involved in the development of important new laws
such as the Sexual Offences Act (see page 50), the Political Parties Act, and the Media Council of
Kenya Act. It is also actively engaged in the development of laws relating to women, which will
enhance the protection of the rights of women, and the reform of laws on business associations.

Reforming the management of the administration of justice

The government has made various efforts to improve the management of the administration of
justice. These efforts have been carried out in the various ministries, departments and agencies
that have a stake in the administration of justice. The judiciary, being a major stakeholder,
has undergone some changes to enhance its ability to administer justice fairly and efficiently.
There have also been reform measures in the justice sector which have targeted corruption
in the judiciary,106 the administration of justice,107 the terms and conditions of service of
the judicial officers, the construction of additional court facilities, the reconstitution of the
Rules Committee, decongesting of prisons by establishing magistrates’ courts in prisons and

105 The task forces had the mandate of reviewing, updating and harmonising Kenya’s laws in areas such as criminal law, family

law, company law, laws relating to women, public order and security, auctioneers and court brokers and children. See e.g. The Task
Force on Public Collections or ‘Harambees’; The Task Force Reviewing Laws Relating to the Status of Women; The Task Force on
the Establishment of a Truth, Justice and Reconciliation Commission (26 August 2003); The Task Force to Review Labour Laws
in Kenya; The Task Force on the Review of the Penal Laws and the National Task Force on Media Law.
106 The Integrity and Anti-Corruption Commitee (The Ringera Committee) set up in 2003 whose terms of reference included

investigating and reporting on the magnitude of corruption in the judiciary; identifying the nature, forms and causes of corruption
in the judiciary; identifying corrupt members of the judiciary and recommending appropriate disciplinary measures to be taken
against them and recommending measures for detecting corruption in the judiciary.
107 The Committee on the Administration of Justice (The Kwach Committee) see Kenya, in US Department of State, Country

Reports on Human Rights Practices 1999, February 23, 2000, available at <http://www.state.gov/g/drl/rls/hrrpt/1999/252.htm.

2 . L egal and I nstit u ti o nal F rame w o r k 47

remand homes, the launching of the Kenya law reports website108 as well as the adoption of
strategic planning to guide the activities of the judiciary. In 2008, the Chief Justice issued
Practice Directions109 to facilitate effective case management through, for instance, delivering
judgments and rulings in a timely manner and on specified dates and requiring judicial
officers to list for hearing only those cases that they can reasonably hear. The Report of the
Task Force on Judicial Reforms 2010 notes that these Practice Directions could contribute to
the efficient dispensation of justice. Unfortunately, many advocates and judicial officers are
‘unaware of, or do not pay keen attention to them and as such their impact is yet to be felt’.110
These initiatives notwithstanding, much more needs to be done to make the citizenry trust
the justice system. In this regard, there is a need to deal with case delays evidenced by the backlog,111
limited access to justice, laxity in security, lack of adequate accommodation, allegations of corrupt
practices, cumbersome laws and procedures, the need to establish fair and suitable recruitment
and employee promotion procedures, a general lack of training, unethical behaviour, inadequate
budget and lack of financial autonomy. The Advisory Panel of Eminent Commonwealth Judicial
Experts, which has been called upon to advise the Constitution of Kenya Review Commission
(CKRC) on constitutional reforms regarding the Kenya judiciary, concluded that:
... as presently constituted, the Kenyan judicial system suffers from a
serious lack of public confidence and is generally perceived as being in
need of fundamental structural reform. It is our considered view that
strong measures are necessary for Kenya to achieve an independent and
accountable judiciary, capable of serving the needs of the people of Kenya
by securing equal justice and the maintenance of the rule of law under a
new constitutional order.112

The Panel reported ‘a crisis of confidence’ in the Kenyan judiciary. This crisis of confidence was,
for example, demonstrated at the beginning of 2008 in the aftermath of the disputed presidential
poll which resulted in violence leading to the loss of many lives, destruction of property and
displacement of people. Those who felt aggrieved by the poll result were adament that they
would not take the matter to court as they did not trust it to dispense justice impartially.113 It is,
however, worth noting that in the survey conducted by Steadman for this study in December
2008, 66% of the respondents asked to rate structures and institutions for resolving disputes
rated the courts best, followed by community elders with a score of 14%. The chiefs (provincial
administration) were rated third with a score of 9% while the church came fourth with a score
of 8%. Only 1% cited the International Criminal Court while 2% indicated they did not know.
The survey suggests that Kenyans still hold the courts of law in high regard compared to other
structures and institutions resolving disputes. So, Kenyans not making use of the courts as an

108 www.kenyalaw.org.

109 Gazette Notice 8167 of 5 September 2008.

110 Republic of Kenya (2010: 45).
111 Ibid. at 54.
112 Advisory Panel of Eminent Commonwealth Judicial Experts (2002).
113 Ibid.

48 PART II kenya: Justice sector and the rule of law

avenue to access justice as attested to by an earlier observation may be attributed to other causes
other than lacking confidence in them.

Table 7: Ranking of institutions/forum for solving criminal/civil disputes (Steadman survey 2008)
No. of respondents Percentage (%)
Courts 1328 66
Chiefs 178 9
Elders 285 14
Church 159 8
International Criminal Court 12 1
Mediator 1 0
Personally 2 0
Don’t know 42 2
Total 2007 100

There was a dramatic change in this position recorded in the survey conducted by Steadman
in June 2009 on whether the perpetrators of post-election violence should be tried by a local
tribunal or by the International Criminal Court at The Hague. Most respondents were of the
view that a local tribunal would not do and that the only hope for justice was with The Hague.114
This illustrates the fact that the public perception of judicial processes varies depending on the
issue under consideration.
The Draft Constitution of Kenya 2004 (here referred to as the Bomas Draft), responding
directly to the perception of lack of judicial independence, had recommended that the exercise
of judicial power by the judiciary be subject only to the constitution and the law and not to the
control or direction of any other person or authority.115 To realise this, it also proposed that the
administrative expenses of the judiciary, including remuneration and benefits, be a charge on the
Consolidated Fund.116 Most recently, the Task Force on Judicial Reforms, which was appointed
pursuant to a stakeholders’ meeting in May 2009 and reporting in July 2010, identifies weak
administrative structures, lack of operational autonomy and independence of the judiciary as
factors that undermine the effective administration of courts.117
The new constitution reiterates the principles enunciated in the Bomas Draft. It provides
that ‘judicial authority is derived from the people and vests in, and shall be exercised by, courts
and tribunals established by or under this Constitution’ (article 159). It further provides for the
independence of the judiciary, reiterating the provisions of the Bomas Draft that that the exercise
of judicial power by the judiciary shall be subject only to the constitution and the law and not to
the control or direction of any other person or authority, and that the administrative expenses
of the judiciary, including remuneration and benefits, be a charge on the Consolidated Fund
(article 160).

114 See e.g. Mwanzia & Kanina (2009).

115 The Draft Constitution of Kenya, article 185(1) (2004).
116 Ibid., article 185(3).
117 Republic of Kenya (2010).

2 . L egal and I nstit u ti o nal F rame w o r k 49

 With respect to integrity of judicial officers, the new constitution provides in the sixth
schedule on transitional and consequential provisions that:
Within one year … Parliament shall enact legislation … establishing
mechanisms and procedures for vetting within a timeframe to be
determined in the legislation, the suitability of all judges and magistrates
who were in office on the effective date to continue to serve …118

The criteria laid out here are vague119 and it is necessary to ensure that the vetting exercise does
not lead to witch-hunting. This is especially the case because the new constitution provides that:
A removal or a process leading to the removal, of a judge, from office by
virtue of the operation of legislation contemplated under sub-section (1)
shall not be subject to question in, or review by, any court.120

Enactment and implementation of the Sexual Offences Act

The Sexual Offences Act (SOA) of 2006 represents, perhaps, the most successful legal and
institutional reform process in Kenya. The Act was motivated by a number of factors, including:
1. The fact that the law is not dealing adequately with sexual violence, which is rampant in Kenya.
2. The multiplicity of statutes dealing with sexual offences. Prior to the enactment of the SOA,
sexual offences had been strewn all over the Penal Code and other statutes, such as the
Children and Young Persons Act. This multiplicity of laws led to inconsistent interpretations
and application of the law, often to the detriment of the victims of sexual offences.
3. The inadequacy of the existing law, which did not, for example, criminalise sexual harassment
and child trafficking.
4. The imposition of lenient sanctions on sexual offenders, which did not therefore act as a
sufficient deterrent.
5. The fact that the existing law on rape was in practice prejudicial to women, who form the
majority of the victims of sexual violence.
6. A desire to ensure that the state fulfils its duty to promote and protect human rights. In
particular, there was a desire to ensure that the state implements the UN Declaration on
the Elimination of Violence Against Women, which encourages governments to take steps
to ensure women are protected from all forms of violence, be it of a physical, sexual or
psychological nature.

118 The Constitution of Kenya, article 23(1) (2010).

119 Ibid., articles 10 & 159.
120 Ibid., sixth schedule, article 23(2).

50 PART II kenya: Justice sector and the rule of law

The Sexual Offences Bill was initially drafted by the Juvenile Justice Network (JJN), a coalition
of civil society organisations working on the rights of women and children, such as ANPPCAN
Kenya, the CRADLE, CREAW, WiLDAF, the Child Welfare Society of Kenya, the Girl Child
Network, FIDA Kenya and Action Aid Kenya. The JJN then created a technical task force, which
prepared a final bill for presentation to Parliament. Their draft was informed by research and
comparative analysis of legislation against sexual violence in different countries, including
South Africa, Tanzania, Ghana, Australia, the United Kingdom and the United States of America.
The Bill was tabled in Parliament by a nominated MP, Hon. Njoki Ndung’u, as a private
member’s motion. Once the Bill was before Parliament, the JJN then lobbied successfully for its
enactment. Such lobbying included consultations with the relevant parliamentary committee,
the Committee on the Administration of Justice and Legal Affairs. It also held workshops for
MPs. At the same time, the JJN held consultations with other important constituencies outside
Parliament, such as the police and religious leaders. For example, they sought to allay the fears
of conservative religious groups that the Bill sought to legalise same-sex relations and abortion.
It also worked hard to persuade conservative male MPs that the Bill would not encourage
women to make false rape allegations in order to punish men. Further, the JJN had to deal
with deep-seated cultural gender biases. Inevitably, these negotiations called for compromises,
which included the removal of a clause in the Bill making rape within marriage an offence, and
another that would have placed criminal responsibility on employers who know that sexual
offences are being committed in the workplace but fail to do anything about them. The JJN also
agreed to include in the Bill a clause to the effect that a person who makes a false allegation of
a sexual offence will receive the sentence that the person against whom the false allegation was
made would have received.
These processes led to the enactment of a progressive law on sexual offences, which will no
doubt enhance the protection of the rights of women and children. The SOA introduces some
14 new offences, including gang rape, deliberate infection with HIV/Aids, trafficking for sexual
exploitation, sexual harassment and child pornography. Its other significant provisions are
the introduction of minimum sentences and the establishment of a DNA data bank and a
paedophile registry.
Subsequent to the enactment of the SOA, it was quickly realised that a number of actions
were required to facilitate its successful implementation. The Attorney General appointed a
task force in 2007 ‘to prepare and recommend a national policy framework and guidelines and
recommend a comprehensive policy and propose measures to secure acceptable programmes
for the protection, treatment and care of survivors of sexual violence as well as treatment,
supervision and rehabilitation of sexual offenders’. The task force, which consisted of state and
non-state actors, completed its work and made recommendations that will hopefully contribute
to the successful implementation of the Act. For example, the task force developed regulations
on what should be contained in the data bank of convicted sexual offenders, which is supposed
to be kept by the Registrar of the High Court.

2 . L egal and I nstit u ti o nal F rame w o r k 51

 Further efforts to enhance the successful implementation of the SOA have included:
1. The production of simplified versions of the Act (in English and Kiswahili), which have been
given to police stations and other administrative officers dealing with sexual offences.
2. The preparation of a training manual for prosecutors.
3. The preparation of a training manual for law enforcement officers.
4. The popularisation of the new law in the media.
The enactment of the SOA is a milestone in the protection of the rights of women and children.
Its enactment and implementation offer useful lessons that could be emulated by other law
reform initiatives, including:
1. The power of information. By sensitising important constituencies such as women’s faith-
based groups (like the Catholic Women’s Association and the women’s guilds), the JJN was
able to empower women at the grassroots level, who then put pressure on their MPs to enact
the SOA. The JJN also developed an effective media strategy, which saw the print media and
FM radio stations play a big role in getting the citizenry talking about the Act. Therefore, law
reform initiatives are likely to succeed where concerted efforts are made to inform potential
beneficiaries who can then make demands for change on the basis of information.
2. The importance of negotiations. Law making is always a process of give and take, and by
demonstrating willingness to compromise, the JJN was able to ensure the enactment of a law
that no doubt enhances the protection of the rights of women and children.
3. The possibility of incorporating international human rights standards and practices into
national laws and practices even in the absence of an enabling constitutional framework.
The SOA incorporates international best practices, and clearly demonstrates the need for law
reform initiatives to be informed by the practices of other countries and international human
rights standards.

E. Recommendations
This chapter illustrates that there have been improvements in the normative and institutional
framework supporting the rule of law especially since 2003. The government has also ratified key
international human rights instruments. However, the following issues need to be addressed:
• Key international and regional human rights instruments that have not been ratified
need to be ratified.
• The reporting procedures for the international human rights treaties need to be
improved, and implementation mechanisms for ratified treaties should be established.
• The provisions of the new constitution that seek to improve the administration of
justice should be implemented.
• The procedures for vetting judges needs to be well articulated to ensure that judges
are not removed on flimsy grounds. There is a need to establish legislative and
administrative mechanisms for implementing the rulings of regional courts, such as
the African Commission on Human and Peoples’ Rights. In this regard, the mandate

52 PART II kenya: Justice sector and the rule of law

 of the Kenya National Human Rights and Equality Commission could be expanded to
facilitate the implementation of such rulings.
• The Kenya Law Reform Commission Bill121 should be enacted into law as soon as
possible since it promises to give the Commission the operational autonomy it requires
to play a more prominent role in law reform.

121 Kenya Law Reform Commission Bill (2006).

2 . L egal and I nstit u ti o nal F rame w o r k 53

3
Government respect for the
rule of law
In general, successive governments in Kenya have not always adhered to the prescriptions of
law, especially where law is seen to be a hindrance to the attainment of political or other regime
interests. Whenever this happens, the message that government sends to the citizenry is either
that law does not matter and can be dispensed with whenever it is convenient to do so, or that
law only matters where it serves to protect the interests of the rich and powerful. Whereas it
is the executive branch of government that is typically notorious for disrespecting the law, the
legislature (or Parliament) and the judiciary also, and increasingly, display a lack of respect for the
law in significant respects. An unfortunate consequence of governmental disregard for the law is
that the law then ceases to be authoritative, and a culture of impunity and lawlessness begins to
emerge. Thus, the worrisome development of a culture of impunity in Kenya can be attributed
to the government’s lack of respect for the law. Indeed, this emerging culture of impunity may
have been a significant contributing factor to the post-election crisis of December 2007–January
2008. Inquiries into the post-election violence indicate that both public actors (including public
security forces) and private ones acted with impunity in many cases.
The executive has consistently, and in some cases contemptuously, disregarded acts of
Parliament, regulations and judicial pronouncements where these are perceived to be politically
inconvenient. Furthermore, the coming into force of certain laws assented to by the president
as required by the constitution but deemed not to accord with the interests of the executive have
been delayed. The executive has also selectively applied the law, with the result that the idea of
‘equality before the law’ is greatly undermined. This failure to apply the law consistently has
been particularly pronounced in grand corruption investigations, where executive action has

54 PART II kenya: Justice sector AND the rule of law

encouraged inaction as the responsible agencies of government engage in turf wars that only
result in the law not being applied. Such conspiracies by agencies of the executive to undermine
the rule of law do not engender public confidence in the fairness of the law as petty corruption
investigations, which are invariably taken to their logical conclusion, are seen to be treated
differently to grand corruption investigations. The executive also stands accused of constantly
abusing ‘the spirit of the law’ through dogmatic adherence to ‘the letter of the law’ where fairness
demands a common sense approach to the issues at hand. This has particularly been the case
with matters relating to the electoral process. The executive has also used commissions of
inquiry to achieve short-term political goals as opposed to resolving the problems that motivate
their establishment. Finally, the prerogative powers of the executive, such as the power to grant
amnesties and pardons, have in significant cases been exercised in ways that greatly undermine
the rule of law.
The legislature has also displayed a lack of respect for the law in significant respects. In
particular, the exercise of legislative power has been characterised by: the lack of respect for the
legislature’s own established procedures, the passage of laws undermining the separation of powers
and the deliberate failure to enact amendments to laws declared unconstitutional by the courts.

A. The executive and respect for the rule of law

Executive disregard for legislative processes and statutory

requirements
One of the tenets of the rule of law ideal is that ‘government discretion must be bounded by
standards that set effective limits on the exercise of that discretion’.122 Unfortunately in Kenya’s
case, the exercise of the immense discretionary powers wielded by the executive, especially the
president, has not been fettered by any such standards. As a result, the president, government
ministers and senior civil servants often act in any manner they deem fit, and in many cases
irrespective of existing statutory requirements. There is thus a culture of executive impunity in
Kenya, which owes its origins to the creation of an Imperial Presidency in the first decade of
independence. The term ‘Imperial Presidency’ denotes the concentration of extreme power in
the president, including the granting of unfettered constitutional powers to the president. The
Imperial Presidency is a legacy of Kenya’s colonial experience. In the colonial era, there were no
effective mechanisms for regulating the exercise of the immense powers of the governor, which
contributed to the development of autocracy.123
The culture of executive impunity has manifested itself in various forms throughout
the history of the Republic of Kenya, and is a common subject of discussion in national
newspapers.124 In all its forms, what typically happens is that the executive actor in question
behaves with total disregard for the existing statutory requirements in the comfortable
knowledge that his or her actions will not be subjected to any sanctions, since the established
public accountability mechanisms are weak. Executive actors also tend to stretch the boundaries

122 Whitford (2000: 724).

123 See e.g. Seidman (1970).
124 See e.g. Odipo (2008: 8); Wangila (2008: 11).

3 . G o vernment R espect f o r the R u le o f L a w 55

of their statutory powers, so that in practice that which is not expressly outlawed by any statute
implicitly becomes – at least in their eyes – permissible. As far as these executive actors are
concerned, the law seems to count for little; in many cases they perceive law as an inconvenience
that must be cast aside when political exigencies demand it. Ironically, they are quick to embrace
the law when it suits their fancies. The following examples illustrate the ubiquity and magnitude
of this culture of executive impunity.
First, successive presidents have never felt the need to consult anyone while appointing
individuals to occupy constitutional offices, such as the offices of the Chief Justice and judges
of the High Court (puisne judges) and judges of the Court of Appeal (judges of appeal), the
Attorney General, the Commissioner of Police, the Chief of General Staff of the Armed Forces,
the Controller and Auditor General, members of the Public Service Commission, permanent
secretaries and ambassadors. Past constitutions have failed to regulate the president’s powers of
appointment. In the absence of standards on how these powers are to be exercised, successive
presidents have tended to appoint to the various constitutional offices persons who would serve
their parochial political goals, such as regime maintenance or ethnic hegemony, as opposed to
their ability to serve the wider public interest. As a result, important constitutional offices have
been occupied by questionable characters, including declared bankrupts. But even where the
constitution has mandated the president to consult other bodies before exercising the power
of appointment, successive presidents have largely ignored such constitutional fetters with
impunity. For example, successive presidents have appointed chief justices and judges without
consulting the Judicial Service Commission. The unfortunate consequence of this culture of
impunity is that political expediency invariably trumps the established legal processes and
procedures.
A second illustration of this culture of impunity is to be found in the contemptuous
disregard for established rules and procedures that government ministers display in public
procurement matters. For example, although the Public Procurement and Disposal Act of 2005
does not give government ministers, other than the Minister for Finance, any role in the public
procurement process, they have nevertheless intervened and influenced the award of tenders.
These government ministers simply have no regard for the established rules and procedures
and typically use their ‘residual powers’, such as the power to suspend or fire public officers,
to manipulate public procurement processes. They are able to intimidate public officers in
this manner because there is no fair legislative framework that regulates the public service.
Instead, the public service is only regulated by an administrative code of regulations that does
not establish procedures and processes that would ensure fair treatment of public officers where
they are confronted with concerted intimidation by powerful government ministers or other
senior officials. The threat of being suspended or fired is therefore real and has in many cases
intimidated public officers into obeying illegal ministerial directives. It should also be observed
that these threats are typically dispensed in the name of the president or his close associates.
Again, these threats are not usually expressed in writing, which makes it difficult for threatened
public officers to prove that threats were ever made.
Where government ministers want to manipulate the public procurement process, they
typically use such residual powers to demand information from the public officers handling

56 PART II kenya: Justice sector AND the rule of law

the process. They then use such information to facilitate the award of tenders to entities of their
choice. This has happened in numerous cases in the recent past.125
This contemptuous disregard for public procurement rules and procedures continues
unabated, and is arguably the most important source of corruption in Kenya. Despite the glaring
manipulation of these rules and procedures by a number of government ministers, none of
them has been censured appropriately, which seems to encourage disrespect for established laws
and procedures. Thus, the ministers who presided over the finance and justice ministries when
the Anglo Leasing scandal happened were welcomed back to the cabinet after a brief sojourn that
seems to have been merely calculated to cool public tempers.
Another illustration is the sale of the Grand Regency Hotel in 2008. Here, it was apparent
that the Minister for Finance may have secretly disposed of the Grand Regency Hotel, a property
that belongs to the People of Kenya, in disregard of the established rules and regulations. The
Public Procurement and Disposal Act requires that public assets should be disposed of through
competitive and transparent processes characterised by publicity, on the sound rationale that
this is perhaps the best way to ensure that the public receives a fair return for its assets. The
Minister for Finance arguably ignored these requirements of law when he sought to secretly sell
the Grand Regency Hotel to an entity that claimed to be an agency of the government of Libya.

The Grand Regency Hotel scandal

The Grand Regency Hotel had been built by Uhuru Highway Development Limited, a
company whose directors included Kamlesh Pattni, who was the architect of ‘Goldenberg
Affair’, which was the biggest financial scandal in Kenya. The Grand Regency Hotel was built
using funds fraudulently obtained by Goldenberg from the Central Bank of Kenya (CBK) in
the early 1990s. The CBK thereafter registered a charge on the property to secure its interest.
Pursuant to a consent order given by the High Court of Kenya on 9 April 2008, Uhuru Highway
Development Limited agreed to transfer the ownership of the Grand Regency Hotel to the CBK.
In consideration, the CBK abandoned all claims against Pattni and other directors of Uhuru
Highway Development Limited. But the CBK is prohibited by section 52 of the Central Bank Act
from owning commercial property. The CBK was therefore obliged to dispose of the property.
The critical question here was whether the CBK was disposing of public property. If the property
in question was deemed public, then the CBK was obliged to adhere to the requirements of the
Public Procurement and Disposal Act. The CBK sought the advice of the Public Procurement
and Oversight Authority (PPOA) on 28 April 2008. In its reply to this inquiry, the PPOA stated
that ‘title to the hotel is not held by the Bank but it is held by a private entity as security to a
debt’. The PPOA thus seems to have been suggesting that the CBK’s interest was merely that
of a chargee of a private property, and that to realise this interest, the CBK could dispose of the
Grand Regency Hotel by exercising its statutory power of sale by selling it either by private treaty
or public auction.

125 See e.g. Akech (2005).

3 . G o vernment R espect f o r the R u le o f L a w 57

 But it is quite clear that once the court made the consent order, the Grand Regency became
public property, and could only be disposed of through the mechanisms established by the
Public Procurement and Disposal Act. As the Technical Committee appointed to investigate
the sale of the Grand Regency observed, the CBK’s declaration ‘that it was exercising its
statutory power of sale under the Charge was false, fraudulent and designed to deceive’. Indeed,
what should have happened is that once the consent order was issued, an instrument of
reconveyance should have been registered in favour of the CBK. This did not take place, and a
critical procedural step was therefore ignored thereby facilitating the fraudulent transaction. It is
this manipulation of the procedural requirements of property law that enabled the CBK to claim
that it was dealing with private property. That is, in the absence of a reconveyance, the CBK
could legally claim that the Grand Regency was still private property. In addition, in its attempts
to value the Grand Regency Hotel, the CBK instructed the valuers to conduct their valuations
‘on the basis of depreciated replacement cost and not on the net present value of the business
as a going concern which would include goodwill and based on current and projected financial
performance of the business’. It therefore appears that the Grand Regency Hotel was not valued
properly.
It should also be noted that the court settlement that set the fraudulent disposal of the Grand
Regency in motion was made pursuant to a non-existent provision of the Anti-Corruption and
Economic Crimes Act. This court order stated that the settlement agreement was pursuant to
section 56b of this Act, which supposedly empowers the Kenya Anti-Corruption Commission
(KACC) to give amnesty to individuals accused of corruption. But it seems that ‘there is no
section 56b of the Anti-Corruption and Economic Crimes Act because Parliament deleted it
when it was first proposed by the Attorney General and KACC on 13 September 2007’. It would
also appear that although Parliament had deleted this provision on amnesty from prosecution,
‘someone “sneaked” it back into the Anti-Corruption and Economic Crimes Act amendments
signed by President Kibaki on Moi Day in 2007’ without Parliament’s approval.
The Grand Regency saga also raises a serious issue of procedural fairness. How should a
government minister or other public officer who is accused of corruption or other impropriety
be investigated? As we shall see, this issue also arose in the purge of the judiciary in 2003.
In the Grand Regency saga, the Cabinet Committee which investigated the matter included
the Executive Director of the KACC, the Attorney General and the Minister for Lands. First,
the composition of this committee raises doubts as to whether the Minister for Finance, the
main individual accused of impropriety, would receive a fair hearing given that the Committee
was chaired by the Minister for Lands, his chief accuser. Second, the Executive Director of the
KACC and the Attorney General were arguably guilty of neglecting their duties, and could not
be expected to be fair given that they were accomplices at the very least. Finally, the Minister for
Finance was not given an opportunity to present his case before this Committee. Accordingly,
one of the lessons from this saga is that the country urgently needs to establish impartial
administrative law mechanisms for dealing with such allegations of corruption.

S o u r ces :
Republic of Kenya (2008); Mati (2008: 10); Gaitho (2008: 10).

58 PART II kenya: Justice sector AND the rule of law

It should be noted that the contemptuous disregard for rules and procedures by government
ministers is not confined to the public procurement context. It is also frequently displayed in
the context of political power contests. In a recent display calculated to influence the fortunes of
the Party of National Unity (PNU) to which he is affiliated, the Minister for Local Government
purported to gazette, as nominated councillors to local authorities, individuals whose names had
not been forwarded to him by the Electoral Commission of Kenya (ECK), contrary to the clear
provisions of the applicable laws.126 In addition, the said minister purported to decline to gazette
individuals whose names had been forwarded by the ECK. In doing so, the minister nominated
about one hundred more councillors than the Local Government Act permits him to do. The
Local Government Act provides that the number of nominated councillors in any local authority
should not exceed one third of the elected councillors.127 These irresponsible actions of the said
government minister undermined the democratic process, and contributed significantly to the
chaos that characterised mayoral elections in several cities and towns in February 2008. In
Nairobi, for example, there was a farcical and acrimonious tie in the mayoral election that would
not have occurred had the government minister in question followed the law. This is a clear
example of a government minister purporting to exercise powers that are not conferred upon
him by any law.
It should be noted that the successor of this minister revoked the Gazette Notice in question,
albeit in a manner that also seemed to disregard the law. Nevertheless, this example demonstrates
how the culture of impunity by power holders undermines the democratic process. Again, the
government minister in question was not censured for abuse of office.
The culture of impunity is also evident in the treatment of the media by government
ministers. Media houses and journalists critical of the government have in some cases been dealt
with in highly draconian ways. This practice is perhaps best illustrated by a raid on The Standard in
2005 carried out by persons believed to have been acting on the instructions of senior government
officials.128 Here again, established legal rules and procedures for making complaints against
the media were conveniently ignored. In the aftermath of the raid, an unapologetic government
minister, while citing the preservation of state security as the reason for the raid, remarked that
‘if you rattle a snake, you must be prepared to be bitten by it’.129 Quite clearly, this government
minister was stating that the government would deal ruthlessly with critical media houses, and
would use illegal means if these were deemed to be appropriate in the circumstances. During the
raid, the broadcasting equipment of The Standard was disabled and its computers were vandalised.
In addition, some of its employees were assaulted by the commandoes who undertook the raid.
The government minister in question was never censured for his callous and irresponsible
remarks. Further, the public is yet to be informed of what transpired since the commission of
inquiry established by the president to investigate the matter never made its report public. Despite
taking the law into their hands, the commandoes who raided The Standard and their accomplices
escaped punishment for their crimes.

126 See Kenya Gazette Notice No. 1276 of February 22, 2008.
127 Local Government Act, chapter 265, Laws of Kenya, section 31(i)(d).
128 See e.g. Shameful Episodes of Arturs and Kibaki Men’s Blunders, Nation, 27 December 2006.
129 Ibid.

3 . G o vernment R espect f o r the R u le o f L a w 59

 The disdain with which the executive treats the Public Officer Ethics Act130 is yet another
illustration of this culture of impunity. This Act seeks to enhance the adoption of ethical practices
by public officers as a mechanism to fight corruption, which is a perennial scourge in Kenya.
Among other things, the Act prohibits public officers from ‘obtain[ing] money or other property
from a person by using his official position in any way to exert pressure’.131 But executive actors
and MPs invariably honour this provision by breaching it. Thus the time-honoured practice,
otherwise known as harambee, of soliciting funds from the public for ostensibly public causes
continues unabated. The harambee culture has contributed significantly to the spread of
corruption, hence the legislature’s attempts to regulate it. In a recent demonstration of executive
disdain for this law, the Head of the Public Service wrote to permanent secretaries asking them
to seek contributions from staff towards a national fund established to help resettle victims that
were displaced in the course of the violence that accompanied the conclusion of the December
2007 elections.132 In response to public opposition to this act of the government, a permanent
secretary claimed that the contributions would be voluntary. But given the culture of intimidation
that characterises the work of public servants, for example in the public procurement context,
one can reasonably surmise that public servants were coerced into contributing to the national
refugee resettlement fund. In a further act of disobedience of the Public Officer Ethics Act, the
president presided at a function to raise funds for the same fund. The Act prohibits public officers
from using their ‘office or place of work as a venue for soliciting or collecting harambees’.133

Executive disregard for judicial decisions

In the context of the separation of powers doctrine, judicial review constitutes the principal
instrument that courts of law use to police adherence by the other branches of government to
the rule of law. Judicial review is ‘the power of the court, in appropriate proceedings before it,
to declare a governmental measure either contrary to, or in accordance with, the constitution or
other governing law, with the effect of rendering the measure invalid and void or vindicating its
validity’.134 Judicial review therefore enables the courts to keep the other branches of government
within the legal limits assigned to their authority.
Despite the fact that Kenya has a written constitution, courts in Kenya have largely based
their power to censure governmental measures on the English Common Law. Although it can
be argued that the power of judicial review is an inherent power in a constitutional democracy,
the constitution does not expressly give the courts the power to censure governmental action. It
only provides that ‘any law, including customary law, that is inconsistent with this Constitution
is void to the extent of the inconsistency’.135 Indeed, Kenyan courts have struck down laws for
being inconsistent with the constitution.136 But as far as judicial review of governmental action
is concerned, the powers of the courts are regulated by the Law Reform Act and Civil Procedure
130 Public Officer Ethics Act, Laws of Kenya, 2003.
131 Ibid., section 13(2).
132 Ogosia & Kadida (2008).
133 Public Officer Ethics Act of 2003, section 13(1).
134 Nwabueze (1977: 229).
135 Constitution of the Republic of Kenya (2010), article 2.
136 See e.g. Margaret Magiri Ngui v. Republic (1985).

60 PART II kenya: Justice sector AND the rule of law

Rules made under the Civil Procedure Act, which again borrow heavily from English practice.
The procedure for applying for judicial review is contained in order 53 of the Civil Procedure
Rules, which are enacted under the Civil Procedure Act. In the first instance, the law requires an
applicant to apply to the High Court for leave to institute an application for judicial review. At this
stage, the applicant is required to establish standing (locus standi). For a long time, Kenyan courts
adopted a rigid approach to standing. However, over the last decade they have adopted a much
more liberal approach, and it is now possible for citizens to challenge many decisions and acts of
government. For example, in the case of Albert Ruturi & Others v. Minister for Finance & Another,
the presiding judge stated that ‘as part of reasonable, fair and just procedure to uphold the
constitutional guarantees, the right of access to justice entails a liberal approach to the question
of locus standi’.137 If the High Court grants leave, the applicant can then make a substantive
application for judicial review. Where the applicant’s application is successful, the court can issue
orders stopping the offending act or decision, rescind the offending decision of the government
agency in question, or ask such an agency to reconsider its decision where it had taken irrelevant
factors into account when it made its decision.
The courts have exercised this common law-based power in diverse contexts, and have
struck down numerous acts of government. Unfortunately, the executive has tended to ignore
court orders in such cases, and there is a general perception among Kenyans that there is a
‘widespread culture of defiance of court orders’.138 In 2003 for instance, the Minister for Tourism
and Information defied a court injunction restraining the government from taking over a
building whose ownership was in dispute.139 The same government minister subsequently
defied a court order requiring him to disband a committee he had constituted to investigate
the affairs of a radio station.140 Again in 2003, the Minister for Local Government defied a
court order which sought to prevent him from revoking the nomination of a councillor of the
Mombasa City Council.141 In a repeat action, the same minister defied a court order quashing the
nomination of an individual to serve in the Kisumu City Council.142 No action was taken against
these defiant government ministers.
Instead of adopting a narrow interpretation of the constitution that facilitates government
disrespect for the rule of law, the courts ought to establish standards to regulate the failure,
neglect or refusal of public officers to comply with court orders. After all, the constitution is
supreme and the Government Proceedings Act should be interpreted in a manner that fulfils
the broad intentions of the constitution, especially government respect for the rule of law. In the
Kisya case, for instance, the court should have inquired into the reasons behind the failure of
the permanent secretary to settle the decretal amount as required by the court order. It is only by
doing so that the courts can ensure that public officers comply with the law.

137 (2002) 1 KLR 61.

138 Mitullah et al (2005: 52–53).
139 See e.g. KICC Row: Uhuru Cautions Minister, Kenya Times, 16 February 2003.
140 See e.g. Savula (2005).
141 Ibid.
142 Ibid.

3 . G o vernment R espect f o r the R u le o f L a w 61

 The Kisya Investments case
The executive has also defied court orders by frustrating their execution. The case of Kisya
Investments Ltd v. Attorney General & Another is a model illustration of this practice. In this
case, the plaintiff initially sued the government in 1990, and subsequently obtained a decree
against the government for about KES 60 000. The government stalled with the payment for
about two years, and only effected payment in 1992 after the plaintiff had obtained orders
against the permanent secretary in the responsible ministry, that is the Ministry of Public
Works and Housing. But after receiving this payment, the plaintiff filed an application in court
in 1997, seeking the amendment of the court decree issued in 1992 averring that this decree
was not computed properly. The court obliged and issued an amended decree in 1998 for
some KES 80 000. A year went by without the plaintiff being paid the outstanding amount.
The plaintiff then applied for an order of mandamus to compel the permanent secretary in
the Ministry of Roads and Public Works to pay the amended decretal amount less what had
been paid in 1992. In its application, the plaintiff also sought an order committing the said
permanent secretary to jail for contempt of court, on the grounds that the Permanent Secretary
had failed, neglected or refused to pay the decretal amount as required by the court. This
application was denied on the grounds that ‘the permanent secretary could not be committed
to jail for contempt of court as Section 21(4) of the Government Proceedings Act … does
not allow the same to be done’. The plaintiff then filed a constitutional reference, and the
Constitutional Court was now required to determine whether the Permanent Secretary was
guilty of contempt of court, and whether the Permanent Secretary was obliged by law to pay the
decretal amount in compliance with the order of mandamus.
The Government Proceedings Act thus adds an interesting dimension to this case, since it
precludes courts of law from issuing orders ‘for enforcing payment by the government of any
money or costs’. Further, this Act provides that ‘no person shall be individually liable under any
order for the payment by the government, or any government department, or any officer of the
government as such, of any money or costs’. Interpreting these provisions of the Act, the court
held that ‘the applicant could not in law present an application for an order of mandamus to
enforce the decree against the government by way of committing the Permanent Secretary to
civil jail if there was default or non-compliance’.
At the same time, the Constitution of the Republic of Kenya envisages that individuals,
including public officers, may be deprived of their personal liberty either ‘in execution of the
order of the High Court or the Court of Appeal punishing him for contempt of that court or of
another court or tribunal’, or ‘in execution of the order of a court made to secure the fulfilment
of an obligation imposed on him by law’. In the context of these provisions of the constitution,
the plaintiff contended that section 21(4) of the Government Proceedings Act is inconsistent
with the constitution.
In our view these provisions of the constitution constitute a necessary mechanism for ensuring
that public officers comply with the law. Nevertheless, the application of these provisions of
the constitution ought to be tempered by the practical challenges that confront public officers
in the performance of their duties on a day-to-day basis. Thus, for instance, the Permanent

62 PART II kenya: Justice sector AND the rule of law

Secretary in the present case may have failed to pay the decretal amount because the budgetary
vote for the Ministry of Public Works and Housing had not been approved by Parliament, or
because of other bureaucratic challenges. Accordingly, while applying the said provisions of the
constitution, the courts should balance the need for compliance with the law with the practical
challenges of running governmental affairs. Thus, the Permanent Secretary may require some
reasonable time to comply with the law. This does not, however, mean that there will be no
circumstances under which public officers should be punished for failing to implement court
orders made to secure the fulfilment of legal obligations imposed on such officers. Essentially,
section 21(4) of the Government Proceedings Act must therefore be interpreted in such a way
that it does not defeat the intention of the constitution to secure respect for the law by all,
including public officers, which is expressed in sections 72(1)(b) and (c) thereof.
Did the Constitutional Court get this balance right? First, the court rightly points out that
section 72(1)(b) of the constitution does not apply here since there was no court order
punishing the Permanent Secretary for contempt of court. But with respect to section 72(1)(c)
of the constitution, the court then contends that ‘the Decree and certificate of order against the
government, strictly, are orders against the government as a party in the suit. As a result there
was no order by the court made to secure the fulfilment of any obligation on [the part of the
Permanent Secretary], personally or in his official capacity.’ Thus the view of the court is that
unless there is ‘a court order directed to the person and an obligation imposed on him by law
to fulfil the same’, then the Permanent Secretary cannot be deprived of liberty as envisaged by
section 72(1)(c) of the constitution. In our view, the approach taken by the court in this matter
does not enhance respect for the law by public officers. We all know that the legal entity that
we call ‘government’ acts mainly through human agents. Therefore, court orders need not be
specifically addressed to particular public officers before they can be compelled to act, as the
court seems to be saying. The court’s reasoning simply gives public officers an excuse for failing
to act as required by law. Interestingly, this court was alert to this danger and observed that,
‘[t]he government is obliged to obey the law and discharge all of its statutory and legal
obligations. It ought not abuse the privileges and immunities granted to it by law to the
detriment of other parties and in particular the public and the public interest. The provisions
herein granting insulation and immunity to the government were intended ultimately to protect
the public interest but in this case the government has allowed it to operate against the public
interest as it is the Kenyan taxpayers and the public which could ultimately be called upon to
pay the colossal sums which may have accrued on the original decretal sum …’.
S o u r ces :
Kisya Investments Ltd v. Attorney General & Another (2005) eKLR; Government Proceedings Act, chapter 40, Laws of
Kenya, section 21(4).

3 . G o vernment R espect f o r the R u le o f L a w 63

Delayed application of laws
Government ministers have also exhibited a tendency to delay the entry into force of new laws
enacted by Parliament. This abuse of power that undermines the operation of law arises because
typically, whenever Parliament enacts a new legislation, there is a provision to the effect that
such legislation ‘shall come into operation on such date as the Minister may, by notice in the
Gazette, appoint’. This power is unregulated, and the minister can therefore do as he or she
wishes. And even where the ministers do establish dates when such laws will come into force,
they sometimes undermine such laws by failing to appoint the personnel required for the
laws to be operational. This is the fate that befell the Privatisation Act of 2005, which was only
operationalised in 2009.143 This law was enacted in response to the concern that the government
was selling public assets corruptly, cheaply and secretly, thereby undermining the public interest.
However, the minister delayed its entry into force for four years. The failure to operationalise
the Privatisation Act in a timely manner creates an impression that this law is seen by executive
actors as an inconvenient piece of legislation. Jaindi Kisero thus remarks that ‘there are many
cases where permanent secretaries and managing directors of parastatals have written to the
Treasury seeking exemptions from the Privatisation Act on the grounds that the transactions
were started before the Act came into effect’.144
Article 116(2) of the new constitution seeks to remedy this deficiency. It provides that, in
general, acts of Parliament will take effect ‘on the fourteenth day after its publication in the
Gazette, unless the Act stipulates a different date on or time at which it will come into force’.

The politics of commissions of inquiry

In any legal system, it is important to establish mechanisms for dealing with extraordinary
circumstances or exigencies in which the public demand immediate governmental responses.
In commonwealth countries, commissions of inquiry provide this mechanism, and they are
typically constituted ‘in situations so unusual that no other approach will suffice’.145 Such
situations include instances where there is considerable public anxiety, where the normal
machinery of government or established civil and criminal processes are either inadequate or
inappropriate to resolve the matter in question, or where ‘the issue is in an area too new, complex
or controversial for mature policy decisions to be taken’.146
In Kenya, the legislative framework for commissions of this nature is found in the
Commissions of Inquiry Act.147 This Act empowers the president to appoint ‘a commissioner or
commissioners and authorising him or them, or any specified quorum of them, to inquire into
the conduct of any public officer or the conduct or management of any public body, or into any
matter into which an inquiry would, in the opinion of the president, be in the public interest’.148
Although the commissions typically have some latitude with respect to rules of procedure, they

143 See, e.g., Government Should Follow Privatisation Law, East African at 12, 7 July 2008.
144 Kisero (2008: 10).
145 African Centre for Open Governance (2008: 2).
146 Ibid. at 3.
147 Commissions of Inquiry Act, chapter 102, Laws of Kenya.
148 Ibid., section 3(1).

64 PART II kenya: Justice sector AND the rule of law

are judicial in nature since they are required to ‘make a full, faithful and impartial inquiry’ into
the matter in question and ‘to report to the president, in writing, the result of the inquiry and the
reasons for the conclusions arrived at’.149 However, the president is under no obligation to make
the reports of such commissions public or to implement their findings.
Since independence, successive presidents have established about 25 commissions of
inquiry. Invariably, the reports of these commissions are either not made public or are publicised
long after the reports were given to the president. This is especially the case with inquiries that, in
the opinion of the president and broadly speaking, touch on matters of national security. In many
of these cases, the commissions are used by the president as a political tool for containing volatile
political situations or individuals. Because the power of the president to appoint commissions of
inquiry is not regulated, successive presidents have established such commissions even where
the existing legal framework arguably suffices. For example, the Miller Commission of Inquiry
was appointed to inquire into the alleged subversive or treasonable conduct of Mr Charles
Njonjo, a former Attorney General and Minister for Justice and Constitutional Affairs. Again, the
Akiwumi Commission of 1998 was established to inquire into the participation of civilians and
law enforcement officials in the tribal clashes that occurred in 1991. In both cases, the matters in
question could have been handled using the existing criminal law.150
Thus, commissions of inquiry are in many cases established as a means of containing public
anger where it appears the executive does not intend to implement their recommendations. This
was the case with the Bosire Commission of Inquiry into the ‘Goldenberg Affair’, for example.151
An interesting feature of this Commission is that it was established whilst a number of court
cases revolving around the ‘Goldenberg Affair’ were pending.152 Indeed, the Bosire Commission
served to complicate the resolution of these cases, since they were terminated upon the
establishment of this commission.
For the most part, the commission of inquiry is therefore a political instrument at the
disposal of the president. Unfortunately, it has a capacity to undermine the rule of law, since
successive presidents have tended to appoint sitting judges as heads or members of commissions
of inquiry.153 Not only are such judges drawn into political controversies when they serve on such
commissions, but their determinations therein are frequently challenged in courts of law.154
While it is no doubt desirable that the findings of such commissions should be subject to judicial
review, appointing sitting judges as commissioners in non-judicial processes may undermine
the authority of such judges and the judiciary in general. As the Bosire Commission observed,
‘judges who serve in politically motivated inquiries run the risk of being dragged into politics

149 Ibid., section 7(1).

150 African Centre for Open Governance, supra note 24 at 8.
151 Ibid. at 9 (observing that ‘[s]ubsequent conduct on the part of the Kibaki Government reveals that opting for the Bosire and

Ndung’u commissions of inquiry, instead of direct prosecutions for the suspected corruption under inquiry was a tactical political
exit from a potential fratricidal war with Kenya’s power and property barons implicated in the reports and who were cast on both
sides of the political divide.’).
152 Republic of Kenya (2005: para 767).

