Topic 2 Constitutional Restraints On Public Power

THE CATHOLIC UNINVERSITY OF EASTERN AFRICA
CUEA CLS 122
CONSTITUTIONAL PRACTICE
LECTURE NOTES
BY CHARLES B G OUMA
LLB MLB
LECTURER FACULTY OF LAW CUEA
CHARLES B
TOPIC 2 CONSTITUTIONAL RESTRAINTS ON PUBLIC POWER
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Teaching
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Contents
1. 3
2. 4
3. 4
4. 4
5. 4
6. 6
7. 6
8. 6
9. 7
10. 7
11. 7
12. 8
13. 10
13.1. 10
13.2. 10
13.3. 10
13.4. 10
13.5. 11
13.6. 12
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17.
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23. 23
24. 24
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26. 27
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1. Introduction
Constitutional ‘restraints on power’ can also be referred to as ‘constitutional limits’ on power. Constitutions are
not only about structuring and allocating public power. They are also about restraining or limiting that power.
(Transformative constitutions go even further and try to precipitate a social political and economic re-engineering
of society). The state is clothed by the legal power to coerce. This power is what is, in American constitutional
literature, referred to as the police power of the state. It is the justification of the restriction of individual liberties
in order to protect the general welfare. Police power is exercised by the legislative and executive branches through
the enactment and enforcement of laws. The state has the power to compel obedience to these laws but in a liberal
democracy, there are constitutional limits to this power of compulsion.
Most constitutions are based on a belief that governments should have only limited power. Our constitutional
theory rejects the notion that the police power of the state is inherent or divine-ordained. In constitutional theory
power is delegated for specific purposes to be exercised in such a way as to make society possible and no more.
The theory of the social contract which is the foundation upon which society and its corollary, government, is built
presupposes an inherent limitation of public power. An individual does not give up all his freedoms to live in
society. Individuals give up only those freedoms as are necessary to make society possible. It follows that there
are certain rights and freedoms that must be beyond the police power of the state.
Lord Acton famously warned that ‘power corrupts and absolute power corrupts absolutely’. Accordingly, good
constitutions structure government so as to expand opportunities for the exercise of personal freedom and
maximize each individual’s equal right to pursue peaceful goals and enjoy the benefits of living in society.
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Constitutions therefore use a broad range of safeguards to act as restraints on the excercise of public power. This
topic explores the constitutional devices used in the Constitution of Kenya 2010 to restrain public power.
There are many examples of decisions from other jurisdictions where the courts have drawn boundaries around
the exercise of the police power of the state.
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In the United States for instance the decision in Roe vs Wade Roe v. Wade, 410 U.S. 113 (1973), is a landmark
decision of the U.S. Supreme Court in which the Court ruled that the Constitution of the United States protects a
pregnant woman's liberty to choose to have an abortion without excessive government restriction.
In Letsweletse Motshidiemang v Attorney General [2019] MAHGB-000591-16 Botswana, High Court (Decision
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of June 11, 2019) the High Court of Botswana declared that the time was ripe to decriminalize homosexuality,
thereby overturning the 2003 decision in Kanane v. S, which upheld the constitutionality of the sodomy laws. The
case was brought by a gay man who challenged the Botswana Penal Code provisions that criminalized same-sex
sexual intercourse on the grounds that they infringed his rights to dignity and liberty and to be free from
discrimination. The Court held that sexual orientation is innate to an individual and that the criminalization of
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same-sex sexual conduct infringed the rights to liberty, dignity and privacy and constituted discrimination. It added
that there was no public purpose in continuing the criminalization and that there was no justification for infringing
upon those right
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In the United Kingdom, the Supreme Court judicially reviewed the decision of the prime minister to advice the
Queen to dissolve parliament, a move that was seen as an attempt by the ruling party to avoid an embarrassing
parliamentary defeat of government policy on Brexit. (R (on the application of Miller) (Appellant) v The Prime
Minister (Respondent) Cherry and others (Respondents) v Advocate General for Scotland (Appellant) (Scotland)
2019 UKSC 41
2. Topic Objectives
At the end of this topic, the participant should be able to
● Explain the need for limitation of public power.

