Mwithali Daniel Muriira 21s01allb025

LEGAL RESEARCH AND WRITING

J.NYANJE

PROJECT WORK OCTOBER 2021

25 MARKS

INSTRUCTIONS

1. This project work will be carried out by each student and submitted on or before 25th
November, 2020 at 5.00 pm

2. This paper consists of two questions

3. Students are required to attempt all of the two questions

4. In answering questions in this paper, you are expected to identify the key legal issues, discuss
them logically and exhaustively, and make reference to or cite relevant authorities and
legislation.

5. The project should be between 10-15 typed pages ( excluding annexures, introduction and
cover pages)

6. Each question carries equal value – 12.5 Marks.

PROJECT QUESTIONS

Question 1.

You have been approached by an independent NGO to assist them with advice on how to challenge the
Huduma number system as they are of the view that it violates the laws of Kenya. Citing relevant cases
and decisions filed on the matter provide an independent legal advice on how to challenge the process.

Question 2

Write an essay on the independence of the judiciary in Kenya during the term of Chief Justice Kenani
David Maraga.
Mwithali Daniel Muriira 21s01allb025

INTRODUCTION
This project on legal research and writing was compiled by Mwithali Daniel Muriira, admission
number 21s01allb025.
Mwithali Daniel Muriira 21s01allb025

Question 1
You have been approached by an independent NGO to assist them with advice on how to
challenge the Huduma number system as they are of the view that it violates the laws of
Kenya. Citing relevant cases and decisions filed on the matter provide an independent legal
advice on how to challenge the process.

According to the huduma number confirmation portal, the purpose of this initiative was to create
and manage a central master population database which will be the singe source of truth, on a
person’s identity.1 By having an Huduma namba card one does not have to carry around other
different identification documents as the huduma namba would carry all of them.2 The Cabinet
Secretary for Information ana Communication Technology also states that the Huduma card
would be the primary source of information for each and every citizen and foreigner in Kenya.

The government spokesperson Cyprus Oguna stated that the Huduma namba system would not
be used in the 2022 polls. Despite the document being the most preferred document for use it
would not be used since more than half of Kenyans are yet to access the crucial identification
document.3 Another reason as to why there is a very low number of Kenyans is the fact that
certain Kenyans for instance minors, lack Identification cards.4

Cyprus Oguna, the government’s spokes-person states that;

While it would have been the most preferred document, there was a delay in the Namba
process after the court issue an injunction in May 2019. The injunction was lifted months
later, but on condition regulations on the management of data be developed. This was
completed and the process resumed but the delay had an impact in the process. 11.2
millions cards have been processed and 6.5 million cards have been collected. Kenyans
whose cards are ready are urged to collect them.

This is the government’s reason as to why the huduma namba would not be used in the 2022
general elections despite it being such an ‘important’ document. The Katiba institute sued the
1
Huduma Namba Confirmation portalwww.confirmation.hudumanamba.go.Keaccesed 1st November 1, 2021
2
Mike Nyagwoka, Ruling on Huduma card a big setback for PWDs[2021]The
Standardhttp://standardmedia.co.keaccesed on 1st November 1, 2021
3
Amina Wako, No Huduma Namba in 2022 polls [2021]Nairobi newshttp://nairobinews.nation.co.ke accesed 1st
November 1, 2021
4
Sam Kiplagat, High Court Declares Huduma Namba Illegal[2021]www.businessdailyafrica.com 1st November 1,
2021
Mwithali Daniel Muriira 21s01allb025

interior ministry, arguing that no safeguards had been given to assure Kenyans that their data
would not be misused as the rollout lacked guarantees of theft or misuse of Kenyan’s personal
information5. However, in the High court Justice Jairus Ngaah ordered that the government
create safeguards to protect Kenyan’s data as the cards had already rolled out6.