153 African Centre for Open Governance, supra note 24 at 9.

154 Ibid. at 10.

3 . G o vernment R espect f o r the R u le o f L a w 65

and having their reputation for impartiality ruined’.155 It therefore recommended, among other
things, that ‘no sitting judge should be appointed to participate in a public inquiry unless the
Chief Justice has satisfied himself that the nature of the intended public inquiry has no political
implications’.156
The case of Republic v. Judicial Commission of Inquiry into the Goldenberg Affair ex parte George
Saitoti157 illustrates why it may not be desirable for sitting judges to serve on commissions of
inquiry, and why increasingly these commissions are not suitable forums for the resolution of
national exigencies. The Goldenberg saga revolved around the activities of a company called
Goldenberg International Limited (GIL), which from about 1990 had fraudulently obtained
about KES six billion from the Central Bank of Kenya by manipulating export compensation
laws and regulations by making it appear that it had exported gold, while no gold was in fact
exported. George Saitoti was the Minister for Finance when the government approved GIL’s
scheme. Once word got out that GIL had swindled the government, a huge outcry followed and
several initiatives were launched to unravel what quickly became a conundrum. These initiatives
included investigations by committees of Parliament, criminal investigations and public and
private attempts to prosecute the architects of the fraud. The Bosire Commission was established
by President Kibaki in 2003, shortly after the new NARC government assumed office.
George Saitoti was unhappy with the Report of the Bosire Commission, as he was
mentioned in unfavourable terms. Among other things, the Bosire Commission reported
that Mr Saitoti ‘knowingly and illegally allowed GIL an enhanced rate of export compensation
contrary to the provisions of the Local Manufacturers (Export Compensation) Act. Further, the
Commission thought that the minister abused his powers by not subjecting this application to
technical evaluation as he had done others.’158 Mr Saitoti quickly moved to court, seeking judicial
review orders to quash ‘the findings, remarks and decisions’ of the Bosire Commission and to
prohibit the Attorney General from bringing criminal charges against him. The court obliged,
on the basis that the Bosire Commission erred by purporting to review a decision of Parliament,
which had concluded that Mr Saitoti had acted according to the law. The court also argued that
Mr Saitoti could not be accorded a fair trial under the circumstances.
In this respect, the court likened Mr Saitoti’s case to that of Stanley Munga Githunguri v. the
Republic,159 where the court held that it is an abuse of court process to charge a person after a
decision had been made not to prosecute him, and with this decision communicated to him and
assurances given that he would not be prosecuted again. In likening Mr Saitoti’s circumstances
to those of Mr Githunguri, the court argued that the Attorney General’s statement in Parliament
– to the effect that the government’s decision to grant export compensation to Goldenberg
International was procedural – created an ‘implied representation’ that criminal proceedings
would not subsequently be brought against Mr Saitoti.160 Even if one were to say that the court

155 Republic of Kenya, supra note 31 at 25.

156 Ibid.
157 Republic v. Judicial Commission of Inquiry into the Goldenberg Affair ex parte Saitoti (2006) eKLR.
158 Republic of Kenya, supra note 31 at para 547.
159 Githunguri v Republic (1986) KLR 1.
160 Republic v. Judicial Commission of Inquiry into the Goldenberg Affair ex parte Saitoti (2006) eKLR at 36.

66 PART II kenya: Justice sector AND the rule of law

ultimately made the right decision, this kind of reasoning arguably stretches legal interpretation
beyond reasonable bounds. Quite simply, the circumstances of Mr Githunguri and Mr Saitoti
are as similar as day and night.
In addition, this decision arguably sets a bad precedent since it renders the Report of
the Bosire Commission worthless. In all likelihood, any person now adversely mentioned in
the report of a commission of inquiry will rush to court,161 and where such a person obtains
favourable orders, it means that no courts of law can try them for any offence they may have
committed.162 This is precisely what happened in the Kotut case.163 That only leaves the political
option of implementation of the report by the president, which will not happen unless there is
political will to act. In all likelihood, the social ill that the commission of inquiry was in the first
place established to deal with would therefore not be addressed.
As far as the war against grand corruption is concerned, the decision in the Saitoti case will
make it much harder for the country to deal with this debilitating ill.164 In addition, the Saitoti
and Kotut decisions reinforce public perceptions that the courts make political rather than legal
decisions so as to protect the interests of the rich and powerful. The fact that the two decisions
are not easy to rationalise legally also undermines the authority of the judiciary as a legitimate
forum for the resolution of political and other disputes.
To make matters worse, commissions of inquiry have an inherent weakness in that they are
ad hoc and become functus officio once they have delivered their report to the president. They do
not therefore have an opportunity to correct their mistakes should a court of law subsequently
determine that their decisions, or the manner in which their decisions were arrived at, were
wrong or unreasonable. In many ways, commissions of inquiry are therefore a waste of time,
effort and money.
A further limitation of commissions of inquiry is that their recommendations are hardly
ever implemented. As a result, there has been a fatigue among the public and loss of belief in
their usefulness. For this reason, it is critical for the recommendations of the Waki Commission
to be implemented fully, if only because it gives the country an opportunity to deal with the
culture of impunity and help the country lay a firm foundation for the rule of law.
The Commissions of Inquiry (Amendment) Bill of 2009 now seeks to address some of the
deficiencies of commissions. The Bill seeks to give the legislature an oversight role in the conduct
of the activities of commissions of inquiry. If enacted, the Bill will mandate commissioners to
report their findings to the legislature for debate, thereby giving the public, through their elected
representatives, an opportunity to deliberate on the results of the inquiry. It will also enhance
transparency and accountability in the functioning of the inquiry system.

161 Ibid. at 14. See e.g. Wilfred Karuga Koinange v. Commission of Inquiry into Goldenberg (2006). It should be noted that in this

case the court declined to issue the orders of certiorari and prohibition, and reasoned that the public interest demanded that the
issues raised by the applicant ‘should be determined in a proper trial, and should not be stayed by the court merely because they
relate to issues raised 4, 8, 12 or more years ago.’
162 See e.g. Kadida (2008); Ogutu (2008).

163 Eric Cheruiyot Kotut v. S.E.O. Bosire & 2 Others (2008) eKLR.

164 See Mwangi (2007).

3 . G o vernment R espect f o r the R u le o f L a w 67

Amnesties and pardons
In Kenya, the power to grant pardons is a prerogative of the president. In the repealed
constitution, it was conferred by provisions dealing with the ‘prerogative of mercy’.165 These
provisions empowered the president to pardon a person convicted of an offence, to grant a
person respite from execution of a punishment imposed for the commission of an offence,
to substitute a less severe form of punishment for a punishment imposed on a person for an
offence, or to remit the whole or part of a punishment imposed on a person for an offence or of
a penalty or forfeiture. The president could also pardon a person convicted by an election court
under the National Assembly and Presidential Elections Act.166 In practice, successive presidents
also granted amnesties to groups of prisoners through orders that are typically announced as part
of the annual national celebration of the attainment of independence on 12 December (Jamhuri
Day).
The repealed constitution also established an Advisory Committee on Prerogative of
Mercy consisting of the Attorney General and (at most) five other members appointed by the
president.167 This Committee was supposed to advise the president in exercising the prerogative
of mercy, although the president was not obliged to act in accordance with the advice of the
Committee.168
The prerogative of mercy has typically been exercised in a subjective manner, and successive
presidents have been criticised by human rights organisations and the media for abusing
this power. The pardons of Charles Njonjo in 1984 and Margaret Gachara in 2004 are good
illustrations of how the subjective exercise of this power undermines the faith of the citizenry in
the rule of law.
In the case of Charles Njonjo, President Moi established a commission of inquiry in 1983
to inquire into allegations of treason and subordination made against him. Although this
commission found him ‘guilty’ of these offences, he was pardoned by the president on the
occasion of Jamhuri Day in 1984. Margaret Gachara was the head of the National Aids Control
Council (NACC). On 27 August 2004, she was convicted of abuse of office and obtaining
KES 27 million from the NACC by false pretences. She was then jailed for 12 months for each of
the three counts and ordered to serve the sentences concurrently. But on 12 December 2004, she
was released pursuant to a presidential order giving amnesty to a group of prisoners. Upon her
release, the head of the Langata Women’s Prison, where she had been detained, was quoted as
saying that Margaret Gachara’s ‘name was forwarded to the prison headquarters alongside others
having met all qualifications, including attaining and retaining remarkable character while in
prison’.169 The short sentence and the subsequent speedy pardon of Margaret Gachara reinforce
public perceptions that there are different sets of laws for the rich and the poor. As we shall see
in our analysis of the criminal justice system, Kenyan prisons are full to the brim with poor
individuals convicted of much less significant offences for much longer sentences. Indeed, there

165 Constitution of Kenya 1963, section 27.

166 Ibid., section 27(e).
167 Ibid., section 28(1).
168 Ibid., section 29(2).
169 Amnesty Saw Dr Gachara Get Off the Hook, Nation, 21 February 2005.

68 PART II kenya: Justice sector AND the rule of law

are many cases of persons charged with petty offences who have been languishing in remand
prisons for many years. In our view, these shortcomings of the exercise of the prerogative of
mercy can only be remedied by establishing transparent and accountable mechanisms for how
it is used. Further, the constitution should be amended to oblige the president to consult the
Advisory Committee on Prerogative of Mercy, whose deliberations also need to be transparent.
Indeed, this Committee performs an important function and should also be accountable to the
people of Kenya. Up until now, Kenyan courts have treated prerogative powers as a preserve of
the president. These powers ought to be subject to judicial review.
It is therefore encouraging that article 133 of the new constitution imposes the much-needed
obligation of the president to consult the Advisory Committee in exercising this power. Further,
the new constitution requires the enactment of a law that will provide for the tenure of the
members of this committee, its procedures and the criteria that it shall use in formulating its
advice to the president. In addition, it provides that the committee may take into account the
views of the victims of the offence in respect of which it is recommending the exercise of the
prerogative of mercy by the president.170

B. Parliament and respect for the rule of law

For a long time, the Kenyan legislature (Parliament) was subservient to the executive, and it
was thus difficult to distinguish its actions from those of the executive. Over the last decade,
however, Parliament has increasingly asserted itself. Generally speaking, while parliamentary
assertiveness has been instrumental in enhancing the accountability of the executive, Parliament
has not always demonstrated respect for the rule of law. Specifically, Parliament has undermined
the separation of powers doctrine by passing laws that give MPs executive powers. Even worse
perhaps, Parliament has not taken steps to amend such laws even after the courts have ruled that
they are unconstitutional.
Again, MPs have demonstrated a particular proclivity to enact laws that seem to only secure
their parochial interests, and not the interests of the general public. This is especially the case
with a series of laws that enhance the salaries and financial benefits of past and present members
of parliament.171 The very first legislative act of the MPs of the 9th Parliament (2002–2007) was
to increase their salaries and allowances by amending the National Assembly Remuneration
Act of 1975.172 The MPs were at it again in 2007 when they enacted the Gratuity Act of 2007,
which also amended the National Assembly Remuneration Act, this time without adhering to the
established procedures.173 The Gratuity Act of 2007 provided for the payment of a KES 1.5 million
gratuity to each MP and to the ex officio members of the 9th Parliament, including the Attorney
General. This Act was part of the Statute Law (Miscellaneous Amendments) Bill 2007, but which
did not, contrary to the established procedure, indicate that it proposed to amend the National
Assembly Remuneration Act.174 In effect, the Gratuity Bill was introduced without giving the

170 Section 133(4).

171 See e.g. Mars Group Kenya (2007). See also Shiundu & Leftie (2010).
172 See National Assembly Remuneration (Amendment) Act, No. 2 of 2003.
173 Mars Group Kenya, supra note 50 at 15.
174 Ibid. at 15–16.

3 . G o vernment R espect f o r the R u le o f L a w 69

requisite notice in Parliament. The 10th Parliament is now threatening to sabotage government
operations unless the government accedes to its demands for yet another exorbitant pay rise.175
Further, while the established procedures require that such bills must go through three
reading stages before being enacted, the Gratuity Bill skipped the first two stages.176 Instead, its
provisions were inserted into the Statute Law (Miscellaneous Amendments) Bill 2007 by a notice
of motion introduced at the committee stage of the enactment of the Statute Law Bill.177 It was
also introduced without first obtaining the consent of the president, contrary to the requirements
of the constitution and the standing orders of Parliament.178
MPs who are members of the Law Society of Kenya (LSK) have also secured exemption for
themselves from the requirements of the LSK’s continuing legal education programme.179 Such
abuse of the power to make law also undermines the rule of law, since it creates two sets of laws
that apply to the powerful and the powerless, which cannot be justified in principle.
Since 1999, Parliament has enacted two laws that give MPs executive powers. These laws
are the Kenya Roads Board (KRB) Act180 and the Constituency Development Fund (CDF) Act.181
The KRB Act establishes a Kenya Roads Board to oversee the maintenance, rehabilitation
and development of roads.182 More specifically for present purposes, the KRB Act establishes
a district roads committee (DRC) for every district183 and provides that all the MPs from the
district are members of this agency of government.184 Shortly after this law was enacted, one
John Harun Mwau moved to court to challenge its constitutionality in the case of Republic
v. Kenya Roads Board ex parte John Harun Mwau.185 The applicant sought the judicial review
order of prohibition to stop the implementation of the KRB Act and a declaration that it is
unconstitutional on the grounds, among others, that ‘it confers executive powers on legislators
contrary to the doctrine of separation of powers and that it is unconstitutional for the legislators
to enact and enforce the laws’.186
The court obliged, observing that ‘it would be against the constitutional principle of
separation of powers for members of Parliament to take part in actual spending, then submit
their annual estimates to themselves in Parliament for approval, then query themselves through
the Public Accounts Committee or the Public Investment Committee’.187 However, Parliament

175 MPs Run Amok Over New Pay, Standard, 9 July 2010.
176 Mars Group Kenya, supra note 50 16.
177 Ibid.

178 Ibid.

179 See Statute Law (Miscellaneous Ammendments) Bill No. 20, 2007 proposing the introduction of a new section 81(3) of the

Advocates Act, to provide that ‘[n]o rule made under this section shall require an advocate who is the Speaker, or who is a member
of the National Assembly, and who holds a practicing certificate, to undergo continuing legal education during his tenure as such
Speaker or member.’
180 Kenya Roads Board Act, Laws of Kenya, No. 7 of 1999.

181 Constituency Development Fund Act, Laws of Kenya, No. 10 of 2003.

182 Kenya Roads Board Act, section 6(1).

183 Ibid., section 17(1).

184 Ibid., section 17(2)(b).

185 Republic v. Kenya Roads Board ex parte John Harun Mwau, Nairobi High Court Misc. Civ. Application No. 1372 of 2000.

186 Ibid. at 2.

187 Ibid. at 30–31.

70 PART II kenya: Justice sector AND the rule of law

was unmoved, while the executive chose to do nothing. The illegality therefore persists to date.
Emboldened by the powerlessness of the judiciary and the acquiescence or indifference
of the executive in the case of the KRB Act, Parliament then enacted the CDF Act, which
gives MPs even more significant powers. It should be noted at the outset that the CDF Act
has noble objectives, as it seeks to enhance the participation of Kenyans in the initiation and
implementation of development projects at the local level, but it violates the separation of
powers doctrine in a number of respects. In particular, the CDF Act gives MPs the power to
simultaneously expend public resources and account to Parliament for such expenditure. Two
principal institutions of the CDF Act are important in this respect, namely the Constituency
Development Committee (CDC) and the Constituency Fund Committee (CFC). The CDC is
arguably the most critical institution of the CDF Act; the idea of devolution that informs the
CDF initiative would not be realised without it. The Act requires the establishment of a CDC in
every constituency. But this critical organ, whose functions are executive in nature, is constituted,
convened and chaired by the MP.188 While the Act makes an attempt to regulate what kind of
persons can serve as members of the CDC, the ultimate decision of which individuals are to be
appointed is the prerogative of the MP. In addition, the CDF Act gives MPs the power to identify
the projects which are to be funded by the CDF.189 The CDF Act therefore makes the MP a grand
political patron at the local level.
On the other hand, the CFC is an oversight body. It is established as a select committee of
the National Assembly, and consists of ‘a chairman and not more than ten other members of
Parliament who are not Ministers or Assistant Ministers of Government’.190 Its functions include
overseeing the policy framework, the legislative framework and the implementation of the CDF
Act.191 MPs therefore audit their work under the Act and account to themselves through the CFC.
In practice, MPs have not always been transparent in exercising their powers under the
CDF Act, and locations opposed to the MPs tend to be bypassed and may not therefore benefit
from the CDF.192 The CDF Act may therefore be enhancing sub-ethnic, regional and class
differences.193 Cases of misappropriation of funds and poor implementation of projects have
also been reported.194 The Act also undermines the democratic process by giving MPs exclusive
control over a key local resource.
Above all, the CDF Act fuses legislative and executive powers thereby undermining the
separation of powers doctrine. More particularly, the Act facilitates the arbitrary exercise of power
by MPs, contrary to the tenets of the rule of law. It is also unrealistic to expect that MPs will
objectively oversee their own actions. The limitations of the CDF Act are perhaps best captured
by a commentator who writes that ‘the scenario presented by the Act whereby the legislator
makes a law … participates in implementing the law … and then accounts for the expenditure to

188 Constituency Development Fund Act, section 23(1).

189 Ibid., section 12(1).
190 Ibid., section 27(1).
191 Ibid., section 27(4)(d)(e).
192 Kenya Private Sector Alliance (2006: 4).
193 Ibid.
194 Ibid.

3 . G o vernment R espect f o r the R u le o f L a w 71

Parliament (in this case to himself) throws democratic accountability overboard’.195
Many people have opposed the CDF Act since it was enacted.196 The judiciary has also had
occasion to review the Act in the case of John Onyango Oyoo & 5 others v. Zadock Syongo & 2 Others,
where the applicants complained of inequitable distribution of the funds allocated to the Gwasi
constituency. The court noted that ‘there is no clear mechanism in the Act to control abuse or
excessive use of authority by the sitting member of Parliament under the powers given to him
under section 23 of the Act’.197 In response to the public outcry, Parliament made some changes
to the Act in 2007. But these changes do not address the separation of powers concerns, and do
not significantly alter its provisions.
The persistence of Parliament in enacting legislation that violates the separation of powers
doctrine and undermines the democratic process is quite worrisome. Even where courts of law
have pronounced legislation unconstitutional, as in the Mwau case, Parliament has failed to take
any steps to amend such laws. The failure to amend such laws may be contributing to public
perceptions that MPs are greedy, selfish and unruly.198 Parliament is then seen as becoming a
law unto itself as it is perceived to be answerable to no one. This situation does not bode well for
the rule of law, as it promotes a culture of anarchy. In addition, it leads to the enactment of laws
that are not legitimate since they do not have the public’s approval.
Indeed, the failure of Parliament to amend such laws goes against the practice in the past
where the executive quickly whipped MPs to amend laws that were declared unconstitutional by
courts of law. The case of Margaret Magiri Ngui v. Republic199 provides a good example of such
executive respect for the rule of law, even if it was an isolated occurrence given the despotic
proclivities of the government at the time. If there is to be fidelity to the culture of law, it is
important for both the executive and the legislature to move quickly to amend laws which do
not conform to the constitution. To facilitate such fidelity to law, it may be important to establish
procedures and processes to facilitate the correction of laws that violate the constitution.
It is comforting that the new constitution now seeks to enhance the accountability of
the legislature, thereby ensuring that it respects the rule of law. Article 118 imposes a duty on
Parliament to facilitate public participation and involvement in the business of Parliament and
its committees, while article 119 gives every person the right to petition Parliament ‘to consider
any matter within its authority’. Article 104 also gives the electorate the right to recall the MP
representing their constituency, and imposes a duty on Parliament to enact legislation that will
establish the grounds and procedures according to which an MP may be recalled. Although
these provisions may constitute useful mechanisms for holding the legislature and legislators
to account, they will need to be accompanied by mechanisms to regulate lobbying, conflicts of
interest, misconduct and abuse of power in Parliament. In this context, the provisions of the
proposed constitution dealing with leadership and integrity, including those governing conflicts
of interest, provide a much-needed framework for regulating the conduct of legislators.

195 Ibid. at 22.

196 See e.g. Gachomo (2007: 87); Kabage (2006).
197 John Onyango Oyoo & 5 others v. Zadock Syongo & 2 others (2005) eKLR.
198 See e.g. Lacey (2006).
199 Criminal Application No. 59 of 1985, High Court, Nairobi (unreported).

72 PART II kenya: Justice sector AND the rule of law

 In addition, article 230 of the new constitution establishes a Salaries and Remuneration
Commission, whose main function will be to ‘set and regularly review the remuneration and
benefits of all state officers’, including MPs. Furthermore, article 116(3) provides that legislation
that confers ‘a direct pecuniary interest on members of Parliament’ cannot take effect during the
life of the parliament that enacts it. Thus, the proposed constitution takes away the power of MPs
to enact legislation that raises their salaries and benefits.

C. Recommendations
The need to eradicate the culture of impunity that has taken root in Kenya is urgent if the public
is to have faith in the law. In particular, there is a need to:
• Encourage the media and civil society actors to highlight instances where the three
branches of government disregard the rule of law.
• Ensure, through legislation, that the decision-making processes of the Advisory
Committee on the Prerogative of Mercy are transparent and accountable. In addition,
the presidential prerogative of mercy should be subjected to judicial review.
• Establish mechanisms and procedures to facilitate the amendment or repeal of laws
found by court decisions to be in violation of the constitution.
• Establish guidelines to enable the courts to regulate the failure, neglect or refusal of
public officers to comply with court orders. For example, the courts should only excuse
failures to comply with the law where public officers provide adequate administrative
explanations for their failure.
• Amend the law to prohibit MPs from administering the Constituency Development
Fund.

3 . G o vernment R espect f o r the R u le o f L a w 73

4
Management of the justice system
The judiciary has only recently institutionalised the principles of proper planning and
management through strategic planning. The implementation of plans in the justice sector has,
however, been hindered by the absence of adequate funding and sufficient qualified human
resources. There is broad recognition in the executive and legislature that the judiciary requires
greater financial allocation to effectively carry out its mandate. However, at less than 1% of total
gross budget allocation, the judiciary remains underfunded and under-resourced. There have
been numerous proposals made to improve the management of the judicial system over the
years. These include: enhancing the independence, operational autonomy and effectiveness in
the management of the judiciary; securing merit-based appointments for judges and promoting
high standards of conduct and discipline in the judiciary; addressing the backlog and delay of
cases; enhancing the performance and accountability of the judiciary; promoting ethical conduct
and preventing corruption in the judiciary; institutionalising law reporting; increasing the
number of judicial officers and restructuring the management of the judiciary. Some of these
proposals are already being implemented with the expectation that they will change the way in
which the justice system is managed. The Report of the Task Force on Judicial Reforms released
in July 2010 has summarised the key recommendations of various commissions set up over
the years to reform the judiciary. The new constitution provides firm anchorage for the reforms
proposed in the judiciary and contributes to enhancing the efficiency and effectiveness of the
institution.

A. Strategic planning
Strategic planning in the public sector in Kenya is a fairly new phenomenon and it is not
surprising that the judiciary had no strategic plan prior to 2005. It has, however, become a

74 PART II kenya: Justice sector and the rule of law

normal way of doing things since 2003. The Government of Kenya Economic Recovery Strategy
(ERS) 2003–2007 identified the need to prepare strategic plans for the various government
organisations as one of the ways to enhance economic recovery. The preparation of strategic
plans by various government ministries/departments has been going on since then. The
Economic Recovery Strategy Paper for Wealth and Employment Creation (ERS) 2003–2007
required the various ministries and departments to identify their core functions, policy priorities
and develop appropriate organisational structures and optimal levels. These ERS requirements
together with limited resources at the government’s disposal are the reasons for the preparation
of the judiciary’s strategic plan.
The first ever strategic plan in the history of Kenya’s judiciary was launched in March
2005.200 Other legal and justice sector institutions have also put in place their own strategic
plans. The challenge is to create synergies in the operations of different legal and justice sector
actors so as to facilitate the operationalising of the tenets of the rule of law. The adoption of
the Judiciary Strategic Plan 2005–2008 was one of the initiatives aimed at facilitating efficient
administration of justice. Efficient and accessible administration of justice has been identified
as critical in providing an enabling environment for investment. Various economic and poverty
reduction papers and strategies have identified the delivery of justice as one of the measures
to reduce poverty and assist in the creation of more wealth. The ERS listed the achievement of
a predictable and impartial justice system and speedy prosecution of cases targeted at clearing
the backlog in order to improve service delivery by the judiciary as some of its objectives. Vision
2030,201 the follow up to the ERS, has its economic, social and political pillars undergirded by
improvement in governance, access to justice, respect for the rule of law and human rights.
These require an effective justice system.
The Poverty Reduction Strategy Paper (PRSP) 2001–2004, which outlined priority measures
necessary for poverty reduction and economic recovery, also identified administration of justice
as one of the national priorities to be addressed. It identified corruption, delays in administration
of justice, lack of specialised courts and lack of access to courts as some of the causes and reasons
for inefficient administration of justice.202
The judiciary’s plan was aimed at reforming the judiciary and ensuring effective delivery of
justice. This was reflected in the mandate, core functions, policy priorities, vision, mission and
core values. Under the plan, the judiciary aims at ensuring greater access to justice through a
more decentralised court system, simplified court procedures, law-reporting and reduced costs
of the process of the court; strengthened integrity, competence and independence of the judiciary
through improved human resource policies, legislative and judicial measures; and improved

200 Republic of Kenya (2005B), Judiciary Strategic Plan 2005–2008, March 2005. The Judiciary Strategic Plan was developed
through the following process: appointment by the judiciary of a core team to steer the process comprising of representatives
from all the departments; review of documents to familiarise the team with the mandate, functions, policy priorities, achievements
and constraints of the judiciary; preparation of an action plan for preparing the Strategic Plan which was disseminated to the core
team, discussed and agreed upon; preparation of the Strategic Plan conceptual framework; brainstorming retreat; dissemination
of draft plan to all stations to obtain input of the staff outside the headquarters; interviews of selected top management staff of
the judiciary and key stakeholders.
201 Republic of Kenya (2007).

202 Republic of Kenya, supra note 1 at 1.

4 . M anagement o f the J u stice S y stem 75

infrastructure of court-houses and facilities – physical and electronic – that are consistent with
modernised judicial function under international best practices.203
The judiciary also sees the strategic plan as a tool it can use to overcome challenges such
as ‘access to court, appropriate staffing and motivation, proper resource mobilisation and
utilisation, objective appraisal, strategic direction, policy priorities, strategic issues, activities,
monitoring and evaluation’.204
The Judiciary Ethics and Governance Sub-Committee205 was established on the day that the
judiciary strategic plan was launched to:
• Collect information relating to the integrity of the entire judiciary staff and court
processes;
• Investigate all cases of alleged corruption, unethical behaviour and other cases of lack
of integrity;
• Study and report on the case for in-house intermediary disciplinary measures, and the
process of punishment for breaches not warranting removal of a judge from office;
• Examine and report on the orderly and efficient method consistent with the rules of
natural justice for conducting investigation or inquiry into the fitness of a judicial
officer to hold office or the guilt of paralegal staff in corrupt or unethical practice;
• Deliberate and report on the contents of a ‘litigants’ charter’ to aid the comprehension
of the process of the court by litigants;
• Study and rationalise the previous committees’ reports on the reforms in the judiciary
and recommend a codified and comprehensive reform matrix to entrench integrity;
and
• Report on its findings and recommend to the Chief Justice any remedial action and
necessary reforms for governance and the entrenchment of integrity in the judiciary.

Among the major recommendations of this committee were:

• Computerisation of court registries;
• Facilitation of expeditious handling of cases;
• Digitising the recording of proceedings;
• Delivery of rulings or judgements to be transacted in open court in the interest of
transparency;
• Need for practice guidelines on bail and bond and on sentencing and the management
and disposal of exhibits;
• Strict supervision and enforcement of the judicial code of conduct and incorporation of
integrity and anti-corruption strategies throughout the work of the judiciary;
• Need to clarify disciplinary process for judges, magistrates, Kadhis and the paralegal
staff of the judiciary;
• Need for security of tenure for magistrates and Kadhis;
• Need for a litigant’s charter, in all major languages, on:
203 Republic of Kenya, supra note 1.
204 Ibid. at 2.
205 See Republic of Kenya (2005B).

76 PART II kenya: Justice sector and the rule of law

 • structure and functions of the judiciary;
• services provided by the various offices in the judiciary;
• court system;
• rights and obligations of litigants in the court process;
• obligations and responsibilities of the judiciary and its staff to litigants;
• court fees and payment;
• role and responsibilities of other agencies in the administration of justice;
• court procedures (criminal, civil, petitions, family matters);
• legal aid;
• where to direct complaints relating to advocates;
• complaints procedure; and
• contacts of various judicial offices and officers.
• Need for a broad public information and education policy and a public relations and
communications department; and
• Information desks.

Since the launch of the plan, the judiciary has managed to achieve limited success in the
achievement of its key goals and objectives such as the establishment of a Public Relations
Department, the construction of more courtroom facilities in some parts of the country and the
division of the High Court in Nairobi into several arms to ease delivery of justice. However, the
plan also faced some challenges, the most prevalent being: the lack of an appropriate mechanism
for implementation; absence of a monitoring and evaluation system; inadequate staffing; lack of
sufficient funds to carry out the proposals to completion and a lack of sufficient political goodwill
for judicial reforms.206
The judiciary launched its second strategic plan for 2009–2012207 on 20 March 2009 to
replace the 2005–2008 plan. The new plan sought to build on the achievements of the previous
plan and to take on issues that had been planned for in the previous plan but had not been
achieved. The plan starts with an evaluation of the previous planning period and notes the major
achievements and points out what still needs to be done.
The stated vision of the judiciary in this plan is ‘to be the best judiciary in Africa, setting
the highest standards in the delivery of quality justice and leading in the development of
jurisprudence’.208 Its mission is ‘to provide an independent, accessible, responsive forum for the
just resolution of disputes in order to preserve the rule of law and to protect all rights and liberties
guaranteed by the Constitution of Kenya’.209 The objectives of the plan are:210
• To enhance judicial independence to enable the judiciary to carry out its key functions
effectively;
• To improve the image of the judiciary to restore public confidence in the institution;

206 Republic of Kenya (2009: 19).

207 Ibid.
208 Ibid. at 2.

209 Ibid.

210 Ibid. at xii.

4 . M anagement o f the J u stice S y stem 77

 • To build capacity in human resource management and development to achieve higher
performance;
• To improve access to justice to ensure that litigants have easy and affordable justice for
a fair and just society;
• To improve institutional structures to ensure efficient delivery of services;
• To adopt and institutionalise appropriate information and communication technology
(ICT) and other facilities to improve efficiency in operations; and
• Enhance and streamline financial management and procurement to optimise allocation
and use of resources.

The estimated cost of implementing the plan is KES 5.627 billion which the judiciary expects
to get from the government and development partners.211 The judiciary recognises the fact that
effective ICT policies are imperative for improved efficiency and has set up an ICT committee
to develop a strategy for implementation of the activities under the plan. The membership
comprises: a judge of appeal; two High Court judges; the Registrar of the High Court; the Deputy
Chief Finance Officer; the Chief Executive Officer of the National Council for Law Reporting;
the Principal ICT Officer; the ICT secretary in charge of e-government and the Deputy Chief
Executive Officer of the Kenya ICT Board. The main mandate of the committee is to oversee
ICT investments and coordinate ICT projects so as to move the judiciary towards the creation of
an Integrated Justice Management Information System. This will bring together all the agencies
involved in the delivery of justice including the judiciary, the State Law Office, the prisons and
the police. The specific objectives are to:
• Formulate a policy on modernisation and automation of the judiciary;
• Draw up an action plan with appropriate phasing for time-bound implementation;
• Stipulate physical and financial targets;
• Monitor and evaluate the action plan on a periodic basis;
• Suggest methods for making access to justice and availability of information more
citizen-friendly through the use of ICT; and
• Carry out any other tasks and activities as may be directed by the Chief Justice from
time to time.

So far, the Committee has:212

• Completed a situation analysis and needs assessment;
• Drawn up an ICT Policy and Strategic Plan clarifying its vision and mission;
• Begun the process of conversion of Court of Appeal and High Court files into electronic
format;
• Established local area networks (LANs) in all High Court stations in the country and
initiated plans for wider area networks (WANs) to link different court stations;
• Re-designed and launched the judiciary website;

211 Ibid.
212 Republic of Kenya (2010B).

78 PART II kenya: Justice sector and the rule of law

 • Purchased computers and other ICT hardware for courts around the country;
• Developed a new scheme of service for ICT officers;
• Established the first tele-presence link (video conferencing) in the Court of Appeal
between Nairobi and Mombasa; and
• Developed a short message system (SMS) for cause list alerts.

With respect to capacity building in human resource management, it has already rolled out and
is implementing schemes of service for staff that had none before.
The other arms of the justice sector such as the police and prisons departments have also
been involved in strategic plans. The emphasis in these two plans has centred mainly on the
question of welfare and working conditions of the officers. The pace of implementation has,
however, been too slow.
The judiciary is also a part of the government reform programme for the Governance,
Justice, Law and Order Sector (GJLOS), whose institutions are undergoing similar reforms in
a sector-wide reform initiative. The planned reforms through the strategic plan will ensure that
the judiciary will play its role as an integral partner in Vision 2030 as well as entrench itself as an
independent judicial authority for the provision of quality justice for all.

B. Financial management
The challenge of combining fiscal responsibility with judicial independence is not unique to
Kenya. The control of the budget process by the executive in a system where there is separation
of powers makes one arm of government subservient to another in the critical area of financial
management. The requirements of the executive for restraint and accountability can be
construed as infringing on core principles of the judiciary, namely fairness and independence.213
The fact that the judicial sector is perceived as traditionally conservative and reluctant to accept
change even when performance is challenged does not help matters.
One of Kenya’s setbacks in the administration of justice is inadequate financing and
cumbersome accounting and financial procedures. Kenya’s judiciary receives budgetary
allocation from the Treasury. The new constitution, like the Bomas Draft Constitution, provides
that the administrative expenses of the judiciary be directly charged on the Consolidated Fund.214
The constitution also establishes a judiciary fund to be used for administrative expenses.215 This
was among the measures thought to be necessary to ensure that judicial power be exercised
independently. It makes the judiciary autonomous with regard to its finances with the Chief
Registrar, making annual estimates of expenditure and submitting them directly to Parliament
for consideration.216 Other measures included: putting the judiciary under the constitution
directly, as opposed to being under the authority of any person or authority;217 the office of a
judge of a superior court of record would not be abolished while there is a substantive holder of

213 Webber (n.d.).

214 Constitution of the Republic of Kenya (2010), section 160(3).
215 Ibid., section 173(1) & (2).
216 Ibid., section 173(3) & (4).
217 Ibid., section 160(1).

4 . M anagement o f the J u stice S y stem 79

the office218 and the remuneration and benefits payable to members of the judiciary would not
be varied to their disadvantage.219
At the district level, the judiciary’s finances are kept at the District Treasury like other
government ministries and departments. Retrieval of these funds, more specifically the legal
deposits which are expected to be refunded to the litigants, is very cumbersome leading to a lot
of delays and a dent in the image of the judiciary.
The allocation to the judiciary has not been adequate to overcome the various challenges
facing the justice system, such as inadequate staffing, facilities and equipment. The judiciary is
one of the major institutions that collects revenue for the government but still does not receive
adequate finances (see Table 8 below).

Table 8: Recurrent and development vote 2009/2010

Net Budgetary allocations in Allocation as % of total Appropriation-in-

Institution
KES. gross allocation Aid (A-I-A) in KES
Executive 598 720 812 637 98.2 41 203 725 920
National Assembly 7 688 893 530 1.3
Judiciary 3 054 800 000 0.5 546 000 000
Total 609 464 506 167 100.0 41 752 725 920
Source: Government of Kenya, Final Report of the Task Force on Judicial Reforms, Government Printer, July 2010 p.20

Consequently, the judiciary does not have financial autonomy, and the Ministry of Finance
controls its budget. As a result, the courts have been in a perpetual resource crunch even as the
demand for judicial services increases. Over the years, the judiciary reached an agreement with
the Treasury to retain part of the monies collected by the courts in court fees and recovered costs.
However, fines collected through criminal proceedings must be surrendered to the Treasury.
Fines, together with budgetary appropriations, have always been subjected to scrutiny by the
Controller and Auditor General, whose reports have in the past disclosed evidence of financial
mismanagement in the judiciary.
The 2010 Task Force on the judiciary noted that while the ‘optimal expenditure of the
Judiciary is KES six billion, over the years, the allocation has been between KES 800 million and
KES 1.2 billion constituting 0.3% or less of the total budget’.220 This constrains the judiciary’s
effective performance of the task assigned to it. For instance, the funds for infrastructure
development for the judiciary to create more space and thus facilitate expeditious handling of
matters were allocated through the Ministry of Public Works in the 2009/2010 budget and
not directly to the judiciary. This violates the independence of the judiciary and could affect the
timeous delivery of buildings planned by the judiciary.221 The government budgeting system is
fairly elaborate. Heads of different departments are requested to submit their requirements for
the year with each sector coming up with its amalgamated budget and submitting it to Treasury.

218 Ibid., section 160(2).

219 Ibid., section 160(4).
220 Republic of Kenya (2010A: 20).

221 Ibid.

80 PART II kenya: Justice sector and the rule of law

This is followed by budget hearings at which different sectors are represented. The budget given
to each sector is not necessarily tied to the needs as different interests are balanced. The judiciary
is in the governance, justice, law and order sector (GJLOS), which has twelve other agencies
including the offices of the president and vice president; the Attorney General’s chambers and
the Kenya Anti-Corruption Commission (KACC). The offices of the president and vice president
consume a whopping 80% of the entire sector budget, leaving the other eleven a paltry 20%.
Historically, the judiciary and the Attorney General’s chambers have not got enough resources.
It is worth noting that in the 2009 budget, the judiciary’s budget was for the first time ever
discussed by the National Assembly, with the allocation increasing from 0.01% of the national
budget to 0.05%.222

C. Court administration

Inadequate management structure

The judiciary is divided into two units, namely the Technical Unit and the Administrative Unit.

Technical Unit
The Technical Unit is made up of the courts. The administration of courts in Kenya is managed
by judicial officers. This system is not very efficient because judicial officers are not sufficiently
trained to handle administrative issues. They lack proper managerial training and consequently
managerial skills. They also have heavy workloads and are not provided with adequate financial
and human resources to enable them to efficiently perform their duties. Past reform measures
have failed to effectively address this problem. Several reform suggestions that have been made,
including separating the structure of the courts into two, namely the administrative part and the
judicial part.
Under section 61(3) of the repealed constitution, the criteria for appointment as a judge were
laid out as:
• A person who is or has been, a judge of a court having unlimited jurisdiction in civil
and criminal matters in some part of the Commonwealth or in the Republic of Ireland
or a court having jurisdiction in appeals from such a court; or
• He is an advocate of Kenya of not less than seven years standing.

This has been changed by the new constitution which has laid out the criteria for the appointment
of judges as follows:
• The Chief Justice and the judges of the Supreme Court: (a) at least fifteen years’
experience as a superior court judge; or (b) at least fifteen years’ experience as a
distinguished academic, judicial officer, legal practitioner or such experience in other
relevant legal field; or (c) held the qualifications specified in paragraphs (a) and (b) for
a period amounting, in the aggregate, to fifteen years.223

222 Ibid.
223 Constitution of the Republic of Kenya (2010), section 166(3).

4 . M anagement o f the J u stice S y stem 81

 • The judges of the Court of Appeal: (a) at least ten years’ experience as a superior
court judge; or (b) at least ten years’ experience as a distinguished academic or legal
practitioner or such experience in other relevant legal field; or (c) held the qualifications
mentioned in paragraphs (a) and (b) for a period amounting, in the aggregate, to ten
years.224
• The judges of the High Court: (a) at least ten years’ experience as a superior court
judge or professionally qualified magistrate; or (b) at least ten years’ experience as
a distinguished academic or legal practitioner or such experience in other relevant
legal field; or (c) held the qualifications specified in paragraphs (a) and (b) for a period
mounting, in the aggregate, to ten years.225

Administrative Unit
The Administration Unit consists of various departments of the judiciary. These departments
include the:
• Administration Department;
• Personnel Department;
• Accounts Department;
• Procurement Department;
• Planning and Library Services Department;
• Information and Communication Technology Department; and
• The National Council for Law Reporting.226

With respect to administration, courts are administered by: the Chief Justice, who is appointed
by the president,227 the Registrar of the High Court and the Chief Court Administrator (CCA).
The Judicial Service Commission addresses the terms and conditions of service for the judiciary.
The administration and executive functions of the courts are performed at court registries. They
provide, inter alia, the following services:
• Documentation, storage and retrieval centre for files, exhibits and other documents in
every court;
• Registration and processing cases at every stage until they are finalised;
• Assessment and collection of court fees, deposits and fines;
• Processing of typed proceedings;
• Dispatch and handling of correspondence;
• Processing of bonds/bail documents;
• Preparation of cause lists;
• Provision of a link between courts and litigants;
• Execution of court orders and/or decrees;
• Service of summons at the counter;

224 Ibid., section 166(4).

225 Ibid., section 166(5).
226 See Republic of Kenya (2005B: 89).

227 Constitution of the Republic of Kenya (1963) (as amended), section 61.

82 PART II kenya: Justice sector and the rule of law

 • Issuance of summons;
• Submission of judicial returns;
• Custody of court seals;
• Housing court registers; and
• Receiving and stamping documents.

The Registrar of the High Court is equivalent to a Permanent Secretary and is responsible for
the finances and administration of the judiciary.  The Registrar is responsible for the judicial
officers who work in the subordinate courts and also all the non-judicial personnel. The Registrar
is assisted in the regions by the resident judges, deputy registrars, magistrates in charge of court
stations and the executive officers.
The current structuring of administrative duties needs to be changed to increase the
effectiveness and efficiency of the court. First, the range of duties performed by the officers can
be redefined. For instance, the Chief Justice deals with many mundane issues such as leave
and transfers that could easily be delegated to a deputy, leaving the Chief Justice to deal with
policy matters. The Registrar also deals with mundane matters such as vehicles and buildings
while the CCA has no clearly defined role and acts as deputy to the Registrar. There is a need to
clearly define the role of the Registrar. The deputy registrars at the regions who are mainly senior
magistrates are the de facto deputy registrars. They have the authority to incur expenditure but
have to write to the Registrar with respect to major decisions.
Second, the holders of all the administrative offices are lawyers and do not have the requisite
training in public administration.228 The new constitution provides for the establishment of the
Office of the Chief Registrar of the judiciary to act as the chief administrator and accounting
officer of the judiciary.229 It also establishes the Office of the Deputy Chief Justice to be the
Deputy Head of the judiciary.230

The Judicial Service Commission

The Judicial Service Commission was formed to enhance the independence of the judiciary. It
derives its mandate from sections 68 and 69 of chapter 4 of the constitution. It is responsible for
appointments of the Registrar or Deputy Registrar of the High Court; chief magistrates, principal
magistrates, senior resident magistrates, resident magistrates, district magistrates; persons
holding offices in subordinate courts exercising criminal jurisdiction; Chief Kadhi, Kadhis; and
such other offices of any court or connected with any court as may be prescribed by Parliament.231
It is responsible for ensuring that the judiciary has adequate and motivated staff for efficient
service delivery and is expected to handle all matters relating to human resource management
and development. It also has power to exercise disciplinary control over persons holding or acting in

228 Personal interviews with judges and Government of Kenya, Final Report of the Task Force on Judicial Reforms, Government
Printer, July 2010.
229 Constitution of the Republic of Kenya (2010) section 161(2)(c).

230 Ibid., section 161(2)(b).

231 Constitution of the Republic of Kenya (1963) (as amended), section 69(3).

4 . M anagement o f the J u stice S y stem 83

those offices and to remove them from office. 232
The Judicial Service Commission as provided for in the repealed constitution was made up
of five members as follows:
• the Chief Justice;
• the Attorney General;
• two judges, one from the High Court and another from the Court of Appeal; and
• the chairman of the Public Service Commission (PSC).

The JSC has been criticised for consisting only of persons appointed by the president, giving the
appearance of a lack of independence from the executive.233 The JSC has also been perceived
as lacking operational autonomy and effectiveness in the management of the judiciary. Not
surprisingly, the 2010 Task Force recommended an expanded membership of the JSC to
enhance independence and promote accountability of the judiciary.234 The new constitution235
revamps the Commission’s membership to consist of:
• the Chief Justice as the chairperson of the Commission;
• one Supreme Court judge elected by the judges of the Supreme Court;
• one Court of Appeal judge elected by the judges of the Court of Appeal;
• one High Court judge and one magistrate, one a woman and one a man, elected by the
members of the association of judges and magistrates;
• the Attorney General;
• two advocates, one a woman and one a man, each of whom has at least 15 years’
experience, elected by the members of the statutory body responsible for the
professional regulation of advocates;
• one person nominated by the Public Service Commission; and
• one woman and one man to represent the public, not being lawyers, appointed by the
president with the approval of the National Assembly.

The Chief Registrar of the judiciary is the secretary of the Commission.236 The constitution has
also clarified the functions of the Commission as including:237
• Promoting and facilitating the independence and accountability of the judiciary and the
efficient, effective and transparent administration of justice;
• Recommending to the president persons for appointment as judges;
• Reviewing and making recommendations on the conditions of service of judges and
judicial officers (other than their remuneration), and the staff of the judiciary;
• Appointing, receiving complaints against, investigating and removing from office or
otherwise disciplining registrars, magistrates, other judicial officers and other staff of

232 Ibid., section 69(1).

233 Republic of Kenya (2010: 16).
234 Ibid.
235 Constitution of the Republic of Kenya 2010, section 171(2).
236 Ibid., section 171(3).
237 Ibid., section 172(1).

84 PART II kenya: Justice sector and the rule of law

 the judiciary, in the manner prescribed by an act of Parliament;
• Preparing and implementing programmes for the continuing education and training
of judges and judicial officers; and
• Advising the national government on improving the efficiency of the administration
of justice.

At section 172(2), the constitution provides that in the performance of its functions, the
Commission should be guided by:
• Competitiveness and transparent processes of appointment of judicial officers and
other staff of the judiciary; and
• The promotion of gender equality.

The 2010 Task Force on Judicial Reforms also proposed similar functions for the JSC to enable it:
• To be more involved in the appointment, disciplining and removal of magistrates,
Kadhis and other judicial staff;
• To participate in the preparation and implementation of programmes for the continuing
education and training of judges, magistrates and other judicial staff; and
• To advise the president on the membership of the tribunal deciding on the removal of
persons from the office of a judge.238

The Rules Committee

Detailed rules and practice directions are useful tools in ensuring that trials are expeditiously
and appropriately conducted. The Rules Committee is established under section 81 of the Civil
Procedure Act (chapter 21). It is comprised of two judges of the Court of Appeal, two judges of
the High Court, the Attorney General and two advocates, one nominated by the Law Society of
Kenya and the other by the Mombasa Law Society. Under section 81 of the Civil Procedure Act
and section 5 of the Appellate Jurisdiction Act, the Committee is empowered to make rules not
inconsistent with the Civil Procedure Act and to provide for any matters relating to the procedure
of civil courts. The Committee is also mandated to make rules for regulating the practice and
procedure of the Court of Appeal.239 The objectives of the Committee are:240
• To make, improve and simplify rules of civil procedure to improve access to justice at a
cost effective and affordable rate;
• To revise and update rules of civil procedure even though they have not been overhauled
since 1948;
• To translate the Civil Procedure Act and Rules into Kiswahili; and
• To entrench and popularise the use of Alternative Dispute Resolution methods.

