Law in Education EDFO 422 Lesson 1 notes
LU by Dr Julia
Introduction
Laws and policies must
-be in line with international standards
- match the reality of education in our country
def
- it's derived from stoic / philosophical term 'Lag” means stable or universal
- set of rules to determine work and standards to which we ought to confirm
- a discipline to manage all activities
- entire body of rules, regulations and principles
- mechanism to regulate human conduct.
- System of rules and guidelines.
According to Black's law dictionary “law is that which must be obeyed and followed by citizens
subject to sanction or legal consequences”
According to Austin “law is a rule of conduct imposed and enforced by the sovereign”
Maclver says “without law there is no order and without order men are lost not knowing where
to go and what to do”
Law is made by government & enforced through social institutions. It shapes political, economic
and Social conditions of a country.
Ignorance of law is not excused & result in a penalty.
Nature of law
- supreme in nature
- Is changeable- It is never static but always changing
- varies according to nation, society politics and religion.
- regulates the conduct
- punishes wrongdoers
- applies equal treatment
- it aims peace
- applied by sovereign authority
Types of law
1. Substantive and procedural law
2. Civil and criminal law (helps in creating favourable environment for activities by providing
security, control, incentives, order & settlement of legitimate dispute in a just manner)
3. Private and public law
4. National and international law
Sources of law
-the constitution (formal document that defines rules and regulations, functions and roles of
various state bodies and the relation between them and the public),
- the legislation (parliamentary act) & subsidiary legislation,
- Judicial precedents
- Acts of UK/ indian Parliament
- International law/ treaties
-the common law,
-the African customary law.
- Religion - Christian, Muslim, Hindu
Legal environment
- it is the surrounding connected with law to manage and regulate the economic, social, religious
and political as well as global and technological aspects of human life.
- it consists of laws, rules, regulations, acts and rulings of court to shape the environment and
give a good introduction to the rights and responsibilities of people
Koontz & Fulmer "legal environment are various laws, court decisions & governmental
regulations that influence our lives and business operation”
Professor Dr. Prem Raj Pant "legal environment is the framework of laws, regulations and court
decisions intended to encourage, guide and control business activities
Courts
- government office having legal authority to hear and decide on the suits between two disputing
parties
- institutions established by law to solve legal disputes by following procedures of law
- authentic institutions that protect fundamental rights of people and maintain the rule of law in
the country pro environment where people's rights are not violated.
- a bench of judges plus other officers having authority to perform judicial functions of
authority”
- an office or authorities who hear litigation".
- “black's law dictionary, it's an organ of government, belonging to the judicial department,
whose function is the application of laws to controversies brought before it and public
administration of justice”
Three tiers of courts ( article 127)
-Supreme court
- High court
- District/Magistrate/Kadhi court.
HISTORY
In the world over, laws have been found from constitutions, customs, norms and values of
society, legislation and judge made decisions. In Kenya laws have been derived from
i. the constitution (formal document that defines rules and regulations, functions and roles of
various state bodies and the relation between them and the public),
ii. the legislation (parliamentary act), subsidiary legislation,
iii. judicial precedents
iv. acts of UK/ indian Parliament
v. international treaties
vi. the common law,
vii. the African customary law.
viii. Religion – Christian, Muslim and Hindu
*The Constitution of Kenya*
The constitution is the highest legislative norm. Sets out general principles which other national
laws and policies to adhere. The current constitution 2010 was written and enacted on 12th
December 1963, amended on 12 December 1964 as to establish republic of Kenya with a
president as the head of state. it has made a major shift in the framework and values of
governance. It is supreme and takes precedence over other forms of law, written or unwritten.
The constitution creates new institutions and new structures that demand for new laws.
The constitution has 18 chapters namely:
1. The sovereignty of the people and supremacy of the constitution
2. The Republic of Kenya
3. Citizenship
4. Bill of rights
5. Land and environment
6. Leadership and integrity
7. Representation of the people
8. The legislature
9. The executive
10. The judiciary
11. Devolved government
12. Public finance
13. Public service
14. National Security
15. Commissions and independent offices
16. Amendments of the constitution
17. General provisions
18. Transitional and consequential provisions.
Legislation ( don’t teach process)
Parliament exercises power by passing bills at the National Assembly. This binds all people in
Kenya, is not discriminative and all are equal before the law. Parliament is sovereign: , it can
make, amend, or appeal any law subject to the constitution, so as to meet the changing needs and
demands of society.
Types of Bills
Before a certain law is enacted, it is referred to as a Bill.