The high court declared the huduma namba roll out illegal as it conflicted with the data
protection act of 2019. The laws that the Katiba Institute sued the interior ministry of breaking,
they argued that no safeguard had been given to assure Kenyans that their data will not be abused
as the roll out lacked guarantee of theft or misuse of Kenyans personal information. The law
requires fresh registration of Kenyans should be subjected to the Data Protection Impact
Assesment(DPIA) which the state failed to do.7 However, Justice Jairus Ngaah ordered that the
government create safeguards to protect Kenyan’s data, as the cards had already been rolled out.
He ruled that, “The government should have conducted impact assessment before rolling out the
huduma cards, I hereby order the process to be conducted before proceeding with the rollout.”
The data protection impact assessment act protects the public from exposure of their confidential
information by the government failing to carry out the assessment act they risked the information
of the public participants.8

The government rolled out a National Integrated Identity Management System (NIIMS) which
is meant to capture biometric and geographical data (GPS). Biometric data in this case include
fingerprints, hand geometry, earlobe geometry, retina and iris patterns, voice waves and
Deoxyribonucleic Acid (DNA) among other things in digital form. This mandatory registration
will generate a unique identifier for every citizen called Huduma Number. A research was done
on social media sites, to find out the reason as to why most people detested the huduma namba
system. An hashtag rose up, by the name #RESISTHUDUMANAMBA

1. Corruption

This is the first reason as to why Kenyans did not support the huduma namba registration
process. In the case of Huduma Namba as a government project, it flaunted all the procurement
5
Hillary Kimuyu, ‘Huduma Namba Illegal, High Court Declares’[2021] Nairobi Newshttp://nairobinewsnation.co.ke
accesed 1st November 2021
6
Nubian Rights forum and 2 others v The Hon Attorney General and 6 others; Child Welfare Society & 9
others(interested parties) [2020] eKLR
7
Data Protection Act 2019, S 31
8
Yash Pal Ghai and Katiba Institute V Government[2019] HC
Mwithali Daniel Muriira 21s01allb025

laws since there was no adequate needs assessment, planning and budgeting did not undergo

public participation. The government was not clear on how much more was used during the
actualization of the project that was activated worldwide. Basic procurement stages involve Pre-
tendering phase, tendering phase and Post-tendering phase. Huduma Namba required
procurement of registration gadgets and personnel. None of these underwent any procurement
procedure as stipulated in Procurement Act and Finance Act of Kenya. This becomes a major
factor as to why people do not trust the huduma namba process. Where the government is not
open on the amount of money used in this process.

2. Presence of External institutions.

Most Kenyans do not trust the multimillion-dollar foreign companies that are involved in most
governmental projects including the huduma namba system registration process. The institutions
and the governmental should be open and accountable on their involvement to the huduma
namba registration process, the Kenyan citizens, who are the main participants in this process
deserve to know the truth.

3. Fatigue of constant registrations and surveillance

Other Kenyan citizens are not contended with the frequent registration and surveillance which
they attribute to the colonial period where adults were required to carry a ‘Kipande’
around. The huduma namba has been likened to the Kipande and has been seen as a form
of neo-colonialism.

4. Privacy, surveillance and policing issues

Huduma Namba was also established without existing laws on data protection and privacy
issues.9

The huduma number system poses a threat to privacy, where a threat to privacy leads to a threat
to human dignity which is both a foundational value and a right to human beings. Human dignity
as provided for in the Kenyan constitution, is inherent to each and every human being and
everybody’s dignity should be respected and protected.10 This goes against the vision of the
9
Job Mwaura, ‘#RESISTHUDUMANAMBA: KENYANGOVERNMENTATACROSSROAD’ [2019] University of
Witwatersrand AOIR Selected Papers of Internet Research
www.spir.aoir.org/ojs/index.php/spir/article/view/11013 accessed on 22 November 2021
10
The Constitution Of Kenya, 2010. Article 28
Mwithali Daniel Muriira 21s01allb025

individuals that moiled and toiled to bring up the Kenyan constitution which is a very good
constitution. As we are all aware of technology poses a very grave danger to privacy which is an
essential right provided for each and every human being in the Kenyan constitution. When every
person’s information is located in a single document like the huduma number, in this
technological era it is very easy for the information to get into the wrong hands hence breaching
the right to privacy, that is provided for everybody in the constitution.