Rules should be revised from time to time to ensure expeditious management of the justice
system. The limited mandate of the Rules Committee has been identified as one area requiring

238 Republic of Kenya (2010: 16).

239 http://www.judiciary.go.ke/knowledge_base/index.php?id=3.
240 Ibid.

4 . M anagement o f the J u stice S y stem 85

reform.241 It was clear from consultations with stakeholders that the Civil Procedure Act, the
Civil Procedure Rules and the Court of Appeal Rules did not reflect the purpose of what civil
litigants expected from courts – just, expeditious and affordable resolution to their disputes. The
overriding objective in going to court for litigants is certainty on the determination of disputes
without undue delay and without undue regard to technicalities and formalities of procedure.
Act No. 6 of 2009 amended the Civil Procedure Act, seeking to facilitate the making of rules
of procedure that are effective in answering the demands of the present and the desired objective
of a just determination of civil disputes.242 Under the amendment, Parliament enacted sections
1A and 1B of the Civil Procedure Act. Section 1A states that the ‘overriding objective of this Act
and the rules made hereunder is to facilitate the just, expeditious, proportionate and affordable
resolution of the civil disputes’. Courts are bound to give effect to this overriding objective in
interpreting the provisions of the Act and parties and their advocates are obliged to assist the
court in furthering this objective. Under section 1B the court has to take the following factors into
account in furthering the overriding objective:
• The just determination of proceedings;
• The efficient disposal of the business of the court;
• The efficient use of the available judicial and administrative resources;
• The timely disposal of the proceedings at a cost affordable to the parties; and
• The use of suitable/appropriate technology.

Similar provisions were introduced into chapter 9 of the Appellate Jurisdiction Act as sections
3A and 3B. The Rules Committee has since reviewed and published new Civil Procedure
Rules243 and new Court of Appeal Rules244 which came into effect on 17 December 2010 and 24
December 2010 respectively.
It is noteworthy that the 2010 constitution clearly stipulates that courts and tribunals in
exercising judicial authority should ensure justice is done to all irrespective of status;245 should
not delay justice246 and most fundamentally that justice should be administered without undue
regard to procedural technicalities.247

Personnel shortage
Twenty-five court stations share 245 or 70.8% of the judiciary’s professional staff,248 leaving 101
or 29.2% for the remaining 85 court stations. Nairobi Central law courts have the lion’s share
with 97 or 28.1% of the professional staff, followed by the Milimani courts with 19 or 3.5%.
241 Ibid.
242 Omolo (2010).
243 Special Issue of the Kenya Gazette Supplement No. 65, 10 September, 2010 (Legislative Supplement No. 42).

244 Special Issue of the Kenya Gazette Supplement No. 70, 17 September, 2010 (Legislative Supplement No. 43).

245 Constitution of the Republic of Kenya (2010), section 159(2)(a).

246 Ibid., section 159(2)(b).

247 Ibid., section 159(2)(d).

248 According to the Judiciary’s Strategic Plan, lawyers comprise 290 or 86.8% of the professional staff. They are followed by

administrators/executive officers who account for 26 or 7.8% of the total professional staff. The other professional staff are
accountants (7 or 2.1%) and human resources personnel (6 or 1.8%). Others are economists, a public relations officer and
librarians with 2, 1, and 2 people respectively.

86 PART II kenya: Justice sector and the rule of law

Mombasa is a distant third with 14 or 4.0%. The rest of the court stations have between one to
five magistrates. The 2010 Task Force Report notes that:
… the total number of vacant positions in the Judiciary stands at 1 456
against an establishment of 4 681 … there are eleven (11) Court of Appeal
Judges out of an establishment of fourteen (14) Judges and forty-six (46)
High Court Judges out of an establishment of seventy (70). The total
number of magistrates in post is two-hundred-and-seventy-seven (277)
against an establishment of five-hundred-and-fifty-four (554).249

The tables that follow show the distribution of professional staff among the court stations (Table
9) and the distribution of judges and other judicial officers in High Court stations (Table 10) in
the country.

Table 9: Distribution of professional staff by court station

Station Judges CM SPM PM SRM RM DM KAD ACNTS Others Total
Nairobi 29 3 4 4 9 2 7 39 97
Milimani 6 1 1 3 5 2 1 19
Mombasa 3 1 1 3 2 1 2 13
Nyeri 2 1 1 2 1 1 1 9
Kiambu 1 1 2 1 5
Makadara 1 3 1 5
Kibera 1 1 2 4
Kisumu 2 1 1 1 2 1 1 9
Nakuru 3 1 2 2 1 1 10
Eldoret 2 1 6 1 1 1 12
Kitale 1 1 1 2 5
Meru 2 1 2 5
Kisii 1 1 1 1 3
Kakamega 1 3 1 1 1 5
Kericho 1 1 1 3
Nyahururu 1 2 1 4
Kerugoya 2 1 3
Thika 1 2 2 5
Source: The Judiciary Strategic Plan 2005–2008, March 2005, p.10.

Key: CM – Chief Magistrate, SPM – Senior Principal Magistrate, PM – Principal Magistrate, SRM – Senior Resident
Magistrate, RM – Resident Magistrate, DM – District Magistrate, KAD – Kadhi, ACNTS – Accountants

249 Republic of Kenya (2010: 33–34).

4 . M anagement o f the J u stice S y stem 87

Table 10: Distribution of judges and other judicial officers in High Court stations
High Court Chief Senior/Principal Senior/Resident Chief/
Court/Division
Judge Magistrate Magistrate Magistrate Kadhi
Nairobi (JTI) 1 2
Nairobi (Kibera/Makadara
5 13 17
Juvenile/City Court)
Nairobi (Milimani/
3 1 5 4 1
Commercial)
Nairobi (Family) 2
Nairobi (Constitutional
2
and Judicial Review)
Nairobi (Civil) 5
Nairobi (Criminal) 4
Nairobi (Environment/
3
Land)
Mombasa 4 1 2 8 2
Malindi 1 1 1 1 1
Machakos 1 1 2 2
Embu 1 1 2
Meru 2 1 2 2
Kakamega 2 1 1 3
Bungoma 1 1 2 2 1
Busia 1 1 3
Kericho 1 2 2
Nakuru 3 1 3 6 1
Eldoret 2 1 2 5 1
Kitale 1 1 2 2
Kisii 2 1 2 4
Kisumu 2 1 2 3 1
Nyeri 1 1 1 4 1
Total 45 19 46 70 9
Source: See Government of Kenya, Final Report of the Task Force on Judicial Reforms, Government Printer, July
2010 at 34.

Delays and backlogs are the bane of judicial practice in Kenya.250 The situation does not seem to
have improved going by the 1998 Committee on the Administration of Justice statistics which
gave the cases pending figures as 117 386 civil cases and 1 944 criminal cases at the time in the
High Court in Nairobi, with a full strength of 15 judges. In addition to the workload issues arising
from this heavy docket, the Committee also noted other practices that were aggravating delays.
High on that list was the practice of giving judgments on notice at the whims of the presiding
250 Case backlog is cited as a great challenge in the judiciary and 2 372 cases were estimated as pending before the Court of

Appeal in Nairobi and its circuit stations; 115 344 in the High Court stations and 792 297 in magistrates’ courts in December 2009
making a total of 910 013. Some of these have been pending for up to five years. See ibid. at 33.

88 PART II kenya: Justice sector and the rule of law

judge as opposed to within a particular period of time. The Committee lamented that the practice
engenders laxity and attendant delay in finalising cases and rulings. The Kwach Committee
identified the causes of delays and backlogs as: insufficient judicial capacities including both the
number of officers as well as courts; internal administrative and registry problems; insufficient
training for registry staff; low levels of capital development and financial commitment to the
judiciary; and uneven distribution of judicial services and officers in the country so that while
some courts are congested, others are seriously understaffed.251
The Ringera Committee reported that ‘the legal process was replete with both deliberate and
non-deliberate delays in the conclusion of hearings and delivery of rulings and judgments’.252
The Committee concluded that the delay had the effect of inducing anxiety on the part of litigants
and that such anxiety leads them to make corrupt approaches to judicial officers.
The effectiveness of the judiciary has also been eroded by the lack of an internal support
infrastructure, law clerks to assist with legal research, stenographers or electronic devices to
record proceedings and a full computerisation of registry services to ensure integrity in file
storage and management. The 2010 Task Force on Judicial Reform also looked at the issue of
backlog and proposed the establishment of court-users’ committees in all court stations with the
mandate of addressing backlog and other challenges in the administration of justice at the local
level. Noting that some courts had established court-users’ committees made up of key agencies
at the court station level, the Task Force recommended these committees as a correlative and
necessary reciprocation of increased independence of the judiciary that will increase transparency
and accountability.253 It also recommended that ‘Commissioners of Assize be appointed for an
initial period of one (1) year to hear and determine cases in the High Court that are pending for
over 5 years or as may be directed by the Chief Justice’.254

System of record keeping

Record keeping in Kenyan courts is manual. Judges and magistrates take notes by hand as
cases proceed. Their judgments are also largely handwritten. Information on cases or any
disputes brought to the courts are filed. The registry maintains a file for every case that is before
the court. The files are confidential and the courts do not allow access to these files except to
authorised parties to the case. Perusal of a file is allowed to authorised people at a cost. These
records indicate the progress of the case and contain all particulars of the cases including all the
documents. Information on ongoing cases is only available from the registries. Such information
is not available online. Information on the legal system is available in the judiciary’s website or
in commentaries on Kenya’s legal system. There have been ongoing reforms to ensure that there
is enough to enhance record keeping and easy delivery of justice to all.
The filing system is laborious because of all the paperwork that has to be done. This leads
to a lack of space and inefficiencies such as the misplacement of court files. The inefficiencies
have also led to a bribe culture because access to court files for perusal is a cumbersome matter.

251 See Republic of Kenya (1998).

252 Integrity and Anti-Corruption Committee Report, supra note 106 at 16.
253 Ibid.
254 Ibid. at 38.

4 . M anagement o f the J u stice S y stem 89

Record keeping needs to be upgraded to a computerised system. This will facilitate easier record
keeping as well as enhanced access to information. It will reduce the inefficiencies occasioned by
missing files. Networking of the record keeping systems with other law enforcement institutions
will be beneficial to all involved.

Physical conditions and facilities

A survey carried out by the ICJ255 on the public perceptions of the Kenyan judiciary revealed that
most of the courts do not have adequate physical facilities. Of all the people interviewed, 58%
considered the current lack of physical facilities a serious problem that needs to be addressed.
This survey also revealed that the High Court building in Nairobi, the Kibera law courts, Makadara
courts and the city court have no waiting rooms, washrooms, and accessible desks for public use.
Only the Milimani commercial courts are equipped with these facilities, which are not themselves
adequate. The respondents perceive the absence of comfortable facilities as deliberate.
There are efforts to have them cleaned and they have been equipped with amenities such as
toilets for the magistrates and judges and separate ones for members of the public. However, the
construction of the facilities does not take into account the special needs of physically challenged
persons. They are not all provided with wheelchair ramps and some of those that are, only serve
the ground floors. They do not have elevator services to enable access to the topmost floors.
There are other facilities such as waiting rooms which are yet to be renovated and thus the courts’
corridors are usually used as waiting areas. There is also the issue of access to courts for women
with children since there are no amenities to accommodate young children. The High Court
and other city courts have better facilities than magistrates’ courts, which are found upcountry
especially in the marginalised areas. It is also notable that most reforms have mainly targeted
the High Court.

Attempts at improving court administration

Since 2003, there have been various reforms relating to the administration and management
of the judiciary. Courts have continued to exercise their powers without interference from the
government. Other reforms have been carried out especially with regard to ridding the judiciary
of corruption. Such measures include the suspension of, and disciplinary measures taken
against, judicial officers who have been implicated in corruption. There are other reforms which
have been ongoing which are being carried out under the GJLOS Reform Programme.256
There have also been reports and recommendations on improving the administration
of justice in Kenya. For example, in 1998 the then Chief Justice appointed a committee
chaired by a judge of the Court of Appeal, the Hon. Mr Justice Kwach, to review and report
on the administration of justice in Kenya. The Kwach Report proposed several far-reaching
recommendations, including proposals to:
• Increase judicial personnel and improve employment terms and conditions;
• Develop and implement a code of conduct for judicial personnel backed by an
inspectorate unit;

255 ICJ-Kenya (2003).

256 http://www.gjlos.go.ke/gjinner.asp?cat=aboutus.

90 PART II kenya: Justice sector and the rule of law

 • Improve facilities within the judiciary, reorganise case handling and management
systems, simplify court procedures and introduce alternative dispute resolution (ADR)
mechanisms; and
• Split the High Court into four divisions namely; the Family, Commercial, Civil and
Criminal Divisions.

Some of these reforms have taken place, such as the splitting of the High Court into four
divisions. Physical facilities have been improved and complaints mechanisms have been
established. Other reforms, such as developing a code of conduct for the staff, have been
ongoing. Reforms in the judiciary have been noted by the bribery index reports, which have
shown a considerable drop in corruption within the judiciary. The ongoing reforms have
continued to enhance the independence of the judiciary and the delivery of justice to all. The
judiciary nonetheless continues to rely on the government for financial assistance.
To improve court administration, the 2010 Task Force recommended the restructuring of
the team managing the judiciary. More specifically, it recommended that:
• The position of the presiding judge of the Court of Appeal and the principal judge of the
High Court be created and formalised administratively;
• The duties of the Registrar and the Chief Court Administrator (CCA) be clearly defined;
• Judges be specifically mandated to supervise the courts in their respective regions;
• The Central Planning and Project Management Unit (CP&PMU) be strengthened to
enhance its effectiveness in monitoring and evaluation programmes and data collection
in the judiciary.

The offices of the presiding judge of the Court of Appeal and the principal judge of the High
Court have been created.
The Task Force further recommended the passing of the Administration of Courts Act,
the implementation of the Kwach Report and the institutionalisation of the office of personal
assistant to the Chief Justice. It also points out that ‘performance management, incorporating
performance appraisal of individual judicial officers and staff and performance evaluation of
systems and process of the entire judiciary as a whole should be introduced’257 as a measure to
enhance performance and accountability. The members of the judiciary are aware of the need
for performance targets and judges have called for a number of measures to be taken,258 such as:
• Implementing the recommendations of the 2005 and 2007 reports on ethics and
governance of the judiciary and the proposed performance evaluation mechanisms
such as peer review, self assessments, stakeholder surveys and court inspections to
ensure the accountability of the judiciary as an institution, and the accountability of
courts and individual judicial officers;
• Designing a suitable performance evaluation system for the judiciary;
• Using performance evaluation reports to enhance the management of the judiciary,
257 Republic of Kenya (2010: Annex VIII).
258 Republic of Kenya (2010B).

4 . M anagement o f the J u stice S y stem 91

 including motivating judicial staff, identifying training needs, facilitating self-
improvement and enhancing service delivery;
• Developing mechanisms for identifying and rewarding hard-working judicial personnel,
including establishing annual awards for judicial and paralegal staff; and
• Preparing an annual judiciary performance report and making it available to the public.

Court administrative staff has to meet certain educational and professional qualifications before
they can be employed. The staff is employed, recruited, promoted or disciplined by committees
under the personnel department of the court. Clerks have to have a minimum of a C+ grade
in their Kenya Certificate of Secondary Education (KCSE). There is a committee that handles
complaints concerning the administrative staff and also disciplines them. The judiciary also
organises workshops in order to offer more training to their staff. The Kenya Judicial Training
Institute was established in 2008 to offer induction and continuing judicial education to judges,
magistrates and paralegal officers in the judiciary. A number of courses have been held to meet
the needs of different cadres of staff. The courts have continued to recruit more personnel to
cater for the increased demand for court services and there have been no reports of instances
where cases have failed to be heard due to lack of administrative staff. As mentioned earlier, the
courts are in the progress of developing their own set of rules of conduct. They rely on and are
governed by the public service rules and code of conduct. The judicial code of conduct developed
in 2003 needs to be reviewed and widely publicised as some judicial officers have never seen it.
At the 2010 Judges’ Colloquium, the need to review the code was emphasised, particularly with
a view to aligning it with international and regional standards and the new constitution. The
judges were also of the view that a code of conduct should be developed for paralegal staff and
that judicial officers and paralegal staff should be trained on ethics.259

D. Access to information about the law and the courts

For a long time, there was no law mandating the government to make information accessible
to the public. The government decided what information to give to the public and kept most
information secret. Access to Kenyan laws and case law is based on the government’s good will.
The Access to Information Bill260 that would provide the legal basis for requiring such access is
yet to be promulgated into law. The object of the bill is stated as:
to provide for the establishment of the Kenya Freedom of Information
Commission; to enable the public to access information in the possession
of public authorities; to establish systems and processes to promote
proactive publication and dissemination of information.261

In the interpretation section, public record is defined to include court records.262

259 Ibid.
260 Freedom of Information Bill 2007 (Kenya).
261 Ibid., preamble.

262 Ibid., section 2.

92 PART II kenya: Justice sector and the rule of law

 The new constitution now grants every citizen the right to access information263 held by the state
and requires the state to publish and publicise any important information affecting the nation.264

Availability of legislation and jurisprudence

Laws
The publication of government information such as legislation is done by the Government
Printers. The Government Printer is responsible for publishing and revising the Laws of
Kenya. The Laws are published on both a set of 15 loose-leaf bound volumes and on Kenya
Gazette supplements produced yearly. These publications are sold to all people who need them
at relatively reasonable prices that vary depending on the size of the act. They also publish
amendments to laws but they have not completely amended the laws. Amendments to the
existing laws are done manually. Amendments to laws are also available online through www.
kenyalaw.org, which contains the only up-to-date and most comprehensively revised library
of the Laws of Kenya available on the internet. This provides access to all acts of Parliament,
subsidiary legislation and the index of amendments, which are all amended and up-to-date.
Until the government gave the National Council for Law Reporting the mandate of updating
laws, this task was performed by librarians employed by the courts who would simply cut and
paste the amended sections in the old copies of the affected statutes. Access to amended statutes
was also available online for those who could afford the fees levied by the private companies who
offered the service. These laws are printed in English, which is Kenya’s official language. Each
court is supposed to have a library with all the latest amendments to the law, law reports and expert
law commentaries. These materials are made available by the government. There are currently no
comprehensive copies of the Laws of Kenya in Swahili, which is the national language. The laws
are also not available in the vernacular languages on account of the wide number of languages
spoken as well as the complexity of translating the legislation into these languages.
Courts are open to the public and the media. This enables all the interested parties to follow
their case as well as allow the media to report on cases of public interest. There are, however,
certain instances where the media is not allowed to broadcast court proceedings live on television
or radio. The courts have an archive where reports, particulars and judgments on cases are kept.
These records are for public use and there are no restrictions on accessing such files. They also
keep a record of the cases that the court has adjudicated.

Law reporting
Law reporting in Kenya has had a chequered history. Kenya’s first law reports were the East
African Law Reports (EALR). Seven of these volumes were compiled by Chief Justice of the
Protectorate Hon. Mr Justice RW Hamilton. These reports covered all courts of different
jurisdictions. Between 1922 and 1956, 21 volumes of the Kenya Law Reports (KLR) were
published. These included only the decisions of the High Court.265
263 Ibid., section 35(1)(a).
264 Ibid., section 35(3).
265 Nicholas Okemwa, researcher with the National Council for Law Reporting, personal interview on 9 September 2009 and

supporting write up titled, ‘A History of Law Reporting in Kenya’, on file with the authors.

4 . M anagement o f the J u stice S y stem 93

 The period between 1934 and 1956 saw the birth of the famous Court of Appeal for Eastern
Africa Law Reports, which reported the decisions of the then Court of Appeal for Eastern Africa
and of the Privy Council. They covered only those appeals filed from the territories. Twenty-three
volumes were compiled. Between 1957 and 1975, the East Africa Law Reports (cited as EA) were
published in 19 consecutive volumes and covered the decisions of the Court of Appeal for East
Africa and the superior courts of the constituent territories, namely Kenya, Uganda, Tanzania,
Aden, Seychelles and Somaliland. They were published under an editorial board consisting of the
chief justices of the territories and the presiding judge of the Court of Appeal for Eastern Africa.
Following the collapse of the East African Community under whose auspices the reports were
published, the publication of the reports ceased.266
Between 1976 to 1980, six volumes, named the New Kenya Law Reports, were published
by the East African Publishing House Ltd. They included the decisions of the High Court and
Court of Appeal of Kenya but ceased when the publishing house closed, ostensibly on account
of lack of funds.267 The next reports were published between 1982 and 1992. Two volumes of
the Kenya Appeal Reports were published by Butterworths and edited by the then Chief Justice
Hon. Justice ARW Hancox (Hancox Reports). These reports included only the decisions of the
Court of Appeal of Kenya.
There were no law reports published between 1982 and 2002. However, the Government in
2001 established the National Council for Law Reporting (NCLR). This led to the 2002 re-launch
of the Kenya Law Reports which are the official law reports of the Republic of Kenya. The NCLR
began publishing back-dated volumes from 1981. The NCLR has since published law reports
for the periods between 1981 and 1994 and 2000 to 2007, including a reference index for the
years 1976 to 1986. The volumes for the periods between 1992 and 1994 and 2000 to 2008 are
available online.268
Through the website,269 all national legislation and access to the latest court decisions have
been made available free online. Most notably, NCLR now provides revisions of laws online
making them easier to access than the ‘cut and pasted’ strips that have been the norm. Other
online services available include:
• Verbatim records of the proceedings of Parliament (The Hansard);
• Bills pending before Parliament;
• Gazette and legal notices;
• A schedule of daily hearings updated daily and the daily cause list;
• Articles and commentaries on contemporary legal issues submitted by judicial officers,
lawyers, academics and students;
• Bench update/case of the week – a presentation of a court ruling that is making the
headlines; and
• Practice notes and directions issued by the Chief Justice.

266 Ibid.
267 Ibid.
268 See http://www.kenyalaw.org/

269 Ibid.

94 PART II kenya: Justice sector and the rule of law

The NCLR has also compiled the Laws of Kenya Grey Book, an important resource for judges,
magistrates and legal practitioners comprising of selected acts of Parliament that are most
commonly used. It has also compiled and published decisions on land and environmental law
and gender270 and is in the process of preparing a Commercial Law Grey Book.271
There are also some private companies that provide copies of the laws through their
websites, which one can subscribe to at a fee. For example, Laws of Kenya is an online resource
which provides a comprehensive up-to-date collection of laws and subsidiary legislation on a
pay-per-minute basis. Laws can be downloaded at a fee with an option to purchase updates.
LawAfrica272 also has an online resource that has East Africa Law Reports, Africa Law Reports,
East Africa Court of Appeal Reports and the Laws of Kenya. There is, however, no system of
reporting the decisions of magistrates’ courts.

Expert commentary on the law

There are a few Kenyan authors who have written commentaries on the legal system in
Kenya. There are also some legal journals in circulation in Kenya. However, most of the expert
commentaries relied upon are written by foreign authors and as such the books are quite
expensive to purchase. This makes it hard to provide copies of the books to every court complex.
The National Council for Law Reporting has a database on its website with expert
commentaries on the law in the Kenya Law Review, the country’s inaugural official law journal.
It is published annually and provides a forum for the scholarly analysis of Kenyan law and
interdisciplinary academic research on the law. It features research papers and peer-reviewed
articles from legal scholars, judicial officers, legal practitioners, students, law and society scholars
as well as articles on finance and economics.
The Kenya Law Society has a digest which is published sporadically. The School of Law
University of Nairobi has two journals, the University of Nairobi Law Journal and the East
Africa Law Journal. Both are intermittently published because of lack of funds and the failure
of commentators to submit articles. The Moi University Law School also has a journal. The
availability of these journals to judicial officers is difficult to gauge. It is, however, noteworthy that
the High Court library writes to faculties and schools of law to get information on law journals.273
The NCLR also has specific services for judicial officers. These include the Bench Bulletin
and the Bench Research Hotline (BRH). The Bench Bulletin is a monthly digest of recent
developments in law, particularly case law, new legislation in the form of acts of Parliament, rules
and regulations, pending legislation contained in bills tabled before Parliament and selected
Gazette and legal notices. The BRH is a research help desk at the secretariat of the NCLR with
a team of four legal researchers and a fully equipped call-centre dedicated to receiving research
queries from judicial officers conducting legal research and providing feedback on the queries.
The objective of this service is to support the administration of justice by providing judicial

270 Ibid.
271 Interview with Nicholas Okemwa, supra note 65.
272 <http://www.lawafrica.com>.

273 As editor-in-chief of the East African Law Journal, one of the authors (P Kameri-Mbote) had occasion to deliver an order of

about 60 copies of an issue of the journal.

4 . M anagement o f the J u stice S y stem 95

officers, especially the judges of the High Court and the Court of Appeal, with dedicated research
facilities. The BRH utilises an online ticketing system for logging and managing research
queries from judicial officers and applies online legal research tools. The BRH has, since its
inception in 2007, handled over 500 queries.274 Considering that there are about 360 judicial
officers, usage of this facility remains low. Three out of 15 Court of Appeal judges, about 15 out of
60 High Court judges and 15 out of 285 magistrates, are regular users of the service.275 The low
usage is attributed to lack of awareness of the service.276 It may also be attributable to unreliable
telephone and internet connections.

Availability of information about the justice system to the public

The justice system remains a mystery for most members of the public. This has been pointed out
by the different committees established to evaluate the system. The judiciary held its first Open
Day in 2007 and has made this an annual event. The purpose is to demystify the court and to
provide an avenue to advise the public on the various options available to access justice through
the courts. Such days can thaw the ice or create even bigger barriers where the judicial officers
– particularly the judges – attend in their robes. This can create distance between the public and
the judges. It can also open judges up to situations that can lead to the appearance of lack of
independence since they do not know who they are likely to meet as members of the public and
these people may have ongoing cases before them. All in all, the courts remain an intimidating
place to the public and are widely viewed as a reclusive club. Most of the information on the
courts available to the public is through the media, with the daily publications reserving certain
pages to report on court cases in progress. The courts are also exposed to the public when a
sensational story breaks out and intense media attention is focused on the proceedings.
In October 2007, the Chief Justice published the Litigant’s Charter in ‘an attempt to
consolidate and build on the gains made by the open policy … adopted … at the judiciary as
exemplified by the Judiciary Open Day that was held on 16–17 February, 2007’.277 The Charter
was aimed at promoting litigants’ understanding of their rights, obligations and court processes
in the course of the litigation or other interaction with the court. The Chief Justice describes it
as a ‘Litigation-Made-Easy handbook which renders the otherwise technical procedures of the
court into a user-friendly simplified prose in common parlance’. It was expected that it would
be made available in Kiswahili but this is yet to be done. It describes the judiciary, its functions,
structure and organisation; different courts and their jurisdiction, including specialised courts and
tribunals; court registries; criminal procedure; civil procedure; what to expect in the judiciary; the
obligations of litigants; how to channel complaints against the judiciary among other issues.278
This is expected to go a long way towards making information available about the justice system
to the public, to clarify procedures and make the justice system more user friendly. In the words of
the Chief Justice, the Charter is ‘a “Title Deed” to the acquisition of justice through our courts’.279
274 Interview with Nicholas Okemwa, supra note 65.
275 Ibid.
276 Ibid.
277 Government of Kenya (2007: 1).
278 Ibid.
279 Ibid.

96 PART II kenya: Justice sector and the rule of law

 Getting information from the judiciary
We were pleasantly surprised by the ease with which we got the information for this part of
the questionnaire. There is a deluge of information on the justice sector in Kenya that we drew
on even before we set out to interview the actors in the judiciary. We wrote to the Chief Justice
requesting permission to interview persons in the judiciary. We picked on Nairobi, Machakos,
Nakuru, Kisii, Kisumu and Marsabit. We expected to carry out the interviews between January
and March 2009 immediately after getting the results of the Steadman Survey. By a letter
dated 13 February, permission was granted with copies of the letter sent to the stations we had
chosen. What was difficult was scheduling the interviews because of the workload of the judicial
officers and the availability of the researchers. The judges, magistrates, the Registrar and other
judicial staff were very forthcoming with information and shared freely. The coincidence of
some of the interviews with the period during which the Task Force on Judicial Reforms was
constituted, carried out its work and reported, provided a good context for conducting the
research.

E. Recommendations
Many reforms have taken place in the judiciary in the last ten years, such as the hosting of open
days to the public; the appointment of a presiding judge in the Court of Appeal and a principal
judge in the High Court; more court houses have been built; specialised divisions of the court
have been established such as Land and Environment, Anti-Corruption, Commercial and
Family; increased access to and use of information communication technologies; amendments
to the procedure rules to give effect to the overriding objective of litigation; enhanced access to
laws through information communication technologies and the re-invigoration of law reporting,
which had lapsed. The judiciary has also established a Judicial Training Institute and carried out
courses for different cadres of staff. There is awareness among the judicial officers of the need
to have performance appraisals as a way to gauge the performance of individual officers as well
as the entire judiciary. Tying performance appraisals to the identification of training needs will
facilitate improvement of service delivery by this vital arm of government.
Quite a number of committees and task forces (Kwach; Onyango Otieno; Ringera; 2010
Task Force) have been established to look at ways to reform the judiciary, and they have made
detailed recommendations. These recommendations have not been implemented, however, and
there is an urgent need to implement the proposals of the commissions set up to inquire into
different aspects of the judiciary. The proposals of the 2010 Task Force incorporate what prior
task forces and committees had recommended. They are also in line with the provisions of the
new constitution. They include:
• Putting in place mechanisms to deal with backlog and delay of cases such as providing
enough judicial officers and space for the judiciary to carry out its role;

4 . M anagement o f the J u stice S y stem 97

 • Mainstreaming and reforming court administration for increased efficiency and
effectiveness;
• Devising criteria for enhancing performance and accountability in the judiciary;
• Promoting ethical conduct and preventing corruption in the judiciary;
• Promoting access to justice for Kenyans;
• Implementing the Litigants’ Charter;
• Making laws accessible to all judicial officers;
• Improving communication within the judiciary;
• Improving the terms and conditions of employment of judicial officers;
• Restructuring the administration of the judiciary; and
• Restructuring the Judicial Service Commission to enhance the independence,
operational autonomy and effectiveness in the management of the judiciary.

Some of these proposals have been implemented. Those that have not should be implemented
fully to facilitate the realisation of the rule of law ideal, improve the effectiveness of the judiciary
and facilitate access to justice for Kenyans.

98 PART II kenya: Justice sector and the rule of law

5
Independence of judges and lawyers
The need for an independent judiciary has been recognised and various measures have been
proposed to effect this principle. However, concerns still abound about the independence of
the judiciary. The process through which judges and the Chief Justice are appointed are seen as
pointers to an absence of autonomy. The Judicial Service Commission has limited powers and
autonomy. Its power to appoint judges extends only to a limited number of low-ranking judicial
officers and its composition limits its independence from the executive. The control of the
judiciary’s budget by the Ministry of Finance is also viewed as an assault on the independence
of the judiciary. The need for better trained and disciplined lawyers cannot be overstated in the
quest to promote the rule of law ideal. However, the disciplinary system for lawyers has limited
effectiveness, both because of its lack of its autonomy and because of the complexity of its
procedures.

A. Judges

Constitutional and legal guarantees

Institutional independence
Judicial power was not defined in the repealed 1963 constitution, nor was its exclusive function
vested in the judiciary. In contrast, the constitution expressly vested executive authority and
legislative powers in the president and Parliament respectively.280 It has been argued that
notwithstanding lack of express vesting provisions in the constitution, the judicial power of the
government does lie in the courts, that the judicial power exists independently and coordinately

280 Constitution of the Republic of Kenya (1963), sections 23 & 30 respectively.

5 . I ndependence o f J u dges and L a w y ers 99

with the sovereignty of Parliament and that the legislature’s power to make laws and the
executive’s power to implement them does not entitle these two institutions of government to
usurp the judicial power of the judicature.281 The exclusivity of judicial power in the judiciary
can thus only be inferred, and the Privy Council in Liyanage v. R282 decided that the arrangement
of the constitution in parts among them one headed ‘Judicature’ demonstrates an intention to
separate the judicial power from the legislature and the executive. The repealed constitution
permitted Parliament to create and abolish subordinate courts and this lent further weight to the
argument that failure to vest judicial authority exclusively in the judiciary can and has led to other
arms of government usurping judicial powers.283
The new constitution includes provisions expressly stipulating the vesting of judicial power
in the judiciary. Section 159(1) provides that ‘judicial authority is derived from the people and vests
in, and shall be exercised by, the courts and tribunals established by or under this Constitution’.
A Judicial Service Commission created under the repealed constitution, was not to be
controlled by any person or authority in the performance of its duties.284 However, the protection
accorded the JSC is eroded by provisions as to its establishment, composition, powers and
resources.285 The Commission has five members: the Chief Justice as Chair, the Attorney
General, two judges chosen by the president and the Chair of the Public Service Commission.
The Chief Justice, the Attorney General and the Chair of the Public Service Commission are
appointed by the president at his/her discretion. The other judges are also appointees of the
president upon nominal advice by the JSC.
The powers of the JSC are to appoint, discipline and remove from office a select group
of judicial officers, namely the Registrars of the High Court, magistrates, the Chief Kadhi and
Kadhis. It therefore only oversees the lower cadre of judicial officers and not judges. The JSC’s
role in relation to judges is to give advice to the president as to their appointment. No specifics
or procedures as to how the advice is given and heeded are provided and the perception is that in
fact no effective advice is given. The JSC is not accorded any role in the promotion and discipline
of judges.
The insufficient powers of the JSC are compounded by insufficient resources. No
constitutional or statutory provisions exist that give financial autonomy or allocation to the JSC
to facilitate the discharge of its functions. This has resulted in organisational and operational
weaknesses in the JSC, and it operates without a secretariat. The judiciary has been lobbying for
and involved in the drafting of the Judicial Service Bill aimed at empowering and expanding the
JSC through adequate representation of key stakeholders and the establishment of a secretariat.
However, there is also a need for constitutional amendments in this respect to secure complete
independence of the JSC. As noted in chapter 3, the 2010 Task Force on Judicial Reforms and
the new constitution provide for a revamped JSC with an expanded membership and more

281 See Gicheru (2007).

282 (1967) 1 A.C. 259
283 Constitution of Kenya 1963, sections 65 & 66. Parliament enacted the Magistrates Courts Act that sets up Magistrates Courts,

and the Kadhis Courts Act, which regulates the creation of Kadhis Courts.
284 Ibid., section 68(2).

285 Ibid., sections 68 & 69.

100 PART II kenya: Justice sector and the rule of law

operational autonomy. The constitution provides for independence of the judiciary and that it
‘shall be subject only to this Constitution and the law and shall not be subject to the control or
direction of any person or authority’.286

Power of courts to punish for contempt

The courts have power to punish for contempt. Section 5(1) of the Judicature Act gives the High
Court and the Court of Appeal ‘the same power to punish for contempt as is for the time being
possessed by the High Court of Justice in England’. The purpose of this power is to uphold the
authority and dignity of the courts, including the subordinate courts. Judges punish for contempt
to protect the public from losing confidence in the judiciary.
The judiciary has been accused of being intolerant to public criticism, and of using its power
to punish for contempt to suppress public debate of its decisions. Two cases decided in the 1990s
provide a useful illustration of how the courts have exercised their power to punish for contempt.
The first case is that of Republic v. David Makali & 3 Others,287 which arose out of public
criticism of the decision of the Court of Appeal in the UASU case discussed above (also known
as the Dons case). A week prior to the court’s ruling in this case, President Moi had addressed a
political rally in which he declared that the government would not allow the registration of the
University Academic Staff Union (UASU), the public university lecturers’ union. In its ruling,
the court ordered that the lecturers could remain in university housing ‘until 31 March, 1994
when they must be evicted if they failed to reach an accommodation with the university over
their dispute’.288 In this ruling the Court of Appeal declined to follow precedent. It is this ruling
which invited the criticism that was the subject of contempt of court proceedings in the Makali
case. In an article in the People magazine entitled ‘Court of Appeal Ruling on Dons case Reeked
of State Interference’, the first respondent had criticised the ruling, claiming that it was ‘a sign
of indecision and dishonesty by the court’.289 The article quoted the fourth respondent, a lawyer,
as saying that the court’s ruling amounted to ‘judicial lynching and blackmail tailored to meet
the political expedience of the executive’.290 These comments elicited a furious reaction from the
judiciary, and the Attorney General commenced contempt of court proceedings in the Court of
Appeal against the respondents.
Counsel for the respondents contended that the article was fair comment on a matter of
general public interest. While the court acknowledged that this argument had some merit,
it stated that the court’s complaint was not that the president could have interfered with its
decision, but that ‘even if the president were to be inclined to interfere, this court should not
be able to resist him. The complaint is about the allegation of spinelessness on the part of
the court which was unable to withstand the alleged interference and which in the end gave a
judgment described as reeking with State interference.’291 The court therefore found the article

286 Constitution of Kenya 2010, section 160(1).

287 R. v. Makali and 3 Others, Court of Appeal Criminal Application No. 4 & 5 of 1994.
288 Ibid. at 32, per Omolo, JA.

289 Ibid.

290 Ibid. at 14.

291 Ibid. at 36.

5 . I ndependence o f J u dges and L a w y ers 101

contemptuous since it ‘clearly imputed an evil motive to the Court of Appeal for its decision’,
namely that the court ‘involved itself in lynching and blackmailing the dons so as to suit the
executive, that the judiciary has lost its independence and has become subservient to the
executive’.292 The court then imposed very stiff penalties on the respondents.
The second case is that of Republic v. Gachoka & Another,293 which concerned allegations
of corruption in the judiciary. Here, the Attorney General had instituted contempt of court
proceedings against the respondents for publishing articles in the Post of Sunday, alleging that
they had contravened the sub judice rule by commenting on an ongoing case, and that they were
scurrilous and malicious attacks on the character of the judiciary and the Chief Justice. One of
the articles, entitled ‘Chesoni Implicated in an Orgy of Judicial Anarchy and a Kshs 30 million
Bribe’, had claimed that the Chief Justice had received a bribe to influence the outcome of a
decision in a suit relating to the Goldenberg scandal. In response to this article, the said Chief
Justice had instructed a firm of advocates to sue the first respondent, Mr Tony Gachoka. This is
when the first respondent wrote the second article, entitled ‘Judiciary in Panic as Chesoni Falls
Out of Favour … Sues Tony Gachoka’. In this second article, the first respondent published his
response to the advocates of the Chief Justice, in which he had written that ‘[i]f in the case of
Kamlesh Pattni you [the Chief Justice] hand-pick magistrates and judges to decide cases in his
favour are you not going to also hand-pick a judge to decide this impending case in your favour?’
At the conclusion of these proceedings, the court held that Mr Gachoka was in contempt
of court, reasoning that ordinary persons reading the articles ‘would conclude that this judiciary
including the highest court in the land is not only corrupt but is weak-kneed enough to lend itself
to manipulations by the Honourable Chief Justice’.294 Further, because Mr Gachoka had offered
no evidence for his allegations, the court felt compelled to punish him for contempt if only to
prevent interference with the administration of justice.
For the rule of law ideal to be realised, it is important that the public respect the processes
and decisions of the courts. But for courts to be respected, their processes and decisions should
be such that they command respect. The courts are clearly in danger of losing public respect
when obviously irrational decisions are made. For example, in the Dons case, or when judges
further their own cause as in the Makali case, or when courts fail to guarantee a fair trial as in the
Gachoka case. In the Makali case, for example, it was arguably in order for a citizen to question
the independence of the judiciary, given the manner in which the powers of the president to
appoint and remove judges have been exercised throughout the history of the Republic. And
given the immense and unregulated powers of the Chief Justice, it was equally in order for Mr
Gachoka to entertain the possibility that the Chief Justice could hand-pick judges to decide a case
in which he would be a party, for the simple reason that he had the power to do so.
We should also analyse the Gachoka case in the context of a contemporaneous inquiry
that the Kwach Committee had made into allegations of judicial corruption. In 1998, the Chief
Justice had appointed a Committee on the Administration of Justice (also known as the Kwach
Committee after its chair) to inquire into ‘judicial rectitude, moral uprightness, righteousness
292 Ibid. at 25.
293 R. v. Gachoka & Another, Court of Appeal, Criminal Application No. 4 of 1999.
294 Ibid. at 30, per Shah, JA.

102 PART II kenya: Justice sector and the rule of law

or correctness of judicial officers in the discharge of their judicial functions’. The Committee
established the existence of various practices that made the judiciary and judicial officers
vulnerable to corruption, including engagement in business activities, the lack of proper vetting
in the appointment process, the lack of transparency in the discharge of the judicial function
and the lack of a transparent and merit-based judicial appointment system.295 In particular, the
Kwach Committee reported cases of ‘actual payment of money to judges and magistrates to
influence their decisions’.296 Evidently, Mr Gachoka’s words were arguably reckless and scornful
even, but he was probably right to question the sincerity of the Kwach Committee process, which
he perceived to be a cosmetic attempt by the judiciary to police itself in response to public outcry
over judicial corruption, and whose report was in any case not made public.297
In these circumstances, it is not enough for the judges to claim that they punish for
contempt to protect the public from losing confidence in the judiciary. In this respect, it is worth
quoting Shah, JA in the Gachoka case, where he observed that the purpose of the power of the
court to punish for contempt is ‘to see to it that the ordinary people of this country look up to
judges as men and women of integrity and honesty who could therefore be trusted to judge the
disputes before them judicially, judiciously and impartially’.298 However, in the circumstances
prevailing at the time, including allegations of judicial corruption which necessitated the Kwach
investigation, it could hardly have been said that the citizenry, in the first place, saw their judges
as men and women who met these lofty standards of ethical and professional conduct. In such
circumstances, it is not enough for the courts to take the view, as they did in the Gachoka case,
that ‘the power to punish for contempt is the only weapon at the disposal of the court to put the
matters right’.299 As we have suggested, because the judiciary is not elected by the citizenry,
it can only play its role legitimately if it is perceived to be independent and impartial. Indeed,
the Bangalore Principles of Judicial Conduct provide that ‘a judge shall not only be free from
inappropriate connections with, and influence by, the executive and legislative branches of
government, but must also appear to a reasonable observer to be free therefrom’.300 Thus, where its
independence or impartiality is questioned, it should not quickly resort to its power to punish for
contempt, however tempting, but should instead put its house in order so that the public have no
justifiable cause to doubt its integrity and professionalism. In this regard, the judiciary also needs
to rethink its policy preference for internal accountability mechanisms.301

Decisional independence
Constitutional provisions on decisional independence relate to the independence of judicial
officers that administer justice in the courts. The repealed constitution provided that all courts
and adjudicating authorities that are established by law are required to be independent and

295 See Republic of Kenya (1998).

296 Ibid. at 10.
297 Ibid. at 19.

298 Ibid. at 31.

299 Ibid., per Shah, JA. (emphasis supplied).

300 Bangalore Principles of Judicial Conduct, para. 1.3. (2002) (emphasis supplied).

301 See Gicheru, supra note 2 at 7 (stating that ‘[i]n order to guard against interference with our judicial independence, we in the

Kenyan Judiciary have preferred internal accountability mechanisms rather than the external institutions.’).

5 . I ndependence o f J u dges and L aw y ers 103

impartial,302 but there were no constitutional provisions on immunity of judicial officers. The
provisions on immunity are instead found in the Judicature Act. The Act provides that no judge
or magistrate, and no other person acting judicially, shall be liable to be sued in a civil court for
something done or ordered by him or her in the discharge of his or her judicial duty. This is
conditional on the provision that the judge or magistrate believed that he or she had jurisdiction
to make a decision.303 The new constitution elaborates on the independence of the judiciary by
providing that ‘the office of a judge of a superior court shall not be abolished while there is a
substantive holder of the office’;304 ‘the remuneration and benefits payable to or in respect of
judges shall be a charge on the Consolidated Fund’;305 ‘the remuneration and benefits payable to,
or in respect of, a judge shall not be varied to the disadvantage of that judge, and the retirement
benefits of a retired judge shall not be varied to the disadvantage of the retired judge during the
lifetime of that retired judge’;306 and ‘a member of the judiciary is not liable in an action or suit
in respect of anything done or omitted to be done in good faith in the lawful performance of a
judicial function’.307
This constitutional status and protection for judges and magistrates has not, however, ensured
immunity from executive-branch pressure in the past. In terms of the constitutional normative
structure, the president could control judicial power via the appointment of subservient judges,
and there were also considerable weaknesses in the provisions on procedures for appointment
of judges and magistrates by the JSC. An example often quoted is one of a ‘government-friendly’
magistrate who conducted the criminal trial of Koigi wa Wamwere & others on charges of robbery
with violence. Many observers felt this trial was politically motivated, as Koigi wa Wamwere was
at the time an ardent critic of the government and in self exile. These beliefs were reinforced by
the admitted fact of Mr Koigi’s kidnapping by security agents from Uganda. In the end, the state
failed to adduce sufficient evidence to convict Mr Koigi and his co-accused. However, rather than
render an acquittal as per the law, the magistrate substituted the charges and convicted Mr Koigi
of robbery, even though no evidence had been led for that charge. The magistrate was rewarded
by being appointed as a judge of the High Court. 
Conversely, judges and magistrates who acted with independence and impartiality to the
executive’s detriment have been penalised mostly by transfers to outlying stations. For example,
in September 1994 the Nairobi Chief Resident Magistrate was transferred to Kitui, 130km east
of Nairobi, shortly after he refused to accept the confessions of six men who had been tortured
following a raid on the chief’s camp, Ndeiya. The magistrate censured the police and directed
the Commissioner of Police to take immediate action against the men responsible for the torture
of the defendants.
Judges have and continue to be appointed by the executive to serve in lengthy, politically
controversial inquiries since independence. Examples are:

302 Constitution of Kenya (1963), section 77(9).

303 Judicature Act, chapter 8, Laws of Kenya, section 6.
304 Constitution of Kenya (2010), section 160(2).

305 Ibid., section 160(3).

306 Ibid., section 160(4).

307 Ibid., section 160(5).

104 PART II kenya: Justice sector and the rule of law

 • An inquiry into the conduct of a disgraced politician (the Miller Inquiry into the
Conduct of Mr Charles Njonjo, former Minister for Constitutional Affairs);
• An inquiry into political murder (the Gicheru Inquiry into the Assassination of Robert
Ouko, Minister for Foreign Affairs);
• An inquiry into politically instigated ethnic violence (the Akiwumi Inquiry into the Land
Clashes);
• And an inquiry into government-backed looting of public money through a fictitious
gold and diamonds export scheme (the Bosire Inquiry into the Goldenberg Scandal).
Each of these commissions drew judges into politics – an inappropriate role – and kept
them for long periods from their judicial duties – a pernicious consequence.

