G34/3411/2022.

Parliament enacted the Fair Administrative Action Act in 2015 to give effect to the
provisions of Article 47 of the Constitution 2010.
Critically examine the strengths and weaknesses of the Act in implementing the
provisions of Article 47 of the Constitution and promoting access to
administrative justice in Kenya today.

Critical analysis of the fair administrative action act.

The Fair Administrative Action Act of 2015 was a significant step towards implementing
the provisions of Article 47 of the Constitution of Kenya which states that Every person
has the right to administrative action that is expeditious, efficient, lawful, reasonable and
procedurally fair.

If a right or fundamental freedom of a person has been or is likely to be adversely

affected by administrative action, the person has the right to be given written reasons
for the action.

1.Parliament shall enact legislation to give effect to the rights in clause (1) and that
legislation shall;

2.provide for the review of administrative action by a court or, if appropriate, an

independent and impartial tribunal; and

3. promote efficient administration.

This means that any law that is in contravention to this article is null and void to the
extent of its inconsistency as provided by article 2 of the constitution. The act provides a
framework and foundation to actualize these rights and fundamental freedoms. It
applies to all state organs and any other person or body that carries out administrative
action and stipulates the manner in which administrative action may be taken including
the standards which are to be employed in making a decision. An emphasis is placed
on the facilitation of provision of reasons for any administrative action; an extremely
important consideration in ensuring fairness. There is a strong correlation between the
quality of reasons given and the quality of the decision reached. Failure to provide
reasons where required constitutes an offence under this act.

Article 47 of the constitution provides for constitutional grounds to subjecting

administrative action to judicial review, which guarantees access to administrative
justice. The first schedule to the constitution stipulated a time specification of 4 years for
the enactment of a contemplated legislation. Parliament enacted the FAAA which
supports article 47 of the constitution of Kenya. Section 12 of the fair administrative
action act states that the provisions of the act are an addition to the to and not a
derogation from general rules and rules of natural justice. the purpose of the act is to
provide for review of administrative action by court or impartial tribunal and promote
effective public administration. In general, the Fair Administrative Action Act has
introduced six aspects that are important in enhancing access to administrative justice
in Kenya. First, Section 3(1) has expanded the scope of judicial review to include the
action of public and private bodies. This implies that it is not only the actions of public
bodies that are subjected to judicial review but also actions of private actors that may be
subjected to judicial review where they violate the rights or interests of affected
individuals. Second, the Act has expounded on the constitutional grounds for judicial
review and codified the grounds for judicial review under common law such as ultra
vires, procedural fairness and reasonableness. Section 7(2) of the Act provides for the
grounds upon which a court or tribunal may review an administrative action or decision.

Section 9 of the Act outlines the procedure for judicial review. Under Section 9(2), an
application for judicial review would be allowed only after exhausting all remedies
available within the internal dispute resolution mechanisms. the Act has given effect to
the right to access information relating to administrative action or decision.
This helps in the realization of the right to access information under Article 35 of the
Constitution.

under Part IV of the Act, it is stated that the provisions of the Fair Administrative Action
Act are additional to and not derogations from the rules of common law and natural
justice. The acknowledgment of common law principles in review of administrative
action has a significant impact on how Article 47 of the Constitution should be
interpreted. Court that interpreted the Fair Administrative Action Act have continued to
appreciate and apply the principles of common law in the post-2015 jurisprudence.
Courts have further interpreted Article 47 and the Fair Administrative Action Act in a way
that ensures common law principles and rules of natural justice are further developed.
the Act has elaborated the right to be given written reasons for administrative action.
The requirement to give reasons for administrative action under the Fair Administrative
Action Act has both substantive and procedural aspects. Substantively, Section 4(2) of
the Fair Administrative Action Act recognizes that every person has a right to be given
written reasons for any administrative action that is taken against him/her. This
provision gives the court power to review administrative actions. This was stated in the
case of Suchan Investment Limited v Ministry of National Heritage and Culture where
the Court found that its power to statutorily review administrative action no longer flows
directly from the common law, but inter alia from the constitutionally mandated Fair
Administrative Action Act and Article 47 of the Constitution of Kenya. Procedurally, the
Fair Administrative Action Act expounds on how a request for reasons for administrative
action can be made, modes of enforcing the right to be given reasons and the remedies
that accrue for breach of the right. Section 6(1) of the Fair Administrative Action Act
allows an individual adversely affected by administrative action to request certain
information from public administrators to facilitate his /her application for review of that
administrative action in court. The information requested includes reasons for the
administrative action taken and any other relevant documents relating to the decision.