If the huduma number process is to succeed, it would be going against the constitution which
would eventually prove the effort, of the people that were in the fore-front for pushing for the
new constitution which has moved the country from a rotten history of a bad constitution to the
justifiable life that we lead today, futile! The main goal of today’s Constitution is to institute
social change and reform, through values such as social justice, equality, devolution, human
rights, rule of law, freedom and democracy. This shows how this new constitution values social
values unlike the old constitution.11

Other countries like Jamaica and India, have also experienced a similar event to the huduma
number, which involved biometric registration in all of these three countries, this decision was
challenged in court as a threat to privacy, similar to Kenya. In India there was the Aadhar while
Jamaica had Nira. The right to privacy embodies the presumption that individuals should have an
area of autonomous development, interaction, and liberty, a “private sphere” with or without
interaction with others, free from arbitrary state intervention and from excessive unsolicited
intervention by other uninvited individuals. Privacy has both positive and negative content. The
negative content restrains the state from committing an intrusion upon the life and personal
liberty of a citizen. Its positive content imposes an obligation on the state to take all necessary
measures to protect the privacy of the individual.12

11
Advisory Opinion No. 2 of 2013 in Speaker of the Senate & Another v Hon. Attorney-General & Another & 4
Others [2013] eKLR
12
Joshua Malidzo Nyawa, ‘The Big Brother is Watching: Huduma Namba a Threat to our Rights and Freedoms’
[2019] Kenya School of Law https://ssrn.com/abstract=3389268 accessed on 25 November 2021
Mwithali Daniel Muriira 21s01allb025

Question 2

Write an essay on the independence of the judiciary in Kenya during the term
of Chief Justice Kenani David Maraga.
The judiciary in Kenya is said to be subservient to the executive, since the colonial period and
the post-colonial period, the judiciary has suffered a lot of intrusion from the executive, by
cutting down funds, which leads to loss of confidence in the judiciary. A lot of constitutional
reforms in Kenya were unable to provide for proper independence of the judiciary from the
executive.13 This was not any different during the term of Chief Justice David Kenani Maraga,
where a lot of intrusion from the executive was still evident during his term as the Chief Justice
and he had to work under a lot of pressure from the executive arm of the government.

The former Chief Justice of Kenya, was sworn in by the president of Kenya, H.E. Uhuru
Kenyatta on October 19th, the year 2016. David Kenani Maraga retired on January 2021.14 David
retired as it is required of a chief justice in the constitution, ‘A judge shall retire from office on
attaining the age of seventy years, but may elect to retire at any time after attaining the age of
sixty-five years.’15 David Maraga retired because he had reached 70 years as it is required for in
the constitution.

The president stated that, a good relationship between the Judiciary and the executive was very
important which it really is. The Chief Justice was given the task to deal with the large number
of undecided cases that were present at the judiciary and deal with corruption, by doing this the
Kenyans would be very happy. The Chief Justice undertook the role given to him and promised
to deal with the vice of corruption.16 Good relationships between the three arms of government is
really important for the proper functioning of the arms. The Chief Justice was asked to ensure
good relationships with the other arms of government but during his term as the Chief Justice of

13
Oseko JO, ‘Judicial Independence in Kenya: Constitutional Challenges and Opportunities for Reform’
https://hdl.handle.net/2381/27703 accessed 19 November 2021
14
Laban Thua Gachie, ‘David Kenani Maraga, Former Chief Justice and President of the Supreme Court of
Kenya’[2016] Kenyan Life https://kenyanlife.com/chief-justice-david-maraga/ accessed on 19 November 2021

15
Article 167(1) of THE CONSTITUTION OF KENYA, 2010
16
BDA Staff ( 2016). "Uhuru swears in new Chief Justice David Maraga". Business Daily Africa. Nairobi retrieved on
19th November 2021
Mwithali Daniel Muriira 21s01allb025

Kenya, he experienced a lot of interruptions from the executive which did not really foster good
relationship with the executive.