It is, perhaps, for this reason that the final report of the Bosire Commission recommended that
judges be excluded altogether from such inquiries. The High Court also applied the doctrine
of separation of powers to invalidate the secondment of a judge of the Court of Appeal, Justice
Aaron Ringera, to an executive agency, the Kenya Anti-Corruption Authority, a statutory body.308
But for the moment, the executive remains free to draw judges away from their jobs into non-
judicial executive roles, and in 2008 the president appointed a judge-led commission of inquiry
into the 2007 post-election violence (the Waki Commission on Post-Election Violence).
Although legislative manipulation of the jurisdiction of the High Court for political purposes
is rare, it has happened. In 1988 the provisions of security of tenure were eliminated from the
constitution by Parliament after a rift between the executive and a number of judges over human
rights cases. In addition, after the High Court’s decision in Margaret Magiri Ngui v. Republic,
wherein it had, to the ire of the president, declared provisions of the Criminal Procedure Code
unconstitutional, Parliament amended the constitution to remove the court’s discretion in bail
matters in capital offences.
At the administrative level, decision-making power in the judiciary is concentrated in the
Chief Justice. The Chief Justice: creates divisions of the court; allocates judicial work; transfers
judges and magistrates; approves participation in workshops and seminars by judges and
magistrates; approves international travel courses; approves housing and travel schemes for
judges; influences hiring and firing and negotiates salaries with magistrates; is the spokesperson
and chief liaison officer of the judiciary; determines work stations; swears in the president and
helps to monitor his health.309
There have been allegations of jurisdictional manipulation by the Chief Justice as a result of
procedural rules that the Chief Justice issues, particularly under section 84 of the constitution.
Hearing the case of Gibson Kamau Kuria v. The Attorney General 310 in 1988, the Chief Justice
argued that his own failure to make rules raised the question of whether, in fact, the High Court
had jurisdiction at all to hear applications to enforce rights under sections 70 to 83. New rules

308 In Stephen Mwai Gachiengo & Albert Muthee Kahuria v. Republic, Misc. Application No. 302 of 2000.
309 See ‘Judges Press for Judicial Reforms’, Nation, 15 June 2008. (This article reports concerns raised by judges, including lack of
clear guidelines on transfer and promotion of judges, allocation of cases within the divisions of the High Court and appointments
of judicial commissions of inquiry.)
310 High Court Miscellaneous Civil Application of No. 55 of 1988.

5 . I ndependence o f J u dges and L a w y ers 105

that were issued by the Chief Justice in 2007 on Constitutional References and on Judicial
Review applications have been criticised as unconstitutional. The potential for direct interference
with judicial independence from the Chief Justice does exist (see case study).
The independence of the judiciary is further compromised and weakened by poor
conditions of service, poor funding and the severe shortage of qualified personnel. One of
the reasons that has been found by various investigative machineries to cause corruption in
the judiciary has been poor terms and conditions of service, and bad deployment and transfer
policies and practices. The changes provided for in the new constitution and discussed in chapter
4 will go a long way towards improving the conditions of judicial officers. Whether this translates
into greater independence for the judiciary is yet to be seen.

Appointments, promotions and dismissal of judges and magistrates

The constitution provides for appeal and puisne judges to preside over the Court of Appeal and
High Court respectively, while the Chief Justice sits in both courts. The Chief Justice is appointed
by the president, as are the appeal and puisne judges, upon recommendations made by the JSC.
Other judicial officers, namely the magistrates, Chief Kadhi and Kadhis are appointed by the
JSC. The constitution also permits Parliament to prescribe the number of judges and their terms
under statute and also define terms for magistrates. There is no system for periodic review of
either the number of judges needed. The number of Court of Appeal judges was only recently
increased from 11 to 14 and High Court judges from 50 to 70 in 2007.311 The qualifications for a
person to be appointed a judge are that he or she should be a judge in a commonwealth country
or an advocate of the High Court of Kenya of not less than seven years standing. The advice of
the JSC to the president does not appear to be mandatory, and no procedures are provided as to
its exercise, and no standards or criteria are provided for vetting qualified persons.
In the absence of this constitutional clarity, past appointments have lent themselves to the
appearance of being politically motivated (the example of the magistrate promoted to a judge
in the foregoing section is a case in point). The Kwach Committee identified the shortcomings
of the present appointments system and recommended rigorous vetting before appointment
of judicial officers and a transparent and merit-based judicial appointment system tailored to
identify individuals of the highest integrity for recruitment. An Advisory Panel of Eminent
Commonwealth Judicial Experts established by the Constitution of Kenya Review Commission
(CKRC) to advise it on constitutional reforms regarding the judiciary was more explicit.312
It noted that the current practice relating to the appointment of judges is a matter of grave
concern, and that judicial appointments have regularly been made without public exposure and
consultation. Further, it noted that lawyers with disciplinary proceedings pending before the Law
Society have been appointed to high judicial office. This situation was found to be unacceptable
and bound to undermine public confidence in the judiciary, and the Panel of Experts stated
specifically that judges should not be appointed for political, tribal or sectarian reasons as appears
to be the current practice.

311 Judicature Act, section 7 (as amended).

312 See Constitution of Kenya Review Commisson (2002).

106 PART II kenya: Justice sector and the rule of law

 The Panel of Experts recommended the adoption of a clearly established, transparent
appointment process with clearly stated criteria under the authority of a restructured Judicial
Service Commission. They did not agree with the suggestion that nominations to the bench
ought to be subjected to full-scale debate and majority vote by Parliament for reasons that such
a process carries an undue risk that the appointment of judges will be politicised. The new
constitution has however provided that the appointment of judges be subjected to Parliament’s
approval.313 The concern about the politicisation of judges’ appointment and retention has been
noted in chapter 2 with respect to the idea of vetting all sitting judges.314 Our argument is that
the constitution is vague on the criteria for vetting.315
There were some attempts by the Judicial Service Commission in 2003 and 2004 to consult
with a wider circle of legal stakeholders about recommendations for judicial appointments.
The International Federation of Women Lawyers–Kenya (FIDA) and the Law Society of Kenya
were asked to nominate candidates from their ranks for the vacant judicial positions. Although
accounts differed about how the nominations were dealt with, such consultations were a radical
departure from past, more secretive practices, and should be strengthened by being formalised
in legislation.
The JSC lacked clearly-defined and transparent criteria and procedures in the exercise of
its powers of appointment and promotion of magistrates. While vacancies in the magistrates’
courts and minimum qualifications required by law for applicants are publicly advertised,
the actual process in selection and recruitment is not transparent. There is also the lack of an
institutionalised process to evaluate the performance of magistrates. The practice of promoting
magistrates to positions in the superior courts of Kenya is, however, becoming more common.
Security of tenure was provided for the judges of the Court of Appeal and the High Court
in the repealed constitution.316 Judges vacated their office only upon retirement age which was
set by Parliament at 74.317 They could be removed while in office only on grounds of inability
to perform the functions of his or her office or for misbehaviour.318 In any of these cases, and
upon advice of the Chief Justice, the president was required to appoint a tribunal to inquire into
the matter and recommend whether the judge in question should be removed.319 The president
could remove the judge only upon the recommendation of such a tribunal.320 With regard to
other judicial officers in subordinate courts (magistrates), the Judicial Service Commission has
the authority to appoint and remove judicial officers as well as exercise complete disciplinary
control over them.
However, the repealed constitution provided for the appointment of acting judges by the
president where the office of a puisne judge was vacant, if a puisne judge was appointed to act
as Chief Justice or was for any reason unable to discharge the functions of his office, or if the
313 Constitution of Kenya 2010, section 166(1).
314 Ibid., sixth schedule, Transitional and Consequential Provisions, section 23(1).
315 Ibid., sections 10 & 159.
316 Constitution of Kenya (1963), section 62.
317 Judicature Act, section 9.
318 Constitution of Kenya (1963), section 62(3).
319 Ibid., section 62(4)–(8).
320 Ibid., section 62(9).

5 . I ndependence o f J u dges and L a w y ers 107

Chief Justice advised the president that the state of business in the High Court so required.
Such an acting judge continued to act for the period of his appointment or, if no period was
specified, until his appointment was revoked by the president.321 Though contract judges have
not been hired since 1993, temporary judges were appointed in 2003 to replace those who had
been suspended in the radical surgery of the judiciary although they were eventually confirmed
in 2004. The concept of an acting judge goes against the main rationale for granting security of
tenure which is to ensure judicial independence, and introduces the risk of deferential judges.
Under the new constitution, retirement age for judges is set at 70 but judges have the option of
retiring at 65.322
When it comes to the removal of judges, the repealed constitution did not specify the scope
of impermissible misbehaviour. In addition, before the question of a judge’s removal could be
referred to a tribunal, the Chief Justice was required to first intimate to the president, under
section 62(5) that ‘the question of removing a puisne judge under this section ought to be
investigated’. The key question raised by the 2003 suspension of judges under this section is
how the Chief Justice comes to the conclusion that the question of removing a judge has arisen
and that the president should therefore appoint a tribunal to investigate it. In this instance, the
Chief Justice appointed an investigatory committee and subsequently used its report to advice
the president to appoint tribunals. However, no clear provisions exist to guide the Chief Justice
in this respect, and this raises concerns that the Chief Justice could use his powers to silence
judges with threats to have them investigated. This is especially of concern if the Chief Justice
is politically compromised, and in the light of the precedent set by the radical surgery in the
judiciary that happened in 2003, this must be monitored.
The ‘radical surgery’ carried out on the judiciary was principally focused on the removal of
allegedly corrupt judges and magistrates and the appointment of new persons to replace them.
While the radical surgery initially had public approval and was seen as a commitment to tackle
corruption in the judiciary, it has been criticised for ignoring constitutional guarantees of security
of tenure for judges and international principles on the independence of the judiciary that state
that the examination of the matter at the initial stage shall be kept confidential unless otherwise
requested by the judge. Some judges were not informed of the action that was to be taken against
them.
The premature public naming and admonition of individual judges and magistrates as corrupt
and the subsequent pressure on them to resign through an ultimatum, constituted such a violation
of the security of tenure. Such undue pressure was amplified by the immediate withdrawal of
salaries and benefits from judges and magistrates and the clear warnings that they could retain
their benefits only if they accepted retirement. Furthermore, the ultimatum to magistrates to
resign or defend themselves expired long before they were even notified of the accusations by the
Judicial Service Commission. After they submitted written defences to the JSC, the majority of the
magistrates had been retired ostensibly in the public interest, but without any hearing.

321 Ibid., section 61(5) & (6).

322 Constitution of Kenya (2010), section 167(1).

108 PART II kenya: Justice sector and the rule of law

 The violation of security of tenure and due process rights of judges and magistrates has
engendered a low sense of morale among members of the judiciary and the legal profession.
During a mission by the ICJ,323 some of the judges conveyed a distinct and continuing sense of
insecurity about their tenure, which was affecting the way they carried out their judicial functions.
The possibility that they could be next in line to be publicly castigated and removed from office
without due process has lowered the ‘general esprit de corps of the judiciary as a whole’.
The new constitution requires that all serving judges and magistrates be vetted ‘within one
year after the effective date’ in line with legislation that Parliament should enact to establish
mechanisms and procedures for vetting the suitability of all judges and magistrates who were
in office on the effective date to continue to serve in accordance with the values and principles
set out in articles 10 and 159.324 The Vetting of Judges and Magistrates Bill 2010 is yet to become
law but as framed, it raises the question of the sustainability of the process. The Bill establishes
a time-limited process that is not conducive to building the institutional capacity of the judiciary
to police itself. Apart from its commendable due process mechanisms, this ad hoc approach
is comparable to the radical surgery of 2003 which resulted in the removal of judges without
enabling the judiciary to institutionalise complaints mechanisms. The Task Force on Judicial
Reforms 2010 recommended the creation of a complaints sub-commission in the JSC to
continuously receive and investigate complaints against judicial officers and staff and discipline
judges. The fact that the radical surgery of 2003 has not obviated the need for vetting judicial
officers barely seven years later indicates that vetting should be an ongoing mechanism for
safeguarding the integrity of the judiciary.
Under the constitution and Laws of Kenya, magistrates do not enjoy the same protection
of their independence as judges. While security of tenure is explicitly guaranteed for the judges
of the superior courts, this is not the case with regard to the magistrates. Moreover, magistrates
can be dismissed without recourse to a tribunal, with only the opportunity to defend themselves
before the JSC. Magistrates also suffer poor working conditions, especially in comparison with
those enjoyed by judges. While salaries and other benefits have been regularly increased for
judges of the Court of Appeal and the High Court, there have been no equivalent improvements
for magistrates and other judicial officers. In March 2004, 32 lawyers in private practice turned
down government offers of appointments as magistrates because of poor working conditions
in magistrates’ courts. This was followed by threats and protests by lawyers in different parts of
the country against the shortage of magistrates and judicial staff. In 2005, magistrates from two
areas went on strike to protest against their low salaries and poor working conditions.

323 ICJ-Kenya (2005).

324 Constitution of Kenya (2010), sixth schedule, Transitional and Consequential Provisions, section 23(1).

5 . I ndependence o f J u dges and L a w y ers 109

 The radical surgery of the judiciary
2002
• Incoming President Mwai Kibaki acts on his election promise to tackle corruption by carrying
out what he calls ‘radical surgery’ on the judiciary.
2003
• The president suspends Chief Justice Bernard Chunga and sets up a tribunal to investigate
him on charges of corruption. Judge Evans Gicheru is appointed Acting Chief Justice. Chief
Justice Chunga resigns from office in February.
• The Acting Chief Justice revives the Judiciary Committee on Reforms and Development. A
sub-committee, called the ‘Integrity and Anti-Corruption Committee’ headed by Justice Aaron
Ringera, is established in March. Its mandate is to investigate and report on ‘the magnitude
and level of corruption in the judiciary, its nature and forms, causes and impact on the
performance of the judiciary’ and to identify corrupt members of the judiciary.
• In June, President Kibaki appoints eight new High Court judges.
• The Ringera Report is published in September and officially transmitted to the Acting Chief
Justice. Part I of the Ringera Report sets out evidence of corruption, unethical conduct
and other offences at the highest levels. It discusses the nature and forms of both petty
and grand corruption in the judiciary. The report identifies poor terms and conditions of
service amongst the major causes of judicial corruption. Part II of the report identifies five
out of nine Court of Appeal judges (56%), 18 out of 36 High Court judges (50%), 82 out
of 254 magistrates (32%) and 43 paralegal officers are implicated in ‘judicial corruption,
misbehaviour or want of ethics.’
• Parallel to these efforts, the Law Society of Kenya (LSK) appoints a committee to investigate
judicial corruption. Its report is completed in October and confidentially submitted to
the Acting Chief Justice. It contains the names of a number of judges who need to be
investigated. The judiciary does not act on the report.
• In October, a ‘List of Shame’ is published in the media, naming judges and justices
implicated in the Ringera Report. The Acting Chief Justice publicly advises them to resign
quietly within two weeks from 6 October, or be suspended without pay and privileges and
face tribunals.
• Upon the recommendation of the Chief Justice, President Kibaki appoints two tribunals, one
for the Court of Appeal and one for the High Court.
• In October, President Kibaki appoints 11 judges in an acting capacity, followed by another
seven judges in December.
• In October, the Attorney-General announces that implicated magistrates must resign or face
the law. The Kenya Magistrates and Judges Association (KMJA) states that its members have
not been officially informed of the charges against them.

110 PART II kenya: Justice sector and the rule of law

• In December, the media announces that six High Court and two Court of Appeal judges have
decided to face the tribunals. Their salaries are indefinitely withdrawn and reinstated only in
July 2004.
• President Kibaki revokes the tribunals constituted in October and establishes new tribunals
with different panel members.
• In early November, all 82 magistrates are given until 17 November to respond in writing to
the Judicial Service Commission (JSC) to ‘show cause’why they should not be removed.
2004
• The media reports in January that all implicated magistrates and paralegals have filed their
defences with the JSC. In mid-March, 50 of the implicated magistrates, followed by another
20, are ‘retired’ by the JSC in the public interest.
• After the reinstatement of 10 implicated magistrates and the promotion of one to Acting
High Court Registrar, the Law Society demands to know how they were cleared of the
charges. The JSC provides no explanation.
• In June, following protests by the KMJA, Chief Justice Evan Gicheru accuses the association
of acting as a trade union and threatens to ban it.
• The tribunal for the Court of Appeal judges, which commenced the hearings in April, clears
Justice Philip Waki of corruption charges. President Kibaki reinstates him into office.
• In December, President Kibaki confirms the permanent appointment of two Court of Appeal
justices and 16 High Court judges out of 20 judges appointed in an acting capacity.
2007
• The president dissolves the High Court tribunal hearing corruption charges against Justice
Roselyn Nambuye and reinstates her to office.
• The tribunal for the High Court judges clears Justice Daniel Anganyanya of corruption
charges. President Kibaki reinstates him into office.
2008
• The tribunal for the High Court judges finds Justice JV Juma and P. Mbaluto guilty of
corruption charges. President Kibaki fires them as judges.
2010
• The tribunal for the for the Court of Appeal judges clears Justice Moijo Ole Keiwa of
corruption charges. President Kibaki reinstates him into office.

S o u r ces :
The processes from 2002–2004 adapted from ICJ-Kenya (2005); the processes from 2007–2010 sourced from
media reports

5 . I ndependence o f J u dges and L aw y ers 111

Composition and qualification
While the constitution sets out the minimum qualifications for judges, no legislation provides
criteria for magistrates. There is therefore no mechanism to ensure the appointment of
appropriately qualified and experienced candidates. The perception in Kenya is that appointments
to public office are driven by patronage based on ethnic and personal constituencies, which
provide incentives for corruption. Appointments to the judiciary are not exempt from this
general practice. An additional concern relates to the fact that there are far too few women
occupying judicial positions. There is a higher, but still insufficient, ratio of women in the
magistracy. An affirmative action legislative amendment was rejected by Parliament in 2007
and was followed by a presidential directive that at least one-third of all appointments to public
office should be of women. The directive, however, lacks legal backing, and the Judicial Service
Commission or the judiciary do not appear to have any policy to actively increase the number
of qualified women in the judiciary. However, the new constitution now requires that ‘not more
than two-thirds of the members of elective or appointive bodies shall be of the same gender’.325
This gives constitutional anchorage to the quest for gender equality in the judiciary.
New magistrates undergo a two-week induction training course, which is insufficient to
prepare them for their new positions or to enable them to eventually manage cases and deliver
decisions with adequate judicial reasoning. There is no clear policy or legal requirement for
continuing judicial education of both judges and magistrates. There are efforts being made
currently by the judiciary to institute continuing judicial education. The establishment of the
Judiciary Training Institute as noted above signals a move towards institutionalised judicial
education for both induction purposes as well as performance enhancement through continuing
education.
There is one Court of Appeal situated in Nairobi with court circuits at Mombasa, Kisumu,
Nakuru, Nyeri and Eldoret. There are 15 High Court stations in the country, 110 magistrates’ court
stations and 17 Kadhis’ court stations. The magistrates’ courts are established up to divisional
levels. In terms of provincial distribution, there are five magistrates’ courts in Nairobi while
Nyanza, Western and Rift Valley have 17, 11 and 20 respectively. Central has 18, Coast 10, Eastern
20 and North Eastern 3. The High Court operates in 14 court stations, namely Nairobi, Milimani,
Kisumu, Kisii, Bungoma, Kakamega, Nakuru, Eldoret, Kitale, Nyeri, Mombasa, Malindi, Meru,
Machakos and with sub-registries at Kericho, Busia and Garissa. There are 9 Court of Appeal
judges against an establishment of 11 and 45 High Court judges against an establishment of 50.
There are a total of 221 magistrates; 10 chief senior resident magistrates, 45 resident magistrates
and 15 district magistrates. There is one Chief Kadhi and 14 Kadhis.326

325
Constitution of Kenya (2010), section 27(8).
326
The statistics are as at March 2005 as provided for in the Judiciary Strategic Plan 2005–2008. There have since been additional
appointments of judges and magistrates.

112 PART II kenya: Justice sector and the rule of law

Table 11: Gender parity in the judiciary
Designation Male Female
Chief Justice 1 0
Court of Appeal judges 11 0
High Court judges 27 18
High Court Registrar 0 1
Chief Court Administrator 1 0
Magistrates 168 109
Kadhis 17 0
Paralegal staff 1865 1531
Source: Republic of Kenya (2010).

The 2010 Task Force on Judicial Reforms327 noted the gender imbalance and proposed that this
be rectified. It is noteworthy that women are under-represented in the higher echelons of the
judiciary and predominate in the lower cadres.
On the overall staffing in the judiciary, chapter 4 has highlighted the personnel shortage and
the 2010 Task Force on Judicial Reforms noted that:
… the total number of vacant positions in the judiciary stands at 1 456
against an establishment of 4 681 … there are eleven (11) Court of Appeal
judges out of an establishment of fourteen (14) judges and forty-six (46)
High Court judges out of an establishment of seventy (70). The total
number of magistrates in post is two hundred and seventy-seven (277)
against an establishment of five hundred and fifty-four (554).328

Conduct of judges and magistrates

Every judicial officer is, on appointment, supplied with a copy of the Judicial Service Code of
Conduct and Ethics established under section 5(1) of the Public Officer Ethics Act 2003. Judicial
officers are expected to observe the Judicial Service Code of Conduct and Ethics coextensively
with their holding of judicial office. It has been noted that the Kenyan Code does not expressly
provide for impartiality both in the process of arriving at the decision and in the decision itself
– both have merit so as to ensure that public confidence is fostered during all stages of the
decision-making process. The code neither provides explicitly for equality, which under the
Bangalore Principles includes race, colour, sex, religion, national origin, caste, disability, age,
marital status, sexual orientation, social and economic status and other like cause, and refraining
from manifesting bias or prejudice based on irrelevant grounds.329
The Kenyan judiciary has preferred internal accountability mechanisms rather than
external institutions. The judiciary conducts biennial reviews on the integrity and performance
of judges and magistrates through its Ethics and Governance Sub-Committee. There is also the
327 Republic of Kenya (2010).
328 Ibid. at 33–34.
329 Republic of Kenya (2010B).

5 . I ndependence o f J u dges and L a w y ers 113

continuous complaints system under the Office of the Chief Justice, through which litigants are
able to seek corrective redress on the workings of the process of the court. The judiciary is also
considering the establishment of a disciplinary procedure to deal with breaches of the Judicial
Code of Conduct that do not warrant the ultimate process for the judge’s removal from office.
A survey conducted by the ICJ in 2003 concluded that in Kenya there is, among the courts,
a ‘casual disregard for binding authority and precedents’.330 This disregard is compounded
by incompetence, defined by one commentator as ‘the inability to synthesise, comprehend
and understand the facts before the court and the derivative legal issues raised in the case’.331
Moreover, even when precedents have been applied, the judges have not always been effective
in explaining their reasoning. As regards complaints, the public in Kenya have no means to
express their grievances against judges or judicial administrators. This means that even minor
complaints that undermine judicial integrity cannot be addressed unless they form a pattern that
could be read as judicial misconduct.
On this issue the 2006 Onyango Otieno Sub-Committee on Ethics and Governance of
the Judiciary332 recommended the establishment of an Ethics and Integrity Committee for
Magistrates and Kadhis. The Committee reinforced this recommendation with a proposal
for setting up peer committees to consider disciplinary issues that do not warrant removal.
The Onyango-Otieno Report also recommended a Litigant’s Charter, which has since been
implemented by the judiciary and consists of a compilation of user-friendly basic information
on the judiciary including information on the court system, filing of complaints, rights and
obligations of the litigants, the relevant court procedures and general information on other
relevant aspects of the judiciary.

B. Lawyers
Kenya has about 7 500 qualified legal practitioners to serve a population of close to 40 million
people, making the ratio of lawyers to the population of Kenya stand at one lawyer to 5 400 people.
This is far below the internationally recommended ratio of one lawyer to 600 people. Kenya
requires about 50 000 lawyers currently and this need is going to rise as the population increases.
The dearth of legal capacity is exacerbated by the fact that Kenyan lawyers are mainly found in the
cities and major towns, leaving out most of the country where access to legal services is absent.

Regulation
A number of laws regulate lawyers in Kenya. The Law Society of Kenya Act sets up the Law Society
of Kenya, which has an extensive mandate to advise and assist members of the legal profession,
the government and the public in all matters relating to the law and administration of justice in
Kenya. The Law Society of Kenya membership consists of all practicing advocates in Kenya. By
law, one must be a member of the Law Society of Kenya in order to practice as an advocate of the
High Court of Kenya.  In Kenneth P. Kiplagat v. The Law Society of Kenya,333 an advocate challenged

330 See ICJ-Kenya (2003B).

331 See Abdullahi (2002).
332 See Republic of Kenya (2005C).
333 Civil Case No. 542 of 1996.

114 PART II kenya: Justice sector and the rule of law

the provision that requires all advocates of the High Court of Kenya to be members of the Law
Society. Members have to pay annual fees, which may be used for purposes that a member
may not agree with. This can be seen as an infringement of a person’s freedom of association
provided for in section 80 of the repealed constitution. He also sought to have the Law Society
permanently prevented from engaging in activities that were not germane to the practice of law
– in this particular case, political activities. The court declined to give the remedies sought by the
applicant, arguing that some of the matters raised were internal matters that could be handled
within the Law Society context while the remedy sought was too broad. It would need to relate to
a particular activity.
The Advocates Act is the key legislation for the admission and regulation of advocates,
while the Council for Legal Education Act establishes the Council for Legal Education, which
is in charge of controlling standards and the quality of legal education in Kenya. A number of
rules made by the Council of the Law Society of Kenya and approved by the Chief Justice under
the Advocates Act further regulate the conduct of advocates with respect to client property and
client money.334
For one to be qualified as an advocate one must have passed the relevant examinations
of any recognised university and be a holder of a degree in law of that university or another
university or institution that the Council of Legal Education may from time to time approve.
In addition one must be a pupil of a qualified advocate for instruction in the proper business,
practice and employment of an advocate, and attend courses and pass examinations set by the
Council of Legal Education. The law curriculum of most universities provides courses in legal
theory and practice, including human rights courses. However, the human rights courses that
are offered are not compulsory. The Council of Legal Education curriculum taught at the Kenya
School of Law concentrates more on practical courses relevant to legal practice and professional
ethics.335
The Law Society introduced continuing legal education (CLE) for advocates in 2004,336
under the Advocates (Continuing Legal Education) Regulations, which is conducted by its
Council or by accredited institutions. Programmes of continuing legal education conducted by
the Council or accredited institutions emphasise ethical as well as practical and professional
aspects of legal practice. Every member of the Law Society is required to obtain, in each year of
practice, no less than five units of continuing legal education by attending and participating in
at least two continuing legal education programmes organised by the Council. In addition, every
application by an advocate for the annual practising certificate should be accompanied by proof
that the applicant has secured five units of continuing legal education during each practising
year. The Kenya School of Law is also implementing a continuing professional development
programme.

334 The rules are made pursuant to powers given under section 83 of the Advocates Act and are The Advocates (Practice) Rules,
The Advocates (Accounts) Rules, The Advocates (Deposit Interest) Rules and The Advocates (Accountant Certificate) Rules.
335 See Ojienda (2005); Republic of Kenya (2005D).

336 This programme was introduced under the Advocates (Continuing Legal Education) Regulations, 2004 made by the Council

pursuant to powers it is given under section 81(1)(h) of the Advocates Act.

5 . I ndependence o f J u dges and L a w y ers 115

Legal practice
Advocates in Kenya are in excess of 7 000.337 This number will continue to rise as there is an
increase in the number of public and private universities offering law degrees.338 There are also
many Kenyan students studying law in foreign countries and expecting to come back to work
in Kenya. Most qualified lawyers, however, prefer employment in private legal practice or in the
corporate sector, while very few join the public service, either in the government ministries, state
law offices or the judiciary. The exceptions in this respect are the commercial and industrial state
parastatals and corporations, whose legal work is handled by private legal firms. One of the major
reasons for this state of affairs is the poor pay in the public sector as compared to the private
sector, and there is a problem attracting competent lawyers to the public service. A minority join
academia, which is also becoming increasingly competitive.
Within private practice there is also a hierarchy. Most successful legal firms are based in the
capital city (Nairobi) and are organised in partnerships that offer specialised legal services. The
European- and Asian-led law firms have, in this respect, tended to monopolise the top end of legal
work from large transnational corporations, banks, insurance companies and parastatals. While
a number of African legal firms have achieved eminence and are organised as partnerships of
considerable size, for many African lawyers the competition from established firms is strong
and they are excluded from lucrative commercial and financial work. Many young lawyers are
now moving to other urban towns outside Nairobi, and most of them are solo practitioners with
a general law practice.339 However, given the general low economic performance in the country
over the last two decades, private practice has also become increasingly unable to absorb all the
qualified lawyers.
Advocates have on various occasions faced prosecution and threats when they have acted
for clients in cases against the state or powerful political officials. Between 1989 and 1991 when
Kenya was experiencing some of the worst human rights violations in its history, advocates for
multi-party politics were accused of subversion, and a number of the champions of multi-party
politics, some among them lawyers,340 were detained under inhuman conditions and without
trial. Human rights lawyers like Gibson Kamau Kuria and Kiraitu Murungi, fled to the United
States to avoid being jailed. More recently, during the political violence witnessed after the
2007 general elections, death threats were made against Kenyan human rights defenders and

337 See http://www.lsk.or.ke/membership.php.

338 Initially only two public universities, namely University of Nairobi and Moi University, offered law degree courses, and in
recent years the intake of law students in the two universities has increased following the introduction of modules for self-
sponsored modules, and three additional public universities, (Kenyatta University and Jomo Kenyatta University of Agriculture
and Technology) and a number of private universities (Catholic, Nazarene, Mount Kenya University and Kabarak) have also
introduced law degree courses. Strathmore University, Inoorero University, Kampala International University and KCA University
are also planning to open schools of law in the near future.
339 See Ghai (1981); Odenyo (1981).

340 John Khaminwa, Mohammed Ibrahim and Gitobu Imanyara.

116 PART II kenya: Justice sector and the rule of law

pro-democracy activists,341 who received threats by text messages, telephone calls and emails
because they had spoken out publicly about the results of the Kenyan elections or about human
rights abuses that occurred after the elections. According to an alert issued by Amnesty-USA,
a pamphlet was also distributed naming them as ‘traitors’ to the Kikuyu community and
containing veiled threats that they would be killed.

Disciplinary systems
There has been growing concern about standards and professional ethics among lawyers,
especially in the area of safeguarding clients’ funds and property. The Advocates Act provides
for two main disciplinary processes for advocates. The first is by establishing the Advocates
Complaints Commission with powers to investigate and provide redress in cases of complaints
made against advocates. The Commission has power to award reimbursement of loss or damage
not exceeding KES 100 000 (approximately US$ 1 500). It can also refer complaints to the
Disciplinary Committee, set up under the same Act, or to courts for appropriate redress. The
Disciplinary Committee investigates and makes rulings on complaints against advocates for
professional misconduct, including those made by the Law Society of Kenya. The Disciplinary
Committee has wide-ranging powers, including ordering that an advocate be fined, pay
compensation not exceeding KES 5 million (approximately US$ 62 500), be suspended from
practice or be struck off the roll of advocates (deregistered).
A number of factors limit the independence and effectiveness of these mechanisms. Firstly,
all the members of the Commission and some of the Disciplinary Committee are presidential
appointees.342 Other than the provision of discretionary representation in the Disciplinary
Committee, the Law Society of Kenya is not given any prominent role in the appointment
of members despite its legal mandate to regulate the legal profession. The Attorney General
determines the operational structures of the Commission and is a member of the Disciplinary
Committee and can also recommend some of the appointees to the Disciplinary Committee. In
addition, there are certain operational constraints – the procedures involved in both mechanisms
make the processes complex and cause delays, while the Commission and Disciplinary
Committee are also not well-equipped and staffed.343 In addition to these disciplinary processes,
the Council of the Law Society of Kenya has powers under its parent Act to undertake disciplining
advocates. The Council has, however, also not been free of political influence, with the election of
Council members increasingly being decided along ethnic and political party lines.

341 Those who received threats included Muthoni Wanyeki, Executive Director of Kenya Human Rights Commission, Maina Kiai,
Chairman of Kenya National Commission for Human Rights, Haroun Ndubi, human rights lawyer, member of Kenya Domestic
Observers Forum, David Ndii, author of report on electoral irregularities, Gladwell Otieno, Director of Africa Centre for Open
Government, Ndung’u Wainaina, staff member of National Convention Executive Council, Njeri Kabeberi, Executive Director
of the Centre for Multi-Party Democracy, Nahashon Gachehe, employee of Independent Medico-Legal Unit and James Maina,
member of People’s Parliament (Bunge La Mwananchi).
342 The Advocates Complaints Commission consists of such number of commissioners appointed by the president who are

qualified to be appointed judges of the High Court, while the Disciplinary Committee consists of the Attorney General; the
Solicitor General; six advocates; the Chair, Vice Chair and Secretary of the Law Society of Kenya and three other persons who are
not advocates and who are appointed by the Attorney General.
343 See Ojienda, supra note 56.

5 . I ndependence o f J u dges and L a w y ers 117

C. Recommendations
The issue of the independence of judges has formed part of the discussions on constitutional
review. There have been concerns about executive control of the judiciary through the appointment
of judges and members of the JSC. The new constitution and the 2010 Task Force on Judicial
Reforms have proposed mechanisms to make the judiciary enjoy greater independence, which
is deemed critical for the administration of justice. The latter noted that ‘the integrity, efficiency
and effectiveness of the judicial process are not only functions of the judiciary, but also the Bar’.
It underscored the need to ensure that advocates are diligent and conduct themselves in a way
that does not sabotage the work of the courts.
In this regard it is important that:
• The constitutional provisions, specifically section 161, are enforced and extended to
cover other judicial officers of the courts established under the constitution;
• The proposals of the 2010 Task Force on Judicial Reforms are implemented;
• Mechanisms for dealing with judicial officers who are alleged to be incompetent or
inefficient are well articulated to avoid victimisation of the officers and failure to respect
their rights;
• Any attempt to deal with judicial corruption or inefficiency also looks at the conduct of
lawyers and paralegals who are also critical actors in the judicial process;
• The vetting of judges and magistrates should be institutionalised to avoid the mistakes
made with the ‘radical surgery’ and to ensure that there is no witch-hunting;
• There should be synergy between legal education providers in universities, the Council
for Legal Education and the Bar and Bench to ensure that the requisite technical
competence is assured at each level;
• The Judicial Code of Conduct should be revised to reflect international best practice and
a code of conduct for paralegal staff crafted to ensure high standards for all levels and
overall improvement in service delivery and rating by the public;
• There should be vetting of lawyers seeking to join the judiciary to ensure both equality
of treatment of judicial officers as well as to admit the very best lawyers into this critical
department;
• Performance evaluation mechanisms should be instituted for individual judges as well
as for the entire judiciary; and
• Induction and continuing legal education should be made mandatory for both lawyers
and judicial officers.

118 PART II kenya: Justice sector and the rule of law

6
Criminal justice
The criminal justice system in Kenya is characterised by wide but unregulated discretionary
powers. These powers include the power to arrest or not arrest, the power to detain or not
detain, the power to investigate or not investigate, the power to charge a person with committing
an offence or not to charge, the power to charge that person with committing a grave offence
or minor offence, the power to prosecute or not prosecute and the power to terminate or not
to terminate a prosecution. The exercise of these powers often leads to the criminalisation of
poverty and the persecution of the citizenry. In addition, the existing policy and legal framework
has served to ensure that public security agencies only serve the interests of the political regime
in power, to the detriment of the realisation of the rule of law in the administration of criminal
justice. The officers of key institutions such as the police and prisons also work under deplorable
conditions and terms of service, which may predispose them toward oppressing the public they
are supposed to serve. In these circumstances, it can hardly be said that the rule of law prevails
in the Kenyan criminal justice system.

A. Protection from crime

Incidence of crime
There has been a rapid increase in the levels of crime in Kenya over the last two decades.344
Bank robberies, car-jacking, burglaries and murders are a common feature of Kenya’s crime
map. In addition, there has been a rise in white collar crimes. These high crime levels have
been attributed to a number of factors, including rapid growth in urban populations coupled
with acute housing shortages, declining economic prosperity, rising urban unemployment,

344 See e.g. UN Habitat (2002); Ngugi et al (2004).

6 . C riminal J u stice 119

the collapse of municipal institutions of governance, the emergence of vigilante groups and
perceptions of impunity among criminals.345 The Kenya Police Force (KPF) however points
out that in 2007 there was a historic 13% reduction in reported crimes.346 It notes further that
insecurity was heightened during the post-election period but in the immediate aftermath there
was a 4% decrease in crime rates.347 Table 12 below shows a breakdown of the crime rates
between 2007 and 2008.

Table 12: Crime trends 2007–2008

Category 2007 2008 % decrease/increase
Corruption 176 126 -28
Dangerous drugs 5 155 3 888 -25
Offences against morality 3 500 2 727 -22
Other offences against persons 16 735 14 809 -12
Vehicle and other thefts 1 153 1 244 -08
Robbery 3 295 3 056 -07
Economic crimes 1 820 1 705 -06
Homicide 1 769 1 851 -05
Theft of stock 1 464 2 006 +37
Criminal damage 2 601 3 460 +33
Theft by servant 2 045 2 188 +07
House breaking 5 953 6 027 +01
Source: Kenya Police Force (2009).

Whereas the police statistics reveal a decrease in crime rates, levels of insecurity are still high
and it has to be taken into account that many crimes remain unreported. These crime statistics
do not, for example, reflect the heightened criminal activities during the post-election violence
in December 2007 and early 2008. The Commission of Inquiry into Post-Election Violence
(CIPEV) estimates that during this period, about 1 133 people were killed.348 With respect to
policing operations during this period, the CIPEV established that the police often used excessive
force and even killed many citizens using live bullets in efforts to maintain law and order.349 In
some cases, victims were ‘shot whilst in and around their own homes’.350 As a result, 405 people
died of gunshot wounds, while 557 people were treated for gunshot wounds.351 The Commission
also found credible evidence of criminal behaviour by the police, including murder, gang rape
and looting.352

345 See e.g. Anderson (2002).

346 Kenya Police Force (2009: 1).
347 Ibid.
348 Republic of Kenya (2008B: 346).
349 Ibid. at 386–395.
350 Ibid. at 395.
351 Ibid. at 386.
352 Ibid. at 398–400, 403.

120 PART II kenya: Justice sector and the rule of law

 Several factors have been attributed to the increased sense of insecurity in Kenya. The Kenya
Police Crime Report particularly notes the current threat to national security posed by organised
criminal gangs like the Mungiki and the sustained proliferation of firearms from countries such
as Somalia and Southern Sudan.353

Poor data collection

Most Kenyans would confess to having very little (if any) information about the prevention
of crime.354 They perceive the criminal justice system as one that responds to crime and
handles criminals rather than one that prevents crime. This clearly illustrates the extent to
which information on crime prevention is either inaccessible or unavailable. Even where such
information exists, there is much reluctance to publicise it.
Existing information is, therefore, scarcely available and what normally exists is usually
based on official records produced by the criminal justice administration.355 These records are,
however, not conclusive since many crimes are never reported to the police. Several factors have
contributed to the failure to report crimes. First, the reluctance with which the police handle
certain cases discourages the reporting of crimes. Some cases are normally labelled ‘unfounded’
claims even where investigations have not been instituted. To a large extent, this has discouraged
many people, especially the poor and the vulnerable, who opt out of the formal criminal justice
system. For example, domestic violence cases are trivialised and offenders are not always charged
when victims report to the police.356
Secondly, the lack of adequate resources and infrastructure impacts adversely on the
efficiency of the police in responding to crime. For example, sexual offences require immediate
medical examination and collection of evidence for a conviction to be obtained. This ideal
envisages a speedy collection of evidence. Unfortunately, some victims do not have easy access to
police stations and hospitals to obtain the required evidence in good time. The longer this takes
the harder it is to obtain sufficient evidence warranting a conviction. Low conviction rates thus
discourage victims from reporting such crimes.
Thirdly, the criminal justice system is not designed to give the complainant any form
of compensation. Unlike the civil system, which is compensatory, the Kenyan criminal
justice system is punitive. The complainant is thus compelled to institute civil proceedings
for compensation; these proceedings are quite lengthy and costly, especially for the poor.
The procedures governing civil proceedings are also complicated and in most cases litigants
require legal advice; this discourages litigants who cannot afford legal services. Cognisant of
this bottleneck, the Domestic Violence Bill of 2001 expressly provided for a compensation and
protection mechanism for domestic violence victims. Unfortunately, this Bill lapsed in its second
reading. Subsequently, the Family Protection Bill now seeks to similarly address the lack of a
compensation and protection scheme for domestic violence victims but it is still in the pipeline.
Fourthly, victims and witnesses shy away from the criminal justice system due to the lack

353 Kenya Police Force, supra note 3 at 5–6.

354 Section 14(1) of the Police Act enumerates prevention of crime as one of the roles of the police.
355 UN Habitat, supra note 1 at 9.
356 Interview with Moses Otsieno, Officer at FIDA Kenya.

6 . C riminal J u stice 121

of a victims and witnesses protection scheme. A Witness Protection Act, which establishes a
framework for the protection of witnesses, has now been enacted by Parliament. At the same
time, it should be noted that the Sexual Offences Act of 2006 gives the court the power to invoke
appropriate measures to protect a witness in cases involving sexual offences.357
The collection of information on crime can assist in preventing crime. However, it is
hampered by a number of factors. For example, the collection of information on crime is largely
confidential and not much is available in the public domain. Chapter 43 of the Kenya Police Force
Standing Orders sets out the procedure of collecting information on crime and the subsequent
production of annual reports. Police stations are required to dispatch daily crime reports to the
divisional headquarters by 08h30 every day and the divisional commander is then required to
dispatch the daily divisional crime reports to the provincial headquarters by 09h00 every day.
The daily provincial crime reports are then dispatched to the police headquarters by 09h30 every
day.358 However, reports of crimes of major importance are to be dispatched immediately and
need not wait for the next dispatch of daily crime reports.359 Crimes of major importance include,
‘murder, manslaughter, rape, suicide, indecent assaults on women and children, serious traffic
accidents, armed robbery, civil disturbance, strike reports, tribal clashes, international border
raids and transgressions, earthquakes, floods and other major disasters, aircraft crashes’.
Annual reports are also to be produced and forwarded to the Commissioner of Police.
However, these annual reports are confidential and can only be disclosed with the express
authorisation of the Commissioner of Police.360 Thus, although the Kenya Police Force Standing
Orders set out the procedure for the collection of this strategic information, consistent analysis
of the performance of the police in this process and the nature of the reports is difficult since
these are not easily accessible. It is worth noting, however, that the Kenya Police Force has made
attempts to publish selected crime statistics on its website.361 Although the website does not
provide the most recent statistics and only publishes selected statistics, it nevertheless is a step
towards informing the public of the role played by the police in curbing insecurity.
The Criminal Intelligence Unit (CIU) of the Criminal Intelligence Department within
the Kenya Police Force plays a big role in the identification of crime trends in Kenya. The CIU
collects criminal data, analyses the same and disseminates it to the relevant security organs for
action. All these activities are undertaken under high secrecy. However, civilians or informants
are utilised during the process of data collection. The resultant reports on the criminal activities
are, however, not disclosed. According to a former Criminal Intelligence Officer (CIO) in charge
of Eastern province, not even your colleagues get to know your report. 362 The CIU is an effective
tool that has been used in other countries not only to deal with crimes already committed but
also to prevent crime. This has proved difficult to achieve in Kenya for two reasons. First, the
programme is not well-funded. In fact, the police recruited in this unit are not well-motivated,

357 Sexual Offences Act, section 31 (2006).

358 Kenya Police Force, Force Standing Orders, chapter 43, section 6 (i, ii, iii).
359 Ibid., chapter 38, section 8.

360 Ibid., chapter 43, section 3.

361 See www.kenyapolice.go.ke.

362 Interview with Joseph Kaberia, former CIO head of Eastern Province.

122 PART II kenya: Justice sector and the rule of law

hence they prefer remaining in other departments where they can augment their incomes from
corrupt activities. Secondly, there is a lot of animosity from other departments in the police who
are always suspicious of CIU staff.

Arrest and prosecution

The criminal justice system is governed by a legal framework which is made up by statutes
such as the Penal Code, the Sexual Offences Act, the Anti-Corruption and Economic Crimes
Act, the Criminal Procedure Act and the Evidence Act. The framework has various flaws. One
notable flaw is to be found in criminal procedure and concerns investigation and prosecution.
Many criminal cases have been thrown out of court on grounds of poor investigations and
uncoordinated evidence363 which do not meet the set standards of criminal cases.364 Two
factors can be said to be contributing to this unfortunate situation. First, most prosecutions are
conducted by police officers whose legal knowledge is not comparable to advocates acting for the
defendants. Second, it is therefore quite challenging for these officers to ensure that all legal gaps
in their cases are addressed.
The Kenya Police Force Standing Orders provide that ‘all police officers of or above the rank of
inspector are public prosecutors’.365 The rationale is that by the time an officer becomes an inspector,
he or she would have undergone sufficient in-service training which equips him or her to carry out
such roles.366 That notwithstanding, the Standing Orders provide that in certain cases officers of
a subordinate rank may be selected to prosecute in district magistrates’ courts.367 According to the
Kenya Police Deputy Spokesperson, the force has, however, been phasing out police prosecutors of
below the rank of inspector. There is, therefore, a need to amend the Standing Orders to reflect this
policy. However, it remains a challenge for police officers to rival advocates to secure convictions
of offenders. In an interview on the Kenya Television Network, the Commissioner of the Kenya
Police stated that they would be happy to relinquish the role of criminal prosecutors if the Attorney
General’s office had enough capacity to carry out prosecutions.368
Another issue of concern is that the practice of transferring investigating officers from
one station to another negatively impacts on the criminal proceedings.369 When transferred,
it becomes difficult to ensure the court attendance of these officers, who are normally key
witnesses in the cases. Thus, court cases drag on until the investigating officer is available and
the liaison between the prosecutor and the investigating officer is hampered.
In addition, problems have always arisen with regard to the implementation of the law.
Justice seems a very elusive concept especially for the poor and vulnerable, while the rich who
are politically connected get their way. For example, the Kenya Anti-Corruption Unit has time
and again been blamed for undertaking ‘small fish’ prosecutions while the ‘big fish’ are left free.