1. Government bill - presented in Parliament by a minister behalf of the government
2. Private members bill - presented to parliament by an MP on their private capacity
3. Public bill - proposes law of general application throughout the jurisdiction
Private bill/ private legislation - 6 to benefit few individuals or locality
Legislative process under the Constitution of Kenya 2010
- bill enters the national assembly
- first Reading (no debate)
- second Reading (debated on the floor) - voted for its merit. If it fail it takes six months before
the re-introduction.
- committee stage -( clause by clause scrutiny)
- report stage (amendments on the floor)
- third reading (final version debated voted for) if it fails it is lost
If it succeeds passes to senate and goes through similar stages of national assembly
- reconciliation between senate and national assembly
- presidential assent: Can accept or reject the proposed law.
If rejected, it's sent back to parliament for correction. Make that change erase a two-third
majority to make the Bill into law.
- implementation the act of Parliament.
Advantages of statute laws
Laws made by Parliament are known as statute laws:
- democratic
- lead to resolution of legal problems
- dynamic
- flexible
- uniform
- process is open to the public.
Disadvantages of statute law
- bulky and technical
- follow a lot of formalities
- some laws may not be democratic
- the wishes of MPs
- possibility of defective laws is high.
Subsidiary legislation
Refers to delegated legislation done by professional bodies:
Reasons
-inadequacy of Parliament
- technical nature of law-making
- need for flexibility
- need for rapid action
- inadequate parliamentary control
- skeleton work done by MPs. (need 4 detailed legislation)
- adequate time and to make laws
- for Speed and Efficiency
Judicial precedents (judge-made law or case law)
- refers to decisions made by superior courts, it is binding to all lower courts.
Forms of judicial precedents
a. original precedent - a decision on an issue that has never been determined by the court before.
b. Binding precedent- it's a president from an earlier case which must be followed
c. Persuasive precedent - it is not binding on the courts but a judge may be persuaded to follow
its findings.
d. Declaratory president - judge simply declares what the law has always been
e. Distinguishing precedent - used by judges to avoid following a previous decision which may
be binding.
f. Overruling precedent - court states that legal rules decided in an earlier case strongly decided
g. Reversing precedent - court in higher hierarchy overturns the decision of a lower Court in the
same case.
Customs and the African customary law
It is applicable in civil cases. It's not repugnant to Justice and morality or inconsistent with any
written law.
It was abolished after independence
The Islamic law
Applicable to Kadhi courts: cases related to divorce, marriage and personal status . Both parties
must be Muslim.
The judiciary
The three arms of government are the executive- (administers law), the legislature (makes laws)
and the judiciary (adjudicate disputes which arise out of those laws)
Guiding Principles
- justice done without regard to one station in life
- that justice shall not be delayed
- uphold alternative approach to dispute resolution (reconciliation, mediation, arbitration,
traditional dispute mechanisms)
Functions of the judiciary
- the primary function is to administer justice.
- determine the facts involved in a dispute (between individuals or individuals and the state)
- protect individuals against excessive actions of government agents
- try criminal cases
- interpret Laws
- make laws especially if the existing ambiguous or conflicting.
- protect/ guard the constitution ensuring the government actions are within the provisions. The
constitution determines all the organs of the government composition, powers and duties, and
sets and freedoms of individuals
- advisory role to the executive
- protect fundamental rights from being violated
- higher courts supervise lower courts
- non judicial function - property cases/ dispute, handle affairs of minor children or lunatics,
cancel certain licences, grant citizenship to aliens.
Judges are elected
1. by people (Switzerland) sounds democratic but Ordinary voters are not qualified to select
suitable judges and may elect a popular judge on party terms, hence no separation of powers.
2. through elections by legislature (not protect the constitution) - independence of Judges is lost
3. Executive nomination (judges of supreme and High Court) from senior practising lawyers .
4. Competitive examination (eg in France & India by the Ministry of Justice)
Judges should be independent of the influence of the executive, make decisions without fear
execute duties without force or threats.
in Kenya:
-Judges are only subject and the law.
-The chief justice is appointed by the president advised by “JSC approved by Parliament.
-CJ office ends at age of 70, resins on his own volition, or tribunal.
- decisions reached by judges are final
- have powers to spanish persons who disobey the high court orders
- the judiciary consists of judges magistrates other judicial officers and staff
1: the Superior courts
a)supreme- has seven judges or CJ, deputy CJ, and 5 others) the highest legal and political
institution
b) Court of appeal - has 12 judges, hear cases from the High Court and tribunals.
c) high Court - unlimited jurisdiction and civil matters, violation, denial or threats on rights,
removal of persons appointed under the constitution interpretation of the constitution,
inconsistencies to the constitution & supervise or tribunals
2. Subordinate courts
Magistrates Court, Kadhi , the court-martial and other tribunal.