When one arm of the government interferes with the functioning of the other arm of government
either directly or indirectly, this limits the independence of the affected arm of government,
whose independence is guaranteed for, from the Kenyan constitution, especially the Judiciary. 17

The independence of the judiciary is provided for in the constitution in article 160 which states
that:

(1) In the exercise of judicial authority, the Judiciary as constituted by Article 161 shall
be subject only to this Constitution and the law shall not be subject to the control or
direction of any person or authority.

(2) The office of a judge of a superior court shall not be abolished while there is a
substantive holder of the office.

(3) The remuneration and benefits payable to or in respect of judges shall be a charge on
the consolidated fund.

(4) Subject to Article 168(6), 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.

(5)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.

During David Maraga’s term as the Kenyan chief justice, he fought tooth to nail to ensure that
the independence of the judiciary was observed to and it was respected especially by the
executive. The former chief Justice, performed his tasks according to the constitution and the law
of Kenya and he also ensured that the other arms of government did the same. Despite, being a
‘loathe’ to certain people for what he did and being targeted by the executive, David Kenani
Maraga was vocal on the independence of the judiciary and set a foundation to the forthcoming
Chief Justice for them to know how independent the judiciary is and ensure that the

17
Article 160 of the Kenyan constitution
Mwithali Daniel Muriira 21s01allb025

independence is maintained. Though, David Maraga’s quest for complete independence of the
judiciary, and non-interference from the executive was not completely accomplished, he made
huge accomplishments that instilled some dignity to the judiciary, which was being referred to
as, a toothless dog and the weakest arm of the government.18

Financial autonomy is a very important factor in the independence of the judiciary and in
enabling the judiciary to perform its functions effectively.19 Financial autonomy is the ability of
the judiciary its funds independently, this would enable the judiciary to set and realize its
strategic aim.20 For the judiciary to function effectively, it requires real financial autonomy and
adequate allocation of funds, currently the judiciary lacks either as it has inadequate funds and
also does not have a financial autonomy. This makes it really hard for the judiciary to perform its
tasks.

During Maraga’s term as the Chief Justice, the budget of the judiciary was reduced extremely
since, ‘the economy was doing poorly’. The former Chief Justice held a press conference where
he accused the executive for the budget cuts since now, they could not carry out several of their
functions effectively. It was not fair from the side of the government because despite the
economy not being good, the little amount that was available Maraga stated that it was supposed
to be shared equally. By not giving the Judiciary a reasonable amount of money, the executive
sought to control the judiciary. David Maraga took a bold move in holding a press conference
showing to the public, how unfair the executive was to the judiciary.21

When the executive, through the treasury, allegedly reduced the budget of the judiciary, in the
press conference held, the former Chief Justice stated that court of appeal sessions in four major
towns and the mobile courts had come to a stop as a result of this action. This shows how by the
executive affecting the budget of the judiciary it impacts the functioning of the judiciary hence
limiting the independence of the judiciary.

18
Kevins Jerameel, ‘Is Kenyan Judiciary a Toothless Dog and the Weakest Arm of the Government? Reality or
Distortion?’ (2020) https://ssrn.com/abstract=3716498 accessed on 19 November 2021
19
Odhiambo Jerameel Kevins Owuor, ‘The Quest For A New Chief Justice Who Will Take Over From Maraga?’
[2020] University of Nairobi, School of Law https://ssrn.com/abstract=3756232 accessed on 19 November 2021
20
From European University Association
21
Citizen TV Kenya @citizentvkenya, ‘Profile of Courage’[2021] <
https://twitter.com/citizentvkenya/status/1349806876511371279?s=20> accessed on 23 November 2021
Mwithali Daniel Muriira 21s01allb025