363 For example, in R v. Kamlesh Patni, the accused was charged with murder of his bodyguard. The case was, however, dismissed

for want of evidence. Wesangula (2008).

364 The required standards in criminal cases is beyond reasonable doubt.

365 Kenya Police, Force Standing Orders, chapter 48, section 7 (i).

366 Interview with Charles Owino, Deputy Police Spokesperson.

367 Kenya Police Force Standing Orders, chapter 48, section 7 (ii).

368 Commissioner of Police, KTN interviews, 26 June 2009.

369 Interview with Moses Otsieno, Programmes Officer, FIDA Kenya.

6 . C riminal J u stice 123

 It is no wonder then that many Kenyans are strongly disenchanted with the criminal
justice system and deeply distrust the KPF. To make matters worse, the Attorney General, who
has the sole and constitutional responsibility of determining who should be prosecuted for the
commission of an offence, has often exercised the power to prosecute very selectively. Indeed,
there have been cases where the Attorney General has failed to prosecute where judicial inquiries
have recommended prosecutions. The report of the Akiwumi Commission is a case in point.
This report recommended the investigation and prosecution of listed police officers, provincial
administrators and politicians who were allegedly involved in tribal clashes.370 However, the
recommendations were never implemented. Where private individuals undertake private
prosecutions in cases where the Attorney General has chosen not to act, the Attorney General
has often exercised his constitutional powers to terminate such cases. There is, therefore, a
perception that the Attorney General does not often act in the public interest, and instead
encourages impunity, especially by rich and powerful members of society.
White collar crimes, especially those involving high-level corruption by rich and powerful
actors, also tend not to be punished. Kenya’s record in this regard indicates that the perpetrators
of such crimes invariably walk away scot-free. The only inconvenience they suffer is that they will
be hauled before courts from time to time. The Goldenberg and Anglo Leasing scams are good
illustrations of the rich and powerful’s impunity.371
It has also been reported that police officers and judicial officers sometimes conspire ‘to
corrupt the wheels of justice’.372 Gitobu Imanyara, an experienced legal practitioner, has given the
following illustration of how this happens in practice.373 A person makes a complaint that he has
been assaulted by a ‘well known businesswoman’. The police are at first reluctant to record the
complaint in their ‘Occurrence Book’, but eventually do so and arrest the accused person upon
discovering that the matter has been reported to their superiors. The accused is subsequently
charged in a court of law and is bonded to appear for the hearing of the case at a later date. At
the same time, the complainant is also bonded to appear in court, except that the date shown on
his bond papers is different from the date in the court file. Inevitably, the complainant does not
appear when the case comes up for hearing, and the accused is acquitted for lack of evidence.
The foregoing inefficiencies of the criminal justice system are reflected in current crime
statistics, which indicate that the vast majority of reported crimes go unpunished. For example,
it is reported that in the last two or so years, about 87% of murder suspects in Nairobi have been
set free.374 The Director of Public Prosecutions is reported to attribute this appallingly low rate
of conviction to the fact that ‘[t]he judicial system is simply overwhelmed.’375 Statistics confirm
that the justice system in terms of judicial officers, police officers and prison officers is indeed
overwhelmed. In terms of judicial officers, the Central Bureau of Statistics records that in 2008
the 287 magistrates were required to deal with 343 152 cases filed in 2008 and 768 908 cases

370 Republic of Kenya (1999: 285–291).

371 See Wrong (2009).
372 Imanyara (2004: 55).
373 Ibid.
374 See e.g. Wesangula supra note 21.
375 Ibid.

124 PART II kenya: Justice sector and the rule of law

pending.376 Without adequate resources such as transport facilities and relevant technology, the
40 000 police officers are also overwhelmed dealing with the wide range of policing duties,
hence compromising the quality of investigations. This, coupled with the challenge of police
prosecutors377 versus qualified defence lawyers, has contributed to low conviction rates.
There is, therefore, a palpable sense of criminal injustice among Kenyan citizens. Further,
there is a perception that the government is not doing nearly enough to control the spiralling
levels of criminal activities. This perception of criminal injustice has spawned a number
of responses. In the slums, poor suburbs and rural areas, vigilante groups have become
commonplace.378 And in the wealthier neighbourhoods, there has been a proliferation of private
security firms, which serve both residential and commercial districts.

B. The politics of policing

Legal framework
Policing in Kenya has mainly been the preserve of the Kenya Police Force (KPF), which was
established by the Police Act (PA).379 The KPF was headed by a Commissioner of Police who
was appointed by the president.380 Immediately below the Commissioner were a number of
Deputy Commissioners of Police in charge of the Criminal Investigation Department (CID), the
General Service Unit (GSU), training of personnel, administration, operations and logistics, and
planning. The CID were responsible for crime detection and investigations, while the GSU dealt
with ‘situations affecting internal security’ such as riots.381 The KPF population currently stands
at 40 000.382
The KPF has been organised as a nationally unified body whose centralised force is directed,
coordinated and controlled from the top. At the same time, the KPF’s administrative units
have been divided into provinces, divisions, stations and police posts. Provincial police officers
(PPOs) are responsible for the direction and control of the police at the provincial level, and are
answerable to the Commissioner. Police divisions are headed by officers commanding police
divisions (OCPDs), who are answerable to PPOs. Further, police stations are headed by officers
commanding police stations (OCSs), who are answerable to OCPDs. Finally, police posts are
headed by officers commanding police posts (OCPPs), who in turn are answerable to OCSs.
The location of police divisions, stations and posts do not necessarily follow the administrative
division of the country or districts. Instead, they are opened in areas the Commissioner deems in
need after considering all factors relating to the maintenance of law and order and crime control.
In many cases, communities that have resources are also able to ensure the establishment
of police outposts in their neighbourhoods. On the whole, however, there are no set objective
criteria governing the location of police outposts.

376 Central Bureau of Standards (2009: 18–19); . See also ICJ-Kenya (2006: 32).
377 Discussed in detail hereunder.
378 Anderson, supra note 2 at 546.
379 Police Act, chapter 84, Laws of Kenya.
380 Constitution of Kenya 1963, section 108(1).
381 Kenya Police Force (2003: appendix v).
382 Interview with Charles Owino, Deputy Police Spokesperson, KPF.

6 . C riminal J u stice 125

 The repealed constitution vested the power to appoint police officers above the rank of
Assistant Inspector in the Public Service Commission (PSC).383 But the PSC could delegate this
power to one or more of its members or to the Commissioner.384 Further, this constitution vested
the power to appoint police officers below the rank of Assistant Inspector in the Commissioner.385
Again, the Commissioner could delegate this power to any member of the KPF.386 Police officers
live in government housing, isolated from the public. It is felt that such isolation removes them
‘from the temptation of leniency or corruption and that it builds an espirit de corps that can help
overcome the effects of former alliances’.387
It should be noted that the PA also provides for the establishment of the Kenya Police
Reserve (KPR) which is to consist of volunteers, and whose duty it is to assist the KPF in the
performance of its duties.388
The functions of the KPF as set out in the PA are ‘the maintenance of law and order, the
preservation of peace, the protection of life and property, the prevention and detection of crime,
the apprehension of offenders, and the enforcement of all laws and regulations with which it is
charged’.389 Further, the PA entrusts the KPF with the duty ‘to regulate and control traffic and to
keep order on and prevent obstructions in public places, and to prevent unnecessary obstruction
on the occasions of assemblies, meetings and processions on public roads and streets, or in the
neighbourhood of places of worship during the time of worship’.390 Finally, the PA mandates
police officers to ‘take charge of unclaimed property’.391
In addition to the KPF, a number of constitutional institutions perform some policing
functions, including the Administrative Police, the National Security Intelligence Service (NSIS)
and the Armed Forces (which consist of the Kenya Army, the Kenya Navy and the Kenya Air
Force).
The Administrative Police Force (APF) is established by the Administration Police Act
(APA).392 The APF is answerable to the president through the provincial administration.393 The
function of the APF is basically to bolster the coercive strength of the government.394 It assists the
Provincial Administration – which consists of provincial commissioners, district commissioners,
district officers and chiefs – in the exercise of its duties. This function extends to preserving the
public peace and preventing the commission of offences.395 In this regard, administrative police
officers also have powers to arrest suspects and use firearms. They therefore perform the same

383 Constitution of Kenya 1963, section 108(2)(a).

384 Ibid., section 108(2)(b)(i).
385 Ibid., section 108(2)(b).

386 Ibid., section 108(2)(b)(ii).

387 Clinard & Abbott (1973: 222).

388 Police Act, supra note 37, section 53.

389 Ibid., section 14(1).

390 Ibid., section 16(1).

391 Ibid., section 17(1).

392 Administrative Police Act, chapter 85, Laws of Kenya.

393 Ibid., section 3(2). The provincial administration is an administrative unit established by the executive to enable it to establish

political control over the populace and implement its policies throughout the country.
394 Auerbach (2003: 13).

395 Administrative Police Act, supra note 50, section 8.

126 PART II kenya: Justice sector and the rule of law

policing functions as the KPF and in the same territory, which may cause some dysfunction.396
Unfortunately, the legislative and institutional framework does not provide for the coordination
of the activities of the KPF and the APF. In order to facilitate the coordination of their activities,
and to enhance the accountability of policing, the Commission of Inquiry into Post-Election
Violence397 and other commentators398 have recommended that the KPF and the APF should
be merged.
The NSIS is established by the National Security Intelligence Service Act (NSIS-A)399 and
is headed by a director general appointed by the president.400 The NSIS-A also establishes a
National Security Intelligence Council (NSIC).401 The main functions of the NSIS are to gather
information on matters relating to national security and intelligence, advise the government of
threats to national security and protect national security interests.402
Accordingly, the NSIS is also a policing institution, and its functions overlap with those of
the KPF’s Criminal Investigation Department, which gathers intelligence information relating to
crime, information which implicates the country’s national security. Unfortunately, the NSIS-A
does not spell out how the activities of the NSIS and the CID are to be coordinated. Further, the
Commissioner of Police is not even a member of the NSIC, whose main function is to advise the
NSIS on matters relating to national security and intelligence policies.403 Even more significantly,
perhaps, the NSIS is not a democratic institution and it seems the regime maintenance rationale
has precluded the need for public accountability in the collection and utilisation of information
relating to national security and intelligence.404
Unlike the police who ordinarily provide security during peacetime, the armed forces not
only protect the country against external aggression but also perform a policing role during war,
civil strife and other emergencies that may occur from time to time. For instance, the armed
forces were deployed in the aftermath of the violence spawned by the disputed results of the
presidential election of December 2007. The power of the armed forces to intervene in such
situations of disorder is derived from the Armed Forces Act, which entrusts them ‘with the
defence of the Republic and the support of the civil power in the maintenance of order, and with
such other duties as may from time to time be assigned to them by the minister after consultation
with the Defence Council’.405 The members of the Defence Council are all appointees of the
president, who, by virtue of the constitution, is the commander-in-chief of the armed forces.406 It

396 Auerbach & Baudh (2003: 31).

397 Republic of Kenya, supra note 5 at 436.
398 Akech (2005).

399 National Security Intelligence Service Act, No. 11 of 1998, Laws of Kenya.

400 Ibid., section 6(1).

401 Ibid., section 23(1). The NSIC is constituted by the Minister in charge of national security, the Minister for Finance, the

Minister for Foreign Affairs, the Attorney General and the Head of the Public Service.
402 Ibid., section 5(1).

403 Ibid., section 23(3).

404 See e.g. Murunga (2003).

405 Armed Forces Act, chapter 199, Laws of Kenya, section 3(1).

406 The Defence Council consists of the Minister for Defence, the Assistant Minister for Defence, the Chief of General Staff, the

commander of each service of the armed forces and the Permanent Secretary of the Ministry of Defence. Armed Forces Act,
section 5(1).

6 . C riminal J u stice 127

is worth noting that the power of the Defence Council to deploy the military in the maintenance
of internal order is not regulated. In particular, the Defence Council is not required to consult
or seek the approval of Parliament. Given that the armed forces are not subject to the ordinary
courts of law, it is therefore exceedingly difficult for the public to hold the army to account for
transgressions in the course of maintaining internal order. For instance, there are allegations
that the armed forces used excessive force in dealing with the post-election riots in December
2007.407 These allegations have been summarily dismissed by the armed forces.
It should be noted that the new constitution reorganises the policing agencies. It establishes
a National Police Service, which consists of the Kenya Police Service and Administration Police
Service (article 243). The National Police Service is headed by an Inspector General appointed
by the president with the approval of Parliament. The Inspector General serves for a single
term of four years, although the president may dismiss him or her – without any reference to
Parliament – for ‘serious violation’ of the constitution, gross misconduct, physical or mental
incapacity, incompetence, bankruptcy or any other just cause. However, these provisions fall
short of establishing a single police agency, as the Commission of Inquiry into Post-Election
Violence recommended. Nevertheless, it is arguable that the objective of integrating the two
policing agencies can still be realised by enacting a law (as envisaged by article 243) that
introduces uniformity in the practices of the two agencies and shields them from political
manipulation. Such legislation would then need to be accompanied by uniform force standing
orders, guidelines and operational arrangements, on the rationale that only such reforms would
enable the Inspector General to exercise effective command over the National Police Service.

Policing strategy and performance

Policing in Kenya has, however, been characterised by poor performance and abuse. First,
the KPF is understaffed and the officers are not adequately equipped in terms of resources to
effectively perform their duties. The current 1:850 ratio of police officers to citizens falls short of
the UN recommended ratio of 1:450. Nevertheless, it must be acknowledged that the recruitment
rate of police officers has increased to 2 000–3 000 officers recruited per year.408 According
to the Deputy Police Spokesperson, the force is also adversely affected by a high death rate of
600–700 per year.409
In order to enable the KPF to perform the above functions, the Criminal Procedure Code
(CPC)410 and the Police Act give police officers various powers. These include powers to arrest
suspected criminals, conduct searches and investigations and use firearms. There are instances
where officers of the KPF have abused these powers. For example, the constitution requires
that any person who is arrested or is detained by the police should be informed of the reasons
for the arrest or detention and brought before a court ‘as soon as is reasonably practicable.’411
Further, the constitution provides that if this is not done, then such a person may be entitled

407 See e.g. United Nations Human Rights Council (2009: 18).
408 Interview with Charles Owino, Deputy Police Spokesperson, Kenya Police.
409 Ibid.

410 Criminal Procedure Code, chapter 75, Laws of Kenya.

411 Constitution of Kenya 1963, section 72.

128 PART II kenya: Justice sector and the rule of law

to compensation for unlawful arrest or detention.412 One of the practical implications of these
constitutional provisions is that the police may legally arrest and detain anybody without just
cause for a period of up to 24 hours. In fact, KPF officers frequently arrest and detain suspects
they do not intend to charge with any particular offences, especially through a practice known as
‘the Friday Collection’.413 They make arrests on Friday evening, solicit bribes from those arrested
and tell those who refuse that they cannot have access to a lawyer or magistrate until Monday.414
In the past, police officers have been known to contravene section 72 of the constitution by
detaining suspects for extended periods of time. Courts have, however, taken a stand against
this behaviour and have dismissed cases involving defendants who had been detained for
an unreasonable period of time before being charged. Acquitting a defendant who had been
detained for eight months before being taken to court, Court of Appeal judges, Omollo and
Deverrell, clearly reiterated that:
an unexplained violation of a constitutional right will normally result in an
acquittal irrespective of the nature and strength of evidence which may be
adduced in support of the charge.415

The second major issue of concern has been the abuse of the power of the police to use firearms.
Section 28 of the Police Act stipulates that police officers can, firstly, use firearms to prevent the
escape of a convicted felon from lawful custody,416 to prevent another person from rescuing or
attempting to rescue another from lawful custody417 and to secure the arrest of a person who is
resisting the arrest.418 The proviso to the said powers is that in the case of a felon escaping from
lawful custody, the officer must have reasonable grounds that the escape can only be prevented
by use of firearms and that the officer must warn the felon of his or her intention to use the
firearm.419 In the other instances, the officer must have reasonable grounds to believe that he or
any other person was in danger of grievous bodily harm and that the arrest can only be secured
or the rescue can only be prevented by use of firearms.420
In practice, police officers have been accused of using firearms indiscriminately. A case in
point is 29-year-old Dr James Muiruri who was brutally shot five times at close range following a
disagreement with a police officer. Not only was Dr Muiruri unarmed, but as admitted by a police
spokesperson, it was unjustified to shoot him to death.421 This is just one of the many cases of
extra-judicial killings in Kenya which have been the subject of numerous reports and newspaper
articles.422 According to the UN special rapporteur on extrajudicial, arbitrary or summary

412 Ibid., section 72(6).

413 Auerbach & Baudh, supra note 54 at 35.
414 Ibid.

415 Albanus Mwasia Mutua v. Republic (2004) eKLR at 7.

416 Police Act, section 28(a).

417 Ibid., section 28(b).

418 Ibid., section 28(c).

419 Ibid., section 28(i).

420 Ibid., section 28(ii).

421 Wachira & Waithaka (2009).

422 Commonwealth Human Rights Initiative & Kenya Human Rights Commission (2006: 21); Mathangani (2009).

6 . C riminal J u stice 129

executions, Prof. Phillip Alston, extrajudicial killings in Kenya appeared to be ‘widespread and
some of the killings are opportunistic, reckless or personal’.423 Similarly, Amnesty International
has reported that in Kenya, allegations of ‘torture and unlawful killings by state security officials
persisted’.424 There is an urgent need for the government to end the culture of impunity that is
displayed amongst officers of the KPF.
The KPF has also been accused of inefficient and selective policing. For instance, there is a
perception that the police are incapable of tackling crime effectively. It is thus reported that the
police frequently ignore particularised threats.425 Accordingly, many victims of criminal activities
do not even bother to report to the police, whom they perceive to be inefficient or corrupt.426
Police officers also commit or participate in criminal activities.427 Further, they are often heavy-
handed, insensitive and use excessive force in their dealings with citizens. The KPF is also
perceived to be corrupt, and Transparency International has consistently ranked it as the most
corrupt national institution over the last five years.428
In addition, the police force has been politicised unduly throughout the history of the Kenyan
Republic.429 Thus, the KPF has often been deployed as an instrument for the political repression
of the citizenry. Successive governments have also criminalised poverty, through statutes such as
the Vagrancy Act430 and specific provisions such as section 183 of the Penal Code,431 which targets
persons referred to as ‘rogues and vagabonds’. Furthermore, many informal activities ‘as well as
the very existence of informal settlement itself are considered criminal and occasionally targeted
by the government’.432 The very concept of crime in Kenya has thus become problematic as the
boundaries of de jure and de facto criminality are not only vague but keep shifting.433
Moreover, there is credible evidence that successive governments have used security
agencies to achieve regime objectives. For example, the Akiwumi Commission, which inquired
into the tribal clashes in Kenya in the 1990s, unequivocally concluded that the KPF and the
provincial administration ‘connived’ in the perpetration of the clashes.434 More recently, the
Commission of Inquiry into Post-Election Violence established that ‘on a number of occasions
the decision-making and behaviour of senior police officers was influenced by factors outside
the formal operating arrangements, chain of command and in direct conflict with mandated
duties’.435 For example, it established that the Head of Public Service and Secretary to the Cabinet

423 See e.g. United Nations Human Rights Council, supra note 65 at 6.
424 Amnesty International (2009: 195).
425 See e.g. Daily Nation (2002); Mwangi (2009).

426 Ruteere & Pommerolle (2003: 594); Ngugi et al, supra note 2 at 13; Anderson, supra note 2 at 544 (observing that ‘institutional

and opportunistic corruption among police officers has long been recognised as a serious problem in Kenya’); Standard (2009).
427 See e.g. Muiruri (2005: 5) (Reporting that ‘[d]uring the 2001–2004 period … 312 police officers were arrested for being involved

in violent crime’.); Ruteere & Pommerolle, supra note 84; Ngugi et al supra note 2 at 13; Republic of Kenya (2008B).
428 Transparency International (2008).

429 Ruteere & Pommerolle, supra note 84 at 591–592.

430 Vagrancy Act, chapter 58, Laws of Kenya (now repealed).

431 Penal Code, chapter 63, Laws of Kenya.

432 Ruteere & Pommerolle, supra note 84 at 593.

433 Ruteere & Pommerolle, supra note 84 at 593; Willis (2003).

434 Republic of Kenya (1999: 284).

435 Republic of Kenya (2008B).

130 PART II kenya: Justice sector and the rule of law

ordered the Administration Police to train a large number of its officers before polling day so
that they could act as agents for the Party of National Unity during elections polling.436 Further,
this Commission established that the NSIS acted as an agent of the government in the electoral
process. 437
This Commission also found the legislative framework for policing to be inadequate.
According to the Commission, some of the main weaknesses of the Police Act and the Police
Standing Orders are: unclear responsibilities and confused lines of accountability; constraints
around the ability to place the right people in the right jobs; an inadequate system for managing
staff performance and discipline issues; little guidance to work with partner agencies,
domestically or internationally; and few supports to enable the use of modern policing tactics.438

Qualifications, training and remuneration of police officers

The recruitment of police officers is governed by the Force Standing Orders.439 While there
are no fixed educational requirements for recruitment, the Force Standing Orders provide that
‘preference is given to candidates with Kenya Certificate of Secondary Education, who have
completed Form IV or are in possession of Kenya Certificate of Primary Education and are
otherwise intelligent’.440 Further, candidates must pass aptitude tests, must be between the
ages of 18 and 25 years, be medically fit, be of good vision, hearing and physique and have no
previous criminal record.441 In addition, ‘candidates who are otherwise outstandingly suitable
for enlistment’ may be recruited even if their physique is of a ‘slightly lower standard’ than
the norm.442 The Kenya Police Force therefore has discretion in the recruitment of officers,
which can be abused. An evaluation of the KPF’s recruitment practices thus observes that
‘the recruitment exercise has over the years been characterised by irregularities ranging from
nepotism, tribalism, and political patronage to favouritism and corruption, with wide-ranging
negative effects on service delivery’.443
Upon being recruited, police officers attend a nine month training programme in various
institutions, in which they are instructed by selected police officers (‘uniformed instructors’)
and civilians (‘non-uniformed instructors’).444 The former are selected by the Commissioner
of Police ‘ostensibly based on previous class performance and talent spotting by instructors
who trained the officer during previous courses’.445 The latter are selected by the Public Service
Commission through advertisements in the media.446 The training institutions established by
the KPF include the Kenya Police College, the General Service Unit (GSU) Training School,

436 Ibid.
437 Ibid. at 367.
438 Ibid. at 436.

439 Kenya Police & Security Research & Information Centre (2004: 37).

440 Ibid.

441 Ibid.

442 Ibid.

443 Ibid.

444 Ibid. at 41.

445 Ibid.

446 Ibid

6 . C riminal J u stice 131

Provincial Police Training Centres, the Criminal Investigation Department Training School and
the Force Driving School.
Research by the Security Research and Information Centre (SRIC) shows that ‘some of the
officers deployed as instructors are not interested in the job and do not get relevant training to
become instructors, while some field staff are transferred to training institutions against their will,
which tends to affect their morale’.447 Many uniformed officers thus regard deployment to the
training institutions as a form of punishment.448 In addition, the SRIC study found that ‘[c]urrent
training facilities are insufficient, dilapidated and outdated.’449 It is also worth noting that even
though the KPF has acknowledged that the public complain of police brutality and disregard
for human rights,450 police training programmes do not fully incorporate modules on human
rights.451 In these circumstances, the KPF can hardly produce properly trained police officers.
At the same time, police officers are poorly paid; currently police constables earn a monthly
salary of KES 11 000 (about US$ 150). 452 Also, despite the occupational hazards they face while
performing their duties, police officers do not have adequate medical and risk allowances.453
According to the SRIC, ‘the existing levels of compensation for police in Kenya are not only well
below those in the private sector but frequently below the living wage’.454 This has motivated
police officers to ‘engage in corruption and other opportunistic behaviour as survival strategy’.455
In addition, the living conditions of police officers are ‘pathetic’ due to an acute shortage of
houses, especially in Nairobi and other urban centres.456 It must be acknowledged that the
government has recently embarked on a project for housing units for police officers, but there is
still a need for more houses. The morale of police officers is also low, given that promotions are
not always based on merit.457 In general, police officers are deployed ‘without strict adherence to
laid-down procedures’, and the process is ‘influenced by factors such as favouritism, nepotism
and corruption’.458 As a result, skilled officers are ‘deployed to offices or stations where their skills
are not utilised, while individuals lacking such skills are entrusted with duties they are not trained
for’.459 It should be noted that the National Task Force on Police Reforms has recommended that
the conditions of service and the welfare of police officers should be improved. Among other
things, the Task Force has asked the government to: improve the remuneration and allowances
of police officers; take the interests of family members into account when transferring police
officers; provide medical and life insurance cover; and improve the quality of their housing and
accommodation. The government has already begun to implement these recommendations.

447 Ibid.
448 Ibid.
449 Ibid. at 42.

450 Kenya Police Force (2004: 10).

451 Kenya Police Force (2006: Appendix I).

452 Interview with Charles Owino, Deputy Police Spokesperson, Kenya Police Force.

453 Kenya Police & SRIC, supra note 97 at 76; interview with Charles Owino, Deputy Police Spokesperson, Kenya Police Force.

454 Kenya Police Force & SRIC, supra note 97 at 73.

455 Ibid.

456 Ibid. at 79–80.

457 Ibid. at 53.

458 Ibid. at 54.

459 Ibid.

132 PART II kenya: Justice sector and the rule of law

Civilian oversight of the police
The Police Act empowers the Minister for Internal Security to make regulations governing
discipline.460 The Police Regulations enumerate various offences against discipline, such as
unlawful use of violence, unreasonable use of firearms and negligent performance of duty. These
regulations are reinforced by the Force Standing Orders, but which are not accessible to the
public.461 The effectiveness of these internal mechanisms is doubtful. First, public perceptions of
the corruption and excesses of the KPF are very high.462 In Nairobi, for instance, police officers
have frequently killed individuals they erroneously mistook for car-jackers. Second, the KPF
rarely punishes errant officers. For instance, on numerous occasions errant officers have simply
been transferred to other stations instead of being punished.
Given the deficiencies of the internal regulatory mechanisms, there is a need for
institutionalised mechanisms for holding the police accountable to the citizenry. Without such
reforms, the KPF will not regain the trust of the public, which is, however, necessary for effective
policing. In particular, policing needs to be democratised by sharing policing information
with the citizenry, and by giving them voice and influence in the decision-making process.463
Establishing civilian oversight bodies constitutes one way of democratising the policing decision-
making process. In September 2008, a Public Oversight Board was constituted vide Gazette
Notice 8144. As of the writing of this report, the Board was not yet in operation; its secretariat
was yet to be set up.
While it acknowledged the need for police accountability, the establishment of this Board
failed to address certain pertinent issues. First, it did not address the underlying issues. The
KPF was established, and continues to be based, on a regime that does not demand police
accountability. Police conduct continues to be dealt with in utmost secrecy and even governing
provisions such as the Force Standing Orders are not accessible to the public. This betrays the
underlying culture that is not founded on openness.
Secondly, there is a need for a legal framework to govern civilian oversight of policing.
For example, there was no legal basis for the Internal Security Minister to establish the
Oversight Board. The Police Act vests the power to direct, supervise and control the KPF in the
Commissioner of Police, not the minister.464

Police reform
A number of programmes have been initiated by the KPF and the government in the last
five years to reform policing in Kenya. These programmes include the Police Strategic Plan
2004–2008, the Police Reforms Task Force, the Kenya Police Reforms Framework and the
Government, Justice, Law and Order Sector (GJLOS) Reform Programme. In an effort to
implement the recommendations of the Commission of Inquiry into Post-Election Violence,
the government recently established yet another task force – the Police Reforms Task Force (also

460 Police Act, section 65(e).

461 Police Act, section 5.
462 See e.g. Kimilu (2003: 12).

463 Luna (2000: 1163–1164).

464 Kipkorir (2008); Police Act, Section 14A.

6 . C riminal J u stice 133

known as the Ransley Task Force after its chairman). Thus far, however, these reform initiatives
have not transformed policing in any significant respect. Again, it remains to be seen whether
the recommendations of the Ransley Task Force will be implemented. The Police Strategic
Plan details various measures that the KPF proposes to take in order ‘to be a world-class Police
Service, with a people-friendly, responsive and professional workforce’.465 Its objectives include
developing a national policy on policing, improving coordination between public and private
security services, eradicating corruption in the service and strengthening the institutional
framework for policing. None of these objectives have been realised so far.
The Kenya Police Reforms Task Force was established by the government to examine
and review the administrative and institutional structures of the KPF, the legal framework for
policing, the standards and practices on recruitment, training and career development and terms
and conditions of service. The Kenya Police Reforms Framework is a research survey that was
carried out by the SRIC at the invitation of the Commissioner of Police.466 It sought to provide a
comprehensive guide for work of the Task Force. In its report, the Task Force notes that ‘[e]xisting
weakness in accountability and responsibility in police services can be traced to the entrenched
culture of impunity and patronage, whereby officers involved in misconduct, crime and violation
of human rights, feel confident that they will not be disciplined or held accountable.’467 The
Task Force advocated the reform of recruitment policies and terms and conditions of service, the
establishment of a civilian oversight board and the establishment of a service charter. Despite
promises by the KPF to implement the report of the Task Force, ‘there has been no sign of actual
reform’.468
The GJLOS Reform Programme is a sector-wide joint initiative of the government and
various development partners, whose objective is to strengthen the capacities of the institutions in
the governance and legal sector. The police constitute one such institution, and the programme’s
objectives here include improving police responses to corruption, improving crime reporting
procedures, increasing training in investigation techniques, and providing better equipment and
technical assistance. A key achievement of the GJLOS Reform Programme is creating awareness
of the different governance institutions such as the KPF and the standards expected of these
institutions. The GJLOS Reform Programme has facilitated research initiatives and training
programmes for officers. In 2007 for example the GJLOS Reform Programme commissioned
PricewaterhouseCoopers to engage in a pilot training programme for change in police culture
and attitude.469 The pilot training programme not only facilitated training of officers but also
provided a forum where issues were identified and recommendations made.
The KPF has also been working together with certain NGOs which provide training and
resource materials on human rights. The African Network for the Prevention Against Child
Abuse and Neglect (ANPCAN) for instance worked together with the police to publish guidelines

465 Kenya Police Force (2004: 6).

466 Kenya Police & SRIC, supra note 97 at x.
467 Kenya Police Reforms Task Force (2005: 64).

468 Commonwealth Human Rights Initiative & Kenya Human Rights Commission, supra note 80 at 62.

469 PricewaterhouseCoopers (2007).

134 PART II kenya: Justice sector and the rule of law

on how to deal with children in contact and/or in conflict with the law.470 The Federation of
Women Lawyers (FIDA) together with the KPF have also published a training manual for police
officers on gender and human rights.471 Other organisations such as Save the Children have
assisted in the setting up of child protection desks at police stations. The KPF have also involved
FIDA in training officers on gender rights.472 These joint efforts between the KPF and NGOs are
unprecedented in Kenya and are playing a role in reforming the KPF.
Following the international mediation process that sought to assist Kenya to resolve the
national crisis generated by the bungled presidential election of December 2007, a Commission
of Inquiry on Post-Election Violence (CIPEV) was established in May 2008. Among other things,
CIPEV was tasked with investigating the role of security agencies during the course of the post-
election violence and recommending measures to be taken to prevent the occurrence of similar
deeds in future. CIPEV recommended that policing reforms should be guided by the principles
of fair representation of all ethnic groups in the policing entities, impartiality and cultural
sensitivity, decentralisation informed by a ‘single integrated command model based upon
community policing’, respect for human rights, legal and political accountability and integration
of the Kenya Police Service and Administration Police.473 Second, CIPEV recommended that the
Police Act should be amended with a view to strengthening ‘police governance, accountability
and organisational arrangements in a way which is suitable for a contemporary age’ and
improving the effectiveness of the police.474 Third, CIPEV recommended the enactment of ‘a
new and modern code of conduct’ that can facilitate the establishment of trust for policing actors,
which is an essential component without which the police cannot function effectively.475 Such
a code of conduct would seek to instil ethical standards in policing, including honesty, integrity,
professionalism, fairness and impartiality, respect for people and confidentiality.476
Fourth, CIPEV recommended that the criminal investigations process should be
strengthened since ‘quality investigations are the cornerstone of the justice system as far as
bringing perpetrators to justice is concerned’.477 The question of independent investigations is
particularly important. As CIPEV established, ‘[t]he Police Service has a fundamental problem
with its investigative capability’.478 Further, investigations by the Commission ‘found that there
was inability or reluctance to effectively investigate serious crimes and their perpetrators even
when strong evidence existed’.479 In addition, CIPEV reports that ‘police appeared unwilling or
incapable of investigating and arresting politically powerful individuals implicated in the post-
election violence instead concentrating on the lower level perpetrators’.480 The Commission also

470 ANPCAN (2006).

471 FIDA (2008).
472 Interview with Moses Otsieno, Officer at FIDA.

473 Republic of Kenya (2008B) at 435–437.

474 Ibid. at 438.

475 Ibid. at 439.

476 Ibid.

477 Ibid. at 440.

478 Ibid. at 422.

479 Ibid.

480 Ibid.

6 . C riminal J u stice 135

established that the Police service has weak systems and approaches to investigating incidents
where police officers are involved.481 There is therefore a compelling case for establishing an
independent and autonomous Directorate of Criminal Investigations.
Other key recommendations of CIPEV include establishing a Police Service Commission
and Civilian Oversight of Policing. It envisaged that the Police Service Commission would
be responsible for holding an amalgamated police agency (that integrates the Kenya Police
Service and Administration Police Service) to account.482 With respect to civilian oversight of
policing, it envisages the ‘establishment of a well researched, legally based, professional and
independent Police Conduct Authority’.483 Among other things, the Police Conduct Authority
would be responsible for investigating the conduct of policing agencies and officers.484 In this
regard, CIPEV is right to dismiss the Police Oversight Board485 created by the government in
September as lacking ‘the key components or properly functioning arrangements necessary for
the provision of quality civilian oversight of the police’.486
CIPEV had recommended that the process of realising these recommendations should
be guided by a ‘specialised and independent Police Reform Group (PRG)’ consisting of both
national and international policing experts.487 Instead, the government established a National
Task Force on Police Reform in May 2009 to ‘examine the existing policy, institutional,
legislative, administrative, and operational structures, systems and strategies and recommend
comprehensive reforms taking cognisance of the recommendations contained in Agenda 4,
Kriegler, Waki and other Police related reports so as to enhance police efficiency, effectiveness
and institutionalise professionalism and accountability.’ In its report,488 the Task Force made the
following key recommendations:
• That an independent policing oversight authority composed of civilians should be
established to enhance police accountability;
• That a code of ethics should be established to address conflicts of interest and corruption
involving police officers; and
• That a statutory police reforms implementation commission should be established to
coordinate, monitor and supervise the implementation of the recommendations of the
Task Force.

After receiving the report of this Task Force, the government established the Police Reforms
Implementation Committee, which is currently preparing bills on civilian oversight of policing,
new legislation to govern policing and private security providers for consideration by Parliament.

481 Ibid.
482 Ibid. at 438.
483 Ibid. at 441.

484 Ibid.

485 See Kenya Gazette Notice 8144, 4 September 2008.

486 Republic of Kenya (2008B) at 441; See also Kipkorir, supra note 122.

487 Republic of Kenya (2008B) at 434, 483.

488 Republic of Kenya (2009B).

136 PART II kenya: Justice sector and the rule of law

C. The Attorney General and prosecutions
In the repealed constitution, the power to decide if and when an individual could be prosecuted
for a criminal offence was vested in the Attorney General (AG). Further, this constitution gave
the AG the power to require the Commissioner of Police to investigate any matter. Section 26(3)
of the repealed Constitution provided as follows:
The Attorney General shall have power in any case in which he considers
it desirable so to do -
(a) to institute and undertake criminal proceedings against any person
before any court (other than a court-martial) in respect of any offence
alleged to have been committed by that person;
(b) to take over and continue any such criminal proceedings that have been
instituted or undertaken by another person or authority; and
(c) to discontinue at any stage before judgment is delivered any such
criminal proceedings instituted or undertaken by himself or another
person or authority.

These powers of the AG have been exercised in a manner that does not attract public confidence
in the criminal justice system, even though the repealed constitution empowered the courts to
regulate its exercise.489 On the one hand, courts have deferred to the AG in the exercise of the
power to prosecute, and have consistently held that they have no powers to direct the AG on how
to exercise the power to prosecute or not to prosecute for any offence.490 This power has often
been abused, and results in individuals being prosecuted, only for charges to be dropped along
the way. The lack of regulation of this power has resulted in the criminal justice system being
used to persecute the citizenry. According to Godfrey M Musila, for example, Kenya’s ‘history
is replete with examples of prosecutions conducted for reasons other than public interest, thus
amounting to political witch-hunts and in some cases to settle personal scores’.491 The case of
Veronica Njeri Kiarie v. Republic492 illustrates this. The applicant had been arrested and charged
with robbery with violence. The case was later withdrawn after the hearing had been adjourned
three times. The applicant was subsequently rearrested and charged again, this time with the
offence of causing grievous bodily harm. The prosecution then sought to terminate the case.
The applicant then sought the court’s intervention, contending that she had faithfully attended
court for three years and spent considerable resources on the case and that the Attorney General
was abusing his powers by now seeking to terminate the case. The court agreed, holding that
‘the Attorney General’s discretionary power to enter nolle prosequi can only be exercised in good
faith and for the public good’ and that where that power is exercised in bad faith the court will
intervene to ensure that it is not misused.493

489 Constitution of Kenya 1963, section 60(1), 123(8).

490 See e.g. Republic v. Shah (1986) KLR; John Otieno Oluoch v. Republic, High Court Misc. Criminal Application No. 537 of 1992.
491 Musila (2007: 31).

492 Veronicah Njeri Kiarie v. Republic, High Court of Kenya at Kakamega, Misc. Criminal Application No. 29 of 2005, (2005) eKLR.

493 Ibid. at 3.

6 . C riminal J u stice 137

 Conversely, while the courts have in many cases deferred to the AG in the exercise of the
power to discontinue criminal proceedings initiated by private citizens, they are increasingly
more assertive in regulating the exercise of this power.494 This also arises out of a concern that
this power has been abused, to the detriment of the legitimacy of the criminal justice system. At
the same time, the privilege to initiate private prosecutions can also be abused, and the courts
have established principles to regulate its exercise. These principles explain how the provisions
of the Criminal Procedure Code which permit private prosecution are to be exercised.495 The
principles require an applicant who intends to conduct a private prosecution to first make
a report to the AG or the police, so as to give these institutions a reasonable opportunity to
commence criminal proceedings. The courts will only sanction a private prosecution where the
AG or the police demonstrate an unreasonable reticence to act and there is a clear likelihood of
a failure of justice unless the suspect is prosecuted.496

Selective prosecution of corruption cases

The discretionary powers of the AG, coupled with the grant of prosecutorial powers to the Kenya
Anti-Corruption Commission (KACC), has resulted in selective and arbitrary application of the
criminal law. The KACC is established by the Anti-Corruption and Economic Crimes Act of
2003. Its primary mandate is to investigate matters that raise suspicion that conduct constituting
corruption or economic crimes has taken place.497 Where any such matter comes to the attention
of the KACC, it is required to refer ‘any offence that comes to its notice to any other appropriate
person or body’.498 The KACC therefore shares the responsibility of investigating crimes with
the Kenya Police Force. It is important to note that it is up to the KACC to decide whether to
investigate any matter. Because there are no objective standards regulating how this important
decision should be made, the power to investigate is prone to abuse and can be subjective.
Conversely, the constitution gives the Attorney General power to ‘institute and undertake
criminal proceedings against any person before any court (other than a court martial)’.499 This
power is apparently absolute and can be exercised by the Attorney General ‘in any case in which
he considers it desirable so to do.’500 Similarly, the constitution does not establish any standards
to regulate the exercise of this discretionary power.
Typically, once the KACC has determined that conduct constituting corruption or economic
crime has occurred, it refers the matter to the Attorney General, who then makes a decision as to
whether or not to prosecute the individuals or entities in question. This is the point at which politics
invariably comes into play. In some cases, the Office of the Attorney General proffers charges
against the accused; in other cases it does not. And it is often unclear what criteria the Office of the
Attorney General uses to determine which cases merit prosecution and which cases do not.

494 See e.g. Waris (2005: 84–85).

495 Criminal Procedure Code, sections 88–90.
496 See Kihara v Kimani (1985) KLR 79; Floriculture International Limited & Others High Court Misc. Civil Application No. 114 of

1997; Otieno Clifford Richard v Republic (2006) eKLR.

497 Kenya Anti-Corruption and Economic Crimes Act, No. 3 of 2003, section 7(1).

498 Kenya Anti-Corruption and Economic Crimes Act, No. 3 of 2003, section 7(3).

499 Constitution of Kenya (1963), section 26(3)(a).

500 Ibid., section 26(3).

138 PART II kenya: Justice sector and the rule of law

 The effect of the combined discretionary powers of the KACC and the Attorney General
is that investigations and prosecutions in cases of corruption and economic crimes are in
many cases perceived by the public to be ‘selective and discriminatory’.501 In practice, it is quite
apparent that only minor players are investigated and prosecuted by these government bodies,
while the major players appear to be untouchable. Critics of the KACC thus maintain that it is
yet to prosecute a single high-profile corruption case.
The Anglo Leasing scandal provides an example of such selective investigation and
prosecution.502 In this major corruption scandal, the Ministry of Home Affairs had initially
sought to acquire tamper-proof passports, and invited five firms to tender for their production. A
technical committee of the Ministry of Finance, Immigrations Department and the Government
Technology Services then disqualified all the bids, and recommended that the project be expanded
to include other security facets in the issuance of new visas, passports and computerisation of the
immigration records, thereby blowing up the cost of the project beyond Treasury’s means and
necessitating external financing.
At this point Anglo Leasing and Finance Limited, a firm purportedly with registered offices
in the United Kingdom, entered into the picture and submitted an unsolicited technical proposal
for the supply and installation of an Immigration Security and Document Control System
(ISDCS). Under the proposal, Anglo Leasing was to finance the project and supply the ISDCS
through its subcontractor, Francois-Charles Obethur Fiduciare based in Paris. The Permanent
Secretary in the Ministry of Home Affairs then wrote to the Ministry of Finance, informing
it of the proposal and seeking to proceed with the procurement under security classification.
A contract worth KES 2.7 billion was subsequently signed between Anglo Leasing and the
government, although no due diligence test was conducted on the firm. The Ministry of Finance
then paid the firm a commitment fee of KES 95 million. The government then cancelled the
contract once the scandal was exposed. The government later sacked the permanent secretaries
in the Ministries of Finance and Home Affairs. But the ministers, who gave final approval for the
projects, initially declined to resign, although one of them later resigned. Then, the same firm
was also awarded a contract worth KES 4 billion for constructing forensic laboratories for the
police force, without competitive tendering.
The KACC investigated the matter and recommended that the Attorney General should
prosecute certain public officers. However, the Attorney General declined to prosecute these
public officers on the grounds that the KACC investigations were incomplete and had failed to
disclose that any specific offences had been committed.503 The Attorney General then referred
the matter back to the KACC for further investigations. The KACC then retorted that it had
‘offered watertight cases for prosecution’.504 Some three years later, the KACC is apparently
still conducting further investigations. As we can see, the outcome of these inter-agency power
games is a perennial merry-go-round that results in no charges ever being brought against
corrupt persons. Justice is thereby delayed, and inevitably denied. It is also quite possible that this

501 Imanyara (2004: 52).

502 See e.g. A Harvest of Corruption Scandals, Standard, 5 February 2005.
503 See e.g. Mugonyi & Barasa (2006).

504 Ibid.

6 . C riminal J u stice 139

merry-go-round is the result of collusion between the agencies, whose motivation is to frustrate
the legal process. Indeed, a government that is not keen on fighting corruption has an incentive
to encourage such collusion.
The new constitution now seeks to enhance objectivity and accountability in investigations
and prosecutions. In the new constitution, the task of exercising the state’s powers of prosecution
will now be exercised by the Director of Public Prosecutions (DPP) (article 157). The primary
functions of the Attorney General will now be to give legal advice to the government and
represent it in legal proceedings (article 156). Further, the new constitution provides that the DPP
can only take over a criminal suit with the permission of the person or authority who instituted
it. In addition, the DPP can only discontinue a prosecution with the permission of the court.
In order to preclude the abuse of the power to prosecute, the new constitution requires that its
exercise ‘shall have regard to the public interest, the interests of the administration of justice and
the need to prevent and avoid abuse of the legal process’.