● Discuss the constitutional restraints on public power.
● Distinguish between normative, structural and institutional restraints.
● Distinguish between legal and extra-legal restraints.
● Identify and evaluate the restraints used in the CoK 2010.
● Compare the restraints used in the CoK 2010 with the restraints used in selected jurisdictions.
3. Functions of a constitution
To understand the case for restraints on public power in a constitution, it is helpful to recall the functions of a
Constitution. Constitutions are about structuring and allocating power. A fundamental function of the constitution
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is the limitation the power thus allocated. Literature in constitutional theory and practice identify a number of
functions for constitutions.
4. Essential feature of a good constitution
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Lord Acton’s edict about the inherent danger of power rings true for constitution makers today as it rang then.
Accordingly constitution making focuses a lot on how to limit public power. Indeed, an essential feature of every
good constitution is how well it delimits powers.
5. Why power must be limited
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At the heart of the debate about the constitution is the inherent tension between constitutionalism and democracy.
Democracy is about majority rule. Courts are typically wary of inquiring into the wisdom or justice of acts by
legislative and executive arms of government because of the assumption that these two are the representatives of
the political will of the majority. In the US case of Twining vs New Jersey (19o8) 211 U. S. 78, xo6, 107, 29 SuP.
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Ct. 14, 22, 23 the US Supreme court underscored this tension in the words following:
"It must not be forgotten that in a free representative government nothing is more fundamental than
the right of the people through their appointed servants to govern themselves in accordance with their
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own will, except so far as they have restrained themselves by constitutional limits specifically
established, and that in our peculiar dual form of government nothing is more fundamental than
the full power of the state to order its own affairs and govern its own people, except so far as the
Federal Constitution expressly or by fair implication has withdrawn that power. The power of the
people of the states to make and alter their laws at pleasure is the greatest security for liberty and
justice, this court has said in Hurtado v. California." We are not invested with the jurisdiction to pass
upon the expediency, wisdom or justice of the laws of the states as declared by their courts, but only
to determine their conformity with the Federal Constitution and the paramount laws enacted pursuant
to it. Under the guise of interpreting the Constitution we must take care that we do not import into the
discussion our own personal views of what would be wise, just and fitting rules of government to be
adopted by a free people and confound them with constitutional limitations. The question before us is
the meaning of a constitutional provision which forbids the states to deny to any person due process of
law. In the decision of this question we have authority to take into account only those fundamental
rights which are expressed in that provision."
As is apparent from the words of the US Supreme Court, constitutional theory has long recognised the potential
threat to individual liberty in the form of a dictatorship of the majority. The central thesis of constitutionalism is
that power however democratically acquired is prone to abuse and needs to be limited. Constitutionalism
recognises that government is a necessary evil. It therefor accepts the necessity of government recognises its
tendency towards arbitrariness and therefore designs limitations to act as a safeguard against potential abuse of
power. But because government is necessary, constitutionalism tries to create a delicate balance between the
effectiveness of government and the limitations to be placed on government.
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In his spirit of laws, Montesquieu also warned against the tyranny of the law
‘Liberty also requires that the laws concern only threats to public order and security, since such laws will protect
us from harm while leaving us free to do as many other things as possible. Thus, for instance, the laws should not
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concern offenses against God, since He does not require their protection. They should not prohibit what they do
not need to prohibit: "all punishment which is not derived from necessity is tyrannical. The law is not a mere act
of power; things in their own nature indifferent are not within its province" (SL 19.14). The laws should be
constructed to make it as easy as possible for citizens to protect themselves from punishment by not committing
crimes. They should not be vague, since if they were, we might never be sure whether or not some particular action
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was a crime. Nor should they prohibit things we might do inadvertently, like bumping into a statue of the emperor,
or involuntarily, like doubting the wisdom of one of his decrees; if such actions were crimes, no amount of effort
to abide by the laws of our country would justify confidence that we would succeed, and therefore we could never
feel safe from criminal prosecution. Finally, the laws should make it as easy as possible for an innocent person to
prove his or her innocence. They should concern outward conduct, not (for instance) our thoughts and dreams,
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since while we can try to prove that we did not perform some action, we cannot prove that we never had some
thought. The laws should not criminalize conduct that is inherently hard to prove, like witchcraft; and lawmakers
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should be cautious when dealing with crimes like sodomy, which are typically not carried out in the presence of
several witnesses, lest they "open a very wide door to calumny" (SL 12.6)’.1
6. Types and nature of the of restraints
Restraints on government fall in three broad categories. Normative restrains, institutional restrains and structural
restrains. Restraints can also be categorised as legal and extra-legal. Legal restraints are those black letter
prohibitions that can be found in the constitutions. But no drafting can ever be so precise as to anticipate and
provide for every future contingency. Accordingly, some restraints are not to be found in the letter of the
constitution and are more about political culture and convention. The example is often given about the UK
Constitution not being Supreme. It is the legislature that is Supreme. But there are many laws whose enactment
the legislature cannot even dream about. Similarly, the Queen can theoretically refuse allow popularly elected
prime minister to form a government. But there is no record of that ever happening. Neither is it expected that it
will ever happen. The restraints are more political than legal.
7. Characteristics of good control devices
The devices of limiting or controlling public power are not mutually exclusive. They interact in complex ways to
deliver certain outcomes that can be self-reinforcing or mutually contradictory. A good constitution-maker ought
to understand how these devices interact so as to design a constitution where the control devices reinforce rather
than contradict each other
8.
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●
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Normative restraints
Supremacy of the constitution
Rule of law
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●
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Constitutionalism
National values
Constitutional principles
Bill of rights
Affirmative action
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●
●
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Minority rights protection
Freedom of the press
Non derogable rights
Substantive and procedural entrenchment
1
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https://plato.stanford.edu/entries/montesquieu/#4 accessed 6th Feb 021
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9. Institutional Restraints
● Independent institutions
10. Structural restraints
● Separation of powers
● Devolution
● Bicameralism
● Public participation
● Civilian control of the armed forces
It must be clear that the categorization of restraints is not cast in stone. There are overlaps and some restraints can
belong to more than one category
11. Constitutionalism
Constitutionalism is the theory, or concept of limited government. Constitutionalism accepts the necessity of
government recognises the inherent tendency of government towards arbitrariness and designs restraints on the
exercise of power. The restraints must not however render government ineffective. So considerable discretion is
permitted, and courts tend to defer to the policy choices of the peoples democratically elected representatives. The
constitution of Kenya 2010 specifically provides that constitutionalism is a constitutional principle.
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Under Article 249 (1), the objects of the commissions and the independent offices are to (a) protect the sovereignty
of the people; (b) secure the observance by all State organs of democratic values and principles; and (c) promote
constitutionalism.
In the Promulgation the people of Kenya collectively declare as follows: -
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AND WHEREAS for the last two decades, the people of Kenya have yearned for a new Constitution
which— (a) guarantees peace, national unity and integrity of the Republic of Kenya in order to
safeguard the well-being of the people of Kenya; (b) establishes a free and democratic system of
Government that ensures good governance, constitutionalism, and the rule of law, human rights and
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gender equity.
The courts of Kenya have recognised constitutionalism as a value or principle of the CoK 2010. In the case of
Independent Electoral & Boundaries Commission v Maina Kiai, Khelef Khalifa, Tirop Kitur, Attorney-General,
Katiba Institute & Coalition for Reforms & Democracy CIVIL Appeal No. 105 OF 2017 the court found that
constitutionalism is a justiciable constitutional value
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12. Supremacy of the constitution
Article 2 declares the constitution to be the supreme law of the land. Government must be established according
to the constitution. Any act done or laws made in contradiction of the constitution are voided. By so doing the
constitution limits government by requiring a constitutional edict for any exercise of power. The constitution also
checks against unconstitutional means of acquiring power. Since the government exercise police power largely
through the enactment and enforcement of legislation, one way of checking on government power is through
determining the constitutional validity of government action. This power is specifically conferred on the court by
article 165 of the constitution, article 23(3)(f) and article 89(10). It is also implicit under article 47 which provides
for the right to fair administrative action. The courts have not hesitated to strike down legislation as
unconstitutional. Statutes struck out as unconstitutional since 2010 can be accessed in the link
http://www.kenyalaw.org/kl/index.php?id=8662 Click on the specific statutes for a hyperlink to the cases.
A few examples will suffice
Anthony Njenga Mbuti & 5 Others V Attorney General & 3 Others Constitutional Petition NO 45 of 2014,
High Court at Nairobi (Milimani Law Courts) M Ngugi, J
The Petitioners had at various times been arrested and arraigned in Court but had not been charged with any
criminal offences. Instead, they had been required to execute a bond to keep the peace in accordance with the
provisions of sections 41-63 of the Criminal Procedure Code. They filed the instant Petition challenging the
constitutionality of the provisions of section 43 to 61A of the Criminal Procedure Code. They assert that those
provisions offended various articles of the Constitution, among them articles 27, 28, 29, 49 and 50 with regard to
Held CHARLES B
the rights of an accused person and were therefore null and void.
Certainly, in our circumstances and the express provisions, tenure and spirit of the 2010 Constitution, the
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provisions of the peace bond process are indefensible. Whichever way one looks at it, the provisions of the peace
bond process under the CPC cannot meet constitutional muster. I therefore find and hold that Sections 43-61A of
the Criminal Procedure Code are unconstitutional for violating the provisions of Articles 27, 28, 49 and 50(2) of
the Constitution, and are therefore null and void. It is also worth observing that section 61A of the CPC, which
empowers a magistrate to confine a person within a particular district, contravenes the right of citizens to freedom
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of movement under Article 39.
Geoffrey Andare v Attorney General & 2 others Petition 149 of 2015High Court, at Nairobi Mumbi Ngugi
J
The Petitioner was charged with an offence under section 29 of the Kenya Information and Communications Act,
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KICA. The said provision criminalised any person who improperly used licensed telecommunication system either
to sends a message or other matter that was grossly offensive or of an indecent, obscene or menacing character.
The Petitioner had allegedly posted a message in the social media described to have been grossly offensive
electronic mail within the meaning of section 29 of the KICA. The message described to have been annoying to
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the claimant in a criminal case implicated the claimant to have been sleeping with young girls before awarding
them scholarship opportunities to go to school. The Petitioner in certain words had described the claimant’s acts
as shameful. While the charges were ongoing against the Petitioner sought to challenge the constitutionality of
section 29 on the grounds that its wordings were vague, offensive to his freedom of expression thus
unconstitutional, and that the said section did not have elements of criminal offences (mens rea and actus reus)
and as such the offence created therein was not prosecutable.
Held
Section 29 imposes penal consequences in terms which I have found to be vague and broad, and in my view,
unconstitutional for that reason.
Jacqueline Okuta & another v Attorney General & 2 others Petition No 397 of 2016 High Court, at Nairobi
J.M Mativo, J
The petition was triggered by the arraignment of the first petitioner in Kwale Criminal Case No. 532 of 2016 and
the second petitioner in Nairobi Milimani Criminal Case No. 549 of 2016 whereby each petitioner was charged
with the offence of criminal defamation under section 194 as read with section 36 of the Penal Code for allegedly
making and or publishing allegedly defamatory statements of and concerning the complainant in the said cases.
The petitioner’s concern was the constitutionality of the criminal defamation law in section 194 of the Penal Code.
It was their case that the said section unjustly violated the freedom of expression by imposing sanctions on the
civil wrong of defamation. The petitioners correctly averred that the constitution was the supreme law of the land
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and any law that was inconsistent with the constitution was void to the extent of the inconsistency, and any act or
omission in contravention of the constitution was invalid.
Held
The exercise of certain rights (such as the right to a fair trial, freedom from arbitrary imprisonment, freedom of
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movement, freedom of expression, freedom of religion or the right to participate in public decision-making) was
integral to citizenship in a democratic society. The protection of fundamental rights against arbitrary or excessive
infringements was an essential feature of constitutional government, which was recognized both in international
human rights law and in many national constitutions. Nevertheless, relatively few rights could be enjoyed in
absolute terms. Most rights were subject to limitations that were necessary and reasonable in a democratic society
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for the realization of certain common good such as social justice, public order and effective government or for the
protection of the rights of others. The principal issue for determination was the constitutionality of criminal
defamation provided under section 194 of the Penal Code. Freedom of expression was secured under article 33 of
the Constitution and for it to be limited; the limitation must fall within the scope and ambit of the provisions of
article 24 of the constitution.
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13. The Rule of Law
The concept of the “rule of law’ is not easily defined. There is no academic or even a political consensus on a
comprehensive and exhaustive definition. Different authors define the concept differently. Definitions tend to be
descriptive and typically depend on the ideological orientation of the authors. It is related to the doctrine of
separation of powers as adherence to the separation of powers doctrine tends to lead to the presence and promotion
of the rule of law. We pick
13.1. G W Kanyeihamba (1975) at p 153)