During the former Chief Justice’s press conference, David Maraga stated several instances where
his office, as the head of the judiciary and other members of the judiciary were not accorded the
respect they deserve by the executive. Some of these instances include:

 Failure to provide ‘suitable’ protocol vehicles to visiting dignitaries of the Judiciary

 Unceremonious reception at state functions, including State House
 CJ is barred from accessing government VIP lounge at major airports in the country
 Threats from cabinet secretaries that Maraga’s tenure will end this year
 Attempts to withdraw police traffic clearance for the CJ22

When the executive does this it is limiting the financial autonomy, of the judiciary which in turn
limits the independence of the judiciary.

When the government which is headed by the president who is also the head of the executive
does not abide to the rulings of the Judiciary, it as a result weakens the judiciary. The former
Chief Justice called out the government for impunity, where a ruling was given against the
government and the government did not respect the ruling of the judiciary but instead went ahead
and did not pay the compensations as required by the court. The former Chief Justice, clearly
stated that; “I am not saying the government has endless resources to pay anything, but if the
orders have been made against the government and they have not appealed, or they have
appealed and lost, then let them pay. That is what happens in civilized countries.” This does not
follow the independence of the judiciary that is provided for in the constitution, where in the
judicial authority, the decisions of the judiciary are not to be controlled by any other authority or
any person but the decisions will only be subject to the constitution.23

The former chief justice, had also differed with the CBK boss, over the funding of the judiciary,
where the Judiciary was purportedly being required by the, to get authorization from the treasury
for it to access its funds. This shows that the judiciary lacks financial autonomy to control its
funds and open accounts for its own funds. This limits the independence of the judiciary and also
its functioning. The judiciary has very adequate financial capability but the fact that it requires
authorization from another arm of government to carry out its functions, that limits its job

22
Daniel Mumbere, ‘Kenya's CJ Maraga complains against budget cuts, 'disrespect'’ [2019] africanews.
www.africanews.com/2019/11/04/kenya-s-cj-maraga-says-judiciary-under-attack/ accessed on 19 November 2021
23
Article 160(1) of The Kenyan Constitution, 2010
Mwithali Daniel Muriira 21s01allb025

effectiveness and this directly affects the general public since the judiciary is not working at its
best. 24

The executive is presumed to control the budget of the judiciary through the cabinet secretary for
finance, after the appr oval of the parliament for the Judiciary’s budget, the funds should be
transferred directly to the Judiciary fund. The cabinet secretary for finance should not slash the
Judiciary’s budget, after it has been approved by the parliament as they did during David
Maraga’s term as the chief justice. All arms of the government are expected to be independent
and no arm should overstep to the other arm’s functions. By the slashing of the Judiciary’s
budget, this impaired a lot of Judiciary’s functions where the courts could not properly handle
cases in the diaspora since they had very low funds.25

The bad blood between the Judiciary and the executive arms of the government developed when
the supreme court which at that time was headed by David Kenani Maraga declared the
presidential elections that had taken place on the 8th of August the year 2017 as null and void.
The supreme court judges came into this decision after the NASA government had taken the
matter to court demanding that the elections had been rigged. From the supreme court, four of
the judges agreed into getting to this decision. The reason that the supreme court came up with
for nullifying the presidential elections was that; the commission had irregularities in
transmission of the election results and the Independent Electoral and Boundaries Commission,
had not carried out the elections in a proper manner that is stipulated for in the Kenyan
constitution.26 Judges at the supreme court stated that, the opposition, NASA had not provided
adequate evidence to prove that, there was rigging of the elections.

