WHY DO COUNTRIES OFTEN NOT ACHIEVE GOOD GOVERNANCE DESPITE

THE CONSTANT EFFORT TO PUT IN PLACE NEW CONSTITUTIONS

GROUP FIVE

BLAW/2024/35224 - KIMUTAI
BLAW/2024/32757 - MWAKISAGU
BLAW/2024/33819 - KORIANG
BLAW/2024/33131 - FREDRICK OTIENO
BLAW/2024/31136 - SOMEH
BLAW/2024/32921 - SHADRACK
BLAW/2024/33641 - ANASTASIA MAKUNU

BACHELOR OF LAW - MOUNT KENYA UNIVERSITY

CONSTITUTIONAL LAW (BLAW 1103)

27 JANUARY 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). However, in this definition, criticism arises
because of the mix in aspects (rule of law, policy

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 wide spread 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 teh 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 atrributes,
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 Consitution
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 striongly 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 followed: 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. Provision for public
participation are also set out within the Consitution 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 the 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 Parliamnet 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 Chaptres 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 purpose to 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 aftecting minority groups. These mechanism according to 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 standardization, the
professionalization 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 organizations to answer to the
public, as well as to institutional stakeholders.

Decision-makers in government, the private sector and civil society organizations are
accountable to the public, as well as to institutional stakeholders. This accountability differs
depending on the organization and whether the decision is internal or external to an organization.

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 policymaking, and no one feels alienated, disenfranchised or left
behind.

Good governance demands that preferential attention is given to the plight of the poor,
marginalized 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).

9) Strategic vision - Leaders and the public have a broad and long-term perspective on good
governance and human development, along with a sense of what is needed for such development.
There is also an understanding of the historical, cultural and social complexities in which that
perspective is grounded.

BARRIERS TO GOOD GOVERNANCE

1. Lack of openness and accountability

Governing entities refuse 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.

Most governments also have to grapple with challenges emanating from a lack of checks and
balances or from inadequate implementation metrics and evaluation systems (e.g performance
indexes) making it almost impossible to hold public servants responsible for their actions or
activities that cause inefficiencies within their work. This means that disciplinary actions are
rarely taken when government employees fail to act on their prescribed mandates because in
most levels of governments authority is also divorced from accountability. Unlike the private
sector where there are measures to determine employee capacity and competence, government
evaluation systems are either non-existence or not properly put in place, misused or simply
ignored. A lack of a streamlined process of performance creates leeway for complacency and
apathetic conduct towards fellow citizens. There is also a tendency to misuse the protections that
are put in place to protect civil servants.

Deception of those who are ruled - political lies have led to wars, famines, genocides and other
atrocities around the world - causing instability.

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 fulfill
their obligations.

● Awareness of rights and duties would ensure that officials and other citizens discharge
duties effectively and honestly.

3. Corruption
The presence of crime within a governing body leads to poor governance because of officials
prioritise their interests over others. Corruption hinders the delivery of services from reaching to
the ordinary people and stemies 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 insitutions are compromised through unethical practices development
and the rule of law is stifled.

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.

5. Weak institutions
Lack of checks and balances of state institutions.
A government without the representative strong key elements namely: 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 to unlawful
and unconstitutional processes that hinder their performance of their mandated duties. Robust
institutions within a country give rise to good governance and attainment of set development
goals.

6. Ineffective implementation of laws

This could lead to adoption of policies that do not align with the consitution. 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.

On the other hand, badly implemented regulations might cause significant suffering to
individuals and even damage people’s confidence in the government system.
 ● We have a large number of laws to protect the rights of the citizens and vulnerable
sections of society, but the weak implementation of these laws erodes the faith of the
citizens in the Government machinery.

7. Sabotage and Supremacy battles

Political actors are always in 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

1. Ineffective civil society institutions badly harm good governance.
2. Civil society bridges the gap between citizens and the government. It fights unethical
behavior.
3. But, when Civil Society organizations are weakened or missing, the gap between people
and the government widens.

9. External influence - International dependency like foreign aid.

Aid has long been the response of richer countries to the imbalance of economic development
seen across the globe. In the last two decades however, relatively non-intrusive in-kind giving
has been re-branded and intensified to the point where aid today is arguably used as a strategic
force in increasingly interventionist global development policy.

Recent rhetoric surrounding 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). What is
becoming increasingly clear however is that there is an emerging type of aid-related dependency
that does not refer to economic or financial factors, but political. Cases of corruption in recipient
country governments have been met with the development of more complex modes of donation,
including direct programme funding, conditionalities, tied aid, and grants, which give donors
more control over the direction and ultimate use of their funds. This often means that those
providing aid are increasingly entwined in political processes. 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.

Throughout the world, governments must follow certain rules and procedures in order to
maintain a functional system. Of course, these regulations and processes are essential for
successful governance.

However, at times, these rules and procedures are ab-initio designed poorly and inconvenient,
thus failing to achieve their goals.

In addition, government employees can become overly obsessed with rules and procedures,
which they see as an end in themselves.

11. Attitudinal Problems of Civil Servants – Civil Servants have become inflexible, self-
perpetuating, inward-looking.

REFERENCES

United Nations Development Programme, 2007, Governance Indicators – A User’s Guide,

www.undp.org/execbrd/pdf/dp08-45_AnnexIII.pdf

https://www.davidpublisher.com/Public/uploads/Contribute/5b5ae56ba252b.pdf
https://www.britannica.com/topic/governance/Democratic-governance

https://www.ohchr.org/en/good-governance/about-good-governance

https://www.researchgate.net/publication/
326004299_Assessing_the_Impediments_of_Good_Governance_Practices_in_Local_Governme
nt_Administration_Case_Study_in_Jimma_Town_Ethiopia

http://onlineresearchjournals.com/aajoss/art/132.pdf

https://www.insightsonindia.com/governance/governance-important-aspects/good-governance/#

https://www.emerald.com/insight/content/doi/10.1108/JFC-11-2020-0235/full/html

https://www.elibrary.imf.org/view/journals/001/2021/098/article-A001-en.xml

https://www.unescap.org/sites/default/files/good-governance.pdf
https://www.ohchr.org/en/good-governance
https://www.ohchr.org/en/good-governance/about-good-governance

https://www.davidpublisher.com/Public/uploads/Contribute/5b5ae56ba252b.pdf
https://www.imf.org/external/pubs/ft/fandd/2000/06/pdf/kauf.pdf

https://elibrary.worldbank.org/doi/abs/10.1596/1813-9450-2196
https://www.twigh.org/twigh-blog-archives/2015/7/31/aid-dependency-the-damage-of-donation

https://grace.unodc.org/grace/uploads/documents/academics/Anti-
Corruption_Module_2_Corruption_and_Good_Governance.pdf

http://www.parliament.go.ke/sites/default/files/2022-08/FS14%20Public%20Participation%20in
%20The%20Legislative%20Process.pdf

https://www.undp.org/sites/g/files/zskgke326/files/publications/
Towards_SustainingMDGProgress_Ch8.pdf

https://www.twigh.org/twigh-blog-archives/2015/7/31/aid-dependency-the-damage-of-donation