‘The first point to make is that the ‘Rule of Law’ is not a ‘Rule’ that binds anyone. It is merely a bundle of ideas
intended to give law-makers, administrators and judges and law-enforcement agencies in so-called free and
democratic societies’
13.2. A V Dicey
● No man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of
the law established in the country in a legal manner before the ordinary courts of law.
● Every man whatever his rank or condition, is subject to the ordinary law of the realm and is amenable to
the jurisdiction of ordinary tribunals.
● General principles of constitutional law, e.g. the right of personal liberty, public meetings, are the result
of judicial decisions, determining the rights of private persons in particular cases brought before the
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ordinary courts of the land
13.3. Nelson Mandela
‘The rule of law, as I (admittedly a long retired old lawyer) understand it, refers to a structural exercise of rule as
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opposed to the idiosyncratic will of kings and princes. Even where the latter may express itself benevolently the
former is morally and politically superior. Where the rule of law does not apply, rulers assume entitlement to rule;
The rule of law, on the other hand, places the emphasis upon structured responsibility and obligation
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13.4. Implications of the rule of law
According to AV Dicey, the rule of law implies ‘the absolute supremacy or predominance of regular law as
opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative or even a
wide discretionary authority on the part of the government … Every man, whatever be his rank or condition, is
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subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals’. That those in
authority must act according to the principles established in the law of the land or justify any departures there from
by bringing themselves within the exceptions thereto
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GW Kanyeihamba says the rule of law implies the absence of arbitrary government, government according to law
not according to whim and caprice, equality before the law, certainty and predictability in the law. It abhors
retrospective application of laws and abhors unlimited discretion. It precludes arbitrary action.
13.5. A Modern Approach -Guiding Principles
Components of the rule of law that flow from its essence - the rule of law as opposed to the rule of man - and
therefore require more than just formalism in the making of the law. Focus is on implementation and adjudication,
substance, not the form.
According to Friedrich Hayek’s (1891-992) ‘The Rule of Law implies limits to the scope of legislation: it restricts
it to the kind of general rules known as formal law, and excludes legislation directly aimed at particular people.’
The rule of law therefore requires;
● De-concentration of power-vertically and horizontally

● Due process in how laws are made, implemented and adjudicate
Components
1. Legality
2.
3.
4.
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Rationality
Non-discretion
Clear objectives
5.
6.
7.
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Objective criteria
Certainty
Precedent (stare decisis)
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8. Prospectivity
Other Components
1. Separation of powers
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2. Due process and natural justice
3. Stability
4. Presumption of innocence
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5. Double jeopardy (res judicata
6. Equality at law
7. Habeas corpus (ad subjiciendum):
8. Information
The rule of law operates to limit the power of the legislature and the executive by subjecting them to formal
requirements of the law and even permitting an inquiry into the substantive fairness of an otherwise formally
correct action.
13.6. The rule of law is a foundational principle of the CoK 2010
The constitution is replete with references to the rule of law. It is specifically mentioned in the preamble and in
the promulgation as a foundational principle of our democracy and, in article 10, as a national value. Other direct
references are:-
● Article 81 General principles of the electoral system