His Excellency, Uhuru Muigai Kenyatta after, the decision of the supreme court, had a speech
where in one he said that respected the decision of the supreme court and urged Kenyans to be at
peace with each other since we one nation. He also said that he was ready for the repeat
elections. In another speech the president was very vocal, where he threatened the Supreme court

24
Sam Kiplagat, ‘Maraga Differs With CBK Boss Over Judiciary Finances’ [2020] Business Daily
www.businessdailyafrica.com/bd/economy/maraga-differs-with-cbk-boss-over-judiciary-finances-2299502
accessed on 21 November 2021
25
Japheth Ogila, ‘CJ David Maraga Asks Executive To Keep Off Judiciary Matters’ [2019] TheStandard
www.standardmedia.co.ke/nairobi/article/2001348043/you-have-no-mandate-to-control-judiciary-budget-
maraga-to-the-executive accessed on 22 November 2021
26
Chapter seven of the constitution
Mwithali Daniel Muriira 21s01allb025

judges calling them wakora.27 He said that something needed to be done to rectify the judiciary
and it is no wonder that after the re-election of the president, the judiciary received budget cuts,
and the two arms of government were on each other’s throats for the second term of the president
until the retirement of David Kenani Maraga as the Chief Justice. David Kenani Maraga, made a
very bold move as the Chief Justice of the Judiciary in nullifying the presidential elections. This
was the first presidential elections to be nullified by the courts in Africa. Malawi followed, from
the Kenya’s supreme court decision.28

Unlike in the independence constitution, the new, 2010 constitution provides for the separation
of powers of the arms of government. However, the former Chief Justice stated that this only
remained on paper since the executive usually ignored the orders of the judiciary. In one
instance, the Judicial Service Commission, presented to the president the names of 41 judges for
appointment but the president refused to appoint the judges. The president through the attorney
general questioned the integrity of some of the nominees but the court ruled in favor of the
nominees. The president is not supposed to pick certain leaders that he/she prefers for
appointment, once the names have been presented to the president by the judicial service
commission, it is up to the president to appoint those people without disapproval.29 When the
president refused to appoint those judges, he meddled with the independence of the judiciary and
this delayed the functioning of the judiciary due to inadequate number of judges. The number of
judges in Kenya is very little while the demand for judges is very high, in the entire country. 30
The former Chief Justice, demande the president to appoint the judges proposed to him by the
Judicial Service Commission which he heads.

The new, 2010 constitution recognizes gender equality as most articles of the constitution
recognizes adequate representation of women. These include; article 27(3),31 100(A)32 and article

27
Dickson Olewe, ‘Kenyan Presidential Election Cancelled by Supreme Court’ [2017] BBC News
www.bbc.com/news/world-africa-41123329 accessed on 22 November 2021
28
Odhiambo Jeramel op cit
29
Article 166(1) b of the Kenyan Constitution: The president shall appoint all other judges, in accordance with the
recommendation of the Judicial Service Commission.
30
Mohammed Yusuf, ‘Kenya’s Judiciary Puts Executive on the Spot Over Appointment of Judges’ [2020] VOA
www.voanews.com/a/africa_kenyas-judiciary-puts-executive-spot-over-appointment-judges/6190732.html
accessed on 22 November 2021
31
‘Women and Men have the right to equal treatment, including the right to equal opportunities in political,
cultural, economic and social spheres.’
32
‘Parliament shall enact legislation to promote the representation in parliament of women.’
Mwithali Daniel Muriira 21s01allb025

81(b).33 The parliament had been given several chances to enhance the two-thirds gender rule in
the parliament and ensure that there was equal gender representation in the parliament but did
not work on the instructions given. The former Chief Justice, David Kenani Maraga decided to
use the powers provided to him in the constitution that; if parliament fails to enact legislation in
accordance with an order under clause (6) (b), the Chief Justice shall advise the president to
dissolve the parliament and the president shall dissolve the parliament.34

The former Chief advised the president to dissolve the parliament, but the president did not. This
is another instance where the executive does not follow an order from the judiciary, hence
interfering with independence of the constitution and the separation of powers.

33
‘The electoral system shall comply with the following principles- not more than two-thirds of the members of
elective public bodies shall be of the same gender.’
34
Article 261(7)