WHY DO COUNTRIES OFTEN NOT ACHIEVE GOOD GOVERNANCE DESPITE

THE CONSTANT EFFORT TO PUT IN PLACE NEW CONSTITUTIONS

GROUP FIVE

BLAW/2024/33641 - ANASTASIA M. MAKUNU

BLAW/2024/35224 - KIMUTAI DUNCAN
BLAW/2024/32757 - MESHACK MWAKISAGU
BLAW/2024/33819 - DAVID ECHUMAN KORIANG
BLAW/2024/33131 - FREDRICK O. OOKO
BLAW/2024/31136 - GENEVIEVE SOMEH
BLAW/2024/32921 - SHADRACK MBUA MUSYOKI
BLAW/2024/37974- BERNARD KIMONDO

BACHELOR OF LAW - MOUNT KENYA UNIVERSITY

CONSTITUTIONAL LAW (BLAW 1103)

17 FEBRUARY 2024
 INTRODUCTION
Definitions of Governance
This paper explores the concept of good governance with a focus on the Kenyan governance
ecosystem. The Constitution of Kenya is the basis of the contextualised principles and barriers to
good governance. Prior to establishing the impediments to good governance, firstly, we have to
understand what governance is and what constitutes good governance.

There exists considerable definitions on governance that vary since the term was conceptualised.
The most palatable definition is from the Merriam Webster, that governance is an act or process
of governing or overseeing the control and direction of something - such as a country or an
organisation (Merriam Webster, 2024).

Governance, according to World Bank can also be defined as the method through which power is
exercised in the management of a country's political, economic and social resources for
development (World Bank, 1993).

Today, however, there exists a definition that is widely used, that sees governance as a set of
traditions and institutions that determines how authority is exercised in a particular country.
According Kaufmann et al., it includes the process by which governments are selected, held
accountable, monitored, and replaced; the capacity of governments to manage resources
efficiently and formulate, implement, and enforce sound policies and regulations; and the respect
of citizens and the state for the institutions that govern economic and social interactions among
them (Kaufmann, Kraay, and Zoido-Lobatón, 1999).

Brief History
If there is some history at all to consider when it comes to the term itself, governance especially
before the public reforms of the 1980s and ‘90s referred to all patterns of rule within the
hierarchic state. The term governance according to (Britannica, 2024) specifically can be
understood to describe changes in the nature and role of the state following the aforementioned
public-sector reforms - which shifted the paradigm from hierarchical bureaucracy toward a
greater use of markets, quasi-markets and networks, especially in the delivery of public service .
The ripple effect to these reforms were intensified by globalisation - increased transnational
actors and the rise of regional organisations like the European Union. In this context, governance
may be seen as a widespread belief that the state increasingly depends on other institutions to
secure its intentions, deliver its policies, and establish a pattern of rule. Therefore governance
can also be explained as a pattern of rule that arises either when the state is dependent upon
others or when the state plays little or no role for instance in international governance and
corporate governance (Britannica, 2024).

However, this presentation is meant to explore good governance and its relation to society, and it
bases its framework on the aforementioned definitions, but, with a consideration for the element
of human rights. Due to the normative nature of good governance and its measurable attributes,
good governance has immense value on the process of governing, making the realisation of
human development attainable. Therefore for a governance to qualify as good, it has to have
instruments that ensure the protection of human rights and civil liberties of all. In the
Constitution of Kenya 2010, Article 10 (2) (b) on national values and principles of governance
expresses that these include “human dignity, equity, social justice, inclusiveness, equality,
human rights, non-discrimination and protection of the marginalised”. The Constitution of South
Africa in comparison in Chapter 2, Section 7(1) under the Bill of Rights, the South Africa
Constitution states that “the Bill of Rights enshrines the rights of all people in our country and
affirms the democratic values of human dignity, equality and freedom”. These are components of
human rights that any democracy would embody and only enjoy as a consequence of good
governance.

GOOD GOVERNANCE

While there is no internationally agreed definition of the term good governance, it adds a
normative or evaluative approach to governance. Good governance therefore involves measuring
how institutions (public or private) carry out affairs and manage available resources to produce
results that meet the needs of society while making the best use of the resources at their disposal.
From a humanitarian perspective, the United Nations Office of the High Commissioner for
Human Rights states that, good governance is attained when institutions conduct all matters of
the public and manage resources in a manner that guarantees the realisation of human rights
(civil, cultural, economic, political and social rights) in a way that is free of abuse and corruption
and with due regard for the rule of law. In this context good governance relates to the political
and institutional processes and outcomes that are necessary to achieve the goals of development (
OHCHR, 2024). As Kofi Annan once said, “Good governance is perhaps the single most
important factor for eradicating poverty and promoting development.”