Section 6(3) of the Fair Administrative Action Act gives a public administrator thirty (30)
days to provide written reasons after receiving a request for the same. Reasons
provided orally would not suffice.
The timeframe of 30 days looks reasonable because it gives an administrator sufficient
time to properly consider the issues and take into account relevant factors and provide
written reasons for administrative action.

The test of adequate reasons which has been adopted in Kenya is that the reasons for
the administrative action must be capable of informing the other person.1 The purpose
of the duty to give a reason is to justify the administrative action – to explain to the
affected person why a particular action was taken. This makes the requirement for
adequate reasons to be given to be important. In many ways the Fair Administrative
Action Act of 2015 stands as a cornerstone in Kenya's legal framework, aiming to
operationalize the constitutional provisions enshrined in Article 47. However, its
implementation and effectiveness in promoting administrative justice warrants a
comprehensive analysis, considering both its strengths and weaknesses.

Here are some strengths and weaknesses of the Act:

Strengths:

Establishment of an independent administrative review mechanism.

One of the key strengths of the Act is its provision for the establishment of an
independent administrative review mechanism. This mechanism ensures that
individuals who feel aggrieved by administrative decisions can seek redress in a fair and
impartial manner. Furthermore, the Act introduces clear procedures and timelines for
administrative actions, promoting transparency and accountability in the decision-
making process. This streamlines the administrative process and increases public trust
in the system.The Act provides for the review of administrative action by a court or an
independent and impartial tribunal such as the administrative review tribunal. This
mechanism ensures that administrative decisions can be scrutinized by an external
body, promoting accountability and fairness. It also serves as a check on the exercise of
administrative power, ensuring that decisions are made in accordance with the law and
the principles of fair administrative action. By establishing an independent review
1
mechanism, the Act strengthens the administrative justice system in Kenya thus
enhancing public trust in it, facilitates impartial adjudication and providing avenues for
redress to aggrieved parties.

Protection of citizens’ rights;

This legislation establishes a framework to safeguard individuals' rights in their
interactions with public authorities. In the event that an individual is affected by an
administrative action he or she has a right to attend the proceedings and also have legal
representation regardless of their status. It also recognizes the right to fair
administrative action in Article 47 of the Constitution of Kenya 2010, and entitles every
citizen to administrative action that is expeditious, efficient, lawful, reasonable, and
procedurally fair. By promoting transparency and accountability in decision-making
processes, and providing avenues for redress through judicial review, the Act plays a
crucial role in upholding the rights of individuals and ensuring that they are treated justly
within the administrative system.

Another strength of the Act is its recognition of the right to be heard. It empowers
individuals by giving them an opportunity to present their case and provide evidence
before any administrative action is taken against them. This ensures that decisions are
well-informed and based on a thorough understanding of the matter at hand.

Clear and comprehensive legal framework for redress.

The Act sets out the procedures that individuals can follow to seek redress for unfair
administrative actions, including the right to be heard, the right to reasons for a decision,
and the right to appeal. This helps to ensure that individuals have a fair and transparent
process for challenging administrative decisions that affect their rights and interests. It
also provides a clear legal framework delineating the rights and obligations of both
public authorities and citizens in administrative proceedings. By codifying these
principles, it enhances legal certainty and predictability, laying a solid foundation for
promoting fairness and transparency.
Promotion of Accountability
It promotes transparency and accountability in administrative actions by requiring
authorities to provide reasons for their decisions and allowing affected individuals to
challenge those decisions.The public have a right to evaluate and scrutinize the
activities of the administrative authorities and hold them accountable. The principle of
legal expectation is applicable in this case in that where a public authority has
represented either by way of an express promise or explicitly by way of past practice, he
or she has an obligation to fulfil the representation. This act enables members of the
public to question the conduct of the administrative authorities who have an obligation to
explain and justify their conduct. This is in accordance to article 232(1)(e) of the Kenyan
constitution which states that the values and principles of public service include
accountability for administrative acts, and article 73(2)(d) of the constitution of Kenya
2010 which states that the guiding principle of leadership and integrity include
accountability to the public for decisions and actions.

Access to Justice
By establishing procedures for challenging administrative actions, the Act enhances
access to justice for individuals who feel aggrieved by decisions made by public
authorities.