D. Non-state action against crime

The deficiencies of the criminal justice system have led to the emergence of private modes of
security provision. Among the poor, vigilante groups have emerged to fill the vacuum created by
the state. Among the rich, there has been a proliferation of corporate security. A culture of ‘mob
justice’, which involves the lynching of criminals by the public, has also developed.505 The public
take the law into their own hands in this manner because they are of the opinion that the police
and the courts are unable to guarantee justice. It is a reaction to the fact that in numerous cases,
criminals they have apprehended and handed over to the police are released for lack of evidence,
or because the police interfered with the evidence so that it cannot be used in court, or powerful
criminals bribed judicial and police officers.506
The emerging culture of mob justice is a demonstration that the citizenry may be losing
faith in the authority of law. As Ewa Wojkowska has observed, ‘[i]f there are no viable means of
resolving societal disputes, the alternatives are either violence or conflict avoidance – which in
itself is likely to lead to violence later.’507
Vigilante groups are to be found mostly in Kenya’s urban areas, although they increasingly
have a presence in the rural areas. Examples include the Mungiki, Taliban, Jeshi la Mzee,
Baghdad Boys, Kagio, Kaya Bombo Youth and the Sungu Sungu. Although these groups often
engage in criminal activities, the citizenry perceive them to be an appropriate response to crime
in many cases.508 Some vigilante groups for instance operate to curtail the activities of other
vigilante groups that may be considered a threat to security. For example, the Kagio vigilante
group has been fighting the Mungiki in Kirinyaga.509 There have been incidences where
altercations between the Mungiki and other vigilante groups have led to mass killings. In April
2009, 26 people were killed in Mathira as a result of clashes between the Mungiki and local

505 See e.g. Gimode (2001: 313).

506 Ibid.
507 Wojkowska (2006: 6).

508 See e.g. Anderson, supra note 2.

509 (Nation: 2009).

140 PART II kenya: Justice sector and the rule of law

vigilante groups.510 In Kagumo, members of the Mungiki sect have been hacked to death at a
spot named ‘the Hague’. A case in point is 17-year-old Peter Kinyua who admitted to having been
forced to take the Mungiki oath. The local vigilante group instructed him to attend a meeting
to narrate how he joined the sect. Hoping to be spared, he attended the meeting in his father’s
presence only to be ‘sentenced’ and hacked to death.511 In some cases, vigilante groups are even
touted as a form of community policing, since they often consult with police officers in their
areas of operation.512 On the other hand, the police are often ruthless in dealing with vigilante
groups, and have, for example, been accused of executing members of these groups without
following the due process of the law. In June 2007, for example, the police are reported to have
executed members of the Mungiki in the course of implementing a ‘shoot to kill’ policy of the
government.513
This ambivalent relationship between the police and vigilante groups only serves to
enhance citizen perceptions of insecurity, as the police are often accused of colluding with
vigilante groups. Indeed, there is a perception that the government condones vigilante groups
whenever it is politically expedient. This perception is encouraged by the fact that members of
these groups often carry firearms, yet the police do not apprehend them.514 It is also reported
that some powerful political actors who are not in government also finance vigilante groups that
they use to achieve their political objectives.515 It therefore comes as no surprise that vigilante
groups have been at the heart of the organised violence that has accompanied every general
election since 1992.516 The net effect of these complex relationships between vigilante groups,
the police, government and powerful political actors is that government loses its monopoly of
force, and anarchy becomes increasingly widespread. A major concern about vigilante groups is
their resilience and potential to become uncontrollable. The Mungiki is an example of a group
that has existed for over a decade and continues to be a threat to security. They are reported to
have been involved in mass killings as early as 2002.517 Interventions dealing with such vigilante
groups are challenging owing to the unique dynamics presented by such associations. Vigilante
groups can be quite dangerous and powerful yet able to disguise the extent of their membership.
Aware of the imminent danger posed by such groups, the KPF has taken tough measures against
the Mungiki. Thus, crime control considerations are placed in opposition with human rights
considerations. Crime control considerations seem to take precedence and the KPF has been
accused of killing members of the Mungiki sect without due process. Mutuma Ruteere notes
that the public also seem to be torn between these considerations and some members of the
public are in support of the police attempts to curtail the activities of the Mungiki. The United
Nations Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and
Summary Executions highlight that conflict situations and public emergencies do not provide a
510 Police Commissioner (2009); Ochami (2009).
511 (Standard: 2009); Nation (2009B).
512 PricewaterhouseCoopers, supra note 127 at 13
513 See e.g. Safer Access (2007: 9).
514 Anderson, supra note 2 at 14.
515 See e.g. International Crisis Group (2008).
516 See e.g. Human Rights Watch (2002).
517 Ruteere (2008: 17).

6 . C riminal J u stice 141

justification for such executions.518 Thus, the threat to security posed by vigilante groups does not
justify arbitrary killing of members. Nevertheless, the occurrences strongly suggest that vigilante
groups must be dealt with right at the outset before they take root and become a menace.
Private policing arrangements in Kenya largely consist of the activities of the private
security industry (PSI). There are also neighbourhood associations that provide security services.
Typically, these associations pool resources to hire security guards. The activities of the PSI
include guarding of property, protection of persons, transport of cash and other valuables,
installation and management of electronic security devices such as alarms and investigation and
risk management. Many private security firms are set up by police officers still in the employ of
the KPF, while others are formed by retired policemen and army officers. There are about 2 000
private security firms in the country, which mostly operate in the urban areas. The PSI employs
about a quarter of a million people and has an annual turnover of about KES 3.2 billion.519
Notable features of the PSI in Kenya include the following. First, private security guards
are typically poorly-trained and therefore ill-equipped to perform their jobs.520 Second, private
security guards are not allowed to carry firearms and are not effective since they are invariably
confronted by criminals who possess sophisticated weapons. Third, private security guards are
poorly paid, earning about KES 5 000 per month.521 They also work under very poor conditions.
For instance, they work for long hours, averaging about 12 hours a day and invariably do not wear
protective headgear.522
There is no legislative framework for the regulation of the activities of the PSI, which poses
a threat to the liberties of citizens that is not any less significant than that posed by the public
police. In addition, the PSI abuses the labour rights of workers.523 Furthermore, there is a need
to clarify their relationship with the public police, especially since a good number of them are
established by KPF officers. It therefore becomes important to regulate the activities of the PSI to
ensure their adherence to constitutional safeguards on individual liberties, respect of the labour
rights of security workers and responsiveness to the consumers of their services. Along with
legislation, an authority needs to be established to regulate the licensing of private security firms,
to set standards of conduct and to monitor the activities of the stakeholders.
The Private Security Service Providers Bill that is now being developed by the Police
Reforms Implementation Committee promises to fill this regulatory vacuum.

E. Fair trial
The repealed constitution guarantees the right of an accused person to a fair trial. The term
‘fair trial’ is fairly loaded with numerous principles. Underlying this concept are the principles
of affording an accused person a fair hearing within a reasonable time and by an independent
and impartial court established by law; the presumption of innocence until proven guilty; the

518 ESCR 1989/65 of 24 May 1989, article 1.

519 Okwatch (2005).
520 Ngugi et al, supra note 1 at 109.
521 Ibid.
522 Ibid. at 110.
523 See e.g. Okwatch, supra note 180.

142 PART II kenya: Justice sector and the rule of law

need of an accused to be informed, as soon as possible and in a language that they understand
of the nature of offence with which they are charged; the right of the accused to defend himself
either in person or by a legal representative of his choice; the entitlement to time and facilities to
prepare a defence; the right to cross-examination of witnesses; the entitlement to an interpreter
if need be and the non-applicability of laws retrospectively.524
These principles are part and parcel of the Kenyan criminal system. Moreover, the courts
have jealously guarded these provisions by ensuring that accused persons are guaranteed a
fair trial. The landmark case here is Githunguri v. Republic,525 where the court held that it is an
abuse of court process to charge a person with an offence after a decision has been made not to
prosecute him, and this decision has been communicated to him and assurances given that he
would not be prosecuted again. However, these principles have been constantly violated.

Delays in bringing cases to trial

The courts have recently had to grapple with the consistent abuse of the right to be heard within
a reasonable time. An arrested person must be taken to court within 14 days from the time of
arrest where the offence is punishable by death and within 24 hours from the time of arrest in
all other cases.526
In the recent past, the courts have unconditionally released many accused persons who
have been detained by the police for periods longer than the constitution permits.527 In doing so,
the courts have reasoned that any ‘unexplained violation of a constitutional right will normally
result in an acquittal irrespective of the nature and strength of evidence which may be adduced
in support of the charge’.528 Even though the courts may be technically correct in making such
decisions, this approach may have a deleterious effect on public respect for the authority of law.
It is perhaps out of a concern that this technical approach may be subverting the course of
justice that the Court of Appeal sought to clarify the law in Dominic Mutie Mwalimu v. Republic.529
Here, the appellant contended that he should be released since he had been taken to court 17 days
from the date of arrest, thereby breaching his constitutional right. The Court of Appeal declined
to do so, reasoning that ‘the mere fact that an accused person is brought before court either after
the twenty-four hours or the fourteen days, as the case may be, stipulated in the constitution
does not ipso facto prove a breach of the constitution’.530 In the court’s view, ‘each case has to
be considered on the basis of its peculiar facts and circumstances’.531 This case is thus a clear
example of how courts can interpret the law so as to salvage the criminal justice system from a
reputation that it produces absurd results even in clear cases.

524 Constitution of Kenya (1963), section 77.

525 Githunguri v. Republic (1986) KLR 1.
526 Constitution of Kenya (1963), section 72(3)(b).

527 Albanus Mwasia Mutua v. Republic (2006) eKLR; Gerald Macharia Githuku v. Republic (2007) eKLR; available at www.kenyalaw.org;

Paul Mwangi Murungu v. Republic, Criminal Appeal No. 35 of 2006 (unreported).

528 Albanus Mwasia Mutua v. Republic (2006) eKLR, available at www.kenyalaw.org.

529 Dominic Mutie Mwalimu v. Republic (2008) eKLR, available at www.kenyalaw.org.

530 Ibid. at 5–6.

531 Ibid. at 6.

6 . C riminal J u stice 143

 By adopting such a sensible approach, the courts are able to balance the constitutional rights
of accused persons with the practical resource and bureaucratic constraints that the police and
prosecutorial services may face in their efforts to enforce the criminal law. Indeed, the police
argue that the constitution’s 24-hour and 14-day deadlines are impractical and may hinder the
attainment of justice.532
Long delays in bringing cases to trial also lead to the violation of the presumption of
innocence. This presumption is only guaranteed in theory and more often than not, once
arrested, suspects are treated as if they were already convicted. First, the long periods of time
served in prison facilities while still on remand defy the ethos of presumption of innocence. In
effect, being acquitted after having served a year in remand is tantamount to serving a sentence
before being convicted. Some accused persons have been remanded for over three years.
Secondly, whilst the Prisons Act distinguishes between remand inmates and convicted inmates
in terms of the work they do while in the facility, the amenities provided for remand inmates
are no better than those provided for convicts. In fact, it is argued that the living conditions
for convicts are better than for remand inmates in certain respects. Due to the high numbers
of remand prisoners, their blocks are in most cases gravely overcrowded. Also, based on the
argument that their stay is temporary, remand prisoners are not provided with clothes.

Right to legal representation

A large number of accused persons cannot afford legal services. As such the lack of a national
legal aid scheme has undermined the right to a fair trial for many accused persons over
many years. Identifying this need, non-governmental organisations (NGOs) such as the
Legal Resources Foundation and CLEAR-Kenya have provided legal assistance to a number
of accused persons. Part G of this chapter details the contribution of such NGOs who have
provided paralegals in prisons. Without legal aid, many innocent people have found themselves
convicted.533 A National Legal Aid and Awareness Scheme was launched in 2008 which will
hopefully assist economically challenged accused persons.

F. Appropriate remedies and sentencing

Section 24 of the Penal Code enumerates the sentences that can be meted out by Kenyan
courts. These are: the death penalty; imprisonment; detention under the Detention Camps Act;
fine; forfeiture; payment of compensation; finding security to keep the peace and be of good
behaviour; any other punishment provided by the Penal Code or any other act. Courts mostly
commit criminals to imprisonment, which is therefore the most common form of sentence
executed by courts in Kenya. Other sentences include the death penalty and various non-
custodial sentences.

532 Kenya Police Force (2007: 17).

533 Legal Resources Foundation (2007: 49).

144 PART II kenya: Justice sector and the rule of law

Sentencing
Sentencing is largely discretionary. Save for the offences which attract a mandatory death penalty,
the Kenya Penal Code is couched in terms of the maximum penalties for the offences created.
Exceptions to this include section 89, which criminalises the possession of firearms and section
308, which criminalises the possession of dangerous or offensive weapons in preparation for the
commission of a felony. In both these cases minimum sentences of seven years imprisonment
and maximum sentences of 15 years imprisonment are provided. Unlike the Penal Code, the
recent Sexual Offences Act of 2006 provided minimum custodial sentences for sexual offenders.
This departure from the Penal Code provisions sought to deal with the lenient sentences that
were being meted to sexual offenders.
The criminal law statutes in Kenya do not adequately cover sentencing guidelines. Section 35
of the Penal Code, which addresses conditional discharges, merely hints at sentencing principles
and directs the judicial officer to take into account the circumstances of the offence and the
character of the offender. Hence, where only the maximum penalties are provided, the judicial
officers have wide discretionary powers on the appropriate sentences. Jurisdictions such as the
United Kingdom have sought to guide the judicial officers by setting out sentencing principles
in statutes and policy documents. For example, the UK Criminal Justice Act of 2003 provides
guidelines on the matters to be taken into account by the judicial officer at the sentencing
stage. These include the objectives of the sentence,534 the seriousness of the offence535 and the
circumstances of the offender.536 The UK Magistrates’ Courts Sentencing Guidelines, though
not binding, offer judicial officers with comprehensive guidelines in determining the most
appropriate sentence.537 Firstly, this document sets out general sentencing principles and then
provides detailed considerations in respect to specific offences.
In the absence of a statute or policy document addressing sentencing considerations,
courts in Kenya are guided by case law. The Kenyan jurisprudence echoes accepted sentencing
principles. In Fatuma Hassan Salo v. Republic538 Justice Makhandia asserted:
Sentencing is a matter for the discretion of the trial court. The discretion
must however, be exercised judicially. The trial court must be guided by
evidence and sound legal principle. It must take into account all relevant
factors and exclude all extraneous or irrelevant factors.

Justice Makhandia’s reference to ‘sound legal principle’ points at generally accepted sentencing
principles. The Nilsson v. Republic539 case discusses the considerations to be made when
sentencing. In addition to the circumstances of the offence, the judicial officer is expected to take
into account the personal circumstances of the offender. These include the age of the offender
and whether the accused is a first-time offender or a repeat offender. In the case of juveniles it is

534 See United Kingdom Criminal Justice Act 2003, section 142.
535 Ibid., section 43.
536 Ibid., section 156(2).
537 Sentencing Guidelines Council (2009).
538 (2006) eKLR.
539 (1970) 1 EA 599.

6 . C riminal J u stice 145

accepted that the paramount objective is the rehabilitation of the offender.540 The judicial officer
is also required to consider the mitigating circumstances such as the offender pleading guilty.
Therefore, although sentencing is largely discretionary, judicial officers are expected to base
their decisions on these legal principles. For this reason, they are also expected to indicate the
basis of their decision. In some appeal cases, judges have pointed out that this assists the appeal
court in assessing whether the sentence was excessive. 541
The issue of when fines should be imposed as opposed to prison sentences was discussed in
the case of Fatuma Hassan Salo v. Republic.542 The court noted that judicial officers are required to
give an explanation for meting out prison sentences where there is an option for a fine.
Although the general sentencing principles are well developed in case law in Kenya, there is
a need to develop comprehensive sentencing guidelines either in statutory or policy documents.
This is particularly so in the Kenyan context where maximum sentences are set out for most
offences without providing minimum sentences.

Non-custodial sentences
The range of orders that can be made by a court on the conviction of offenders are laid out in
the Penal Code of 1985. Section 24 lists a range of punishments available on conviction and part
(i) of the said provision stipulates that a court may mete out ‘any other punishment provided by
the penal code or any other Act’. Within the mandate section 24(i) of the Penal Code of 1985,
the Probation of Offenders Act of 1981 provides that where an offender has been convicted of
an offence triable by a subordinate court, the court may make a probation order in place of a
custodial sentence. In addition, section 3 of the Community Service Orders Act of 1998 entitles
the court to commit an offender convicted of an offence punishable with imprisonment for a
term not exceeding three years, to perform community service.
As illustrated in Figure 1, over the years courts have been reluctant to mete out non-custodial
sentences. Recently, however, there has been an increase in the number of non-custodial
sentences. Figure 1 maps out the growth of the probation population.
However, as noted, there is more potential for non-custodial sentences and there is a need
to check the over-utilisation of imprisonment. Nevertheless, in practical terms, recourse to non-
custodial sentences without adjustments of the Probation Services Department will undermine
the potential of these sentences in the long run. The Probation Services Department faces the
challenge of inadequate human resources. In 2006, the Department had 269 employees to deal
with 14 000 offenders under probation, 19 000 under community service order and 800 in
need of care. As of June 2009, there were 451 probation officers to supervise 35 000 offenders
given probation orders. The increased workload poses a challenge to the probation officers to
effectively execute their duties; the overwhelming workload may demand that they concentrate
on the basic minimum of probation practices.

540 Kaisa v. Republic (1975) 1 EA 260.

541 See Fatuma Hassan Salo v. Republic (2006) eKLR; Leonida Asiko v. Republic (2006) eKLR.
542 (2006) eKLR.

146 PART II kenya: Justice sector and the rule of law

Figure 1: Growth of probation in Kenya (2003–2005)
5000
North Eastern
4500
4000 Coast
3500
Nairobi
3000
2500 Eastern
2000
Nyanza
1500
1000 Western
500
Central
0

2004 May
2003 May

2004 Sep
2003 Sep

2004 Jan
2003 Jan

2005 Jan
Rift valley

On the introduction of Community Service Orders in Kenya in 1999, the National Committee
of the Community Services subsequently published practice guidelines for the stakeholders. In
this document, community service is said to ‘represent a shift from more traditional methods
of dealing with crime and the offender towards a more restorative form of justice that takes into
account the interests of both the society and the victim’.543 Moreover:
[t]he need to repair the harm done following the commission of an offence
and the need for reparation to victims of crime remains an important goal
of our criminal justice system. Such a restorative approach is in keeping
with our traditional approach to crime and the sentence is likely to be very
popular with the public if correctly implemented.544

Community service is thus considered to provide the offender with an opportunity to make
reparations for his wrongdoing by engaging in work that benefits society. The practice guidelines
make it clear that community service orders are particularly beneficial to first and youthful
offenders.545 These orders are restricted to offences punishable with imprisonment for a term
not exceeding three years. In accordance with the restorative ethos, the court is required to
involve the victim in the sentencing process. Hence, the court should take into account any
suggestion made by the victim as to the institution in which the offender should be committed to
serve the order.546 The materialising of the objectives of community service orders is dependent
on the community as volunteers in the scheme supervise the offenders. The heads of these
volunteer institutions undertake the responsibility to supervise the offender and the Probation
Services Department does the overall supervision of the institutions periodically.
543 National Committee of the Community Services (1999: 3).
544 Ibid. at 7.
545 Ibid. at 3.
546 Ibid. at 7.

6 . C riminal J u stice 147

 In addition to the work done by the offenders, the volunteer supervisors are required
to incorporate counselling of the offender, with the aim of rehabilitation. Towards this end,
magistrates are required to convene supervisors’ meetings to equip them with the necessary
counselling skills. However, counselling is not done as a matter of course and is only given
if it is deemed necessary. The practice guidelines make it clear that it is not mandatory for an
institution to provide counselling but this is recommended where possible. If counselling is
deemed necessary and the volunteer institution is not in a position to offer it, then the Probation
Services Department should be asked to try to arrange counselling for the offender. This suggests
that counselling is not mandatory and the test as to whether it is deemed necessary is subjective.
Whereas the community service orders are said to be in keeping with the ‘traditional
communities’ approach to crime, from what has just been mentioned, conclusions to the
contrary can be made. Being incorporated within the court process, the victim is passive all
through the trial. The victim’s role is limited to identifying the nature of the institution the
offender should work in. The community service orders are only restorative to the extent that
the offender engages in work that benefits the community the victim is part of. This is a far
cry from the traditional model of justice in which parties with a stake in the matter are actively
involved. Moreover, the traditional processes centralised ‘restoration’ in the true sense of the
term. Through the whole process it was envisaged that the offender would be restored to a law-
abiding member of the community. While it has been suggested that community service could
have such effects, the actual practice suggests otherwise. It comes across as an emphasis on the
work done, as opposed to the restoration of the offender to be law-abiding, hence, largely an
alternative punishment to imprisonment. The practice guidelines, for example, indicate that ‘the
performance of community service cannot by itself serve to rehabilitate the offender. There is
need for community service to be complimented with counselling.’547
In spite of this position, highlighting the inadequacy of community work in the absence of
rehabilitative processes, in practice, emphasis is placed on the work done. As illustrated above,
the provision of counselling services is fluid. On the other hand, supervisors are given detailed
guidelines that relate to the offender’s performance of the tasks. Far from being a reflection of
traditional restorative practices, community service in Kenya can only be said to be restorative in
terms of its symbolic reparation. In other words, the victim is a part of the larger community in
which he or she lives and thus symbolically benefits from reparations to the community through
public services.548 Although the extent to which community service realises restorative objectives
in practice is not well defined, its restorative potential cannot be overstated. However, similar
to probation orders, the courts have over the years been reluctant to utilise community service
orders in place of imprisonment. As noted, the prisons in Kenya reveal high numbers of inmates
serving terms of three years and less hence there are many inmates eligible for probation and
community service orders.
Courts have consequently been encouraged to utilise probation and community service
orders mainly to ease congestion in prisons. The restorative objectives of these orders have

547 Practice Guidelines, supra note 209 at 13.

548 McCold (2004: 159).

148 PART II kenya: Justice sector and the rule of law

thus remained at the periphery within the structure of the criminal justice system. Even where
there have been attempts to institutionalise restorative processes as in the case of community
service, restorative objectives have remained secondary without proper supporting structures.
In developing these non-custodial sentences, the objectives of rehabilitation, reintegration and
restoration must not be lost in the quest to decongest prisons.

Death penalty
Kenya has not abolished the death penalty. All capital offences are punishable by death under
Kenyan law. These include murder,549 robbery with violence,550 attempted robbery with violence551
and treason.552 Although the death penalty exists de jure, it does not, however, exist de facto. The
fact that the death penalty was last executed in 1987,553 coupled with the fact that all death
sentence victims since then have either been granted presidential pardon or are still behind bars,
evidences the fact that the death penalty does not exist in practice. Perhaps this can be attributed
to the prominence of human rights which upholds the right to life as a fundamental human
right. Ironically, many Kenyans still oppose the abolition of the death penalty as illustrated by
the deliberations of the National Constitutional Conference established by the Constitution of
Kenya Review Commission Act of 2000. The conference delegates voted unanimously against a
proposal to abolish the death penalty.
Meting out the death penalty raises pertinent human rights issues particularly in respect
to robbery with violence or attempted robbery with violence. Firstly, apart from murder cases,
the state does not provide legal representation for offenders charged with these offences.
Without legal representation, injustices are likely to be occasioned on accused persons who
may not fully appreciate the substantive and procedural law to be able to adequately defend
themselves. A mandatory death sentence raises the stakes and justice would demand a level
playing ground between the prosecutor and an accused person. But there is no such level
playing ground in practice. A large number of accused persons cannot afford legal services and
end up representing themselves.554 Secondly, the Penal Code sets out robbery with violence in
very broad terms. Sections 296(2) and 297(2) of the Penal Code provide that if the offender is
in the presence of another person(s) or if the offender is in possession of an offensive weapon
or instrument at the time of the robbery or attempted robbery, he or she attracts a mandatory
death sentence. This broad definition brings many offenders within the ambit of robbery with
violence or attempted robbery with violence, hence attracting the death penalty. This widening
of the net coupled with the lack of mandatory legal aid raises pertinent human rights concerns
that ought to be addressed.
It should be noted that the new constitution does not expressly outlaw the death penalty.
Article 26(1) provides that every person has the right to life, while article 26(3) provides that a

549 Penal Code, sections 203 & 204.

550 Ibid., section 296(2).
551 Ibid., section 297(2).
552 Ibid., section 40(3).
553 Kenya National Commission on Human Rights (2007: 3).
554 Interview with Priscilla Kanyua, Programmes Officer, International Commission of Jurists – Kenya Chapter.

6 . C riminal J u stice 149

person shall not be deprived of life intentionally, except to the extent authorised by the constitution
or other written law. The Penal Code constitutes one such law, although its provisions will need
to be reconciled with article 25 of the constitution, which, among other things, provides that
‘freedom from torture and cruel, inhuman or degrading treatment or punishment’ is absolute.
To the extent that the death penalty constitutes one such punishment, it would arguably be
unconstitutional under the new constitution.

G. Prisons

Legislative framework and prison conditions

The Kenya Prisons Service is a department in the office of the vice president and Minister of
Home Affairs. The prison service is established and governed by the Prisons Act555 and the
Borstal Institutions Act.556 These statutes empower the Prisons Service to contain offenders
in safe custody in order to rehabilitate, reform and facilitate administration of justice for
community protection, stability and social reintegration. There are 89 penal institutions, two
borstal institutions and one youth corrective training centre.557 The administration, service
and control of all prisons in Kenya is vested in the Commissioner of Prisons who is subject
to the directions of the minister.558 Imprisonment is the most common form of punishment
in Kenya. By 2001 the then 87 prisons had an approximate population of between 35 000 and
40 000 per annum.559 Forty per cent of these inmates were remandees. In mid 2009, the
prisons in Kenya held 34 500 convicted offenders and 19 540 accused persons on remand.560
The high number of inmates on remand has, to a large extent, been attributed to unwarranted
delays in the trial process. According to officers interviewed at Lang’ata Women’s Prison, it is not
uncommon to have trials running for more than two years. It is particularly unacceptable in the
case of petty offences. For instance, Nancy Njeri561 has been at Lang’ata Women’s Prison for two
and a half years after being charged with housebreaking and stealing. She has attended 11 hearing
sessions in court, which were always adjourned due to the complainant’s non-attendance.
Moreover, the case was further delayed by the transfer of two magistrates who had been hearing
the case to other stations. At her last hearing prior to the interview, the complainant attended
court and sought to withdraw the case but the magistrate overruled the withdrawal in spite of
the complainant’s previous conduct. These are not uncommon incidences and the length of the
trials is in itself punitive. It is shocking that trials in certain cases have extended beyond four
years. Table 13 below shows the remands population figures as of 31 March 2009.

555 Chapter 90, Laws of Kenya.

556 Chapter 92, Laws of Kenya.
557 Sourced from the Prisons Service website, www.prisons.go.ke.

558 Prisons Act, section 5.

559 Penal Reform International (2001: 14).

560 Statistics obtained from the prisons headquarters.

561 Pseudonym used.

150 PART II kenya: Justice sector and the rule of law

Table 13: Remand population figures for the first quarter 2009

5 Yrs and
Provinces 0<6 Mts 6<12 Mts 1<2 Yrs 2<3 Yrs 3<4 Yrs 4<5 Yrs Total
over
Nairobi 2 585 602 267 33 50 71 12 3 620
Central 1 618 311 138 43 7 0 0 2 117
Eastern 993 373 487 253 123 33 19 2 281
Coast 1 650 183 125 59 42 28 32 2 119
Nyanza 1752 216 173 89 74 45 8 2 357
Western 1 387 66 96 94 70 39 50 1 802
North Eastern 85 2 3 0 0 0 0 90
Rift Valley 2 601 198 105 43 13 15 28 3 004
Total 12 671 1 951 1 394 614 379 231 149 17 390

The prison facilities in Kenya are gravely overstretched. For example, in mid-2006 the Nairobi
Industrial Area Remand Home held 4 805 offenders when it only has a capacity of 1 000.562 In mid
2009, the facility had a lower population of 3 115 offenders, but this still exceeded the ideal capacity of
1 000. Even prison facilities which are considered to be much better in terms of living conditions
still exceed their capacity. Lang’ata Women’s Prison, for example, held 353 convicted offenders
with capacity for only 200 and 267 remand prisoners with a capacity for only 200.563
It is notable that the majority of convicted prisoners are petty offenders who could have
been dealt with using alternative methods to imprisonment. Statistics as of 31 May 2009, for
instance, reveal out of the 34 500 convicted offenders, 18 956 prisoners had been sentenced
to less than three years imprisonment.564 Using short sentences as an indicator of the nature
of the offences and the circumstances of the offenders, these statistics suggest that a large
number of the offenders should actually be considered for non-custodial sentences. To facilitate
decongestion, it would, then be inevitable for the court to embrace non-custodial sentences like
probation orders565 and community service orders.566
This overcrowding, coupled with poor physical infrastructure, has highly compromised the
human rights standards of both prisoners and prison warders. The prison is also a reservoir
of diseases. This is made worse by the inability of prisoners to satisfy their conjugal rights
hence necessitating unprotected man-to-man sexual intercourse with their fellow inmates. The
situation is made worse by the lack of adequate medical care available to prisoners. There have
also been allegations of inadequate security within the institutions to the extent that inmates
have been making use of mobile phones to mastermind criminal activities carried out by other
gang members at large.567 The security in these prison facilities needs to be tightened and the
government should consider investing in surveillance equipment towards this end.

562 Statistics obtained from Nairobi Industrial Area Remand Home.

563 Statistics obtained from Lang’ata Women’s Prison.
564 Statistics obtained from the prisons headquarters.
565 Under the Probation of Offenders Act.
566 Under the Community Service Orders Act.
567 Prisoners Spread Terror from Jail, Standard, 17 June 2009.

6 . C riminal J u stice 151

 Prison conditions continue to be harsh and life threatening, and the prisons, which have
been described as death chambers,568 are overcrowded and unhygienic. Prisoners sleep on dirty
and damp cement floors. The communal cells are often poorly ventilated, badly lit and lack
adequate washing facilities. Overflowing buckets in one corner of the cell usually serve as the
only toilets. Acute water shortages in some prisons have exacerbated the unsanitary conditions.
Infectious diseases such as diarrhoea, typhoid, tuberculosis and HIV/Aids spread easily, and are
inadequately treated. Medical care for prisoners has not yet been adequately addressed. There are
no separate facilities for minors in pre-trial detention. Civil society activists have witnessed young
children, women and men sharing the same cells. In January 2006, a judiciary subcommittee
report recommended that judges and magistrates visit prisons regularly to ensure that children
were not confined with adult inmates.
Torture and ill treatment still remain an institutionalised practice in many prisons. The
problem of excessive violence in prisons was highlighted in September 2000 when six death-
row prisoners were killed at the maximum security King’ong’o Prison. The prisoners attempted
to escape from prison, but their escape bid was foiled by the prison wardens who proceeded to
torture and bludgeon them to death. The causes of death were first explained as suicide and
falls from the high prison walls, but a post-mortem conducted revealed that the prisoners were
tortured to death. Eight prison wardens were later charged in court with murder and found
guilty. In November 2008 there was a similar incident at the Kamiti Maximum Security Prison
where several inmates were injured and one died during a search for contraband items by the
prison warders.

Oversight of prison conditions

In the last decade the prison department embarked on an open-door policy, which allowed
access to the prison facilities. This enabled NGOs and individual researchers to highlight issues
in prisons that needed to be addressed. Consequently, conditions for prisoners have generally
improved but there is still need for further initiatives. One of the key benefits of the open-door
policy is granting paralegals access to prisons to offer legal assistance to remand prisoners and
convicted offenders who seek to appeal but cannot afford legal services. The contribution of
these paralegals in checking injustices due to the lack of legal aid cannot be overstated. The
Legal Resources Foundation (LRF), for example, has stationed trained paralegals in 21 prisons in
different parts of the country. Apart from giving advice on individual cases, they hold legal clinics
to educate the prisoners on criminal procedure and how to represent themselves in court. The
LRF has also trained liaison prison officers to sensitise other officers on human rights standards
and also to identify desperate cases which need attention.569
In addition, reforms which commenced in 2003 under the Governance Justice Law and
Order Sector (GJLOS) Reform Programme have resulted in the establishment of health and
HIV/Aids units in prisons, to improve the delivery of health services to inmates. Some facilities
offer access to academic classes, enabling a number of prisoners to sit for national exams, or
vocational training, such as carpentry or tailoring. Charitable associations organise occasional
568 Kenya Human Rights Commission (1996).
569 Interview with Janet Munywoki, Officer in charge of the prisons programme, Legal Resources Foundation.

152 PART II kenya: Justice sector and the rule of law

medical clinics for inmates. Prisoners now generally receive three meals per day, but portions still
remain inadequate. Civil society organisations began visiting prisons in 2003, and these visits
revealed harsh conditions as well as allegations by prisoners of inhumane treatment and torture.
There are still institutional, financial and operational reforms needed as has been documented
by a study on the prison reforms by the Kenya National Human Rights Commission.570
Another positive attribute concerns rehabilitation programmes. Various rehabilitation
programmes are in place especially for prisoners serving long sentences. These include the prison
industries and farms programmes. Prisoners are normally incorporated in industrial training
and professional studies which are instrumental in assisting them become self-supporting
upon their release. Such training programmes include carpentry, dressmaking, hand crafts,
animal husbandry and computer programmes. The prison programmes also give opportunity to
offenders to undergo formal education. For example, in Shimo la Tewa Borstal Institution, some
juvenile male offenders attend Standard 7 and 8 classes and will then sit for the Kenya Certificate
of Primary Education exam. In addition, the juveniles engaged in industry skills training obtain
recognised qualifications. However, as a welfare officer at Lang’ata Women’s Prison notes,
offering skills on its own does not guarantee the rehabilitation of offenders. Thus, the prisons
authorities facilitate counselling services and spiritual support. At the Lang’ata Women’s Prison,
for instance, the welfare office provides phone services which enable the prisoners to stay in
touch with their families, hence making reintegration back to the community easier. Although
the institutions are not in a position to adequately provide these services that are necessary for
the rehabilitation of offenders, they have adopted an open policy which allows civil society and
well wishers to contribute.
A key issue of concern has been the lack of aftercare services on the release of offenders,
which is fundamental for the rehabilitation of offenders and to curb recidivism. Interviewed
young offenders about to be released from Shimo la Tewa Borstal Institution expressed concern
over the lack of resources to enable them to set up money-generating enterprises drawing
from the skills they have learnt.571 According to Okech, the Probation and Aftercare Services
Department is in the process of coming up with an aftercare policy. Acknowledging that the
title ‘Probation and Aftercare Services Department’ does not reflect the lack of an express legal
mandate and structure for aftercare, he noted that the situation is far from ideal. However, in
selected cases, probation officers are occasionally involved in trying to reintegrate offenders into
the community. In some instances, some welfare officers take their own initiative in identifying
organisations to offer support to released offenders. In Lang’ata Women’s Prison, for example,
they have set up a discharge board which provides a forum for organisations to assist offenders in
resettling once released. Organisations such as NEST, Faraja and Father Grol Projects have been
instrumental in this endeavour. In the absence of a government policy and resources allocated
to aftercare, aftercare services are left to the personal initiatives of officers and organisations, and
are hence not universal. It is therefore imperative to have a national policy and a well-structured
framework to ensure uniform aftercare services.

570 Kenya National Commission on Human Rights (2004).

571 Interviews with juvenile offenders at Shimo La Tewa Borstal Institution, July 2007.

6 . C riminal J u stice 153

 Another issue worth exploring regards the policies relating to offenders sentenced to death.
As noted, these offenders are not executed but are held in prison for life instead. Because the
intention was to execute the offenders, the prisons regulations did not envisage holding capital
offenders for extended periods of time. Capital offenders are not required to engage in the
rehabilitation programmes or engage in any work apart from ensuring their cells are clean. As
such, there is a potential danger of indiscipline as a result of idleness. In economic terms, failing
to engage them in meaningful work means that the prison facilities use up resources to sustain
them, yet the offenders do not contribute towards their sustenance in any way. To deal with
idleness, the prison facilities have resorted to providing recreational activities such as sports and
spiritual forums. There is a need, however, to review the prison regulations to reflect the reality.
The underlying issue of retaining the death penalty yet not carrying out the executions must also
be resolved.
It should also be noted that one of the key functions of the Kenya National Commission
on Human Rights (KNCHR) is ‘to visit prisons and places of detention or related facilities with
a view to assessing and inspecting the conditions under which the inmates are held and make
appropriate recommendations thereon’.572 In performing this function, the KNCHR has audited
the status of prisons reform in Kenya and made recommendations on what should be done to
enable the prisons in Kenya to fulfil their core obligations.573 While the KNCHR has done a
commendable job of publicising the conditions of prisons, an obvious limitation in its legislative
mandate is that it can only make recommendations for reform.

Governance of prisons
The effective running of institutions is dependent on the motivation of the personnel. Thus,
prison officers must be motivated and satisfied for the implementation of the prisons reform
initiative. Prisons officers are disheartened by what they claim to be sidelining of their welfare in
the prisons reforms initiatives.574 Key issues raised include inadequate and poor housing and low
salaries.575 These issues have caused hue and cry over the years but are yet to be fully addressed.
For example, the failure to resolve these issues led to strike action by officers of the Kenya Prisons
Service in April 2008. The strike was triggered by the failure of the government to give them a
risk allowance, which other branches of the disciplined services were already enjoying.
Following the strike, the government set up a committee – the High Level Committee
on the Prisons Crisis – to inquire into the conditions of the Prisons Department and make
recommendations on how the department could be reformed. In its report, the High Level
Committee notes that the Prisons Council, which was established by the Prisons Act to
‘consider all questions affecting the welfare and efficiency of the Prisons’ service’,576 has not
been operating.577 As a result, there was no avenue through which the grievances of the prisons
572 Kenya National Commission on Human Rights Act, section 16(1)(b).
573 See Kenya National Commission on Human Rights, supra note 238.
574 Kinyanjui (2008: 199).

575 Interviews with Mutheu, Macharia and Njuguna, Prison Officers at Lang’ata Women’s Prison, Nairobi Industrial Area

Remand and Allocation Prison and Prison Headquarters. Pseudonyms used to protect the identity of the officers.
576 Prisons Act, chapter 90, Laws of Kenya, section 20(1)(c).

577 Republic of Kenya (2008B: 6).

154 PART II kenya: Justice sector and the rule of law

officers could be addressed. The Committee also established that ‘governance systems have
broken down’, and that ‘[t]here were complaints from officers, both junior and senior, of the lack
of inspection by senior officers from both the provincial and headquarters levels.’578 It is arguable
that such poor governance has contributed to the deterioration in the conditions of prisons.

H. Recommendations
As we have seen, a number of critical reform measures have already been initiated with the
objective of enhancing the observation of the rule of law in the criminal justice system. Further,
the new constitution provides firm anchorage for these reform measures. In addition to these
measures, however, there is a need for:
• Civil society to participate in and monitor the implementation of the recommendations
of reform bodies, including the making of the statutory laws needed to transform the
criminal justice system;
• Government to carry out a comprehensive vetting of the staff of the Kenya Police Force
and the Administration Police, as recommended by the National Task Force on Police
Reforms;
• Government to streamline the sentencing process;
• Government to synchronise the activities and functions of key actors in the criminal
justice system; and
• Government to recognise and give legal effect to customary or informal systems of
criminal justice, to the extent that they are participatory, accountable, non-discriminatory
and adhere to the new constitution and international human rights norms.

578 Ibid. at 8.

6 . C riminal J u stice 155

7
Access to justice
Many Kenyans remain unaware of their basic rights. This lack of knowledge of rights remains a
major hindrance to accessing justice, especially among poor, vulnerable and uneducated people.
Court fees are very high for an ordinary citizen and hence most litigants shy away from going
to court due to these costs. In addition, the courts are structured in a way that does not facilitate
equal access to justice for all. Most of the courts are found in urban areas, as opposed to the rural
areas where the majority of Kenyans reside. Thus, many people are compelled to travel long
distances to access the courts. For many, legal services are also unaffordable. As a result, many
Kenyans resolve their grievances and conflicts in alternative forums, including traditional or
informal systems. However, the formal law does not recognise these non-state justice systems.
Provision of legal aid is limited and does not cover all people who cannot afford legal services.

A. Knowledge of rights
Access to justice is hinged on the knowledge of one’s rights. By knowing which rights are
protected, an individual can determine which route to follow in the pursuit of their protection
or determination. A survey undertaken by the GJLOS Reform Programme indicated that most
Kenyans were aware of their rights.579 These basic rights were grouped into three, namely, civil
and political rights, service rights and economic rights. The three categories appear to enjoy
nearly equal balance.580 The survey found that Kenyans, whatever their background, had little
difficulty in identifying the rights that they considered important to them.
However, it is argued by some institutions that a lack of knowledge of rights remains a
major hindrance to access to justice especially among poor, vulnerable and uneducated people.

579 Governance, Justice, Law and Order Sector Reform Programme (2006).
580 Ibid.

156 PART II kenya: Justice sector and the rule of law

Most people are unaware of some of the rights provided to them under the constitution and
other legislature. This is especially apparent with the advent of the so-called third generation
rights. There is a lack of sufficient educational programmes to keep the public constantly aware
of their rights. The International Federation of Women Lawyers (FIDA Kenya) and others have
undertaken to educate the general public on their rights through holding public forums, press
conferences and rights forums. Public education continues and is perceived as important in
continuously defending the rights and freedoms enjoyed by the citizens. Most notably, the
constitution review process’s entrenchment of civil education as part of the review has availed
opportunities for providing legal education. There is, however, a need to streamline this process
and regulate the providers to ensure that basic standards are met. It is widely acknowledged
that while paralegals have played a vital role in educating Kenyans on their rights and therefore
facilitating access to justice, there is no uniform curriculum or broadly accepted standards
that are followed in the delivery of this education. The Paralegal Support Network developed a
Handbook for Paralegals to bridge this gap.581
The new constitution provides for access to justice in the following words: ‘The State shall
ensure access to justice for all persons and, if any fee is required, it shall be reasonable and shall
not impede access to justice.’582

B. Physical access
The court structure as it is does not afford equal access to justice for all. In chapter 4, we pointed
out that most of the courts are found in major towns and at times far from rural areas. These
courts are also found far from refugee camps, as most of these camps are not found close to
provincial or district headquarters where most of the courts are. People have to travel far distances
to access the courts. District magistrates’ courts are only located in the district headquarters.
Some districts are very large so not all people are able to access these courts. The 2010 Report
of the Task Force on Judicial Reforms noted that in Northern Kenya courts are situated as far as
500km away from the users and that in such marginal areas, there is a dearth of legal service
providers.583 The Task Force proposed the establishment of court stations and mobile courts in
marginalised areas and regions that have no geographical access to courts.584
For those who manage to access the courts, many still have problems locating courts and
most of the time it is the court security staff that provide assistance to those unable to locate their
courts. There are no professional mechanisms put in place within the various court stations to
provide directions and simplify the process of locating courts for members of public.585
There is currently a shortage of court complexes in Kenya. According to research done
by the Kenya AIDS NGO Consortium in 2004,586 most of Kenya’s districts only had one

581 Paralegal Support Network (2005).

582 Constitution of Kenya, section 48.
583 Republic of Kenya (2010: 86).

584 Ibid. These included Munjila, Masalani, Bute, Laisamis, Marimanti, Kyuso, Wote, Engineer, Chaka, Lokitaung, Lokichar,

Wamba, Kesses, Kapsowar, Kabiyet, Chemolingot, Eldama Ravine, Rumuruti, Lokitaung, Lumakanda, Kapsokwony, Budalangi,
Amagoro, Kosele and Mbita.
585 ICJ-Kenya (2001).

586 Kalla & Cohen (2007).

7 . A ccess t o J u stice 157

magistrate587 in the entire district and the North Eastern Province did not have a visiting judge.
The court infrastructure does not accommodate persons with physical disabilities and
women with children. Wheelchair ramps only serve the ground floor in most court structures
with no elevators to the upper floors. The amenities provided do not cater for the special needs
of the disabled. The 2010 Report of the Task Force on Judicial Reforms proposed that:
• Physical facilities of courts be made more accessible to persons with physical disabilities
and other vulnerable groups;
• Courts administer substantive justice without undue regard to procedural technicalities;
• Rules of procedure of Kadhis courts be developed and enacted to standardise the
procedures and practices of the courts; and
• Court rules and procedures be reviewed regularly to ensure that they are efficient and
simple. 588

C. Financial access
Court fees in Kenya are very high for an ordinary citizen and hence most litigants shy away
from going to court due to these costs. The costs are very high in a country like Kenya, where
over 60% of the people live in poverty. Most Kenyans cannot afford lawyers as the legal fees are
usually too high for the common person.589 Legal fees are high compared to the median income
and many Kenyans opt for extra-judicial settlements. The majority of people consider court fees
to be prohibitive. A survey carried out to determine whether the court fees prevent people from
accessing justice showed that a majority of those who had paid court fees found them to be
prohibitive.590
The Court of Appeal is not expensive to access in terms of court fees and litigation costs,
excluding lawyer fees, as compared to the High Court. The perception of people is that the cost
in the Court of Appeal is very high and many do not therefore appeal their cases. This perception
has therefore made the Court of Appeal inaccessible. This perception is based on excessive
formality and adversarial proceeding. It is hoped that the revision of the Court of Appeal and
the Civil Procedure Rules in December 2010 will push the overriding objective of courts to
the fore and make them more accessible to litigants. After the report of the Integrity and Anti-
Corruption Committee of the Judiciary of Kenya (2003), there was a subsequent purge in the
judiciary of judges alleged to be corrupt. Since then, instances of illegal payments and bribes
has largely reduced. Public confidence in the judiciary has improved albeit marginally. However,
the reports on the country’s Bribery Index by Transparency International show that the judiciary
remains very high on the list. Transparency International, for instance, ranks Kenya at 147/180
in its Global Corruption Perceptions Index.591 In its special assessment of 2007, it reported that
there are serious and ongoing problems, and that steps taken to dismiss and replace allegedly

587 Ibid. at 42.

588 Republic of Kenya (2010: 87–88).
589 To open a file with an advocate can cost about US$ 60 and once filing fees and all professional fees are loaded up, a simple

matter can cost up to US$ 300 which most Kenyans cannot afford.
590 ICJ-Kenya, supra note 7; see also Governance, Justice, Law and Order Sector Reform Programme, supra note 1.

591 http://www.transparency.org/policy_research/surveys_indices/cpi/2008.