A lack thereof of good governance in a country even if there are excellent developmental
programmes means that no amount of developmental programmes can bring about change and
the advancement of the quality of peoples’ lives in that country. If there is abuse of power in the
state, and there is a weak exercise or improper use of the rule of law those with the least power in
the society - the marginalised are most likely to suffer that sense, poor governance generates and
reinforces poverty and subverts efforts to reduce Strengthening governance is an essential
precondition to improving the lives of the poor.

In 1996, the International Monetary Fund (IMF) declared that “promoting good governance in all
its aspects, including by ensuring the rule of law, improving the efficiency and accountability of
the public sector and tackling corruption, [are] essential elements of a framework within which
economies can prosper.”

Johnston (2002, p. 1–2) defines good governance as “legitimate, accountable, and effective ways
of obtaining and using public power and resources in the pursuit of widely accepted social
goals''. The principles of rule of law, transparency and accountability, come out strongly here,
and the outcome is collaboration and networking through partnerships within the state organs,
and the society at large

According to the United Nations Office of the High Commissioner for Human Rights,
(OHCHR), the key question for assessing good governance can be interrogated as follows: Are
the institutions of governance effectively guaranteeing the right to health, adequate housing,
sufficient food, quality education, justice and personal security?
PRINCIPLES / CHARACTERISTICS OF GOOD GOVERNANCE

1) Participation - this is the process of involvement and engagement through providing

opportunities to all citizens within a society to take part in decision-making. The Kenya Draft
Policy on Public Participation, highlights very clearly that “public participation is conceptualised
as the process by which citizens, as individuals, groups or communities (also known as
stakeholders), take part in the conduct of public affairs, interact with the state and other non-state
actors to influence decisions, policies, programs, legislation and provide oversight in service
delivery, development and other matters concerning their governance and public interest, either
directly or through freely chosen representatives.

In the case of Kenya, the right to participate in decision making process of the state is guyranteed
in the Constitution promulgated in 2010, Article 118(1) (b) which mandates Parliament to
“facilitate public participation and involvement in the legislative and other business or
Parliament and its committees'' and Article 196(1) (b) directs the county assemblies to
respectively “facilitate public participation…” in their activities. Provisions for public
participation are also set out within the Constitution of Kenya Articles 1,10, 35, 119, 124, 201,
221, and 232, the Petitions to Parliament (Procedure) Act, No. 22 of 2012 and the National
Assembly Standing Orders.

Therefore the Kenyan Constitution places Citizens at the centre of any processes related to
governance and development whether social, political or within the economic spheres of the
country.

Enabling conducive environments fosters public participation, thereby pertinent information is

disseminated in an appropriate and timely manner to ensure that every citizen is heard without
the hindrances of time constraints, whether directly or indirectly through legitimate
representation as provided for in the Constitution Article 1(2). Provisions to open and wide
participation reinforces freedoms of association and speech as well as encourages constructive
participation of individuals, groups and communities.
In other countries like South Africa, Section 12 of their Constitution (RSA, 1996), compels the
South African Parliament to there is public involvement in the legislative process, Articles 59(1)
(a), 72(1)(a) and 118(1)(a) of the South African Constitution establish public participation in the
legislative process.

2) Rule of law

The hallmark to good governance in any democracy is the rule of law which ensures there is
independence and impartiality of the arms of government. In Kenya for example there is a
separation of powers and the functions of the three arms of government namely: the executive,
the legislature and the judiciary are articulated in the Constitution of 2010, with their roles
spelled out in Chapters 8, 9, and 10.

Legal frameworks should be fair and enforced impartially, particularly the laws on human rights
(UNDP, 2007).

The UN defines rule of law as: a principle of governance in which all persons, institutions and
entities, public and private, including the State itself, are accountable to laws that are publicly
promulgated, equally enforced and independently adjudicated, and which are consistent with
international human rights norms and standards. It requires, as well, measures to ensure
adherence to the principles of supremacy of law, equality before the law, accountability to the
law, fairness in the application of the law, separation of powers, participation in decision-
making, legal certainty, avoidance of arbitrariness and procedural and legal transparency (United
Nations, 2004).

Rule of law is the exercise of state power using, and guided by, published standards that embody
widely supported social values, avoid particularism and enjoy broad-based public support
(Johnston, 2002).
This means that there is existence of functional legal frameworks that are human rights sensitive,
law and order is maintained impartially (incorruptible police force), the judicial system has
independence and is effective, human rights norms are implemented and there are no absolutes
or constitutional constraints on the power of the executive are definitive (UNDP, 2007). Human
rights-sensitive good governance initiatives reform legislation and assist institutions ranging
from penal systems to courts and parliaments to better implement that legislation. Good
governance initiatives may include advocacy for legal reform, public awareness-raising on the
national and international legal framework, and capacity-building or reform of institutions
( OHCHR, 2024)

Genuine rule of law requires the cooperation of state and society, and is an outcome of complex
and deeply rooted social processes. Fukuyama (2013) distinguishes between “rule of law” and
“rule by law”. “Rule by law” refers to the executive use of law and bureaucracy as an instrument
of power, while “rule of law” is when the executive itself is constrained by the same laws that
apply to everyone else (UNDP, 2007).