● Article 91 (1)(g) Basic requirements for political parties.
● Article 259(b) as a principle of interpretation of the constitution
Indirect references include
●
●
●
●
●
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Article 2 . Supremacy of the constitution
Article 3. Defence of the constitution
Article 47. Fair administrative action
Article 48.Acess to justice
Article 49 Rights of arrested persons
●
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Article 50 Right to a fair trial
If the Rule of Law gives us a yardstick against which we can evaluate the validity of a legal system or individual
laws within the system, laws which are patently inconsistent with the rule of law are unconstitutional null and
void. Our courts have consistently held that laws which are inconsistent with the rule of law are unconstitutional
Cases
●
●
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Jacqueline Okuta & another v Attorney General & 2 others Petition No. 397 Of 2016 [2017] eKLR
Patricia Asero Ochieng & 2ors vs AG &Anor HC Petition No. 409 OF 2009
● Aids Law Project v Attorney General & 3 others [2015] eKLR
●
●
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Coalition for Reform & Democracy(CORD), Kenya National Commission on Human Rights & Samuel
Njuguna Ng’ang’a v Republic of Kenya & another HC Petition No 628 of 2014
Geoffrey Andare vs AG and DPP & Anor HC Petition NO 149 of 2015
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Aids Law Project v Attorney General & 3 others [2015] eKLR Nairobi Petition Number 97 OF 2010
Section 24 HAPCA . Prevention of transmission
(1) A person who is and is aware of being infected with HIV or is carrying and is aware of carrying the HIV virus
shall—
(a) take all reasonable measures and precautions to prevent the transmission of HIV to others; and (b) inform, in
advance, any sexual contact or person with whom needles are shared of that fact.
(2) A person who is and is aware of being infected with HIV or who is carrying and is aware of carrying HIV shall
not, knowingly and recklessly, place another person at risk of becoming infected with HIV unless that other person
knew that fact and voluntarily accepted the risk of being infected
(3) A person who contravenes the provisions of subsection (1) or (2) commits an offence and shall be liable upon
conviction to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding
seven years, or to both such fine and imprisonment
Held
Section vague overbroad and inconsistent with the rule of law
Geoffrey Andare vs AG et al: Petition No 149 of 2015
Section 29 KICA
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A person who by means of a licensed telecommunication system—
(a) sends a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or
(b) sends a message that he knows to be false for the purpose of causing annoyance, inconvenience or needless
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anxiety to another person, commits an offence and shall be liable on conviction to a fine not exceeding fifty
thousand shillings, or to imprisonment for a term not exceeding three months, or to both.
Held
Sec 29 of KICA is over broad and vague, limits the right to freedom of expression and thus unconstitutional. The
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provision is so wide and vague that its interpretation is left to the subjective interpretation of the court. Sec 29
further imposes a limitation on freedom of expression in vague, imprecise and undefined terms that go outside the
scope of the limitations allowed under Articles 33(2) and is thus unconstitutional. Sec 29 further lacks mens rea
on the part of the sender of the message that would render his or her act criminal in nature but appears to be
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premised on how others interpret the message.
13.7. Practical significance
• The formalistic approach ensures government acts according to law
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• The modern approach gives as a yardstick against which we can value a legal system or individual laws
in the system
• The rule of law is a factor in the determination of the constitutionality of legislation
• Politically, it is a factor in evaluating the performance of government
• It is a powerful principle in the limitation of public power
14. Separation of powers
This is the horizontal dispersion of powers. Power is distributed to three functional arms of government or to
different organs of the same functional arm. Separation of powers has four aspects
● The persons in one agency should not be permitted to hold office in the other two
● No organ should exercise the functions of the other two
● One organ of the government should not be in a position to control one or other of the remaining two
● There is a system of checks and balances
Separation power limits or restrains power by distribution it horizontally and then creating a system of checks and
balances. Courts have emphasised the aspect of checks and balances to justify a review of the acts of the other
arms of government.
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Separation of powers is provided for in the CoK 2010. It is a national value of power sharing (Article 10).It is an
object of devolution (Article 174(i)) and a principle of devolution (175(a). It is a principle of the legislative
authority of county assemblies (Article 185(3). The structure of Government reflects the application of the
principle (Chapter 8, the Legislature, Chapter 9, the Executive, Chapter 10, the Judiciary, Chapter 11, Devolved
Government and Chapter 15 Constitutional Commissions and independent offices)
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Cases underscoring the application of the separation of powers doctrine and underscoring the requirement of
checks and balances include:-
● In the Matter of the National Land Commission Advisory Opinion Reference No. 2 of 2014 [2015] eKLR
● Martin Nyaga Wambora v County Assembly of Embu & 37 others Civil Appeal No 194 of 2015 [2015]
●
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eKLR
James Opiyo Wandayi v Kenya National Assembly & 2 others JR Application No 258 of 2016 [2016]
eKLR
Republic v National Assembly Committee of Privileges & 2 others Ex-Parte Ababu Namwamba JR
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CASE NO 129 OF 2015 [2016] eKLR
● Justus Kariuki Mate & another v Martin Nyaga Wambora & another PETITION NO. 32 OF 2014
[2017]eKLR
● Judicial Service Commission v Speaker of the National Assembly & 8 others Petition No. 518 OF 2013
[2014] eKLR
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15. Judicial Review
Judicial review is the power of the court to interrogate the constitutionality of the acts of the executive or the
legislature or indeed any other organ of state. It owes its origins to the US Supreme Court decision in Madbury vs
Madison 103 1 Cranch. Judicial review limits power by ensuring both procedural and even substantive fairness of
the acts of the executive or legislature. It is provided for in the constitution of Kenya at articles 23)3) (f) and article
89(10), It is implied in articles 47 and 165.
CCK v Royal Media Services Ltd [2014] eKLR
The Supreme Court recognized that the power of any judicial review is now found in the constitution
Mugambi Imanyara & another v Attorney General & 5 others [2017] eKLR
The foundation of this power of judicial review, as explained by Indian nine-judge bench of the Supreme Court
in the case of Advocates on Record Association & Others vs Union of India[32]is the theory that the Constitution
which is the fundamental law of the land, is the ‘will’ of the ‘people’, while a statute is only the creation of the
elected representatives of the people; when, therefore, the “will” of the legislature as declared in the statute, stands
in opposition to that of the people as declared in the constitution-the “will” of the people must prevail.
Namit Sharma vs Union of India Writ Petition (Civil) No. 210 of 2012
“An enacted law may be constitutional or unconstitutional. Traditionally, this court had provided very limited
grounds on which an enacted law could be declared unconstitutional. They were legislative competence, violation
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of the constitution and reasonableness of the law. The first two were definite in their scope and application while
the cases falling in the third category remained in a state of uncertainty. With the passage of time, the law
developed and the grounds for unconstitutionality also widened......”
Supreme Court of India in the case of Hamdarddawa Khana vs Union of India AIR {1960} 554
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“In examining the Constitutionality of a statute it must be assumed that the legislature understand and appreciates
the need of the people and the law it enacts are directed to problems which are made manifest by experience and
the elected representatives assembled in a legislature enact laws which they consider to be reasonable for the
purpose for which they are enacted. Presumption is, therefore, in favour of the Constitutionality of an enactment.”
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Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992
"Canons of construction are no more than rules of thumb that help courts determine the meaning of legislation,
and in interpreting a statute a court should always turn first to one, cardinal canon before all others.... Courts must
presume that a legislature says in a statute what it means and means in a statute what it says there. When the words
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of a statute are unambiguous, then, this first canon is also the last: “judicial inquiry is complete.”
Not infrequently judicial review creates tensions and competition between the judiciary and the other arms of
government. Good illustrations of judicial review creating tensions can be seen in the following cases. Courts try
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to reduce this tension by deferential treatment of the acts of the other arms of government interfering only when
there is a manifest procedural or substantive irregularity.
Independent Policing Oversight Authority & another v Attorney General & 660 others Petition No.390 OF 2014
[2014] eKLR
On October 31, the High Court nullified the entire recruitment of 10,000 police officers carried out on July 14, on
the grounds that the July 14, 2014 recruitment was tainted with corruption, irregularities and blatant violations of
the Constitution. The judge said the commission violated the Constitution by delegating the duty to a non-entity
at the county level “In the instance case, I find and hold that the National Police Service Commission failed itself,
it failed Kenyans, it failed the recruits, it failed the Constitution and it must be told so. I am satisfied that drastic
action must be taken, painful or unpopular as it may be,” the judge ruled. The case leading to the entire nullification
was filed by the Independent Policing Oversight Authority chairman Macharia Njeru.
In April 2015, while the appeal was pending before the court of appeal there was a terrorist attack on Garissa
University. President Uhuru Kenyatta was reported as ordering the 10,000 police recruits whose enrolment was
stopped by the courts last year to immediately report to the Police Training College in Kiganjo, Nyeri County. I
further direct the Inspector-General of Police to take urgent steps and ensure that the 10,000 recruits, whose
enrolment is pending, promptly report for training at the Kenya Police College, Kiganjo,” “I take full responsibility
for this directive. We have suffered unnecessarily due to shortage of security personnel. Kenya badly needs
additional officers, and I will not keep the nation waiting,” he noted.
Happily common sense prevailed and the president’s directive was not implemented. After a national uproar,
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President Kenyatta has changed his earlier stance on police recruitment and asked those hired in 2014 not to report
for training on Sunday as earlier advised. President Kenyatta explained that the agreement was reached after
consultations with National Police Service Commission Chairman Johnstone Kavuludi that fresh recruitment be
held on April 20.
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An appeal by the state to the court of appeal was subsequently dismissed by the court of appeal. The Court of
Appeal dismissed the Attorney-General’s appeal against the judgment by Justice Isaac Lenaola, saying the High
Court judge was right in every finding he made to order a repeat recruitment. According to the appellate judges,
the irregularities first occurred when the Inspector- General of Police delegated the recruiting powers to sub-
county committees without authority. Said the judges:-
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“Our hearts go out to the young people who are casualties of a dubious process. But we want to tell the institutions
that they must try, and keep trying until they get it right. Otherwise we will be betraying the spirit of those who
passed the Constitution,” the judges said.
Other cases that have led to a push and pull between the three arms of government are
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Judicial Service Commission v Speaker of the National Assembly & 8 others Petition No. 518 OF 2013 [2014]
eKLR
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Republic v National Assembly Committee of Privileges & 2 others Ex-Parte Ababu Namwamba JR Case No 129
OF 2015 [2016] eKLR
James Opiyo Wandayi v Kenya National Assembly & 2 others JR Application No 258 of 2016 [2016] eKLR
16. Devolution
Devolution is the vertical separation of powers. Devolution limits public power by dispersing it vertically.
Devolution is provided for as part of the structure of government and of the state (Article 6) a national value,
(article 10) and in Chapter 11 (Devolved Government). The constitution devolves executive and legislative power.
Allocation of competence is provided for in schedule 4. Conflict of laws is resolved in accordance with article 191
and disputes are resolved in accordance with article 189
17. The Bill of Rights
Under the social contract theory, individuals give up certain rights to as to make society possible. The state is
empowered to coerce obedience to the laws made by society for the general welfare of the society. But not all
rights are given up. Certain rights are put beyond the police power of the state. This is the concept of inalienable
rights. A bill of rights restrains public power by putting certain acknowledged rights beyond the reach of the state
thereby limiting the power of the state. The two cases cited above are good example. The state does not have an
unlimited power to infringe on individual rights and freedoms. There are both rational and constitutional limits to
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the police power of the state.
The CoK 2010 adopts a very progressive approach to the bill of rights. Rights are declared, not granted.(Article
19) .The rights are justiciable.Any limitation on the enjoyment of those rights be justified objectively(Article
24)The state has an obligation to observe, respect, protect, promote and fulfil the rights and fundamental freedoms
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in the Bill of Rights.
18. Affirmative Action
“Affirmative action is a deliberate policy or programme that is a deliberate policy or programme that seeks to
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remedy past discrimination by increasing the chances of the affected to participate in what they were previously
denied.” www.clarionkenya.org/documents/ancp_devolution.pdf
The object of affirmative action otherwise known as positive discrimination – action otherwise known as positive
discrimination – is to enhance the participation of marginalized groups in decision-making and implementation
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and make a difference in the political climate and culture. www.clarionkenya.org/documents/ancp_devolution.pdf
Democracy implies majority rule. Democracy may well threaten the rights and interests of social minorities and
marginalized groups. The traditional approach was to entrench the protections in a bill of rights. Experience shows
that the efficiency and effectiveness of a Bill Of Rights depends on access to courts and the capacity of the judiciary
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to grant adequate redress for violations of these rights. Not infrequently, Courts have frequently proved unequal
to these two challenges. To overcome this weakness modern constitutions have designed other mechanisms to
protect these rights and interests.
The constitution recognizes women and ethnic minorities as special groups deserving of constitutional protection.
The principles of devolution for seek to foster and promote affirmative action.
The Constitution of Kenya 2010 has extensive provisions for affirmative action. Two approaches are evident:
making affirmative action a principle of governance and making specific provisions requiring affirmative action
in specific cases
Making affirmative action a key principle of governance;
● Article 174 electoral system - Articles 81 (b) (c) representation –Article 100
Making specific provisions for affirmative action;
● Articles 10 (2)(b) 53 54 55 56 57 91(e) 97 (b) 98 (c ) (d) (e) 127 (c ) (d) 171 (1)(d) (f) 174 and 175
232(1)(i) 250(4) (11
● Article 174 - Objects of devolution Article 174(e) protection and promotion of the rights of minorities
and marginalized groups
Composition of the organs of devolved government
● County government Article 175(c ) Gender equity