158 PART II kenya: Justice sector and the rule of law

corrupt judges did not meet best practice standards because of a lack of due process and erosion
of judicial independence.592 The Bertelsmann Transformation Index (BTI) which measures the
status of political and economic transformation comprising a range of criteria including the rule
of law, ranks Kenya at 61/123.593
The Advocates Act594 through the Advocates Remuneration Order (2009) sets out the sums
that an advocate may charge a client for services delivered. The Act prohibits advocates from
charging amounts below those stipulated. This is in an effort to prevent undercutting. However,
it is also prejudicial to the clients, who do not have much variety when it comes to picking the
cheapest advocate. Thus, if they cannot afford the amounts set therein, they have to do without
representation. Currently, the government provides minimum legal aid, which does not cover
all people who cannot afford legal services. The state only provides legal aid for persons charged
with murder in the High Court and conditional legal aid for a child offender having no other
recourse to legal assistance.595 The Civil Procedure Act also makes provision for pauper briefs
where people who do not have sufficient means may apply to the court to be allowed to sue as
paupers.596 Such applications are dependent on the availability of lawyers to take up the brief.
Most free legal aid and associated clinics are consequently provided by non-governmental
organisations597 to disadvantaged groups of people especially children, women and the poor.
For example, the Federation of Women Lawyers (FIDA Kenya) offers legal assistance to women
who earn less than KES 5 000 per month and who have also undergone physical and emotional
trauma. Some advocates do offer legal advice pro bono, but these instances are few and far
between. Free legal advice from NGO participants is restricted by the fact that they do not have a
countrywide presence. Some NGOs and the KNCHR offer free legal aid clinics but the assistance
does not extend much further than providing legal opinions. FIDA, due to the overwhelming
number of people needing legal aid, started, with the assistance of the World Bank, a programme
for facilitating litigants in self-representation. They coach them and monitor their performance,
constantly providing feedback.
There have been a great number of suggestions on how to improve access to justice
through several reports on the judiciary. Among these include the establishment of small claims
courts as one solution. Another suggestion is the creation of a government funded legal office
to represent people who cannot afford legal fees. Another way is through the strengthening of
arbitration systems as well as the recognition and incorporation of traditional and some non-
state justice systems. In November 2007, the government appointed the National Legal Aid (and
Awareness) Steering Committee to oversee, coordinate, monitor and provide policy direction
to the National Legal Aid (and Awareness) Programme. The 2010 Report of the Task Force on
Judicial Reforms proposes that a policy and legislative framework establishing a national legal
aid system be adopted and implemented and that public interest litigation guidelines be adopted

592 Transparency International (2007).

593 http://www.bertelsmann-stiftung.de/cps/rde/xchg/SID-0A000F0A-D2A7CCFB/bst_engl/hs.xsl/307.htm.
594 Advocates Act, chapter 16, Laws of Kenya.

595 Children’s Act 2001, section 186(b).

596 Civil Procedure Rules, order XXXII.

597 Republic of Kenya (2010: 89).

7 . A ccess t o J u stice 159

and implemented to facilitate access to justice on issues of public interest.598
There are many paralegals in Kenya who provide an important source of legal assistance
due to the absence of a sufficient cadre of lawyers. Kenya is home to several paralegal networks
which have received some legal training and work for free in many communities. The paralegals
in Kenya spread awareness of human rights and make referrals to appropriate services. In a
few cases, paralegals serve as monitors for legal aid organisations, sending them information
collected from the grassroots level and submitting monthly reports. However, there are not
nearly enough paralegals in the country to take these important services to all those who need
them.
Kalla and Cohen quote a review carried out for the United Kingdom Department for
International Development (DFID) that approximately 1 000 paralegals had been trained in
Kenya as of 2005.599 They continue to point out that approximately 20 paralegal projects were
operating nationwide, supported by various donors and NGOs of which 15 were located within
a 250km radius of Nairobi. There are virtually no programmes in Kenya that provide salaries to
paralegals beyond a small ‘motivational token’ or that support them after their training for costs
such as transportation.600 Data elicited from respondents in the Steadman Survey indicated that
there are Kenyans who have limited access to justice. Indeed, an overwhelming majority (87%)
said that there are Kenyans that have limited access to justice while only 17% responded to the
contrary. This would imply that most Kenyans do not access justice in its broadest sense.

Table 14: Distribution of respondents by whether there are Kenyans with limited access to justice
Are there Kenyans who have limited access justice? No. of respondents Percentage (%)
Yes 1 665 83
No 342 17
Total 2 007 100

On factors that hinder peoples’ access to justice in Kenya, poverty ranked first with a 59% score
followed by poor knowledge and awareness among the population. Gender inequality and
inequity was cited as a factor by 7% of the respondents while corruption and other factors scored
5% and 4% respectively. However, every other factor cited, when scrutinised critically, tied in well
with poverty.

598 Ibid.
599 Kalla & Cohen, supra note 8 at 29.
600 Ibid.

160 PART II kenya: Justice sector and the rule of law

Table 15: Distribution of respondents by factors that hinder access to justice
Suggestions on what limits Kenyans’ access to justice No. of respondents Percentage (%)
Poverty 987 59
Gender 110 7
Religion 32 2
Lack of knowledge of their rights 707 42
Corruption 82 5
Others (incl. poor governance, tribalism, nepotism,
illiteracy, discrimination, cumbersome process, courts 57 4
are far, fear, culture, etc.)
Total 1 975 100

Efforts to reduce cost of access to justice

Kenya does not have small claims courts in place. All legal disputes, regardless of their magnitude,
are determined through the same court system. This has led to a backlog of cases in courts and
has also prevented determination of cases whose subject matter value is less compared to the
court expenses. The establishment of small claims courts is necessary to enable the majority of
the Kenyan population access to justice. Presently, even the magistrates’ courts, the lowest in the
judicial hierarchy, are not accessible to the greater part of the population. Lodging claims in these
courts is still too expensive and complicated for rural Kenyan people.
Efforts have been made to establish small claims courts. As pointed out above the 2010
Report of the Task Force on Judicial Reforms proposes the establishment of a small claims
court.601 The Small Claims Court Bill 2010 incorporates the provisions of a similar bill published
in 2007 by the Law Reform Commission but which was not debated by Parliament.
The new constitution provides that alternative forms of dispute resolution including
reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be
promoted602 subject to their conforming with the Bill of Rights, and their not being repugnant
to justice and morality or resulting in outcomes that are repugnant to justice or morality. They
must also be consistent with the constitution and other written laws.603 Additionally, section
67 requires the National Land Commission to encourage the application of traditional dispute
resolution mechanisms in land conflicts.

Provision of legal aid

There are many non-governmental organisations that offer legal aid as well as assist marginalised
groups of people in gaining access to justice such as women and children. These organisations
have played a great role in enabling people to know their rights and take legal action against those
who have violated their rights.

601 Republic of Kenya (2010: 192).

602 Constitution of Kenya 2010, section 159(2)(c).
603 Ibid., section 159(3).

7 . A ccess t o J u stice 161

FIDA
The Federation of Women Lawyers Kenya (FIDA Kenya)604 is a non-profit, non-partisan and
non-governmental membership organisation, committed to the creation of a society that is free
of all forms of discrimination against women through the provision of legal aid, women’s rights
monitoring, advocacy, education and referral.
FIDA Kenya has assisted women in gaining access to justice through various initiatives such
as training women to enable them to access justice through self-representation in court. They
take up and pursue the following types of cases: succession and inheritance; family law cases
including separation, divorce, custody of children, maintenance and division of matrimonial
property; employment cases where there is discrimination on the basis of sex; land cases where
there is discrimination on the basis of sex; cases involving gender-based violence such as rape,
defilement, incest and assault; as well as public interest cases. They have established a pro bono
lawyers scheme country-wide and are engaged in legal awareness activities and the resolution of
disputes without resorting to the formal justice system.

OSCAR Foundation
The Oscar Foundation Free Legal Aid Clinic Kenya (OFFLACK) was set up in 1998 and formally
registered in 2002 as a non-governmental organisation. It was formed on the realisation that law,
policy and judicial action that upheld the human rights framework had a central role to play in
effectively dealing with the spread of the HIV epidemic. OFFLACK has been dealing with HIV/
Aids and the law since 2001, when it published its training manual called HIV/Aids and Legal
Implications in Kenya.
This Foundation continues to do much of their litigation on HIV in an ad hoc manner,
as and when the need arises. In the 1990s, when Kenya saw the need to deal with HIV/Aids
urgently and effectively, OFFLACK felt that a planned legal intervention was necessary to support
People Living With HIV and Aids (PLWHA). It also felt the need to sensitise decision-makers,
and those affected, on the law and its link with the public health crisis that HIV/Aids created.
The Foundation has a network of 150 pro bono lawyers working in their commercial offices
country-wide and heading OFFLACK and the Local Project Advisory Group (LPAG). OFFLACK’s
mobile full-time legal aid clinic has three main spheres of activity: providing free legal services to
persons living with or affected by HIV/Aids and the poor as provided in the Civil Procedure Act;
advocacy; and policy research on human rights and the law in order to make justice accessible to
the poor and those in custody.

CRADLE605
The CRADLE (The Children’s Foundation) is a non-profit and non-governmental organisation
committed to the protection, promotion and enhancement of the rights of the child through
court representation, advocacy and law reform. This organisation was founded primarily by a
group of Christian lawyers to respond to the need for the provision of juvenile justice, following
a research and baseline survey in 1997 on the provision of justice to children in Kenya. The
604 http://www.fidakenya.org.

605 http://www.thecradle.or.ke.

162 PART II kenya: Justice sector and the rule of law

research showed the absence of institutional mechanisms to respond to this issue. CRADLE was
born to respond to this need. It exists to protect and promote the rights of the child, especially
girls.
This organisation has been involved in various activities to enhance children’s access to
justice. Some of these activities include: initiation of a pro bono legal aid scheme; undertaking of
policy and legislative advocacy on the Children’s Act, the Criminal Law Amendment Bill and the
constitution; impact cases on children born out of wedlock; their participation as observers and
delegates in the constitutional review process, including printing of ‘absent voices’ and having
an information tent at the Bomas conference; and mainstreaming child rights into government
programmes.

The International Commission of Jurists (ICJ) in Kenya 606

ICJ-Kenya has been in formal existence since 1974 when it was registered as an autonomous
society of jurists. Its legal history predates Kenya’s independence. It was started in 1959 as a
small colonial extension of justice, the British Section of the ICJ. ICJ-Kenya is an autonomous,
non-partisan, non-profit, non-governmental organisation. ICJ-Kenya enjoys observer status with
the African Commission for Human and Peoples’ Rights and is the only African national section
of the ICJ. Today, over 300 members comprise the organisation, which is dedicated to the legal
protection of human rights in Kenya and the African region in terms of the general mandate
for national sections defined by article 4 of the ICJ Statute. ICJ-Kenya is governed under a
constitution through an elected council of seven members that serves for two year fixed terms.
Members, through a permanent secretariat, fulfil the human rights work of this organisation,
where a professional team of full-time lawyers is in charge of programme activities under the
oversight functions of the elected council.
The organisation’s objectives include:
• Enhancing the use of legal expertise through programmes or projects in order to
effectively demand and monitor legal reform;
• Devising programmes that build capacity of key governance institutions through
training and legal services in order to improve access to justice;
• Ensuring analytical legal and constitutional information is available for the media and
other users; and
• Strengthening linkages between ICJ-Kenya and the ICJ family, and other identified
national, regional and international stakeholders and partners.

606 www.icj-kenya.org.

7 . A ccess t o J u stice 163

Kituo Cha Sheria (legal advice centre)607
Kituo Cha Sheria is a national membership human rights non-governmental organisation. It
was founded in 1973 as Kituo Cha Mashauri by advocates committed to helping disadvantaged
and poor people who could not afford the cost of legal services. It was the first legal aid centre
established in Kenya. In 1989, the name was changed to Kituo Cha Sheria and a secretariat was
established with full-time staff. Kituo Cha Sheria is largely donor-dependent. The organisation
gets support from donors as well as lawyers who volunteer their services. The services are
provided to the indigent through various mechanisms, which include the provision of advice,
legal representation, litigation and community mobilisation and organisation.
This organisation has offices in Nairobi and Mombasa. It has also established a network
of volunteer advocates in major towns to cover the whole country as well as embarked on
programmes aimed at empowering individuals and communities for self-governance and the
protection of their rights and obligations.
Kituo Cha Sheria’s thematic focus is on legal aid, land and housing rights and labour rights.
The organisation is also attending increasingly to refugee clients, not as a refugee agency but on
an individual, case-by-case basis. With such cases, it dialogues and liaises with the main refugee
agency – the UNHCR – to seek the implementation of appropriate measures in the best interests
of refugees.

D. Right to appear: Jurisdictional restrictions

Public interest litigation

The laws of Kenya allow people to appear in person without any legal representation. Chapter
77(2)(d) of the constitution states that: ‘Every person who is charged with a criminal offence– [shall
be] permitted to defend himself before the court in person or by a legal representative of his own
choice’. In civil cases people can also either represent themselves or seek a legal representative.
Public interest litigation is not very widespread in Kenya. The issue of locus standi has been
used by courts in Kenya to defeat a number of initiatives aimed at securing the public interest
through the application of a very rigid and doctrinal form of locus standi. A litigant previously had
to demonstrate to the court that he or she had a personal stake that was distinct from injuries to the
public at large. This has been well-illustrated in environmental cases. For instance, Kenyan courts
were unable to establish a clear jurisprudence on matters of locus standi before the promulgation
of the EMCA in 1999. In the public interest case of Wangari Maathai v. Kenya Times Media Trust
(an environmental case brought before the court as a public interest matter), lack of locus standi
was used to bar the action.608 The plaintiff was a resident of Nairobi and the coordinator of the
Greenbelt Movement, a non-governmental organisation working in environmental conservation.
She filed suit on her own behalf seeking a temporary injunction to restrain the defendant
from constructing a proposed complex in a recreational park in Nairobi. The court upheld the
defendant’s objection that the plaintiff lacked standing to bring the suit, because the plaintiff
would not be affected more than any other resident of Nairobi. The court pointed out:
607 http://www.kituochasheria.or.ke.
608 High Court of Kenya, Civ. Case No. 5403 (1989).

164 PART II kenya: Justice sector and the rule of law

 ... it is not alleged that the Defendant Company is in breach of any rights,
public or private in relation to the plaintiff nor has the company caused
damage to her nor does she anticipate any damage or injury.609

The Environment Management and Coordination Act of 1999 has resolved this issue by
conferring locus standi on individuals to enforce environmental rights. It provides that ‘[e]very
person in Kenya is entitled to a clean and healthy environment and has the duty to safeguard
and enhance the environment.’ 610
This position has also found anchorage in the new constitution at section 70 where it is
provided that:
If a person alleges that a right to a clean and healthy environment
recognised and protected under article 42 has been, is being or is likely
to be, denied, violated, infringed or threatened, the person may apply to a
court for redress in addition to any other legal remedies that are available
in respect to the same matter.

The civil procedure rules allow for representative suits, but these are limited to those parties
who have the same interest in one suit. The nature of public interest litigation is such that it
is hard to be specific about the class of persons on whose behalf the action is brought and this
has hampered the use of this rule to facilitate litigation. The rule allows for ‘relator’ actions to
be brought in cases of public nuisance, but this is restricted by the requirement that authority
must be given by the Attorney General. This is very bureaucratic and thus prone to delays. The
Office of the Attorney General is also a political office as well as an executive one and has proved
in the past to be singularly incapable of taking action on sensitive issues that involve a conflict of
interest. The repealed constitution did not provide a basis for public-interest litigation. This can
be seen through the failure to offer constitutional protection to such rights as the guarantee to a
healthy and wholesome environment. These issues have been addressed by the new constitution.
Another barrier to public interest litigation is cost. The costs of litigation are very prohibitive and
there is always a danger of having to pay damages to the other party in the event of losing a case.
It is within this context that the Public Law Institute (PLI) was created by the National
Council of Churches of Kenya and the Law Society of Kenya in 1981. Its scope also extended
to consumer and environmental protection as well as legal representation and services to the
poor and disadvantaged. Together with the Kenya Consumer Organisation, the PLI successfully
sued the Kenya Power and Lighting Company for the reversal and refund of power supply tariff
increases.611 On the environmental front, the PLI was the lawyer in the Wangari Maathai v. Kenya
Times Media Trust case, and even though unsuccessful, exerted pressure on the government and
the backers of the project that led to its abandonment.612 There is a need for more public-spirited
lawyers to assist members of the public to access justice.

609 Ibid. at 24.

610 Environment Management and Coordination Act, section 3(1).
611 http://www1.umn.edu/humanrts/africa/kenya.htm, accessed on 16 July 2010.
612 High Court of Kenya, Civ. Case No. 5403 (1989).

7 . A ccess t o J u stice 165

Jurisdiction of courts
The earlier discussion on the jurisdiction of different courts illustrates that there are some cases
that can only be brought to particular courts.613 This depends on the pecuniary and physical
jurisdiction of a court with regards to the subject matter. People are restricted to certain courts
depending on the value of the subject matter. The Chief Justice can direct where some matters
may be heard. For instance, a directive was issued in 2007 that judicial review matters could
only be heard in Nairobi.614 This affects access to justice in the sense that the costs incurred in
the issue of bringing the matter to the jurisdiction of the courts are enormous. Consider the
case of judicial review of a matter that was heard in Kisumu. The travel and accommodation
expenses to and from Nairobi until the matter is finished can be astronomical. Such is the case
where a matter of high pecuniary interest arises in the countryside, and then the parties and their
witnesses have to bear the high travel costs to the nearest High Court. There was a huge outcry
from the Bar615 and the directive was withdrawn.

Peter Nganga Muiruri v. Credit Bank Ltd & 2 others [2008] eKLR
Court of Appeal at Nairobi, (RSC Omolo, SEO Bosire & JW Onyango-Otieno JJA)
February 8, 2008
The parties to this appeal had been in the Court of Appeal on two previous appeals. The first
appeal, in which the first respondent in this appeal was the appellant, arose from a dispute
about a mortgage debt and it concerned the interpretation of certain terms contained in
a consent agreement recorded by the parties. That appeal was dismissed by a differently
constituted bench of the Court of Appeal.
The second appeal was filed by the appellant in the present appeal against the respondent
bank and its advocate (the first and second respondents to this appeal). The dispute concerned
certain monies deposited into a joint bank account and a professional undertaking which the
High Court had declined to enforce. A differently constituted bench of the Court of Appeal
allowed the appeal and ordered the bank’s advocate to deposit the monies in a bank account
held jointly with the appellant’s advocate.
Subsequently, the appellant moved to the High Court for an order to have the money held
in the account released to him. After this application was dismissed by the High Court, the
appellant filed an originating summons for several orders, including a declaration of whether
his fundamental rights had been violated by a failure of the Court of Appeal to conclusively

613 See Criminal Procedure Act, chapter 75, Laws of Kenya; Civil Procedure Act, chapter 21, Laws of Kenya.
614 Kenya Gazette (Issue No. 218) Notice on February 19, 2007.
615 See e.g. Standard (2007).

166 PART II kenya: Justice sector and the rule of law

determine the second appeal referred to hereinabove. The appellant felt that the Court of Appeal
had failed to determine with finality the issues of the amount of the deposit and ownership of
the money.
The originating summons was listed before the Chief Justice for him to decide on its direction.
However, the Chief Justice dismissed it in so far as it related to being a constitutional matter
when he allowed a preliminary objection raised by the respondents on the grounds that the
matters raised by the applicant were not issues that merited going to the constitutional court.
Following that ruling, the applicant took out a motion on notice in the suit seeking a declaration
of whether his fundamental rights had been violated by the decision of the Chief Justice
‘denying the applicant access to the Constitutional Court and denying him a hearing’ and
whether the decision and all its consequential orders and processes were null and void. On this
basis, the applicant asked for orders of prohibition to stop the execution of the Chief Justice’s
orders, mandamus directed at him to constitute a court to enforce the applicant’s rights and an
order of stay of the process of taxation and execution of costs against him.
The application came before J Nyamu. In his ruling, he found that the matter was res judicata
as the issue raised before him had been canvassed and ruled upon before the Chief Justice
sitting in his capacity as a judge of the High Court. While acknowledging that the High
Court had jurisdiction under section 84 of the Constitution to hear a challenge directed at an
order or ruling made by a judge, he observed that the jurisdiction did not necessarily extend
to considering or reviewing the merits of the judge’s ruling but to whether the process or
procedure adopted in obtaining the ruling was proper. However, the judge noted that in certain
circumstances that jurisdiction might be wider.
J Nyamu declined jurisdiction to grant the orders the applicant had sought in his application
thus provoking his third appeal in which the appellant raised four main issues:
1. That the originating summons had been improperly referred to the Chief Justice on the basis
of an administrative practice which had no sanction in law;
2. That the High Court erred in holding that the Chief Justice had jurisdiction to entertain the
originating summons when he (the Chief Justice) was not a member of the Constitutional
Court;
3. That the High Court had failed to appreciate that the originating summons was mentioned
before the Chief Justice who had improperly proceeded to make final orders upon it and shut
out the appellant from the Constitutional Court; and
4. That the High Court had erred in holding that because the appellant did not raised an
objection to the reference of his originating summons to the Chief Justice, he had acquiesced
to the procedure.
Held:
1. There is no provision in the Constitution which establishes what the High Court has referred
to as the Constitutional Court. In Kenya there is a division of the High Court at Nairobi
referred to as ‘Constitutional and Judicial Review’ Division. It is not an independent court but
merely a division of the High Court.

7 . A ccess t o J u stice 167

 2. Section 67 of the Constitution which gives the power to the High Court to deal with
questions of interpretation of sections of the Constitution and section 84 which related to
the protection of fundamental rights, did not talk about a constitutional court. Instead, the
sections talked about the High Court.
3. The creation of the Constitutional and Judicial Review Division of the High Court was an
administrative act with the sole object of managing the cause list. The Chief Justice has no
jurisdiction to create a constitutional court with supervisory jurisdiction over all courts as
opposed to creating a division of the High Court.
4. Any single judge of the High Court has the jurisdiction and power to handle a constitutional
question. The establishment of a constitutional division did not create a court superior to a
single judge of the High Court sitting alone.
5. Courts must exercise the jurisdiction and powers vested in them. The High Court has no
jurisdiction whatsoever to review the decisions of the Court of Appeal. A decision which
emanates from a court regarding itself as a constitutional court with powers of review over
decisions of judges of concurrent or superior jurisdiction is at best a nullity.
6. Having held that he lacked the jurisdiction to hear it, it was not open to the learned judge
to at the same time consider whether he had the jurisdiction generally to entertain a
constitutional challenge of a decision emanating from the Court of Appeal. The issue was
extraneous to the matter before him.
7. No part of a decision of any court can be severable on appeal so as to distinguish between
the merits of a decision and procedural violations and be dealt with separately, except where
by reason of rule 74 of the Court of Appeal Rules, the party appealing has singled out the part
of the decision he is aggrieved of, upon which he seeks a decision. Procedural aspects in the
administration of justice are an integral part of those decisions and are not severable.
8. The appellant, by filing the originating summons which was referred to the Chief Justice,
and also the motion before J Nyamu was challenging the doctrine of finality – that there
has to be an end to the litigation. There was neither constitutional nor statutory authority to
support his approach. Therefore, neither the Chief Justice nor J Nyamu had the jurisdiction to
entertain the appellant’s application to the extent that he was seeking to challenge a decision
of a court of competent jurisdiction against which no constitutional or statutory right of
appeal or review was available.
Appeal dismissed with costs to the respondent.
Dicta per RSC Omolo, SEO Bosire & JW Onyango-Otieno JJ.A:
‘Appeals from the High Court lie to this Court. If this Court’s decisions will be subject to a
review by the so called “Constitutional Court”, an appeal from that court will lie to this Court
for a second time, and if any of the parties feels any of his fundamental rights has been violated
by this Court he will have recourse to the “Constitutional Court” whose decision thereon will be
appealable to this Court. There will be no end to litigation.’

S o u r ce :
http://www.kenyalaw.org/Articles/show_latest.php?cat=20 .

168 PART II kenya: Justice sector and the rule of law

E. Reasonable delay
Civil cases in Kenya take different durations of time to be complete depending on the parties to
the dispute. There are various stages that are supposed to be followed before a party decides to
institute a suit. If the parties agree on the period within which they can solve the dispute, none of
the parties will decide to go to court. If a party decides to go to court, they file a complaint which
is served on the other party. Delays in civil trials are caused mainly by adjournments by any party
either by mutual consent or if one of the parties is not in a position to continue with the case at a
given time. Delays are also caused by the large number of cases which have not been adjudicated,
transfer of magistrates or judges or even the misplacement of files. Some cases take more than
a year before they can commence.
A party who has been aggrieved by a decision of a subordinate court is allowed to appeal to
the High Court. The Civil Procedure Act lays down the rules and the procedure that is supposed
to be followed when instituting an appeal. Once the appellant has filed an appeal he is supposed
to serve it on the other party. Concerning the time that the appellant is allowed before he can
appeal, section 79G of the Civil Procedure Act (chapter 21 of the Laws of Kenya) states that:
Every appeal from a subordinate court to the High Court shall be filed
within a period of thirty days from the date of the decree or order appealed
against, excluding from such period any time which the lower court may
certify as having been requisite for the preparation and delivery to the
appellant of a copy of the decree or order: Provided that an appeal may be
admitted out of time if the appellant satisfies the court that he had good
and sufficient cause for not filing the appeal in time.

According to research carried out in 2004 by the Kenya AIDS NGO Consortium, the average
civil matter takes between two and six years.616 The Ethics and Governance Sub-Committee617
found that there were delays in the finalisation of matters brought before the courts attributable
to the failure of witnesses to attend court and unnecessary adjournments.618 Delays occasion
great injustice to people whose legal rights remain unadjudicated because of the adjournments
of cases. The delays also serve as impediments to access to justice with most people unwilling
to undertake the enormous expense of instituting a claim. They thus seek alternative remedies
such as mediation by traditional elders despite their potential for bias.

F. Mechanisms to assert rights outside the court system

Outside the court system, Kenya has a quasi-judicial system of asserting rights. This takes the
form of administrative tribunals established subject to the provisions of the enabling legislation.
They are established to ensure that certain types of civil disputes are given specialised judicial
attention, either due to their complexity, urgency, large number of cases or other unique
attribute.619 Tribunals operate with fewer adherences to rules of procedure and are perceived

616 Kalla & Cohen, supra note 8 at 29.

617 See Republic of Kenya (2005B).
618 Ibid.
619 ICJ-Kenya (2003: 41).

7 . A ccess t o J u stice 169

to be less expensive.620 Administrative tribunals established in Kenya include the Industrial
Court,621 Rent Restriction Tribunal,622 Public Procurement and Disposal Review Board,623 Water
Appeals Board,624 the Seeds and Plant Varieties Tribunal,625 the Capital Markets Tribunal,626 the
Sugar Tribunal,627 the Cooperatives Tribunal,628 the Business Premises Rent Tribunals629 and
the National Environment Tribunal.630 We discuss a few tribunals in this section to illustrate
their mandate and operations.

Kenya Industrial Court

The Kenya Industrial Court is established under the provisions of the Trade Disputes Act.631
The court’s main objective is to deal with disputes between employers and employees such as
the dismissal of employees or non-payment of dues to employees. It is presided over by a judge
who is appointed by the president for a term not less than five years. He is assisted by four other
members who are appointed by the Minister for Labour for a period of not less than three years.
The judge should have the same qualifications as those of a puisne judge, namely an advocate of
the High Court of not less than seven years’ standing. The judge and the four members can be
reappointed to the court after the expiry of their terms.
The Minister for Labour appoints the four members to the court in consultation with the
Central Organisation of Trade Unions, the Minister for Finance and the Federation of Kenya
Employers. One of the four members is appointed by the minister to be the deputy to the judge.
The judge of the court has the power to appoint two assessors from the panel of assessors
appointed by the minister; one to represent the employer and the other the employee. The
decision of the Industrial Court is final and hence a dissatisfied party cannot appeal to any other
court. The Trade Disputes Act stipulates that any trade dispute should be reported to the Minister
for Labour by an employer or employee, trade union or employers’ organisation. The minister
can notify the parties to the dispute about his decision or he can refer them to the Industrial
Court. A decision by the minister can be appealed at the Industrial Court whose decision is final.
Collective agreements, such as any agreement between a trade union and the employer (or the
employers’ federation) are registered at the Industrial Court.632

620 Government of Kenya (2010).

621 Trade Disputes Act, chapter 234, Laws of Kenya.
622 Rent Restriction Tribunal, chapter 296, Laws of Kenya.

623 Public Procurement and Disposal Act of 2005, Laws of Kenya.

624 Water Act, Act No. 2 of 2002, Laws of Kenya; Water Appeal Board Rules, Legal Notice No. 144.

625 Seeds and Plant Varieties Act, chapter 326, Laws of Kenya.

626 Capital Markets Act, chapter 485A, Laws of Kenya.

627 Sugar Act, 2001, Laws of Kenya.

628 Cooperatives Societies’ Act, Act No. 12 of 1997, Laws of Kenya (as amended in 2004).

629 Business Premises Rent Tribunals Act, chapter 301, Laws of Kenya.

630 Enviornment Management and Coordination Act, Act No. 8 of 2000, Laws of Kenya.

631 Trade Disputes Act, supra note 45.

632 ICJ-Kenya (2003: 2).

170 PART II kenya: Justice sector and the rule of law

Rent Restriction Tribunals
These tribunals are established under the Rent Restriction Act.633 There are various rent
tribunals in the major cities of Nairobi, Mombasa and Kisumu. Each of these tribunals has a
distinct administrative jurisdiction.634 A rent tribunal is established by the Minister for Housing
in an area where the minister may think necessary. The tribunal consists of a chairman, deputy
chairman and a panel of members determined by the minister. The chairman is appointed by the
minister. A person eligible for appointment as the chairman or deputy chairman must have been
an advocate or legal practitioner in Kenya for not less than five years. Any member serves at the
tribunal at the discretion of the minister. The tribunal is usually presided over by the chairman
or his deputy and two members selected by the permanent secretary in charge of housing from
among a list of people approved by the minister.635
The main purposes of this tribunal include:
• Determining the reasonable rents for residential houses and imposing some restrictions
on increasing such rents;
• Investigating complaints made by either tenants or landlords relating to the tenancy of
the dwelling houses; and
• Assessing the standard rent of any dwelling house to which the Act applies, either on
its own motion or on the application of any interested person.636

Decisions in this tribunal are reached through a majority of votes by the members present. If
there is a tie, the chairman has a casting vote. The chairman, due to his legal knowledge, is
entitled to give a ruling on any point of law that arises.

Public Procurement Administrative Review Board

This tribunal is established by the Public Procurement and Disposal Act of 2005 to undertake
administrative review of procurement proceedings. This Act gives standing to ‘any person who
claims to have suffered or to risk suffering loss or damage due to the breach of a duty imposed
on a procuring entity’. In a nutshell, the tribunal is a forum for the administrative review of
public procurement decisions, and forms a critical part of the government’s efforts to ensure
transparency and accountability in the public procurement process. The board handles about
one hundred cases annually and is contributing immensely to the restoration of credibility to
the public procurement system. For example, the board has stopped a considerable number of
corrupt and irregular proceedings. As a result, both local and foreign firms actively participate in
its proceedings and have given it good reviews.

633 Rent Restriction Act, chapter 296, Laws of Kenya.

634 See ICJ-Kenya (2003: 3).
635 Ibid.

636 Ibid.

7 . A ccess t o J u stice 171

Business Premises Rent Tribunals
These tribunals are established under the Landlord and Tenants (Shops, Hotels and Catering
Establishments) Act.637 This Act regulates controlled tenancies. It defines ‘controlled tenancy’
as a tenancy of a shop, hotel or catering establishment, which is in a written form and is for a
period not exceeding five years. The Business Premises Rent Tribunals are established to set out
reasonable tenancy standards and to ensure that the landlords do not charge excessive rents for
business premises.638 These tribunals have the following powers among others:
• To determine whether or not any tenancy is a controlled tenancy;
• To determine or vary the rent payable in respect of any controlled tenancy;
• To fix the amount of any service charges if required as per agreements in respect of
controlled tenancy;
• To make orders for the recovery of possession and for the payment of arrears of rent;
• To permit the levy of distress for rent; and
• To award compensation for any loss incurred by a tenant on termination of a controlled
tenancy in respect of good will, and improvements carried out by the tenant with the
landlord’s consent.

Kenya National Commission on Human Rights Complaints Hearing Panel

The Kenya National Commission on Human Rights has also set up a redress programme.
Under this programme is established a complaints hearing panel, an alternative dispute
resolution mechanism and a forum for public enquiries. The Complaints Hearing Panel is a
quasi-judicial process for resolving human rights complaints. It is less rigid than a court of law
and is not bound by the strict rules of civil and/or procedure or the stringent requirements of
the Evidence Act. It hears matters where human rights have been violated and provides adequate
redress. The decisions of the Complaints Hearing Panel are enforceable in the High Court of
Kenya where appeals from the panel are addressed.

National Environment Tribunal

The National Environment Tribunal (NET) is established under section 125 of the Environment
Management and Coordination Act (EMCA) 1999. It consists of the following five members: the
chairman appointed by the Judicial Service Commission; two lawyers, one nominated by the law
society of Kenya and the other appointed by the minister for Environment and Natural Resources
and Wildlife; and two persons with competence in environmental conservation appointed by the
minister. The Tribunal is an independent body charged with the following functions:
• To review administrative decisions and actions of the National Environmental Authority
(NEMA) in matters of issue, cancellation, denial of licence, amount of money to be paid
under the EMCA; and
• To give legal opinion to the National Environment Managment Authority (NEMA) in
any matter of a complex nature referred to it.

637 Landlord and Tenants (Shops, Hotels and Catering Establishments) Act, chapter 301, Laws of Kenya.
638 Ibid.

172 PART II kenya: Justice sector and the rule of law

On receiving an appeal or referral, NET is supposed to:
• Inquire into the matter and make decisions or give directions without reference to any
other party;
• Confirm, set aside or vary the order or decisions in question;
• Exercise any of the power which could have been exercised by NEMA in the proceedings
in connection with the appeal or make other orders, including any order for costs, as it
may deem just; and
• Order the status quo to be maintained pending determination of the appeal.

The mission of NET is to provide accessibility to justice that is relatively inexpensive, while its
vision is to provide compliance with the law with the aim of achieving sustainable environmental
management. NET may exercise the following powers:
• Compel attendance of any party or person;
• Order for discovery or production of documents;
• Order for investigation of any contravention of the EMCA as it deems necessary or
expedient;
• Take evidence on oath or may for that purpose administer oath;
• Make an award, give directions, make orders or decisions of matters heard before it;
• Confirm, set aside or vary an order or decision in question and make other orders
including orders of cost as it may deem just or on its own motion; and
• Summon and hear any person as a witness.

Any person aggrieved by a decision or order of this tribunal may, within thirty days of such
decision or order, appeal to the High Court. Upon the appeal, the High Court may:
• Confirm or set aside or vary the decision or order in question;
• Remit the proceedings to the Tribunal with such instructions for further consideration,
report, proceedings or evidence as the court may deem fit to give;
• Exercise any of the powers which may have been exercised by the Tribunal; and
• Make such order as it deems just, including an order as to costs of the appeal or of
earlier proceedings in the matter before the Tribunal.

The decision of the High Court is final. The Tribunal makes its decisions independently in
accordance with the law and free from any political interference. It operates from an arm’s length
from departments which are likely to interfere with its impartiality.

Public Complaints Committee

Another mechanism for asserting rights outside the court process is the Public Complaints
Committee established under article 31 of the Environmental Management and Coordination
Act. It was constituted in August 2001 but it started serious operations in January 2003. The
chairman is appointed by the minister in charge of the environment. He must be a person
duly qualified to be appointed as a judge of the High Court of Kenya. Other members of
the committee include: a representative of the Attorney General; a representative of the Law

7 . A ccess t o J u stice 173

Society of Kenya; a representative of non-governmental organisations appointed by the NGO
Council who acts as the secretary to the committee; a representative of the business community
appointed by the minister; and two members appointed by the minister for their active role in
environmental management. The functions of the committee include:
• To investigate any allegations or complaints against any person regarding the
environment in Kenya;
• To investigate any allegations or complaints against the National Environmental
Management Authority (NEMA) regarding the environment in Kenya; and
• To investigate on its own motion any suspected case of environmental degradation in
Kenya.

G. Traditional and other non-state justice systems

Traditional law is recognised and listed as one of the sources of law. Chapter 8 of the Judicature
Act lists customary law as one of the sources of laws and directs that customary law should be
applicable where the parties are subject to customary law. However, its application is limited to
the application of civil customary laws and not criminal laws, which are governed by the Penal
Code. Customary law is not codified. Expert witnesses, literature and past court decisions are the
basis for determining the existence and application of customary law.
Many Kenyans pursue their grievances and conflicts through alternative justice systems. They
include traditional systems, peace or reconciliation forums, Islamic courts and interventions of
the local chiefs. The latter are part of the provincial administration and they are mandated to
maintain law and order in their communities. They employ statutory as well as customary
or informal conflict resolution methods to resolve conflicts. Kenyan law does not formally
recognise the role played by non-state justice systems. In most of the rural parts of Kenya, justice
is sought through the use of non-state justice systems such as a council of elders or extended
family members and religious institutions. Cases which are most commonly brought to these
institutions include matters to do with land disputes, livestock disputes, marital and domestic
matters as well as domestic violence. Some crimes such as assault and sexual violence are also
referred to the elders for resolution. The legal system acknowledges only Kadhi courts as the only
religious courts in Kenya. Other examples of non-state justice systems include:
• Initiatives such as the ‘peace elders initiative’ in Laikipia district, which are working to
make dispute resolution processes more inclusive, by bringing in youth and women
as ‘elders’;639 and
• Chiefs and assistant chiefs who are appointed by government as local administrators.
They take on a significant role in settling disputes in areas where access to police and
courts is restricted. They preside over, and record proceedings of, cases in which elders
chosen by the disputing parties make the final decision. Chiefs and their assistants also
hold positions of authority in their clans, sometimes on the basis of popular elections.

639 Nyamu-Musembi (2003).

174 PART II kenya: Justice sector and the rule of law

Several government-led activities and reform programmes either aim to support conflict
resolution at the local level or focus on providing improved access to justice by improving the
formal system. The Provincial Administration is currently training chiefs in conflict resolution.
The National Steering Committee on Peace-Building and Conflict Management, coordinated
from within the Office of the President, is in the process of developing a policy framework with
the aim to coordinate and harmonise peace-building and conflict-management interventions.
These non-state and traditional judicial systems apply some of the principles and guidelines
on the right to a fair trial and legal assistance such as:
• Accord fair trial;
• Accord equality of persons without any distinction whatsoever as regards race, colour,
sex, gender, religion, creed, language, political or other opinion, national or social
origin, means, disability, birth, status or other circumstances except for Kadhi’s courts
which are exclusive to Muslims;
• Respect the inherent dignity of human persons, including the right not to be subject to
torture, or other cruel, inhuman or degrading punishment or treatment;
• Respect the right to liberty and security of every person, in particular the right of every
individual not to be subject to arbitrary arrest or detention;
• Respect the equality of women and men in all proceedings;
• Respect the inherent dignity of women, and their right not to be subjected to cruel,
inhuman or degrading treatment or punishment;
• Allow for the assistance of an interpreter if he or she cannot understand or speak the
language used in or by the traditional court;
• Allow for the assistance of and representation by a representative of the party’s choosing
in all proceedings before the traditional court;
• Allow appeal to a higher traditional court, administrative authority or a judicial tribunal;
and
• Conduct all hearings before traditional courts in public and render its decisions in
public, except where the interests of children require or where the proceedings concern
matrimonial disputes or the guardianship of children.

There are certain forums that breach these guidelines. Such as:
• Some norms and traditions discriminate against women and children;
• Some forums do not allow a representative of the party’s choosing in all proceedings
before the traditional court;
• Some rules do not allow appeal to a higher traditional court, administrative authority or
a judicial tribunal; and
• There are no procedures for complaints against and discipline of members of traditional
courts that are prescribed by law.

Mediation and arbitration by traditional elders is preferred because of the relatively lower cost
and unavailability of formal court structures.

7 . A ccess t o J u stice 175

 Generally, there is no effort to formalise these courts from the central government. As a
result, there is no regulation to ensure that the proceedings before these courts conform to
international law and constitutional standards of due process. It is, however, noteworthy that
the new constitution requires the National Land Commission ‘to encourage the application of
traditional dispute resolution mechanisms in land conflicts’.640 It also addresses these bodies at
Section 159 (2)(c) and (3) as noted above. The 2010 Report of the Task Form on Judicial Reforms
also recognises alternative dispute resolution as ‘a way of reducing backlog of cases in court and
ensuring speedy and affordable access to justice’.641 It specifically proposes the need to:642
• Enact enabling legislation for mediation and other alternative dispute resolution
mechanisms (mediation-arbitration, negotiation, conciliation and adjudication);
• Encourage out of court settlement of claims in family and commercial disputes by the
Bar and Bench;
• Train judicial officers in alternative dispute resolution mechanisms through the Judicial
Training Institute and other training institutions locally and abroad; and
• Establish a complaints mechanism and appropriate codes of conduct for arbitrators,
mediators and other alternative dispute resolution bodies.

H. Recommendations
Access to justice is quintessential to the realisation of the rule of law ideal and should be
promoted vigorously. In this regard, we propose that:
• The ration of lawyers to the population should be improved in the country and efforts
made to avail legal and judicial services in all parts of Kenya.
• The government and civil society should establish mechanisms for educating citizens
on their rights and make them aware of the different ways in which they can access
justice.
• The government, in collaboration with other stakeholders offering legal aid services,
should establish a national legal aid scheme to enable more Kenyans to access justice.
• The government, in collaboration with other stakeholders such as the Law Society of
Kenya, should provide a framework and incentives for engaging in public interest
litigation.
• The government should encourage and institutionalise alternative dispute resolution
to ease the backlog in courts and ensure expedient resolution of justice and ensure
that traditional justice systems adhere to the constitutional norms of equality and non-
discrimination.
• The government should establish more venues such as courts for formal dispute
resolution to ensure that citizens do not have to travel long distances or incur huge
costs to access these venues.
• The government should make it easier for people with disabilities and other
marginalised users with special needs to access the venues of formal dispute resolution.

640 Constitution of Kenya (2010), section 67(f).

641 Government of Kenya (2010: 54).
642 Ibid. at 55.

176 PART II kenya: Justice sector and the rule of law

• The government should train judicial officers in dispute resolution to ensure that
they do not go against cardinal rules of access to justice such as fairness and non-
discrimination in dispensing justice.
• The government should implement the provisions of the new constitution on
alternative forms of dispute resolution and the recommendations of the 2010 Report
Task Force on Judicial Reforms.

7 . A ccess t o J u stice 177

8
The role of development partners
While development assistance has contributed to efforts to realise the rule of law in Kenya, much
foreign aid has only been given to further the interests of donor countries or agencies. Donors
continue to set much of the agenda and the conditions for cooperation, even in the context of
sector-wide approaches (SWAps). The experiences of the Governance, Justice, Law and Order
Sector (GJLOS) Reform Programme illustrate the need for a national law on the administration
of aid, establishing clear institutional and accountability frameworks, and also structuring the
participation of all stakeholders. Such a law should also mandate the government to keep an
inventory of all development assistance agreements and facilitate public access thereto. Further,
such a law should facilitate the integration of aid with national development strategies. It is
therefore encouraging that there is now a greater awareness of the need to establish a legal
framework for the administration of aid in the justice, law and order sector.

A. An overview of development assistance to the justice sector

At present, 17643 development partners have, jointly with government and non-state actors,
developed the Kenya Joint Assistance Strategy (KJAS), and are using the KJAS as a basis for
implementing the government’s development strategy, including the 2030 Vision and also
linking it to the achievement of the Millennium Development Goals (MDGs). Budget support
will be made available by the development partners if the government makes adequate progress
in transparency and accountability. This strategy lays emphasis on partnership between the
government, development partners and non-state actors. The KJAS is centred on three principles
consistent with the Paris Declaration on Aid Effectiveness, namely:

643 Canada, Denmark, the European Commission (EC), Finland, France, Germany, Italy, Japan, the Netherlands, Norway, Spain,

Sweden, the United Kingdom, the United States of America, the African Development Bank, the United Nations and the World
Bank Group.

178 PART II kenya: Justice sector and the rule of law

 • Support of country-owned and government-led strategies to improve social well-being
and achieve the MDGs;
• More effective collaboration between development partners and the government; and
• A focus on results and outcomes.

In the justice sector, donors’ support has mainly been channelled through the GJLOS Reform
Programme, a basket-funded sector-wide programme that has been supporting reforms in 34
government ministries, departments and agencies (MDAs) including the judiciary, the police
and the Deputy Public Prosecutor. Implementation of the programme commenced in 2004
under a Short-Term Priorities Programme (STPP), which was a one-year work plan of activities,
mainly aimed at building the capacity of the participating MDAs in terms of the procurement of
necessary equipment and materials and the training of personnel.
The STPP implementation ended in September 2005 and the MDAs then developed a
Medium-Term Strategy (MTS) for the period 2005–2009. The MTS focused on reform in
the sector in order to make the government more responsive to the needs of the people, and
prioritised reform measures in each of the sub-sectors addressed by the programme, namely
governance, human rights, justice, law and order as well as in capacity building. Each MDA’s
activities in this respect were aimed at contributing to the achievement of one or more of the
following key result areas of the programme:
• Responsive and enforceable policy, law and regulation;
• More effective GJLOS institutions;
• Reduced corruption-related impunity;
• Improved access to justice especially for the poor, marginalised and vulnerable;
• More informed and participative citizenry and non-state actors; and
• Effective management and coordination of the GJLOS Reform Programme.

Currently, the World Bank and the UK’s Department for Internationl Development (DFID) are
also providing support to the Financial and Legal Sector Assistance Programme (FLSTAP) with
the objective of creating a sound financial system and stronger legal framework and judicial
capacity that will ensure broad access to financial and related legal services. This objective is
being achieved through provision of technical expertise and building capacity to implement
the government’s financial Sector Reform Programme and supporting implementation of the
relevant key results areas of the GJLOS Reform Programme. In addition, the World Bank is
funding a project on reform of the judiciary. Other donors who provide support to the justice
sector include the Canadian International Development Agency (access to justice), the Danish
Agency for International Development (access to justice), the Swedish International Development
Agency (SIDA) (access to justice), the United States Agency for International Development (good
governance) and the United Nations Development Programme (legal empowerment).
Donors also support non-state actors engaging with the justice sector through various
mechanisms, principally the Civil Society Democratic Governance Facility (the ‘DG facility’), the
National Civic Education Programme (NCEP II), the Gender and Governance Programme (GGP
III) and the Civil Society Strengthening Programme.