3) Responsiveness- all structures within public and private institutions should serve all women
and men without discrimination. Good governance sets the platform for processes within
institutions that are effective, efficient and accessible in the service of all citizens in a manner
that is deemed to protect the rights of all. Responsiveness encourages mechanisms that enable
the identification and addressing or rectifying of behaviours that are discriminatory in nature
affecting minority groups. These mechanisms, according to the United Nations, may include
selective decentralization, so that local governments supposedly are more in tune with the needs
of their constituents and can more promptly serve the people, who in turn could become more
involved in decision-making.

4) Transparency- free flow of information that is easy to understand by all within institutions
ensures direct accessibility of any information by the people in a timely manner so that decisions
and their outcomes/results can be easily implemented and monitored. Transparency allows for
scrutiny in the decision-making process by members of the public.
Transparency rests on a partnership: officials must make information available, and there must
be people and groups with reasons and opportunities to put information to use. Key among those
are an independent judiciary and a free, competitive, responsible press as well as an active,
critical civil society (Johnston 2002).

For a government to be considered transparent it must be open to scrutiny and comprehensive

audit - communication of what is being done, by whom, where, when and how, and guided by
what provisions.

5) Effectiveness and efficiency- This is whereby institutions employ processes that enable them
to produce outcomes that meet the expected or anticipated needs while making the most out of
the available resources.

Measures that enhance the quality of public service delivery lead to standardisation, the
professionalisation of the bureaucracy, focusing government efforts on vital functions, and the
elimination of redundancies or overlaps in functions and operations. For public service delivery,
agencies must promptly and adequately cater to the needs of citizens, simplifying government
procedures and reducing red tape, using appropriate technology when feasible, as well as
coordinating processes among various government agencies to eliminate redundant information
requirements.

6) Accountability- Every person or group is responsible for their actions, especially when their
acts affect the public interest. It refers to the answerability or responsibility for one’s actions so
that systems exist for decision makers in government, the private sector and civil society
organisations to answer to the public, as well as to institutional stakeholders.

Decision-makers in government, the private sector and civil society organisations are
accountable to the public, as well as to institutional stakeholders. This accountability differs
depending on the organisation and whether the decision is internal or external to an organisation.
Accountability is partly a matter of institutional design, implying that formal checks and
balances can and should be built into any constitutional architecture (Johnston, 2002).

7) Consensus orientation - Good governance mediates differing interests to reach a broad

consensus on what is in the best interest of the group and, where possible, on policies and
procedures. Good governance, accountability and transparency may be attractive buzzwords for
politicians to use, particularly at election time, but electors ought to hold them to their word and
make it clear that they expect them to turn their rhetoric into action. Also, some remedial
measures have to be taken by the parties themselves to correct the ways of the party men who are
tempted to abuse power arising from the charisma of the office.

Consensus orientation ensures that the existing systems serve the best interests of society. This
may be one of the most difficult principles, as any action or policy is likely to affect different
groups in society in different and often opposing ways. Therefore, different viewpoints must be
taken into account. To arrive at a compromise, there needs to be a strong, impartial and flexible
mediation structure, so that the best interests of the whole community can be served. Public
hearings, referendums, forums for debate, citizens’ legal right to petition leaders about policy
and consultation mechanisms are examples of means to work towards achieving consensus or at
least compromise.

8) Equity and inclusiveness - exist where everyone has opportunities to improve or maintain
their well-being. This means that all members of society, especially the most vulnerable, are
taken into consideration in policy making, and no one feels alienated, disenfranchised or left
behind.

Good governance demands that preferential attention is given to the plight of the poor,
marginalised and needy. This is consistent with Rawls’ principles of fairness, according to
which the worst-off in society must receive a fair deal. According to Rawls (1971), social and
economic policy ought to satisfy two conditions: firstly, that offices and positions are open to all
under conditions of fair equality of opportunity, and, secondly, that they provide the greatest
benefit to the least-advantaged members of society (the difference principle).
BARRIERS TO GOOD GOVERNANCE

1. Lack of openness and accountability

The level of openness and accountability among civil servants and state officers in Kenya has
declined over the years. This has in turn led to the collapse of key economic sectors. Section 10
of the Leadership and Integrity Act number 19 of 2012 stipulates that a state officer shall, to the
best of their ability, (b) carry out the duties in a transparent and accountable manner; (c) keep
accurate records and documents relating to the functions of the office;
Public servants have abdicated their roles outlined in the law by refusing to listen to the voices of
those they manage and most times are not willing to take responsibility for their conduct. Lack of
accountability breeds distrust between the parties, leading to instability. A report released late
last year by the Commission on Administrative Justice (CAJ) revealed several injustices and
malpractices, including overcharging of applicants looking for passports at the Immigration
Department. State officials at the Directorate of Immigration Services openly ask for bribes
leading to a backlog in passport printing while at the same time, managing public expectations
with public relations. These actions by government agencies and officers impede growth and
principles of good governance.