●
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County assembly Article 177 (1)(a) gender equity Article 177(1)(b) marginalized groups
Affirmative action tempers the potential for a dictatorship of the majority and empowers the marginalised by
requiring the taking of positive deliberate action to empower the historically disadvantaged.
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19. Minority Rights Protection
In liberal democracies, the majority is sometimes constrained from having their way. This is intended to prevent
a tyranny of numbers. As indicated above the bill of rights provision has some inbuilt weaknesses in protecting
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those who are numerically disadvantaged in political contests. One way of mitigating the excesses of majoritarian
rule is to entrench certain provisions in the constitution to guarantee the numerically disadvantaged minimum
levels of participation in public affairs. The entrenchments can be both substantive and procedural. Procedural
entrenchments include the requirements of consent of the minorities .Substantive entrenchments put certain
minority rights beyond the reach of the legislature. Others provide for affirmative action
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The provisions on devolution facilitate and enhance minority participation in public affairs by decentralising
governmental functions and ensuring local execution of matters of local concern
● Art 10(2) non discrimination and protection of the marginalised is one of the national values
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● Art 11(1)(2) protection of culture
● Art 12 Entitlement of citizens
● Art 21(3) state has a duty to address the needs of vulnerable groups, marginalised groups, and particular
religious ethnic or cultural communities
● Part V establishment of the Human rights and equality commission
● Part V protection of community land rights
● Art 81 general principles on electoral systems entrench minority rights protection
● Art 82 electoral law must provide for marginalised groupings
● Art 83(5) delineation of electoral units must factor in community interests
● Article 97 representation of the youth persons with disabilities and women in the NA
● Art 98 ditto above for senate
● Art 100 promotion of representation of marginalised groups
● Art 174 objects and principles of devolution includes minority rights protection
● Art 175 Gender parity in devolved government
● Art 177 membership of county assembly must ensure gender parity and representation of disadvantaged
groups
● Art 201-203 equitable distribution of public resources
● Art 204 establishment of an equalisation fund
● Art 223(h)(i) community interest in allocation of public service jobs and equal opportunities in public
service jobs for all communities
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20. Freedom of the press
Freedom of the media acts as an important restraint on public power. Freedom of the press is considered one of
the essential pillars of democracy. It is considered a bulwark against secret government, against authoritarianism
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and against tyranny. It promotes the constitutional values of transparency and accountability.
"The basis of our governments being the opinion of the people, the very first object should be to
keep that right; and were it left to me to decide whether we should have a government. without
newspapers or newspapers without a government, I should not hesitate a moment to prefer the
latter. But I should mean that every man should receive those papers and be capable of reading
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them. (Thomas Jefferson (former) President of the US)
Articles 33 provides for freedom of expression. Article 34 provides for freedom of the media. The constitutional
right to privacy under Article 31 and right to information under article 35 augment these freedoms
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Kenya is ranked 97 in the world press freedom index. The most systematic attack on press freedom came with the
enactment of the Security Laws (Amendment) Act 2014. This led to a constitutional challenge in Coalition for
Reform & Democracy (Cord), Kenya National Commission on Human Rights & Samuel Njuguna Ng’ang’a V
Republic Of Kenya & another Petition No.628 OF 2014. Among the impugned provisions were the following;
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66A. (1) Penal Code
A person who publishes, broadcasts or causes to be published or distributed, through print, digital
or electronic means, insulting, threatening, or inciting material or images of dead or injured
persons which are likely to cause fear and alarm to the general public or disturb public peace
commits an offence and is liable, upon conviction, to a fine not exceeding five million shillings or
imprisonment for a term not exceeding three years or both.
66A. (2) Penal Code
A person who publishes or broadcasts any information which undermines investigations or