8 . T he r o le o f D evel o pment P artners 179

 It should be noted that information about these development assistance programmes can
be accessed from the websites of the institutions concerned. The GJLOS Reform Programme
has provided the most information to interested parties, which can readily be accessed from
its website.644 The information is available in the form of reports, research and case studies,
strategies, plans and budgets and workshop reports.

B. Transparency and accountability in development assistance

Since the SWAp approach is the mode of aid delivery now preferred by donors, it is useful to
examine whether it enhances transparency and accountability in the provision of development
assistance. Here, we examine the GJLOS Reform Programme in greater detail. It should be
noted that the GJLOS constitutes Kenya’s first SWAp and is considered by many in government
and donor circles as a test case. The expectation is that it should be replicated in other sectoral
reform programmes.645
We should also note at the outset that while SWAp promise to enhance the effectiveness
of aid, a major drawback is that they invariably seek to bypass national public accounting and
procurement systems on the grounds that the latter are ineffective and corrupt. On the one
hand, there is much evidence, for example, that these systems in many cases merely facilitate the
use of public procurement as a resource for political patronage and for the unjust enrichment
of corrupt public officials. On the other hand, if the development of local public procurement
capacity is instrumental for the effectiveness of aid, then the case for the maintenance of
parallel procurement regimes ceases to be persuasive. This is especially the case where, as in
Kenya, considerable efforts have been made to reform the national procurement system. The
maintenance of parallel procurement systems is not only inefficient, but also provides avenues
for corruption since the lines of accountability are attenuated. At the very least, there is therefore
a case for the harmonisation of these parallel systems.
In response to concerns that SWAps are bypassing national frameworks for accountability,
development partners often argue that they are primarily accountable to their taxpayers and that
it is up to the recipient governments to worry about accountability to the local electorate. Again,
this argument is not entirely persuasive since this accountability relationship implicates the
effectiveness of aid. Because there are no frameworks through which the local electorate can
hold such governments to account, aid funds have invariably not been used for their intended
purposes. Accordingly, there is a strong case for reformed national frameworks to ensure the
accountability of SWAps to the citizens of developing countries since the local electorate cannot
demand accountability directly from the development partners.

The nature of the GJLOS Reform Programme646

The principal objective of the Governance, Justice, Law and Order Sector (GJLOS) Reform
Programme is to strengthen the capacities of the institutions in the governance and legal sector

644 See www.gjlos.go.ke.

645 See Everatt et al (2004: 12).
646 The following account of the GJLOS Reform Programme is largely drawn from Akech (2005).

180 PART II kenya: Justice sector and the rule of law

for ‘efficient, accountable and transparent administration of justice’.647 The Programme is quite
broad, and brings together some thirty departments of the government drawn from the Ministry
of Justice and Constitutional Affairs (MoJCA), Office of the President (Provincial Administration
and National Security), the Ministry of Home Affairs, the Attorney General and the judiciary.648
These departments of government work with an array of donor organisations and non-state
actors drawn from the private sector and civil society.
The Programme emerged in the environment of optimism that followed the inauguration of
the NARC administration. The new government developed a comprehensive policy framework,
the Economic Recovery Strategy for Wealth and Employment Creation (ERS),649 in which it
identified governance as one of the foundations for economic growth. Through the ERS, the
NARC government sought to institute reforms in public administration, national security and
law and order. Among the new institutions it created to foster the required governance reforms
were the MoJCA and the Department of Governance and Ethics in the Office of the President.650
The enthusiasm of the Kenyan people was shared by the development partners, who quickly
moved in to support the reform agenda of the new government. It is in this environment that
the MoJCA and development partners conceived the GJLOS Reform Programme in November
2003. At inception, the participation of non-state actors in the Programme was quite limited
and unstructured.651 In addition, a major drawback of the GJLOS Reform Programme is that it
concentrates on supply factors at the expense of demand factors. For example, it does not address
how citizens can access justice.
The Programme was developed out of a realisation that the institutions in the governance
and legal sector need to address their inadequacies on a sector-wide basis if they are to be
effective. In the administration of criminal justice, for instance, it was noted that the judiciary
cannot function efficiently and effectively without the cooperation of the prosecution service, the
police and the prisons department.652 The development partners introduced the idea of sector-
wide funding in order to support the government’s integrated approach to reforms.653
It should be noted that following its launch, the GJLOS Reform Programme was divided
into two phases, a Short-Term Priorities Programme (STPP) and a Medium-Term Strategy
(MTS).654 The STPP, which closed in December 2005, targeted ‘quick wins’ while building an
appetite for reform.655 The MTS, which was launched in July 2005, targeted deeper and more
substantive reforms, and was expected to terminate in June 2009, with the expectation that a
follow-up sector strategy would be developed thereafter.656

647 Governance, Justice, Law and Order Sector Reform Programme, Short Term Priorities Programme (STTP) Fiscal Year
2003/04 (2003: 11) (hereinafter STTP).
648 Everatt et al, supra note 3 at 6.

649 Republic of Kenya (2003).

650 Everatt, et al, supra note 3 at 5.

651 Ibid. at 13–14.

652 STTP, supra note 5 at 11.

653 Everatt et al, supra note 3 at 17.

654 Republic of Kenya (2007: 2).

655 Ibid.

656 Ibid.

8 . T he r o le o f D evel o pment P artners 181

 The principal document governing the Programme is a memorandum of understanding
(MoU) between the government and the development partners. The MoU sets out the funding
arrangements for the Programme. It provides that most of the development partners will
provide funding through a basket fund, the GJLOS Basket Fund, while others will do so on
a bilateral basis.657 While bilateral funding agreements take precedence over the MoU, the
development partners undertake to ‘strive to establish funding agreements that are compatible
with the provisions of [the] MoU’ for the sake of harmonisation.658 Further, the MoU sets out
the terms and procedures for the joint management, funding, monitoring and evaluation
of the Programme. Thus, it provides for the appointment of a financial management agent
(FMA) to manage both the basket and non-basket funds, through a holding account in a
commercial bank.659 It also gives the government overall responsibility and accountability for
the implementation of the Programme.660
A number of institutions have been established to assist the MoJCA to run the Programme,
namely the Inter-Agency Steering Committee (IASC), the Technical Coordination Committee
(TCC) and its management committee, the Donors’ Coordination Forum, the Thematic Groups
and the Programme Coordination Office (PCO). These institutions work together with the thirty
or so government departments charged with the task of implementing the Programme.
The IASC provides policy oversight and strategic leadership to the Programme, and is
made up by senior government officers, namely the vice president, ministers in the MoJCA and
Office of the President, the Attorney General, the Chief Justice and the Permanent Secretary
Governance and Ethics. The IASC was created to ensure that there is sufficient political goodwill
behind the programme.661 However, it is not a recognised structure of the Cabinet, which
therefore means that it does not derive its mandate from formal structures of the executive.662
The IASC has not met regularly, a failure which has been attributed to the absence of a policy
and legislative framework.663 Generally, the IASC ‘is not seen as taking a keen interest in the
[GJLOS] programme, nor is it seen to act as a champion of the reform agenda or provide policy
leadership’.664 It has thus been suggested that the functions of the IASC should be transferred
to a formally constituted sub-committee of the Cabinet.665
The task of the TCC is to provide guidance on Programme implementation, coordinate
implementation and ensure that implementation is in line with government policies. Its
members are a justice of the Court of Appeal as chair, permanent secretaries, heads of

657 Governance, Justice, Law and Order Sector Reform Programme, Memorandum of Understanding, section 5 (2003). Eight

development partners provide their funding through the Basket Fund. These are the governments and/or development agencies
of Canada, Denmark, Finland, Germany, the Netherlands, Norway, the United Kingdom and Sweden. They have appointed the
Swedish International Development Agency (SIDA) as the lead donor.
658 Ibid.

659 Ibid. at sections D3, K1.

660 Ibid. at section E1.

661 Everatt et al, supra note 3 at 57.

662 Everatt & Kanyinga (2007: 46).

663 Ibid.

664 Ibid.

665 Ibid.

182 PART II kenya: Justice sector and the rule of law

departments participating in the Programme and representatives of donors, private sector
and civil society organisations. Because of its large size, it has a management committee to
provide coordination and decision-making oversight. The management committee comprises
permanent secretaries and heads of institutions given the task of leading the thematic groups.
The TCC meets regularly, although ‘the heads of department do not always appear to have
the time or information necessary to engage effectively around conceptual issues that need
discussion and decision-making at this level’.666 It should also be noted that MoJCA now wants
to establish an inter-ministerial committee (IMC) to replace the management committee.667
Given the deficiencies of the IASC, the TCC and the management committee, a programme
coordination office (PCO) was created in the MoJCA to assume responsibility for the day-to-day
management of the Programme.668 Further, the PCO implements the strategic decisions of the
TCC. Plans are now underway for the PCO to hand over its functions to a department of the
MoJCA.669
There are also thematic groups (TGs) created around seven ‘Key Result Areas’ to address
‘output-specific issues’.670 The TGs are convened by members of the TCC and are required to
provide a forum for the discussion of issues and assist implementing government departments
in developing work plans and implementation of activities. Members of the TGs are drawn
from the implementing institutions, the PCO, the FMA, donors, the private sector and civil
society. The TGs provide an opportunity for departments and stakeholders to hold each other
accountable on what progress is being made by each on the reform agenda.671 However, some of
them do not meet regularly and do not have good records of their activities.672 Further, the TGs
lack the capacity and clout to enforce accountability.673 For example, there are no sanctions for
failure to attend meetings or failure to implement work plans.674
In addition, the donors have established a donors’ coordination committee to provide
opportunities for feedback on the implementation of the Programme and consultations with
the government. This committee meets every month. Tensions have been observed within
the donors’ committee, with non-basket fund donors being accused of cherry picking, that is,
selecting high-profile programme areas they regard as their own turf while leaving the basket
fund to pay for the low-profile work.675
The Programme’s institutional framework is rather unwieldy. A group of consultants
hired to review the Programme (review team) thus unsurprisingly found that ‘[t]he absence of

666 Ibid.
667 Ibid. at 48.
668 In some respects, the PCO was established as a response to complaints about the FMA. But while the PCO now performs

some of the functions previously performed by the FMA, there is no clear demarcation of their roles.
669 Everatt & Kanyinga, supra note 20 at 49.

670 These Key Result Areas are: ethics, integrity and anti-corruption; democracy, human rights and rule of law; justice, law and

order; public safety and security; constitutional development; legal services; and leadership and management development.
671 Everatt & Kanyinga, supra note 20 at 47.

672 Ibid. at 46–47.

673 Ibid. at 47.

674 Ibid.

675 Everatt et al, supra note 3 at 25.

8 . T he r o le o f D evel o pment P artners 183

a clear programme management structure detailing linkages between organisations and their
functions is causing confusion.’676 In addition, the GJLOS Reform Programme does not have
clear arbitration mechanisms.677 Such mechanisms are required, in light of differences between
MDAs in some thematic groups, which have resulted in walkouts.

Assessing the effectiveness and accountability of the GJLOS Reform

Programme
The GJLOS Reform Programme has succeeded in some respects. For example, it has opened up
the justice sector ‘to greater scrutiny, promoted harmonisation and created space for constructive
engagement by non-state actors’.678 Further, it has enhanced the planning skills of the participating
government ministries and departments, and improved coordination within the sector.679
Nevertheless, Kenyans should be concerned about the democratic character of the GJLOS
Reform Programme. First, vast financial resources have been allocated to the Programme. The
implementation of the Programme is expected to cost about US$ 15 million, 75% of which will
be sourced from the development partners.680 Secondly, and as we have noted, the Programme
constitutes Kenya’s first SWAp and is considered by many in government and donor circles as a
test case. The expectation is that it should be replicated in other sectoral reform programmes.681
Given that the development partners fund virtually the government’s entire development
expenditure budget, the governance of the GJLOS Reform Programme considerably implicates
the future administration of development assistance in Kenya, especially if donors achieve
consensus on basket funding.682
Thus far, a number of concerns have been raised about the effectiveness and democratic
character of the GJLOS Reform Programme. As a SWAp, the effectiveness of the Programme
should be assessed by the extent to which it ensures government ownership and leadership,
and strengthens the government’s capacities and efficiency. The Programme has not done
particularly well on both accounts, although performance is improving slowly. While the MoJCA
has ‘increasingly exerted its authority’, there are concerns that ‘donors have too much influence
and only pay lip service to the notion of government leadership’ and are ‘too involved in the detail
of GJLOS’.683 The evidence for such influence includes the frequent meetings between donors,
the PCO and the FMA.684 Thus donors, and not domestic constituencies, remain the main point
of accountability.685 Concerns have also been expressed that the development partners have
undue influence over the PCO, which is arguably the Programme’s executive organ.686

676 Ibid. at 59.

677 Everatt & Kanyinga, supra note 2o at 50.
678 Ibid. at 7.

679 Ibid.

680 STTP, supra note 5 at 36; Republic of Kenya (2004: 6).

681 Everatt et al, supra note 3 at 12.

682 Development expenditures account for about 30% of the government’s annual budget.

683 Everatt et al, supra note 3 at 17.

684 Ibid. at 26.

685 Ibid. at 28.

686 Ibid. at 18.

184 PART II kenya: Justice sector and the rule of law

 Further, the Programme has not been sufficiently mainstreamed into the government
financial management processes. In particular, budgetary management and control problems
have been noted because of the poor linkage between the Programme and the Ministry of
Finance, where the GJLOS Reform Programme is ‘not well known or understood’.687 Indeed,
at the inception of the Programme, officers of the Ministry of Finance acknowledged that they
were yet to develop financial management approaches appropriate for SWAps.688 Since then,
some progress has been made towards mainstreaming the Programme into the government’s
financial management processes, which suggests that the ‘GJLOS is slowly being accepted rather
than resisted as was the case in its early days’.689
Perhaps the most important unfulfilled expectation relates to the Programme’s efforts to
strengthen the government’s financial management and procurement capacities.690 Because
the development partners were convinced that the government’s financial management and
procurement systems are cumbersome and corrupt, they insisted on the appointment of the
FMA.691 In effect, therefore, they created financial management and procurement structures
that bypassed the national systems. With respect to financial management, whilst the FMA
is contracted to improve the government’s capacities, it appears that neither indicators nor a
timetable for doing so were provided.692 The review team thus ‘found no evidence of the FMA
proactively identifying financial management capacity gaps and filling them’.693 A subsequent
review conducted some two years later reported that the participating government ministries and
departments were concerned about ‘poor communication, procurement delays and – perhaps
most importantly – no real demonstrable evidence of financial capacity building’.694
Furthermore, bypassing the government’s financial management system is likely to weaken
the government’s financial management capacity since disbursements take place outside of
the governmental financial system.695 A vicious cycle – in which the government’s financial
management system is bypassed and weakened thereby justifying the continued demand
for an FMA – is thus formed.696 It is, however, encouraging that a consensus seems to be
emerging among the development partners towards moving to an arrangement under which
the Programme’s finances are managed by the Ministry of Finance through a special account.697
The participation of non-state actors, namely private sector and civil society organisations
(CSOs), has also been problematic. Their participation is not only unstructured, but there are
also concerns that the Programme may be crowding out CSOs. A review of the Programme
has thus noted that ‘[i]nvolvement and participation of the civil society and the private sector

687 Ibid. at 20–21.

688 Ibid. at 21.
689 Everatt & Kanyinga, supra note 20 at 57.

690 The procurement activities of the FMA are discussed in part IV(B) infra.

691 Everatt et al, supra note 3 at 28. KPMG, an accounting firm, was appointed as the FMA.

692 Ibid. at 29.

693 Ibid. at 50.

694 Evaratt & Kanyinga, supra note 20 at 10.

695 Ibid.

696 Ibid.

697 Ibid. at 29. The Review Team also recommended that ‘the FMA in consultation with MoJCA and the Ministry of Finance

develop a detailed and focused capacity building strategy, with timeframes, targets and measurable indicators’. Ibid. at 50.

8 . T he r o le o f D evel o pment P artners 185

in GJLOS has been ad hoc and disjointed and GJLOS lacks a clear strategy for meaningful
participation by NSAs.’698
At the time of conceptualising the Programme, the government invited a select group of non-
state actors to participate.699 While the participation of private sector organisations has not been
controversial, the absence of effective representation from small- and medium-term enterprises
(SMEs) is notable.700 Thus, the focal point for private sector organisations is the Kenya Private
Sector Alliance (KEPSA), whose members are drawn from the high end of the sector.
The government only invited participation from a number of CSOs it thought were
implementing projects similar to those proposed under the GJLOS Reform Programme and
others who ‘had shown an interest in working with government’.701 Because this select group
of CSOs was thereby guaranteed access to the Programme’s resources, the government was
perceived by many as using the Programme to dispense political patronage.702 This was
especially because many of these CSOs ‘had personal relationships with the new leadership in
MoJCA and sector departments, many of whom came from civil society’.703 In some cases also,
CSO actors have been hired as consultants for the Programme, but were apparently not sourced
transparently.704 Further, a number of CSO actors felt that only the select group of CSOs had
access to information on the Programme.705 Accordingly, the participation of CSOs ‘has not been
sufficiently structured and has not ensured active or representative participation’.706 It has thus
been noted that the CSOs involved in the Programme ‘consist predominantly of Nairobi-based
organisations’.707 Further, the Programme has left out many other categories of non-profit, non-
state actors, such as faith-based organisations (FBOs) and research organisations.708
A further problem is that the role CSOs are supposed to play in the Programme is not clear:
are they partners, service providers or programme monitors? The CSOs participating in the
Programme span this participation spectrum. Especially for the CSOs that seek to provide services,
the modalities for accessing GJLOS funds need clarification. Indeed, a scenario in which the
GJLOS funds CSOs directly is undesirable since it gives the MoJCA the resources with which to
compromise the independence of CSOs and effectively crowd them out of the governance and legal
sector.709 An attempt to resolve some of these constraints was later made, by establishing a non-
state actors support facility. However, this facility ‘ultimately fell victim to the serious coordination
difficulties faced by civil society itself as well as what might be described as a sense of resignation
or even exasperation on the part of MoJCA, PCO and donors towards CSOs’.710

698 Ornemark et al (2006: 14).

699 Everatt et al, supra note 3 at 30.
700 Ornemark et al, supra note 56 at 19.

701 Everatt et al, supra note 3 at 30.

702 Ibid. at 31 (observing that ‘some CSOs are rumoured to have received substantial funds to participate in GJLOS … while

others have been told by the FMA that no funds are available for civil society participation’).
703 Ibid.

704 Interview with Harun Ndubi, Executive Director, Kituo Cha Sheria, February 28, 2005.

705 Interview with Millie Odhiambo, Executive Director, Child Rights Advisory and Legal Centre (CRADLE), February 28, 2005.

706 Ornemark et al, supra note 56 at 14.

707 Ibid.

708 Ibid.

709 Interview with Harun Ndubi, supra note 62.

710 Evaratt & Kanyinga, supra note 20 at 11.

186 PART II kenya: Justice sector and the rule of law

C. The procurement regime of the GJLOS Reform Programme
The procurement regime of the GJLOS Reform Programme also raises serious questions of
effectiveness, accountability and participation. According to the MoU, procurement arrangements
under the Programme are supposed to comply with the government’s procurement regulations,
but prior to the enactment of procurement legislation, the Programme ‘will adopt procurement
procedures of the FMA’.711 Further, the MoU authorises the FMA to appoint a procurement agent
to help it with this work. Thus, despite the elaborate and fairly democratic procurement system
established by the procurement regulations, it was thought best to create a parallel procurement
regime. Unfortunately, however, the parallel regime only seems to have served to lengthen the
procurement process.712 As a result, the ‘GJLOS has been characterised by low funds absorption,’
which ‘has been mainly attributed to delays in procurement, low capacity within MDAs, and the
complexity of procurement procedures.’713
In order to enable it to carry out the task of procurement, the FMA (KPMG) developed a set
of guidelines in consultation with the donors and the government. Although these guidelines
seek to embrace the principles of sound public procurement, they raise several issues.
In the first place, the guidelines for all intents and purposes establish KPMG, a private
firm, as a procuring entity. Thus, it is the responsibility of KPMG to develop procurement plans
after it has been furnished with approved work plans and to tender for goods and services.714
According to the guidelines, KPMG prepares and compiles the tender documents, although
the implementing agencies are responsible for providing technical specifications.715 Further, the
FMA determines whether bids are responsive and coordinates the evaluation of responsive bids
by establishing an evaluation panel.716
Quite apart from the fact that this arrangement concentrates responsibility for the
procurement needs of some thirty government departments in one institution, it is also quite
troublesome from a public law viewpoint. Since it is managing public resources, the FMA is
for all intents and purposes exercising a ‘public function’. Thus far, however, the FMA is only
accountable to the basket fund donors through their leader (SIDA), with which it has entered
into a contract. In addition, since it has not been constituted as a ‘procuring entity’ under the
procurement regulations, the exercise of its procurement powers under the Programme are
removed from the purview of national accountability mechanisms. But since the exercise of
these powers affect ‘vital interests’ of the citizenry, it should accord with principles of good
administration, such as participation, accountability and fairness.717

711 GJLOS Memorandum of Understanding, section G.

712 Everatt et al, supra note 3 at 49. Reporting respondents as stating that 86% of the procurements by the FMA were not done
on time. However, the FMA argues that it has improved the lead times and that its absorption rates of donor funds of about 50%
are much better than the government’s 20–25%. Interview with Chris Ngovi, Fund Manager, KPMG, 21 February 2005.
713 Everatt & Kanyinga, supra note 20 at 11.

714 The GJLOS Procurement Guidelines 2004, section 2.1 (hereinafter FMA Procurement Guidelines).

715 Ibid., section 4.5.1.

716 Ibid., section 4.7.2. The members of the evaluation panel are the FMA Project Director, two FMA Procurement Advisors,

FMA Fund Manager, FMA Capacity Building Advisor, FMA Financial Accountant, three government representatives and a donor
representative.
717 See Aman (2001).

8 . T he r o le o f D evel o pment P artners 187

 In particular, the need for KPMG to do so arises because a number of concerns have
been raised that it is exercising its powers arbitrarily. Thus, there are allegations that being
a predominantly accounting firm, KPMG does not have the requisite public procurement
management capacity.718 Further, concerns have been expressed that in some instances it has
acted beyond its mandate by interfering with activities in work plans and suggesting ways of
implementing them.719 Thus, where a child rights CSO selected a venue for a workshop, KPMG
insisted that it should be held at a different venue.720
Secondly, the guidelines do not provide for a bidder protest mechanism. The guidelines
merely provide that ‘applicants who feel they have been evaluated unfavourably, or were
disadvantaged in evaluation either by error or due to an irregularity, may register a written
complaint with the FMA within five working days from the date of notification of award’.721 The
FMA is required to immediately inform SIDA of the complaint and respond to the complainant
‘within a reasonable time’.
Further, the guidelines provide for the automatic disqualification of bidders where they
attempt to influence the outcome of the selection process. There are no provisions for bidders to
contest such disqualification. In addition, the guidelines provide for the suspension of ‘suppliers’
from the FMA’s supplier lists.722 In this case, however, the FMA is required to give suppliers a
hearing. Those aggrieved with the FMA’s decision may appeal to SIDA.
In either case, there is no convincing reason why the decisions of the FMA should not
be subjected to scrutiny by the PPCRAB, which has developed good jurisprudence on public
procurements. Indeed, the procurement guidelines of development agencies such as SIDA
typically provide that dissatisfied bidders ‘may have recourse to procedures established under the
cooperation partner’s national legislation’.723 In the case of the government’s GJLOS, however,
it is not clear whether the envisaged procedures are those established by the procurement
regulations or the FMA procurement guidelines.
From the foregoing account of the GJLOS Reform Programme, it is quite evident that it
raises serious issues of democratic accountability. Given that the Programme is considered a test
case, there is a need for a national legislative framework for the administration of development
assistance that not only streamlines the institutional framework but also establishes clear
mechanisms for participation by, and accountability to, local constituencies. In this regard, it
is encouraging that article 211 of the proposed constitution would require Parliament to enact a
law to regulate the terms on which the government may borrow money, including obtaining the
approval of Parliament.

718 See e.g. Everatt et al, supra note 3 at 50 (observing that ‘[r]espondents also noted that the FMA had not “hit the ground

running”, but had built their capacity as GJLOS unfolded’).

719 Ibid.

720 Interview with Millie Odhiambo, supra note 63.

721 FMA Procurement Guidelines, section 4.12.

722 Ibid., annex C.

723 SIDA Procurement Guidelines 2004, section 3.19.

188 PART II kenya: Justice sector and the rule of law

D. Human rights and development assistance
The protection of human rights has not been an explicit agenda item in development assistance
to the justice sector. Nevertheless, it is likely to be a by-product of the various donor programmes.
For example, if the GJLOS achieves its stated objective of an ‘efficient, accountable and
transparent administration of justice’, then the protection of human rights would in all likelihood
be advanced.
At the same time, it should be appreciated that the need for a more explicit rights-based
approach to development assistance is increasingly being recognised. In this regard, the MoJCA
has been developing a policy framework paper, which seeks to make the promotion and protection
of human rights an explicit objective of the justice sector.724 The paper calls for the adoption of
a human rights based approach to development and the assessment of the developmental and
human rights impact of its programmes and initiatives.725 It also lays emphasis on the need to
ensure access to justice for all.726
This new approach should also be seen in the context of international developments.
For example, more attention is now being paid to access to justice. Thus, the United Nations
Development Programme’s policy of ‘Access to Justice for All’ gives priority to people’s ability
to use justice services – regardless of their gender, ethnicity, religion, political views, age, class,
disability or other sources of distinction.727 The World Bank has also adopted access to justice
as one of three strategic objectives, in addition to legal and judicial reform.728 In particular, the
World Bank now explicitly recognises that member states have human rights obligations and
that they can be assisted in fulfilling them. Thus, the World Bank has given grants to a number
of African countries to support gender-responsive legal reform processes.

E. Recommendations
• There is a need to ensure that the three branches of government and their agencies are
directly accountable to the people of Kenya for all aid funds.
• A law should be enacted to govern the administration of all forms of aid. Such a law
should, in particular, establish clear institutional and accountability frameworks.
• The private firms appointed as the financial management agents of sector-wide aid
programmes should be subjected to the requirements of the Public Procurement and
Disposal Act.

724 Republic of Kenya (2007: 24).

725 Ibid.
726 Ibid at 25.
727 United Nations Development Programme (2002).
728 World Bank (2003).

8 . T he r o le o f D evel o pment P artners 189

References

Abdullahi, A., ‘The Judiciary in Kenya: Who Should Reform It?’ The Advocate, 2nd Quarter, 19
(2002).
African Centre for Open Governance, ‘Commissions of Inquiry in Kenya: Seekers of Truth or
Safety Valves?’ (2008).
Akech, M., ‘Development Partners and Governance of Public Procurement in Kenya: Enhancing
Democracy in the Administration of Aid’, 37 New York University Journal of International
Law and Politics 829 (2005).
Akech, M., ‘Public Law Values and the Politics of Criminal (In)Justice: Creating a Democratic
Framework for Policing in Kenya’, 5 Oxford University Commonwealth Law Journal 225
(2005).
Aman, Jr., A.C., ‘The Limits of Globalisation and the Future of Administrative Law: From
Government to Governance’, 8 Indiana Journal of Global Legal Studies 379 (2001).
Amnesty International, Amnesty International Report 2009: The State of the World’s Human
Rights (2009).
Anderson, D.M., ‘Vigilantes, Violence and the Politics of Public Order in Kenya’, 101 African
Affairs 531 (2002).
Marmor, A., ‘The Rule of Law and its Limits’, University of Southern California Law School,
Public Policy Research Paper No. 03-16 (2003).
African Network for the Prevention and Protection against Child Abuse and Neglect (ANPPCAN
Kenya), Handbook on Child Rights and Child Protection for Police Officers in Kenya
(2006).
Auerbach, J.N., ‘Police Accountability in Kenya: Seize the Moment’, Background Paper for the
Roundtable Conference on Police Reform in East Africa, Nairobi, 2003.
Auerbach, J. & Baudh, S., Roundtable Conference on Police Reform in East Africa: A Report
(Commonwealth Human Rights Initiative, New Delhi, 2003).
Central Bureau of Standards, Kenya Economic Survey 2009 Highlights (2009).
Clinard, M.B. & Abbott, D.J., Crime in Developing Countries: A Comparative Perspective (New
York: John Wiley & Sons, 1973).
Commonwealth Human Rights Initiative & Kenya Human Rights Commission, ‘The police, the
People, the Politics: Police Accountability in Kenya’ (2006).
Constitution of Kenya Review Commission, Final Report of the Constitution of Kenya Review
Commission (2005).
Constitution of Kenya Review Commission, ‘The Kenyan Judiciary in the New Constitution:
Report of the Advisory Panel of Eminent Commonwealth Judicial Experts’ (2002).
Endicott, T.A.O., ‘The Impossibility of the Rule of Law’, 19 Oxford Journal of Legal Studies 1 (1999).
Everatt, D. et al, ‘Kenya: Governance, Justice, Law and Order Sector (GJLOS) Programme Review’
(2004).
Everatt, E. & Kanyinga, K., ‘Kenya: Governance, Justice, Law and Order Sector (GJLOS)
Programme, Fourth Programme Review, Final Report’ (2007).

190 PART II kenya: Justice sector and the rule of law

Federation of Women Lawyers (Kenya), Police Training on Gender and Human Rights (2008).
Gachomo, K.M., ‘Management of Devolved Funds: New Bastion for Corruption and Patronage’,
in Rule of Law Report ICJ-Kenya (2007).
Galligan, D.J., Due Process and Fair Procedures: A Study Of Administrative Procedures (Oxford:
Clarendon Press, 1996).
Ghai, Y.P., ‘Law and Lawyers in Kenya and Tanzania: Some Political Economy Considerations’,
in Dias, C.J., et al (eds), Lawyers in the Third World: Comparative and Developmental
Perspectives (Uppsala, Scandinavian Institute of African Studies, 1981).
Gicheru, E. ‘Independence of the Judiciary: Accountability and Contempt of Court’, 1 Kenya Law
Review 1 (2007).
Edwin, A. & Gimode, E.A., ‘Anatomy of Violent Crime and Insecurity in Kenya: The Case of
Nairobi, 1985–1999’, 26 Africa Development 295 (2001).
Governance, Justice, Law and Order Sector Reform Programme, National Integrated Household
Baseline Survey Report, September 2006.
Governance, Justice, Law and Order Sector Reform Programme, Short Term Priorities
Programme (STTP) Fiscal Year 2003/04 11 (2003).
Heinrich Boell Foundation, Gender Gaps in Our Constitution, Women’s Concerns in Selected
African Countries (Bookprint Creative Services: Nairobi, 2002).
Human Rights Watch, ‘Kenya: Ballots to Bullets: Organised Political Violence and Kenya’s Crisis
of Governance’ (2008).
Human Rights Watch, ‘Playing With Fire: Weapons Proliferation, Political Violence, and Human
Rights in Kenya’ (2002).
Human Rights Watch, ‘Multipartyism Betrayed in Kenya: Continuing Rural Violence and
Restrictions on Freedom of Speech and Assembly’ (1994).
Human Rights Watch, ‘Divide and Rule: State-Sponsored Ethnic Violence in Kenya’ (1993).
International Commission of Jurists-Kenya (ICJ-Kenya), Judiciary Watch Report: Judiciary
Reform in Kenya (2005).
ICJ-Kenya, Strengthening Judicial Reforms in Kenya Volume V, Public Perceptions of the
Magistrates (2003).
ICJ-Kenya, Strengthening Judicial Reforms in Kenya Volume VI, Public Perceptions of the
Administrative Tribunals in Kenya (2003).
ICJ-Kenya, Kenya: Judicial Independence, Corruption and Reform (2005).
ICJ-Kenya, The Judiciary in Review 2000–2002 (2003).
ICJ-Kenya, Strengthening Judicial Reforms: Performance Indicators – Public Perceptions of the
Judiciary (2001).
ICJ-Kenya, Justice Be Our Shield and Defender: An Audit of The State of Administration of
Justice Three Years After the Purge of The Judiciary in Kenya (2006).
Imanyara, G., ‘Systems and Structures Set up by the Government to Fight Corruption: How
Effective and What More Can Be Done?’ in Strengthening Judicial Reforms in Kenya
Volume IX: The Anti-Corruption Court in Kenya 49 (ICJ-Kenya, 2004).
Institute For Education in Democracy, The 1997 Kenya Elections Observation Report (Nairobi:
IED Press, 1997).

REFERENCES 191
International Crisis Group, Kenya in Crisis, Africa Report No. 137 (2008).
Jackson, T., The Law of Kenya (Kenya Literature Bureau, 3rd edition, 1988).
Kalla K. & Cohen, J., ‘Ensuring Justice for Vulnerable Communities in Kenya: A Review of
HIV and Aids-related Legal Services’, Law and Health Initiative, OSI’s Public Health
Programme, Open Society Initiative For East Africa (2007).
Kameri-Mbote P. & Odote C., ‘Courts as Champions of Sustainable Development: Lessons from
East Africa’, 10/1 Sustainable Development Law & Policy 30 (2009).
Kenya Human Rights Commission, A Death Sentence: Prison Conditions in Kenya (1996).
Kenya Human Rights Institute, ‘Clarifying Human Rights Violations in the Kenyan Post-
Election Crisis’, Special Brief 02/2008 (2008).
Kenya Law Reform Commission, Five-Year Strategic Plan 2005–2010 (2005).
Kenya National Commission on Human Rights, Public Accountaibility Statement, Statement of
Successes and Challenges 2006–2007 (2007).
Kenya National Commission on Human Rights, Beyond the Open Door Policy : A Status Report
on Prison Reforms in Kenya Jan 2003–Dec 2004 (2004).
Kenya National Commission on Human Rights Annual Report 2005/06 (2007).
Kenya National Commission on Human Rights (KNCHR), Abolition of the Death Penalty in
Kenya, Position paper No. 2 (2007).
Kenya Police & Security Research & Information Centre, The Kenya Police Reforms Framework
(2004).
Kenya Police Force, Strategic Plan 2004–2008 (2004).
Kenya Police Force, Training Policy (2006).
Kenya Police Force, Reforms Framework (2009).
Kenya Police Force, Crime Report and Data for 2008 (2009).
Kenya Police Force, Strategic Plan 2003–2007 (2003).
Kenya Police Force, Report of the Stakeholders Forum for the Development of a National Crime
Prevention Strategy and Action Plan, Silver Springs Hotel, Nairobi, 29–31 August (2007).
Kenya Police Reforms Task Force, Reforming Policing Services for the Social and Economic
Development of Kenya (2005).
Kenya Private Sector Alliance (KEPSA), Workshop Report on the Constituency Development
Fund (2006).
Kimilu, G.M., ‘The Sociology of Community Oriented Policing: A Case Study of Nairobi
Province’, M.A. Project Paper, University of Nairobi (2003) (Unpublished).
Kinyanjui, S., ‘A Genealogical Analysis of the Criminal Justice System in Kenya: Rebirth of
Restorative Justice for Juveniles?’ (2008) (Unpublished).
Legal Resources Foundation, 2007 Annual Report (2008).
Luna, E., ‘Transparent Policing’ 85 Iowa Law Review 1107 (2000).
Mars Group Kenya, ‘The Case against the 9th Parliament of Kenya’ (2007).
McCold, P., ‘What is the Role of Community in Restorative Justice Theory and Practice?’ in Zehr,
H. & Toews, B. (eds), Critical Issues in Restorative Justice (2004) at 159.
Mitullah, W., Odhiambo, M. & Ambani, O., Kenya’s Democratisation: Gains or Losses? (Nairobi:
Claripress, 2005).

192 PART II kenya: Justice sector and the rule of law

Muigai, G., ‘Towards a Theory of Constitutional Amendments’, East African Journal of Human
Rights, 2004.
Musila, G.M., ‘The Office of the Attorney General in East Africa: Protecting Public Interest
through Independent Prosecution and Quality Legal Advice’, in Reinforcing Judicial and
Legal Institutions: Kenya and Regional Perspectives 21 (ICJ-Kenya, 2007).
Mutunga, W., Constitution-Making From the Middle: Civil Society and Transition Politics in
Kenya, 1992–1997 (Nairobi: Sareat, 1999).
National Committee of the Community Services, Practice Guidelines for Community Service
Orders (1999).
New Partnership for Africa’s Development (2001).
Nowak, M., Introduction to the Human Rights Regime (2003) at 67.
Ndegwa, S.N., ‘The Incomplete Transition: The Constitutional and Electoral Context in Kenya’,
45(2) Africa Today 193 (1998).
Ngugi, R.W., et al, ‘Security Risk and Private Sector Growth in Kenya,’ Kenya Institute For Public
Policy Research (KIPPRA) Special Report No. 6, 2004.
Nwabueze, B.O., Judicialism in Commonwealth Africa 229 (1977).
Nyamu-Musembi, C., ‘Review of Experience in Engaging with “Non-State” Justice Systems in
East Africa’ (2003).
Odenyo, A.O., ‘Professionalism and Change: The Emergent Kenyan Lawyer’, in Dias, C.J., et
al (eds), Lawyers in the Third World: Comparative and Developmental Perspectives 197
(Uppsala, Scandinavian Institute of African Studies, 1981).
Ojienda, T.O., ‘The Legal Profession in 2015: Rethinking the Challenges, Threats and
Opportunities’, 2 Law Society of Kenya Journal 19 (2005).
Omolo, R., ‘Implementing the Overriding Objective of the Court – An Analysis of Case Law
and Materials on the 2009 Amendment to Procedural Law’, paper presented at the 2010
Kenya Judges’ Colloquium at Mombasa Serena Beach Hotel and Spa 8–15 August 2010.
Ornemark, C., et al, Support for Non-State Actors in and around Kenya’s Governance, Justice,
Law & Order Sector (GJLOS) (2006).
Paralegal Support Network, Handbook for Paralegals, Nairobi, Kenya (2005).
Penal Reform International, ‘Towards Methods of Improving Prison Policy in Kenya’ (2001).
Police Commissioner (Kenya), Mungiki Violence in Mathira (2009).
PricewaterhouseCoopers, Kenya Police Culture and Attitude Change Pilot Training Programme
(2007).
Republic of Kenya, The Judiciary, Consolidated Report of the 2010 Kenya Judges’ Colloquium,
Theme: Strengthening Judicial Integrity and Working Together for Efficient Service
Delivery, Held at Mombasa Serena Beach Hotel and Spa 8–15 August 2010.
Republic of Kenya, Final Report of the Task Force on Judicial Reforms, Government Printer (July
2010).
Republic of Kenya, The Judiciary, The Judiciary Strategic Plan 2009–2012 (2009B).
Republic of Kenya, Report of the National Task Force on Police Reforms, October 2009B.
Republic of Kenya, Report of the Commission of Inquiry into Post Election Violence 346
(October 2008).

REFERENCES 193
Republic of Kenya, Report of the Technical Committee Appointed by the Cabinet Committee on
Finance, Administration and Planning to Investigate the Sale of LR No. 209/9514 (2008).
Republic of Kenya, Report of the High Level Committee on the Prisons Crisis 6 (2008).
Republic of Kenya, The Judiciary, The Litigants’ Charter (October 2007).
Republic of Kenya, Ministry of Justice and Constitutional Affairs, Governance, Justice, Law and
Order Sector (GJLOS) Policy Framework Paper 2 (2007).
Republic of Kenya, The Judiciary, The Judiciary Ethics and Governance Sub-Committee Report
(November 2005).
Republic of Kenya, Report of the Judicial Commission of Inquiry into the Goldenberg Affair
(October 2005).
Republic of Kenya, Report of the Ministerial Task Force on the Development of a Policy and Legal
Framework for Legal Education in Kenya (August 2005).
Republic of Kenya, The Judiciary, The Judiciary Ethics and Governance Sub-Committee Report
(May 2005).
Republic of Kenya, Judiciary Strategic Plan 2005–2008 (2005).
Republic of Kenya, Ministry of Justice and Constitutional Affairs, Governance, Justice, Law and
Order Sector (GJLOS) Sector Reform Programme, First Progress Report (2004).
Republic of Kenya, Economic Recovery Strategy for Wealth and Employment Creation 2003–
2004 (2003).
Republic of Kenya, Report of the Judicial Commission of Inquiry Appointed to Inquire into Tribal
Clashes (1999).
Republic of Kenya, Report of the Committee on the Administration of Justice (1998).
Ruteere, M., Dilemmas of Crime, Human Rights and the Politics of Mungiki Violence in Kenya
(Kenya Human Rights Institute, 2008).
Ruteere, M., & Pommerolle, M., ‘Democratising Security or Decentralising Repression? The
Ambiguities of Community Policing in Kenya’, 102 African Affairs 587 (2003).
Safer Access, The Mungiki, Cult, Street Gang or Political Force? (2007).
Sentencing Guidelines Council, Magistrates’ Courts Sentencing Guidelines (London, 2009).
Transparency International, Corruption in Judicial Systems (2007).
UN Habitat, Crime in Nairobi: Results of a City-Wide Victim Survey, Safer Cities Series (2002).
United Nations Human Rights Council, Report of the Special Rapporteur on Extrajudicial,
Summary or Arbitrary Executions: Mission to Kenya, 26 May 2009.
United Nations Development Programme, Access to Justice for All and Justice Sector Reform
(2002).
Waris, A., ‘The Attorney General as the Chief Prosecutor in Kenya: Towards Depoliticising the
Office of the Attorney General’, in Judiciary Watch Report 84 (ICJ-Kenya, 2005).
Willis, J., ‘New Generation Drinking: The Uncertain Boundaries of Criminal Enterprise in
Modern Kenya’, 102 African Affairs 241 (2003).
Wrong, M., It’s Our Turn to Eat: The Story of a Kenyan Whistleblower (2009).
Seidman, R.B., ‘Administrative Law and Legitimacy in Anglophonic Africa: A Problem in the
Reception of Foreign Law’, Law and Society Review 161 (1970).
Tamanaha, B.Z., ‘The Tension between Legal Instrumentalism and the Rule of Law’, 33 Syracuse

194 PART II kenya: Justice sector and the rule of law

 Journal Of International Law & Commerce 131 (2005).
Tamanaha, B.Z., ‘On the Instrumental View of Law in American Legal Culture’, St. John’s
University School of Law, Legal Studies Research Paper Series, Paper #08-0143 (2008)
(Unpublished).
Throup, D.W. & Hornsby, C., Multi Party Politics in Kenya: The Kenyatta and Moi States and the
Triumph of the System in 1992 Election (Oxford: James Currey, 1998).
Transparency International, Kenya Bribery Index (2008).
Upham, F., Mythmaking in the Rule of Law Orthodoxy, Carnegie Endowment for International
Peace, Democracy and Rule of Law Project, Working Paper No. 30 at 8 (2002).
Webber, D., Good Budgeting, Better Justice: Modern Budget Practices for the Judicial Sector,
Legal Vice Presidency Law and Development Vol. 3 (n.d.)
Whitford, W.C., ‘The Rule of Law,’ Wisconsin Law Review 723 (2000).
Wojkowska, E. ‘Doing Justice: How Informal Justice Systems can Contribute’, United Nations
Development Programme, Oslo Governance Centre, The Democratic Governance
Fellowship Programme (UNDP, 2006).
World Bank, Legal Vice Presidency, ‘Legal and Judicial Reform: Strategic Directions’ (2003).

Newspaper Articles
Gaitho, M., ‘Report that Indicted Kimunya Left a Great Deal to be Desired’, Daily Nation, 8 July
2008.
Kabage, K., ‘Why CDF Act Might be the Next Frontier of Corruption’, Daily Nation, 26 July 2006.
Kadida, J., ‘Is this the End of Goldenberg Cases?’, Daily Nation, 21 November 2008.
Kisero, J., ‘Ministry Set to Scuttle New Deal in Favour of Libyans’, Daily Nation, 2 July 2008.
Kipkorir D., ‘New Police Oversight Board is not Founded on the Law’, Daily Nation, 12 September
2008.
Lacey, M., ‘Kenyan Parliament Unites, for More Money’, New York Times, 22 May 2006.
Mathangani, P., ‘Another Police Execution and Cover Up’, Standard, 1 July 2009.
Mati, M., ‘Grand Regency Sale was against the Law’, Nairobi Star, 8 July 2008.
Mugonyi D. & Barasa L., ‘Furious Ringera Tells Attorney-General – Files are Complete’, Daily
Nation, 20 October 2006.
Muiruri, S., ‘Sh 61 Billion Plan to Reform Police Force’, Daily Nation, 7 February 2005.
Murunga, A., ‘Open Up Spy Unit for Scrutiny’, Daily Nation, 20 December 2003.
Mutinda M. & Kanina A., ‘Kenyans Want Poll Suspects Tried at the Hague’, Standard, 19 July
2009.
Mwangi, M., ‘Killers Roam Slums as Police Watch Helplessly’, Standard, 17 June 2009.
Mwangi, P., ‘Why Saitoti Ruling is Dangerous for Future of Justice in Kenya’, Daily Nation, 2
April 2007.
Ochami D., ‘Mungiki: Saitoti Accuses Central Leaders of Silence’, Standard, 29 May 2009.
Odipo, D., ‘We Cannot Let Ministers Break Laws Unpunished’, Standard, 30 June 2008.
Ogosia, K. & Kadida, J., ‘Civil Servants Asked to Give Refugees Cash’, Daily Nation, 15 May 2008.
Ogutu, J., ‘Court Also Frees Kotut’, Standard, 21 November 2008.

REFERENCES 195
Okwatch, D., ‘One Man’s Attempt to Give Security Industry a Professional Face’, Standard, 25
January 2005.
Savula, A., ‘Five Ministers Have Defied Court Orders’, Standard, 22 June 2005.
Shiundu, A. & Leftie P., ‘Kenya MPs vote for more Pay’, Daily Nation, 30 June 2010.
Wachira, M. & Waithaka C., ‘Officer Shot my Son Five Times, Says Former MP’, Sunday Nation,
25 January 2009.
Wangila, E. K., ‘Impunity at the Top is Kenya’s Undoing’, Saturday Nation, 5 July 2008.
Wesangula, D., ‘Licensed to Kill Kenyans: A Murderer has an 87 Per Cent chance of Getting
Away With it’, Sunday Nation, 13 July 2008.

196 PART II kenya: Justice sector and the rule of law