2. Low levels or lack of awareness on rights and duties of the citizens

Citizens are unable to hold erring government officials to account as a result of their lack of
knowledge about their rights. Similarly, low levels of citizen compliance with the law act as a
barrier to good governance; When individuals do not follow their responsibilities, they infringe
on the freedom and rights of others. As a result, understanding your legal rights and performing
your obligations are both sides of the same coin. A vigilant citizenry, knowledgeable of its rights
as well as its responsibilities, is a surefire method to ensure that officials and other citizens fulfil
their obligations.
When citizens are aware of their rights and duties then as a consequence public officials and
other citizens ensure they discharge their duties effectively and honestly.

Kenyan citizens sovereign rights are expressed in Article 1 of the Constitution that “All power
belongs to the people of Kenya and shall be exercised only in accordance to the Constitution.
That the people may exercise their sovereign power directly or through their democratically
elected representatives. This means that the people have the power self-determine as to how they
would like to be governed under the new Constitution.

Also the rights of citizens are on information is provided for in the Bill of Rights Chapter Four of
the Consitution which states that every person shall enjoy rights and fundamental freedoms in the
Bill of rights to the greatest extent consitsntent with the nature of the right or fundamental
freedom. One of the provisions for representation of everyones voice in decision-making
processes is through the Public Participation process provided for in the Constituion Article 118
and 119 and also expressed in the Public Participation Bill 2023. The Bill of Rights

The roles of citizens and mechanisms for their participation are defined in law. Both the national
and county governments are required to facilitate meaningful engagement for all citizens without
discrimination so that they participate in decisions and actions affecting their lives.

3. Corruption
The presence of crime within a governing body leads to poor governance because officials
prioritise their interests over others. Corruption hinders the delivery of services from reaching to
the ordinary people and stymies development initiatives averting transparency, accessibility, and
accountability. The vested interests bend the rules and procedures.

A lack of interference of institutions like anti-corruption commissions, creates mechanisms of

information sharing, and monitoring governments' use of public funds and implementation of
policies. But once these institutions are compromised through unethical practices, development
and the rule of law is stifled.
In the Kenya context, the Anti-Corruption and Economic Crimes Act 2003 defines corruption to
mean bribery, fraud, embezzlement or misappropriation of public funds, breach of trust; or an
offence involving dishonesty in connection with any tax, bid rigging, secret inducements for
advice, as abuse of office to improperly confer a benefit on themselves or anyone else. That said,
only actions related to money transactions and misuse of office are given attention as corruption

Corruption comes in two forms. Petty corruption occurs when citizens are asked for kitu kidogo
(“a little something”): to get a document stamped, a service provided, or an infraction
overlooked. The amounts are small, but hardly petty to the many victims living on less than $1 a
day. Kenya also has large-scale corruption—public purchases made at inflated prices; public
benefits handed out to people who are not entitled; fictitious companies being paid for contracts
that they never executed.

Corruption is clearly happening in many developing countries, Kenya included, and it involves
not only the public sector, but also the private sector and civil society. It is certainly a drag on
economic growth and poverty reduction hence poor governance.

Tackling Corruption: First, a government that is serious about fighting corruption needs to
eliminate opportunities for corruption. This involves reforming institutions to minimise
discretion and create checks and balances. A lot has already been done in Kenya in this respect,
e.g., in the road, water and power sectors, and the new Constitution will help to get more of this
important work done. Second, a government needs to be able to detect corruption when it occurs.
This requires strong auditing mechanisms. There is no better deterrent to corruption than regular
professional audits—particularly when audit results are also shared with the public, which can
then help to hold errant officials to account. We have seen some successes in this area recently
in Kenya, for example with the maize and education scandals in 2009. The new Constitution
strengths checks and balances as well as the independence of oversight agencies, so it will help
in this area as well. Third, and most important, a government needs to punish corrupt individuals
to the full extent of the law.
Kenya has developed a robust legal framework to address the prevalence of bribery and
corruption. The foundation of this framework is the Constitution of Kenya (2010), which is the
supreme law of the Republic. Article 10 of the Constitution provides for Kenya’s national values
and principles of governance, which bind all State organs, State officers, public offices and all
persons whenever any of them applies or interprets the Constitution, enacts, applies or interprets
any law, or makes or implements public policy decisions. The national values and principles of
governance include good governance, integrity, transparency and accountability.
Specific pieces of legislation include, among others:
i. the Penal Code, Cap 63;
ii. the Public Officer Ethics Act, 2003;
iii. the Anti-Corruption and Economic Crimes Act, 2003 (ACECA); there is a pending Anti-
Corruption and Economic Crimes Amendment Bill 2021;
iv. the Proceeds of Crime and Anti-Money Laundering Act, 2009 (POCAMLA);
v. the Ethics and Anti-Corruption Commission Act, 2011 (EACCA);