security operations by the National Police Service or the Kenya Defence Forces commits an
offence and is liable, upon conviction, to a fine not exceeding five million shillings or imprisonment
for a term not exceeding three years, or both.
30F. Prevention of Terrorism Act
(1) Any person who, without authorization from the National Police Service, broadcasts any
information which undermines investigations or security operations relating to terrorism commits
an offence and is liable on conviction to a term of imprisonment for a term not exceeding three
years or to a fine not exceeding five million shillings, or both.
(2) A person who publishes or broadcasts photographs of victims of a terrorist attack without the
consent of the National Police Service and of the victim commits an offence and is liable on
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conviction to a term of imprisonment for a period not exceed three years or to a fine of five million
shillings, or both.
The provisions were found to be inconsistent with freedom of the media under article 34 and are therefore
unconstitutional.
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As we observed above, a law that limits a fundamental right and freedom must not be so vague and
broad, and lacking in precision, as to leave a person who is required to abide by it in doubt as to what
is intended to be prohibited, and what is permissible. With regard to Section 30A for instance, how is
“any information which undermines investigations or security operations relating to terrorism” to
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be interpreted? Who interprets what information “undermines investigations or security operations”?
The effect of such a prohibition, in our view, would amount to a blanket ban on publication of any
security-related information without consulting the National Police Service.
We agree that there is cause for concern with media conduct in relation to victims of terror,
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particularly the use of graphic and shocking photographs in both broadcast and print media. However,
there are already in existence clear constitutional and legislative provisions to cover such situations.
Article 33(3) contains the restriction that forms the basis for the law of defamation by providing that:
“In the exercise of the right to freedom of expression, every person shall respect the rights and
reputation of others.” To criminalise matters that have a civil remedy in defamation would, as
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submitted by Article 19, have a chilling effect on the exercise of freedom of the media, and would
consequently have a deleterious effect on the right of the public to information
21. Separation of state and church
Religion is dogmatic. The separation of the state and religion is therefore an important safeguard against religious
intolerance. Article 8 therefore provides that there shall be no State religion. The separation of church and state
limits the ability of the state to impose a national morality and ensures accommodation of diverse views. It is in
this spirit that the High Court quashed a decision by the NGO board refusing to register an NGO that sought to
promote homosexuality. (Eric Gitari v Non- Governmental Organisations Co-ordination Board & 4 others
Constitution & Judicial Review Division Petition No 440 OF 2013 [2015] eKLR.) The court has also granted leave
to a self-confessed homosexual to challenge the constitutionality of section 162 and 165 of the penal code which
criminalise same sex relations between males. (Eric Gitari v Attorney General & another Constitutional and
Human Rights Division Petition No. 150 OF 2016 [2016] eKLR). The court ultimately declined to declare the
impugned provisions unconstitutional and the matter i presently before the court of appeal.
Professor Githu Muigai has criticised the court’s decision saying it is inconsistent with the court of appeal decision
in COI & another v Chief Magistrate Ukunda Law Courts & 4 others [2018] eKLR. In that case the appellants
were arrested on 18th February, 2015 from a bar in Diani as they were ordering their drinks on suspicion of
engaging in gay activities as well as distributing pornographic material. According to Salim Yunis, the
investigating officer, about 10 compact discs containing pornographic material were retrieved from the 2nd
appellant’s house. An attempt by the police to have the appellants medically examined at a dispensary was
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thwarted by the appellants who declined to take part in the same. As a result, the appellants were arraigned before
the subordinate court on 20th February, 2015 to face several charges, namely, one count of committing an
unnatural offence contrary to Section 162(a) as read with Section 162(c) of the Penal Code; an alternative count
of committing an indecent act with an adult contrary to Section 11(a) of the Sexual Offences Act; and one count
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of trafficking in obscene publications contrary to Section 181(1) (a) of the Penal Code. On that very day, the
prosecution applied for the deferment of the appellants’ plea taking to pave way for further investigations. An
order compelling the appellants to undergo necessary medical tests was also sought. In response, Mr. Omuya who
apparently was holding brief for Mr. Maundu, then appearing for the appellants, stated as per the subordinate
court’s record:
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“We do not oppose the prosecution’s application and the same be done immediately to avoid holding the accused
indefinitely… The accused are ready to undergo any test.”
What followed was that the appellants were presented at Makadara General Hospital where blood samples were
taken for purposes of HIV and Hepatitis B testing. They were also subjected to anal examination in line with the
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subordinate court’s orders. The appellants described the examination, more specifically, the anal examination, as
inhuman and degrading, for the reason that first, they had not consented to such an intrusive examination. Second,
they were forced to undress in the full glare of the police and medical personnel who witnessed the entire
examination. To make matters worse the examination entailed the appellants lying down and the insertion of
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spatulas into their anal orifices. In addition, the appellant also took issue with the fact that the results derived from
the examination, were admitted by the subordinate court, contrary to the rule against self-incrimination and the
right to a fair hearing as enshrined under Articles 49(1) (d) and 50 of the Constitution. All in all, the appellants
claimed that not only was the anal examination of no probative value to prove the offences they were charged with
but it was also unreasonable in the circumstances. The appellants also contended that their rights to dignity under
Article 28 & privacy under Article 31 of the Constitution respectively were violated. The High court dismissed
their petition. On appeal, the Court of Appeal found that subjecting the petitioners to anal examinations violated
the Petitioners’ rights under Articles 25,27,28 and 29 of the Constitution and accordingly, evidence obtained
through anal examinations of the petitioners in criminal proceedings against them violated their rights under
Article 50 of the Constitution and were to be excluded.
22. Civilian control of the armed forces