Safeguards Against Abuse of Power

The Act includes provisions to prevent the abuse of power by public officials, thus
promoting good governance and the rule of law.the right to be given reasons for
administrative action has not only been used as a tool to offer legal protection to
individuals adversely affected by administrative action but also helps in enhancing good
public administration in Kenya. Courts have considered the right to be given written
reasons both as a constitutional ground for judicial review of administrative action under
Article 47 of the 2010 Constitution as well as a remedy available in judicial review as
stated in Section 11 of the Fair Administrative Action Act. Section 6(3) of the Fair
Administrative Action Act gives a public administrator thirty (30) days to provide written
reasons after receiving a request for the same. Reasons provided orally would not
suffice.
The timeframe of 30 days looks reasonable because it gives an administrator sufficient
time to properly consider the issues and take into account relevant factors and provide
written reasons for administrative action. The right to be given reasons as a
constitutional ground for judicial review has provided affected individuals with a basis to
challenge an administrative action through a judicial review process. Courts have also
considered the right to be given written reasons as a tool aimed at enhancing public
administration by ensuring that public administrators reflect on the lawfulness, quality,
rationality and fairness of their actions taken.

By incorporating procedural safeguards

such as the right to be heard and the right to access information, the Act empowers
individuals to participate meaningfully in administrative processes. These safeguards
serve as bulwarks against procedural irregularities and ensure that affected parties
have a voice in decision-making, thus upholding the principles of natural justice.By
requiring administrative actions to adhere to principles of fairness, the Act safeguards
individuals from arbitrary or unjust decisions by public authorities. This promotes trust in
the public administration and upholds the rule of law.

Weaknesses:

While the Act has commendable provisions, it falls short in some key areas. One
weakness lies in the

Implementation challenges.
Despite the establishment of an independent review mechanism, there have been
instances where administrative bodies have disregarded its rulings. This undermines
the effectiveness of the Act and diminishes public confidence in the administrative
justice system.Despite its laudable objectives, the Act faces implementation challenges.
The Act contains a provision that mandates the establishment of an independent and
impartial tribunal for reviewing administrative actions. However, insufficient resources
and capacity have hindered the implementation of this provision effectively. This
problem has also been a major hinderance for public authorities tasked with the
enforcement of the act.

This has undermined the Act's effectiveness in safeguarding administrative justice.

There have also been instances of non-compliance and inadequate implementation of
the Act by public officers. This hampers the realization of its objectives and undermines
the right to fair administrative action.

Limited access to legal representation.

Another weakness of the Act relates to the limited access to legal representation. The
Act does not adequately address the issue of legal assistance for individuals involved in
administrative actions. This can be particularly problematic for vulnerable and
marginalized groups who may struggle to navigate legal procedures and fully
understand their rights.

Delays in administrative processes.

Furthermore, the Act does not sufficiently address the issue of delays in administrative
processes. Inefficient handling of cases can prolong legal proceedings, causing
frustration and hindering access to justice for individuals seeking redress. This is an
important area that needs to be addressed to ensure the Act's effectiveness. Legal
proceedings under the Act may be time-consuming, leading to delays in resolving
disputes and obtaining justice for affected individuals.
The challenge of adequate reasons.

challenges relating to Section 6 of the Fair Administrative Action Act. First, Section 6(3)
of the Fair Administrative Action Act does not expressly require public administrators to
give adequate reasons to persons whose rights have been adversely affected by
administrative action. It only requires public administrators to give written reasons to
affected individuals. The requirement to provide adequate reasons for administrative
action is significant to public administration because it illustrates that proper
consideration of the matter took place thus enhancing public confidence in the decision-
making process.
Second, Section 6(5) of the Fair Administrative Action Act fails to provide a criterion to
be used in determining whether circumstances are reasonable and justifiable to allow
an administrator to deviate from the requirement to provide reasons for administrative
actions. This may lead to administrators abusing this discretion to depart from the
requirement to provide reasons in writing for their administrative actions.