Articles 2(5) and 2(6) of the Constitution provide that the general rules of international law form
part of the laws of Kenya, and any treaty or convention ratified by Kenya forms part of the laws
of Kenya. In this regard, Kenya has ratified the following conventions which effectively form
part of the laws of Kenya on bribery and corruption:
i. the United Nations Convention against Corruption;
ii. the African Union Convention on Preventing and Combating Corruption.

4. Violation of Constitution and other laws - e.g non-adherence to court orders

Violations of the constitution and other laws by the governing class - even if the country has a
good constitution and its leaders fail to obey the good governance cannot be achieved at all. In
recent months, Kenya has experienced a blatant disobedience of court orders by politicians and
even by the executive, a clear sign of unconstitutionalism. In a petition by Trusted Society of
Human Rights Alliance v Cabinet Secretary for Devolution and Planning & 3 others [2017]
eKLR
Hon. Justice Onguto said that “court orders are not issued in vain”. This is supported under the
provisions of Article 159(1) of the Constitution, 2010, Judicial authority is derived from the
people and vests in, and shall be exercised by, the courts and tribunals established by or under
the Constitution. In exercising judicial authority the Courts and Tribunals are, inter alia, to be
guided by the principle that the purpose and principles of the Constitution shall be protected and
promoted. Under Article 10(1) of the Constitution the national values and principles of
governance in the Article bind all State organs, State officers, public officers and all persons
whenever any of them (a) applies or interprets the Constitution; (b) enacts, applies or interprets
any law; or (c) makes or implements public policy decisions. Under clause (2)(a) of the same
Article the national values and principles of governance include the rule of law.

Musinga, J (as he then was) in Moses P N Njoroge & Others vs. Reverend Musa Njuguna &
Another was of the view that the rule of law requires that orders of the Court be respected and
obeyed and that duty equally applies even where a party is dissatisfied with an order and has
appealed to an appellate court against the order, ruling or judgement. Willful and flagrant
disobedience of court orders undermines the authority and dignity of the Courts and must be
dealt with firmly so that the Court’s authority is not brought into disrepute.

Article 232 of the Constitution further provides for the values and principles that inform public
service by all State organs in both levels of government and all state corporations.

The Constitutional Court of South Africa, in Burchell v. Burchell underlined the importance to
the rule of law, of compliance with court orders in the following terms:-

“Compliance with court orders is an issue of fundamental concern for a society that
seeks to base itself on the rule of law. The Constitution states that the rule of law and
supremacy of the Constitution are foundational values of our society. It vests the judicial
authority of the state in the courts and requires other organs of state to assist and protect
the courts. It gives everyone the right to have legal disputes resolved in the courts or
other independent and impartial tribunals. Failure to enforce court orders effectively has
the potential to undermine confidence in recourse to law as an instrument to resolve civil
disputes and may thus impact negatively on the rule of law.”

An order passed by a competent court, whether interim or final, has to be obeyed without any
reservation - Hon. Justice Onguto
5. Weak institutions
Checks and balances in the constitution:
A government without clear definition of separation of powers: legislative, executive, and
judiciary is an unsuccessful government, one open to instability. It is paramount that these
organisations maintain impartiality and their independence so that they do not result in unlawful
and unconstitutional processes that hinder the performance of their mandated duties. Robust
institutions within a country gives rise to good governance and attainment of set development
goals.

In the Constitution of Kenya, 2010, the separation of powers of governance is prescribed in

chapter 8, 9 and 10 and vested in three separate bodies with intention of providing checks-and
balances among them, the bodies stated the aforementioned Articles are: executive, legislature
and judiciary.

Separation of powers among the Kenya three arms of government facilitates and secures checks
and balances in governance. The repealed 1969 constitution was one of exclusivity, exploitative,
unbriddled with authoritarian oppressive imperial presidency, and as a consequence led to a call
for constitutional reforms . The Kenyan Constitution of 2010, Article 10 outlines national values
and principles of governance as provisions that shall apply to and bind all State organs, State
officers, public officers and all persons whenever any of them applies or interprets the
Constitution, enacts, applies or interprets any law or makes or implements public policy
decisions.