One legal construct for the propagation of civilian control is the establishment of a civilian head of state or head
of government as the military's commander-in-chief within the chain of command. It paces the ultimate
responsibility for a country's strategic decision-making in the hands of the civilian political leadership, rather than
professional military officers. It is a quintessentially American innovation intended to ensure that important policy
choices, such as the decision to go to war, that have a significant impact on the state is left to civilians but executed
by the military. It is the antithesis of military rule. The US Supreme Court has described it as part of the US
‘political philosophy and institutions’. (Duncan v. Kahanamoku, 327 U.S. 304 (1946)
Chapter 14 of the Constitution of Kenya 2010 is on national security. Article 238 provides for the principles of
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national security as follows:
238. (1) National security is the protection against internal and external threats to Kenya’s territorial
integrity and sovereignty, its people, their rights, freedoms, property, peace, stability and prosperity,
and other national interests.
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(2) The national security of Kenya shall be promoted and guaranteed in accordance with the
following principles––
(a) national security is subject to the authority of this Constitution and Parliament;
(b) national security shall be pursued in compliance with the law and with the utmost respect for
the rule of law, democracy, human rights and fundamental freedoms;
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A post in the website of the US Department of Defence reads as follows:-
Civilian control of the military is so ingrained in America that we hardly give it a second thought. Most
Americans don't realize how special this relationship is and how it has contributed to the country. The
Notes CUEA
framers of the U.S Constitution worked to ensure the military would be under civilian control. They
did not want to emulate the European experience. The colonies had just fought a war for freedom from
Britain. The king controlled the British military, and the framers had no interest in duplicating that
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system. When they wrote the Constitution they separated the responsibilities for the military, placing
the responsibilities firmly in civilian hand2
Article 238(5) provides that the national security organs are subordinate to civilian authority. There is a significant
civilian component of the national Security Council (Article 240(1) & (2) and the defence council (240(4). Article
240 (3) gives the council supervisory control over national security organs other functions prescribed by national
legislation. The defence Council is (7) The Council is responsible for the overall policy, control, and supervision
of the Kenya Defence Forces and performs other functions prescribed by an act of parliament. There are similar
provisions with regard to the National Intelligence Service and the National Police Service. The president is the
commander in chief of the Kenya Defence Forces (Article 132(c) and, the chairperson of the National Security
Council. The president, with the approval of parliament, declares war. (Article 132 (4((e)
23. Constitutional Commissions and Independent Offices
Constitutional commissions and independent offices are created by article 15. Under Article 249 (1) the objects
of the commissions and the independent offices are to— (a) protect the sovereignty of the people ;(b) secure the
observance by all State organs of democratic values and principles; and(c) promote constitutionalism.
Constitutional commissions were once considered a fourth arm of government within the constitutional scheme
of separation of powers. They are intended to serve as a watchdog over the three arms of government and to protect
against abuse of power.
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The perception of commissions as a fourth arm of Government is canvassed by Professors P.L.O. Lumumba and
L.G. Franceschi in their work, The Constitution of Kenya, an Introductory Commentary, 2014 (page 19); they
observe that the newly-formed commissions and independent offices carry out functions which were previously
performed by the traditional arms of Government; and hence the framers of the Constitution must have deliberately
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intended that certain Government functions be separated from the familiar arms of Government, in order to
promote transparency, fairness and objectivity
The traditional tripartite division of power was never cast in stone. There is nothing to stop further horizontal
separation by, for example creating independent institutions. The Supreme court of Kenya has however held that
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sovereign power is only delegated to three arms, the executive, the legislature and the judiciary. The court
rubbished the concept of a fourth arm of government. (In the Matter of the National Land Commission [2015]
eKLR Advisory Opinion Reference NO 2 of 2014.
The constitutional commissions enjoy functional, operational, financial and even administrative autonomy from
the traditional three arms of government. But they are not immune to some measure of checks and balances from
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the three arms of government (In the Matter of the National Land Commission. Independence of commissions and
independent offices does not, therefore, entail a splendid isolation from other State organs... So they have to
2
http://archive.defense.gov/news/newsarticle.aspx?id=45870 extracted 8th Feb 2019
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consult with other State organs, and work with such State organs in co-operation and harmony...It is clear, for
instance, that a mandate borne by the commissions, namely, “democracy and participation of the people”, forms
an overlapping continuum with operational logistics devolving to all public agencies
In the Matter of the Interim Independent Electoral Commission Sup. Ct. Application No. 2 of 2011; [2011] eKLR
[In Re IIEC]. the Supreme Court said ‘that the independence of commissions does not entail that they must act
on their own accord (paragraph 59 and 60) …The several independent Commissions and offices are intended to
serve as ‘people’s watchdogs’ and, to perform this role effectively, they must operate without improper influences,
fear or favour: this, indeed, is the purpose of the ‘independence clause …These Commissions or independent
offices must, however, operate within the terms of the Constitution and the law: the ‘independence clause’ does
not accord them carte blanche to act or conduct themselves on whim; their independence is, by design, configured
to the execution of their mandate, and performance of their functions as prescribed in the Constitution and the
law.”
In the case, In Re Senate Matter Sup. Ct. Advisory No. 2 of 2013; [2013] eKLR the Supreme Court, with regard
to the separation of powers doctrine, remarked (paragraph 49): “Our perception of the separation-of-powers
concept must take into account the context, design and purpose of the Constitution; the values and principles
enshrined in the Constitution; the vision and ideals reflected in the Constitution.”
The Court of Appeal , in Mumo Matemu v. Trusted Society of Human Rights Alliance & 5 Others, Civil Appeal
No. 290 of 2012; eKLR [2012],thus observed, in relation to the separation doctrine: “It is not in doubt that the
doctrine of separation of powers is a feature of our Constitutional design and a per-commitment in our
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Constitutional edifice. However, separation of power does not only proscribe organs of Government from
interfering with the other's functions. It also entails empowering each organ of Government with countervailing
powers which provide checks and balances on actions taken by other organs of Government. Such powers are,
however, not a licence to take over functions vested elsewhere. There must be judicial, legislative and executive
deference to the repository of the function. We therefore agree with the High Court’s dicta in the petition the
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subject of this appeal that: Separation of powers must mean that the Courts must show deference to the
independence of the Legislature as an important institution in the maintenance of our constitutional democracy as
well as accord the Executive sufficient latitude to implement legislative intent.”
The commissions may be functionally, financially, operationally and administratively independent but they are
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constitutionally accountable to other organs of government and, according to SCORK, they are not a fourth arm
of government. But they do act as an institutional restraint on public power
24. An independent Central Bank