Underutilization of the remedy to give reasons for an administrative decision

where there was none.

judicial decisions handed down after the Fair Administrative Action Act was enacted in
2015 showed that the Kenyan courts have under-utilized the remedy provided in
Section 11(1)(c) of the Fair Administrative Action Act which allows the court to direct the
administrator to give reasons for an administrative decision where there was none. This
may be attributed to the two factors. First, it is the fact that most litigants do not make
pleadings in respect of the enforcement of Section 11(1)(c) of the Fair Administrative
Action Act. Secondly, advocates and litigants still prepare pleadings that focus on the
traditional common law orders of certiorari, prohibition and mandamus. The majority of
court decisions relating to the right to be given reasons have utilized the remedy
provided in Section 11(1)(e) of the Fair Administrative Action Act which allows the court
to issue a quashing order (order of certiorari) that has the effect of invalidating an
administrative decision and remitting the matter.
Limited Enforcement Mechanisms

The Act may lack strong enforcement mechanisms to ensure compliance by public
authorities, which could undermine its effectiveness in promoting administrative justice.
Legally, there are remedies provided but they are most of the time not available and
when they are, they become too costly for many people to try and pursue. This is mainly
about compensation which is a burden to many individuals and judicial review is hard to
acquire on an individual basis.

Complexity of procedures

The procedural requirements stipulated in the Act may be overly complex and
inaccessible to the general populace, particularly those with limited legal knowledge or
resources. This complexity deters individuals from pursuing remedies. This becomes a
barrier towards accessing administrative justice, especially for marginalized
groups.While comprehensive, the Act can be complex and difficult to navigate. This
challenge is particularly significant for public servants who are responsible for
implementing the Act's provisions. The intricacies of its provisions may lead to confusion
and inconsistencies in the implementation and compliance of its requirements. This
could potentially undermine the effectiveness of the Act The legal procedures and
requirements under the Act may be complex, making it difficult for ordinary citizens,
especially those with limited resources or education, to navigate the system effectively.
This Act is less known by the general public of the country, which in a way hinders its
effectiveness. The public is unaware of how to access their rights through this Act and
its provisions are not easily understandable by the normal citizen. It becomes difficult for
them to look for remedies provided by law. As is the case with most legal documents,
the language used is very confusing to the regular citizen and even to a trained lawyer,
it can be very ambiguous, borderline unclear. This ambiguity makes the application of
the law very difficult and leads to inconsistent interpretation of the law. Due to the
insufficient clarity, public officials find it difficult to comply to some provisions of the Act.
Limited Remedies

While the Act sets out procedures that individuals can follow to seek redress for unfair
administrative actions, the remedies provided such as compensation and reversal of
decisions may be inadequate to address the full extent of harm caused by unjust
administrative actions. Section 9 (2) of the Act provides that a person aggrieved by an
administrative action may apply for judicial review of such action, but only after
exhausting all remedies available under any other written law. This requirement may
delay the process of seeking redress, particularly where administrative remedies are
inadequate or ineffective.Furthermore, the remedies provided by the Act may not
always be available or accessible to individuals due to factors such as cost, time, and
complexity. This may leave aggrieved parties without adequate recourse. These
limitations may undermine the effectiveness of the Act in providing redress for
administrative injustices.

Inadequate public awareness and education.

Despite efforts by various public bodies, there is still a lack of widespread public
awareness regarding the Act and the rights it guarantees. Most citizens are not aware
that they can challenge unjust administrative actions or gain access to information held
by a public authority under the Act, and request relevant documents to challenge a
decision. Without a comprehensive understanding of their rights and avenues for
recourse, individuals may struggle to navigate the administrative justice system,
resulting in continued instances of injustice and inequality in administrative
processes.Inadequate public awareness can also lead to underutilization of the Act's
provisions and become a barrier to accessing administrative justice, particularly for
marginalized or vulnerable groups who may face additional challenges in navigating the
legal system perpetuating disparities in access to justice.

Resource Constraints
Limited resources and capacity within administrative bodies may hinder the full
realization of the Act's provisions, impacting the accessibility and efficiency of
Administrative Action.

Bureaucratic Delays

Administrative and judicial processes related to the Act may be susceptible to delays,
affecting the timely resolution of disputes and access to remedies.

The Fair Administrative Action Act represents a significant milestone in promoting

access to administrative justice in Kenya. The Act has a transformative potential in
upholding the principles of fairness, transparency, and accountability in administrative
processes. However, its effectiveness hinges on addressing the aforementioned
strengths and weaknesses. Strengthening implementation mechanisms, simplifying
procedural requirements, expanding available remedies, enhancing public awareness,
and bolstering enforcement mechanisms are crucial steps towards ensuring that this act
fulfills its potential.

However, weaknesses such as the lack of effective enforcement mechanisms, limited

access to legal representation, and delays in administrative processes need to be
addressed to ensure that the Act is fully effective in achieving its intended objectives. By
addressing these weaknesses, Kenya can establish a robust administrative justice
system that upholds the principles of fairness and accountability.