The offices that may only be established or operationalised through more than one arm of
government involvement and or commissions and independent offices: Chief Justice (CJ) and
Judge (Art. 166)90; Commission and Independent Offices holder (Art. 250); A replacement to
the office of Deputy President (Art.149)91; Attorney-General (Art.156); Director Public
Prosecutions (DPP) (Art. 157); Cabinet Secretary (CS) (Art. 152); Secretary to the Cabinet (Art.
154); and Principal Secretaries (PS) (Art. 155). Ironically during the Mwai Kibaki and Uhuru
Kenyatta governments, that courted insatiable ambitions to confer teh President powers to have
substantive influence on Chief Jutsice appointments by amendments to Judicial Sevice Act of
2011 (see the Statute Law (Miscellaneous Amendment) Act 2015). The Jubilee legislators who
were endorsing the amendment hurriedly in the National Assembly, had deleted subsection (3) of
the Act and substituted it with a new section that provided that the Secretary of the Judicial
Service Commission (JSC) “shall forward the names of three (3) qualified persons for each
vacant position to the President.” This was challenged in court and a five-judge bench rightly
declared section 30 (3) of the JSC Act null and void as it would interfere with the doctrine of
separation of powers.

On checks and balances on principles and structure of the national executive - appointments at
the national executive, nominations, vetting and approval of any individuals to State or public
office by the Executive is open to scrutiny by the Parliamnet, Judiciary, Commission or
independent office. Therefore presidential or political or other interest driven handpicking of
public servants is unconstitutional. The 2010 Consitution emphasises procedural process in
executing state functions and duties as expressed in Article 129 that provides that the “Executive
authority derives from the People of Kenya and is to be exercised in accordance with the
Constitution. The executive authority shall be exercised in a manner compatible with the
principle of service to people of Kenya, and for their benefit.” Further, “the composition of any
state organ must reflect the regional and ethnic diversity of the people of Kenya.

In conclusion, if each body of governance exercises its powers and authorities as prescribed in
the Constitution then good governance will be enjoyed by the citizens. On the other hand if any
of the body (ies) fail and/or becomes weak to the extent of allowing it to be controlled by the
another, then bad governance will be the results despite Kenya having a good constitution.An
example is as expressed in the case of Miguna Miguna v Fred Matiang and 8 others (2018)
eKLR.

Respondents (representatives of executive) did not obey the court orders as awarded by the
judiciary to the applicant. The court found the 1 st, 2nd and 3rd respondents in violation of article
10 of the constitution by failing to adhere to the rule of law in the sense that they brazenly
disobeyed the orders of the court.
6. Ineffective implementation of laws
This could lead to adoption of policies that do not align with the constitution. The country has a
vast body of legislation, each one intended to accomplish various objectives such as maintaining
public order and safety, sanitation and hygiene, citizens’ rights protection, and so on. These
policies, if properly implemented, would create a society that is both more just and more
productive. It is the inadequate capacity building of personnel who are the ones to implement the
laws that results in policies and laws not being implemented properly - therefore badly
implemented regulations might cause significant suffering to individuals and even damage
people’s confidence, eroding the faith of citizens in the government systems.

Lack of awareness about duties and rights and callous approach to compliance with the laws on
the part of some of the citizens also create barriers to good governance [in general term is
unfulfilling actions]. These policies if properly implemented would create a society that is both
more just and more productive and in the other hand badly implemented regulations might cause
significant suffering to individuals and even damage people's confidence in the government
system

7. Sabotage and Supremacy battles

Political actors are always at war, with a notion of fighting for their communities. These self-
interests and egoism among the political players impede the implementation of the constitution
and instead leave the treasured document exposed. After the 2013 general election in Kenya,
there was a silent political war being fought by the two leading coalitions, CORD and Jubilee in
the National Assembly. Those previously implicated in graft and with questionable certificates
were approved to head key government institutions, going against the leadership and integrity
doctrine in chapter six of the 2010 constitution.