Fiscal and monetary policies normally require delicate balancing acts. Constitutions therefore try to insulate them
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from political control. The constitutional device used is an independent central bank. Article 231 creates an
independent Central Bank
231. (1) There is established the Central Bank of Kenya.
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(2) The Central Bank of Kenya shall be responsible for formulating monetary policy, promoting
price stability, issuing currency and performing other functions conferred on it by an Act of
Parliament.
(3) The Central Bank of Kenya shall not be under the direction or control of any person or authority in
the exercise of its powers or in the performance of its functions.
25. Bicameralism
Bicameralism is built on the foundations of heterogeneous societies that have either gone federal or adopted some
form of devolution. It means having two houses of the legislature, typically an ‘upper house’ and a ‘lower house’.
In Bicameralism, the structure of the legislature is designed to ensure that one house represents the principle of
one man one vote (democracy) and the other one represents the principle of one interest one vote(
constitutionalism). The objective is to neutralise the numerical superiority of certain sections of the society that
would otherwise create a dictatorship of the majority. The legislature is designed in such a way that the diverse
interest is given more or less equal voting power thus rendering a tyranny of numbers irrelevant. In an ideal
situation both houses should have equal legislative authority. Both houses should have an equal say in law making.
But certain constitutional functions like the vetting of public servants and the approval of appointments are best
reserved for the house that represents constitutionalism.
The United States of America adopts this model. Congress is made up of the House of Representatives and the
Senate. Because of the relative importance attached to constitutionalism over democracy, Senate is the Upper
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House and the House of Representatives is the lower house
The composition of senate is designed to ensure the States have equal voting power. The composition and powers
of the Senate are established by Article One of the United States Constitution. ... Each state, regardless of its
population size, is equally represented by two senators who serve staggered terms of six years. There being at
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present 50 states in the Union, there are presently 100 Senators. The composition of the House of Representatives
is designed to reflect the population of the states. The House is composed of Representatives who sit in
congressional districts that are allocated to each of the 50 states on a basis of population as measured by the U.S.
Census, with each district entitled to one representative. Since its inception in 1789, all Representatives have been
directly elected. The total number of voting representatives is fixed by law at 435. As of the 2010 Census, the
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largest delegation is that of California, with fifty-three representatives. Seven states have only one representative:
Alaska, Delaware, Montana, North Dakota, South Dakota, Vermont, and Wyoming.
Kenya has a Bicameral Legislature, the National Assembly and the Senate. The National Assembly has more
legislative power than the senate. A bill can originate in any house but if it originates in Senate, the National
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Assembly must approve it. If it originates in the national assembly, it requires the approval of the senate only if it
is a bill concerning counties. Both houses have a role in the impeachment of the president but senate has the final
say. Only Senate has a role in the impeachment of Governors. Only the national assembly vets presidential
appointees. Apparently, both houses have oversight over the executive and the judiciary.
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The constitutional mandate of the two houses was determined in an advisory opinion in Speaker of the Senate &
another v Attorney-General & 4 others Advisory Opinion Reference No. 2 Of 2013 [2013] eKLR (Coram:
Mutunga, CJ; Rawal, DCJ; Tunoi, Ibrahim, Ojwang, Wanjala & Ndungu, SCJJ,)
The county governments have not always felt that the Senate exists to protect their interests. The competition
between the Senate and Devolved governments can be illustrated in the following cases
International Legal Consultancy Group v Senate & Clerk of the Senate Petition No 8 OF 2014 [2014] eKLR
(Kerugoya)
The petition challenged the decision of the Senate to summon 9 County Governors to appear before it and produce
various documents pertaining to the financial management within the said counties. The Standing Committee on
Economic and Finance affairs through the Clerk of the Senate, issued witness summons dated 8th February, 2014
to the Governors and County Executive Committee members for finance to appear before it on diverse dates from
19th February, 2014 and answer to questions with respect to County fiscal management. The summons was
expressed to be issued pursuant to the provisions of Article 125 of the Constitution. The court rejected the
argument that summons was unconstitutional but in the courts judgement, one can feel the undertones of the
political supremacy war between the governors and the senators. Tellingly the court was at pains to warn that the
power under Article 125 was not to be used capriciously and the constitutional autonomy of the county
governments must be detected.
Council of Governors & 3 others v Senate & 53 others NRB Petition No 381 OF 2014 [2015] eKLR
CHARLES B
The petitioners challenge the constitutionality of amendments to the County Government Act, No. 17 of 2012,
through the County Governments (Amendment) Act, 2014 ( hereafter “the CGAA”). They allege that the
provisions of the CGAA grant powers to state organs in conflict with the allocation of functions in the Constitution.
On 24th July 2014, the National Assembly of Kenya had, pursuant to consultation with the Senate, enacted the
CGAA. The CGAA amended the County Government Act by introducing a new section 91A which establishes
G OUMA
the County Development Boards (hereafter “CDBs”) in each of the 47 counties in Kenya. The CDBs were to
comprise, inter alia, members of the National Assembly representing constituencies within respective counties,
members of county assemblies, as well as members of the executive operating within respective counties, and
were to be chaired by the Senator from the county.
Teaching
Following the enactment of the CGAA and the establishment of the CDBs, the Council of Governors, a body
comprising all the Governors of the 47 Counties, lodged Petition No. 381 of 2014 challenging the constitutionality
of the CDBs. The CoG asked the Court to declare the provisions of Section 91A of the CGAA, which vests
various functions in the CDBs, unconstitutional for violating Articles 6(2); 95, 96, 174(1), 175, 179(1), 179(4),
183(1), 185(3) and 189(1) of the Constitution. The basis of the challenge is that through the CDBs, Senators and
Notes CUEA
members of the National and County Assemblies would be undertaking executive functions at the County
level. Specifically, the Court has been requested to determine the constitutionality of section 91A and declare the
creation of the CDBs null and void. The Commission on the implementation of the Constitution (CIC) agreed with
the CoG that the CGAA, specifically section 91A thereof, is unconstitutional and must be struck out for being
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unconstitutional. It is its contention that the CGAA contravenes Articles 1(3), 2, 6, 10, 11, 94 , 95, 96, 174, 175,
179, 183, 185, 189, 190, 201, 259 as well as the Fourth Schedule and sections of the Sixth Schedule of the
Constitution. The court agreed and declared the amendments to the CGA unconstitutional.
Council of Governors & 6 others v Senate NRB Petition No.413 OF 2014 [2015] eKLR
This Petition concerns the constitutionality of summons dated 12th August 2014 issued to certain County
Governors by the Senate through its Sessional Committee on County Public Accounts and Investments. The
summoned Governors, namely; Isaac Ruto of Bomet County, William Kabogo of Kiambu County, Mwangi wa
Iria of Murang’a County and Jack Ranguma of Kisumu County were to appear before the aforesaid Committee on
26th August 2014 to allegedly answer questions on County financial management as raised in the Report of the
Auditor General for the financial year 2012/2013.
The said Governors did not appear before the said Committee. Consequently, the Senate, allegedly exercising
powers under Article 228(4) and (5) of the Constitution, on 7th August 2014, resolved that the Controller of Budget
should not authorize any withdrawal of public funds for purposes of the Counties headed by the aforementioned
Governors until they had responded to the audit queries raised to the satisfaction of the Senate. The court held that
the summons were not unconstitutional but the resolution requiring the Controller of budget not to authorise the
withdrawal of public funds for the affected counties was unconstitutional.
26. The right to bear arms
CHARLES B
The second Amendment to the US Constitution provides as follows.
A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep
and bear Arms, shall not be infringed
Professor Ali Mazrui in his video series, ‘The Africans, a Triple Heritage 3’, refers to it as the ‘democratization of
G OUMA
the instruments of violence’ implying that the state monopoly of the instruments of violence is a threat to freedom.
The second amendment has been the subject of litigation in the US Supreme Court
District of Columbia v. Heller, 554 U.S. 570 (2008)
Teaching
McDonald v. Chicago, 561 U.S. 742 (2010),
In United States v. Cruikshank 92 U.S. 542 (1875)" (1876), the Supreme Court ruled that, "The right to bear arms
is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence.
The Second Amendments [sic] means no more than that it shall not be infringed by Congress and has no other
Notes CUEA
effect than to restrict the powers of the National Government."
3
https://www.imdb.com/title/tt4123444/
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In United States v. Miller 307 U.S. 174 (1939), the Supreme Court ruled that the Second Amendment did not
protect weapon types not having a "reasonable relationship to the preservation or efficiency of a well-regulated
militia."
In the twenty-first century, the amendment has been subjected to renewed academic inquiry and judicial interest.
In District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court handed down a landmark decision that
held the amendment protects an individual's right to keep a gun for self-defence. This was the first time the Court
had ruled that the Second Amendment guarantees an individual's right to own a gun.
McDonald v. Chicago, 561 U.S. 742 (2010), the Court clarified that the Due Process Clause of the Fourteenth
Amendment incorporated the Second Amendment against state and local governments.
In Caetano v. Massachusetts 577 US (2016), the Supreme Court reiterated its earlier rulings that "the Second
Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in
existence at the time of the founding" and that its protection is not limited to "only those weapons useful in
warfare."
CHARLES B
G OUMA
Teaching
Notes CUEA
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Topic 2 Constitutional Restraints On Public Power

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THE CATHOLIC UNINVERSITY OF EASTERN AFRICA

CUEA CLS 122

LECTURER FACULTY OF LAW CUEA

At the end of this topic, the participant should be able to

● Explain the need for limitation of public power.

4. Essential feature of a good constitution

5. Why power must be limited

6. Types and nature of the of restraints

7. Characteristics of good control devices

10. Structural restraints

In the Promulgation the people of Kenya collectively declare as follows: -

A few examples will suffice

13.1. G W Kanyeihamba (1975) at p 153)

13.3. Nelson Mandela

13.5. A Modern Approach -Guiding Principles

The rule of law therefore requires;

● De-concentration of power-vertically and horizontally

Precedent (stare decisis)

7. Habeas corpus (ad subjiciendum):

13.6. The rule of law is a foundational principle of the CoK 2010

● Article 81 General principles of the electoral system

Indirect references include

Section 24 HAPCA . Prevention of transmission

Section vague overbroad and inconsistent with the rule of law

Geoffrey Andare vs AG et al: Petition No 149 of 2015

13.7. Practical significance

• The formalistic approach ensures government acts according to law

• The rule of law is a factor in the determination of the constitutionality of legislation

• Politically, it is a factor in evaluating the performance of government

• It is a powerful principle in the limitation of public power

14. Separation of powers

CCK v Royal Media Services Ltd [2014] eKLR

17. The Bill of Rights

18. Affirmative Action

Making affirmative action a key principle of governance;

Making specific provisions for affirmative action;

Composition of the organs of devolved government

● County government Article 175(c ) Gender equity

66A. (2) Penal Code

A person who publishes or broadcasts any information which undermines investigations or

30F. Prevention of Terrorism Act

21. Separation of state and church

22. Civilian control of the armed forces

23. Constitutional Commissions and Independent Offices

24. An independent Central Bank

231. (1) There is established the Central Bank of Kenya.

26. The right to bear arms

District of Columbia v. Heller, 554 U.S. 570 (2008)

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