8. Weak civil societies (Weakened civil society as a driver of injustice).

Civil Society refers to the ways in which collective civil groups share and promote community
interests. “Citizens often come together to form groups within the community broadly referred to
as Civil Society Organisations (CSOs) to facilitate and strengthen engagement and collective
action on common interests and concerns. CSOs are voluntary organisations with the governance
and direction led by citizens or constituency members, without significant government-
controlled participation or representation. They play important intermediary roles in public sector
governance processes (County Governmnet Toolkit, 2024). Civil society bridges the gap
between the government and governed and checks the growth of unethical practices [are actions
that falls outside what is considered morally right or proper for a person, a profession or and
industry examples bribery, sexual harassment, poor working conditions and false product
claims]. But when there is an absence of civil society institutions or when they are weakened, the
gap between people and the government get widened good governance is badly affected by weak
civil society institutions. These institutions includes community based organisations, village
associations, environmental groups, women's rights groups and farmers associations. Ineffective
civil society institutions badly harm good governance. In summary, Civil Society bridges the gap
between citizens and the government. It fights unethical behaviour. But, when Civil Society
organisations are weakened or missing, the gap between people and the government widens

9. External influence - International dependency like foreign aid.

Africa has always been at the mercy of the Global North with aid being the response to the
multiple crises that the continent faces driven by economic development imbalances globally.
Africa therefore is the biggest aid recipient from the developed world with billions of dollars
being sent as foreign aid to assist Africa in development to alleviate prevailing issues like
hunger, poverty, political instability and fostering the rule of law and generally economic
development. Even with these efforts, Africa still continues to lag behind remaining the poorest
continent in the world according to the Gross National Income and the Human Development
Index. In the last decade however, there has been a shift in the approach to foreign aid being
strategically positioned (re-branded and intensified). The indifference or rhetoric on aid
dependency is clear- it is an unwelcome and unfortunate side effect of aid and its diminishment
is high on the aid policy agenda (Thomas et al., 2011). The shift clearly is an emergence of aid
related dependency that is not pegged on the economic or financial scope rather on the political.
This coupled with conditionalities tied on aid, and grants which puts the donor at the centre of
the process directing as to how funds are to be used and on what. We have see current push on
the LGBTQIA2S+ movement not from a point of Bill of Rights but as an imposing of the West
on the values of African Culture without consideration of Africa’s social and cultural norms. The
BrettonWoods Brothers have had stringent measures which have had implications on the living
standards of many people. An instance in Kenya is the rising costs of doing business, high
taxation, deregulation, privatisation and commercialisation of key government services. This
implies that more aid providers are being intertwined in political processes which often are
marred with corruption and a disregard to the rule of law. This combined with aid uncertainty,
questionable sustainability, and a tendency of top-down approaches to political involvement,
create a situation where countries in need of aid are dependent upon foreign agendas.

10. Red Tapism – Bureaucracies have to adhere to rules and procedures which are important for
good governance, however sometimes these rules and procedures are ill-conceived and
cumbersome and they do not serve the very purpose of their existence. Let’s take for instance the
President's directive in Kenya that all payments services to government institutions ought to be
streamlined into one payment system to solve the revenue leakages. Months on, the key
government services have been affected due to the e-citizen melt down impacting negatively on
NTSA, Treasury, Boma Yangu among others. Public servants at these service delivery stations
have been accused of sabotage. While technology is meant to improve the quality of human life
and enhance human development by way of easing the backlog within government service
delivery agencies, often it is seen as a threat to jobs and is unfortunately met with reluctance
when it comes to adoption. This lack of or slow adoption coupled with inefficiencies and the
malaise of red tape then means that citizens miss out on the most efficient ways to access key
services including health, business and education. Kenya has shown a higher propensity to
indigenous knowledge systems which are full of inefficiencies, a lot of red tape in public service
delivery, and prone to corrupt and inefficient practices.

11. Attitudinal Problems of Civil Servants – Human nature in itself is imperfect and it comes
with behavioural patterns that can impact positively or negatively on a society. When civil
servants' attitudes are driven by an inward looking, inflexible and self-perpetuating demeanour
towards those they are charged to protect and serve, then ultimately good governance is
impacted. There is complexity in human relationships involving conflicting interest and values,
preferences inter alia, unreliable information and consequences. These complexities are
expressed differently by individuals and negatively have adverse effects on good governance as
they undermine effectiveness, integrity, accountability, transparency, and responsiveness of
government/public institutions. Some of the most common elements of attitudinal problems
among the civil service individuals is corruption, unaccountability, nepotism/ethnicity and
favouritism, resistance to change e.g technology or vested interest in maintaining status quo (like
the case of the government streamlined payment system through e-citizen that has ground to a
halt due to internal slow responses, inefficiencies in the systems and personnel and adoption in
turn affecting key government services) and loosing the country millions in revenue,
unprofessional poor work ethic which stems from laziness, apathy, a lack of collaboration,
networking and commitment among civil servants (bureaucracy, red tape) which undermines
productivity, quality of service delivery and overall organisational performance and finally
political interference whereby civil servants can be at the beck and call of politicians and other
powerful individuals often interfering and compromising their impartiality in approaching
matters or the delivery of services - adverse effects on professionalism and compliance to the
rule of law. Political interference negatively affects the autonomy of public institutions eroding
public trust and consequently results in decisions prioritising political expediency over public
interests. To address such barriers to good governance stemming form attitudes, there is a need
for comprehensive reforms including: including strengthening ethics and anticorruption
frameworks, implementing and enhancing mechanisms for accountability, carrying out
recruitment and promotion that is merit-based vis a vis “Godfathers” and ethnic based
procedures, fostering a culture of professionalism and excellence through performance
measurement through performance KPIs etc, and providing adequate training and support to civil
servants through capacity building programmes. By promoting a values-based approach to public
service and instilling a commitment to ethical conduct and good governance, governments can
mitigate the negative effects of attitudinal problems on governance effectiveness and public trust.

12. Lack of Public Participation

As discussed under the principles of good governance, public participation is significant in the
Kenyan Constitution both at the National and County levels of government. When opportunities
for engagement through participation of citizens are limited in the decision making process of
both levels of governments then governance deficits arise. Vulnerable and marginalised groups
often face the brunt consequences emanating from the lack of representation and a voice in
policy making. For instance, marginalised groups like the pastoralist communities in northern
Kenya may have their needs overlooked in national policies and development agendas. The right
to participate in decision making process of the state is guaranteed in the Constitution of Kenya
promulgated in 2010, Article 118(1) (b) which mandates Parliament to “facilitate public
participation and involvement in the legislative and other business or Parliament and its
committees'' and Article 196(1) (b) directs the county assemblies to respectively “facilitate
public participation…” in their activities. Provisions for public participation are also set out
within the Constitution of Kenya Articles 1,10, 35, 119, 124, 201, 221, and 232, the Petitions to
Parliament (Procedure) Act, No. 22 of 2012 and the National Assembly Standing Orders.

13. Abuse of power

Abuse of power undermines principles of democracy aforementioned - accountability and the

rule of law. Kenya is no stranger to abuse of power by state officers charged to protect the
property and rights of citizens. Pervasive corruption in state institutions where public servants
exploit their positions for powerful gains undermines the principles of good governance.
Politicians often use their power to intimidate those who oppose them and award loyal supporters
contrary to Article 27 of the COK on equality and freedom from discrimination. During the
electioneering period also, Kenyan elections are marred with electoral malpractices with some
political parties using public or state resources like security, funds and media to gain an unfair
advantage undermining the credibility and legitimacy of the electoral process. Kenya has also
been faced with challenges of excessive use of force by security personnel towards protestors in
demonstrations to the extent of extrajudicial killings. This not only violates the rights of citizens
articulated in the Bill of Rights but also undermines the rule of law. For instance Executive
power as exercised under the office of the Director or Criminal Investigations (DCI) and the
Director of Public Prosecutions (DPP) has been abused in light of the functions of the Ethics and
Anti-corruption Commission (EACC) under the Anti-Corruption and Economic Crimes Act
(ACECA) which gives EACC powers to investigate corruption cases and give recommendations
for prosecution. In many cases, the DCI and the DPP have taken up the roles of EACC under the
Anti-Corruption and Economic Crimes Act, (ACECA).

Not so long ago the Salaries and Remuneration Commission’s (SRC’s) was at loggerheads, with
MPs and MCAs and the Judicial Service Commission over daily subsistence allowances for their
respective employees including state officers “The Statute Law (Miscellaneous Amendments)
Bills no. 67 and no. 68, partly seeks to amend the Parliamentary Service Act and the Judicial
Service Act to allow the respective commission to determine the daily subsistence allowances for
their respective employees including state officers”.

CONCLUSION

This presentation has highlighted the key principles to good governance namely participation,
consensus oriented, accountability, transparency, responsiveness, effectiveness and efficiency,
equity and inclusiveness, and rule of law and the implications rising for a lack of adherence to
the principles - which translates to impediments to good governance. For any democracy to
articulate the will of the people, and strive towards the human development agenda it has to
ensure that there exists no barriers that hinder the rights of persons and fundamental freedoms of
citizens. For progress in human development to be effected good governance is key. As Kenya
steers herself in the international space towards the Sustainable Development Goals it is critical
to ensure these barriers reduce over time if not immediately upto a point where the ten principles
become a part and parcel of all State organs, permeating into the very structure of society
positively impacting on people lives in service delivery in economic, political, social and other
soheres of life. Good governance is key in also upholding the supreme law of the land, that is the
Consitution of Kenya, 2010.
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Mwangi Mureithi I; Mwangi Mureithi II cases.

CODRALKA Chapters….on Mwangi Stephen Mureithi 1-5
The Star : http://www.thestar.co.ke/news/article-184735/2013-jubilee-poll-losers-make-come-
back-new-government-diplomaticappointments (accessed 29/9/14)

See also CODRALKA Chapters ….. on Foreign, Policy, Diplomatic, Consular, and International
Relations and Cooperation in Kenya and Africa…