RLLB 109: LEGAL SYSTEMS AND METHODS

Title: The Challenges faced in Implementation of the 2010 Constitution

Pages: 5

Submitted by: Waweru Ngigi [18ZAD103243]

1. I know that plagiarism means taking and using the ideas, writings, works or inventions of

another as if they were one’s own. I know that plagiarism not only includes verbatim copying,

but also the extensive use of another person’s ideas without proper acknowledgement (which

includes the proper use of quotation marks). I know that plagiarism covers this sort of use of

material found in textual sources and from the Internet.

2. I acknowledge and understand that plagiarism is wrong.

3. I understand that my research must be accurately referenced. I have followed the rules and

conventions concerning referencing, citation and the use of quotations as set out in the OSCOLA

Guide.

4. This assignment is my own work. I confirm that I have not sought assistance from any

professional agency. I acknowledge that copying someone else’s assignment, or part of it, is

wrong, and that submitting identical work to others constitutes a form of plagiarism.

5. I have not allowed, nor will I in the future allow, anyone, to copy my work with the intention of

passing it off as their own work.

Signed...........Waweru Ngigi............... Date........06/08/2018.............

1
Table of Contents

1. Cover Page …………………………………………………………………………………………………………….. 1

2. Table of Contents …………………………………………………………………………………………………… 2

3. Introduction ……………………………………………………………………………………..……………………. 3

4. Interpretation …………………………………………………….………………………………………………….. 3

5. Checks and Balances ………………………………………………………………….………………..………… 5

6. Integrity of Enforcement Officers ………………………………………………………..………………… 6

7. Conclusion and Recommendation …..……………………………………………………………………. 7

8. Bibliography …………………………………………………………………………………..……………………… 8

2
The Challenges faced in Implementation of the 2010 Constitution

Introduction

Implementation of the Constitution is a daunting process that will always be faced by challenges

and risks. Effective implementation requires that the institutions dealing with implementation

comply with the Constitution however there is always the danger that vested interests may

affect legislation, administration and other aspects of constitutional implementation.1 This essay

will look at the challenges that have been faced since the promulgation of the 2010 constitution,

focusing on the issues of interpretation, checks and balances and integrity of enforcement

officials whilst giving appropriate recommendations.

Interpretation

Interpretation of the constitution has proved to be a significant challenge to its implementation.

The judiciary is the main body entrusted with interpreting the constitution however to a lesser

degree other arms of government, public bodies and commissions also have a mandate to

interpret the Constitution but need to seek the intervention of the court where a problem of

interpretation arises.2 A problem arises where these organs, bodies, institutions, arms of

Government, and commissions choose to interpret the Constitution in their own way without

seeking the guidance of courts. There have been many instances of potentially controversial

interpretations that have been made which adversely affect other organs. As a result of this the

1
Otieno G, “Taking Stock: Challenges and Prospects of Implementing the Constitution of Kenya, 2010” (Africa Centre
for Open Governance October 14, 2015) <https://africog.org/taking-stock-challenges-and-prospects-of-
implementing-the-constitution-of-kenya-2010/>
2
Sihanya B, 'Constitutional Implementation in Kenya, 2010-2015: Challenges And Prospects' (2011) 5 FES Kenya
Occasional Paper <http://www.fes-kenya.org/media/publications/2013/FES%20Occassional%20Paper%205.pdf>

3
2010 constitution has faced a number of interpretation challenges. For example, when President

Mwai Kibaki nominated Justice Alnasir Visram as the new Chief Justice on January 29, 2011

without involving the Prime Minister and the Judicial Service Commission (JSC), effectively

leaving them out of a critical decision making moment.3 In making this decision the President

claimed to have relied on section 24 of the Sixth Schedule of the Constitution. Section 24 (2)

states: “A new Chief Justice shall be appointed by the President, subject to the National Accord

and Reconciliation Act, and after consultation with the Prime Minister and with the approval of

the National Assembly.”4 In this case, the word “consultation” was interpreted to mean a

notification of events while the courts believed the word and the rule in general could be

construed to lean more towards having the prime minister play an active decision making role in

the nomination process.5

In response to the various interpretive challenges faced it has been stated that “Those

interpreting the constitution must endeavor to avoid crippling it by construing it technically or in

a narrow spirit. It must be construed in tune with the lofty purposes for which its makers framed

it. By all means (…) take into account the contemporary situation of each age but let the

innovations be supported by the roots.”6 Furthermore, the Commission for the Implementation

of the Constitution has been very active in aiding government bodies to correctly interpret the

constitution. There is also the work of training judges, advising the national government and

3
Sihanya B, 'The Presidency and Public Authority In Kenya’S New Constitutional Order' (2011) 2 Society For
International Development: Constitution Working Paper <http://sidint.net/docs/WP2.pdf>
4
Constitution of Kenya, 2010 s24(2)
5
Sihanya B, 'Constitutional Implementation In Kenya, 2010-2015: Challenges And Prospects' (2011) 5 FES Kenya
Occasional Paper <http://www.fes-kenya.org/media/publications/2013/FES%20Occassional%20Paper%205.pdf>
6
RM (a minor) & 3 others v Attorney General [2006] 2 KLR 697

4
facilitating congruence between the judiciary and the national government being undertaken by

the Judicial Service Commission.7 However, even with these changes it has been argued that the

new Constitution gives public administrators and other government officers considerable

latitude in deciding how they will interpret existing statutory laws and given the limitations of

judicial review such latitude may have the effect that public administrators will continue to be

“the real source of the laws governing society’s routine social and economic activity.”8

Checks and Balances

The creators of the 2010 constitution envisioned a strict separation of powers however the

system of checks and balances needed to facilitate the smooth operations of the three arms of

government has faced challenges. Article 248 of the Constitution establishes ten commissions

and two independent offices. These commissions are supposed to be administratively and

financially delinked from the executive, parliament and judiciary and are expected to check

presidential and public authority at two levels. First, through observance of state organs and

their mandate to protect constitutionalism and second, the powers of revenue allocation and to

constitute and abolish offices in the public service.9

These commissions have only been moderately successful. For example, the Ethics and Anti-

Corruption Commission remains largely inconspicuous in handling serious corruption cases. This,

7
Nganga M, 'CONSTITUTIONAL IMPLEMENTATION AFTER THE 5 YEAR TRANSITION PERIOD: THE POSITION OF THE
KENYA LAW REFORM COMMISSION' <http://www.klrc.go.ke/index.php/media-center/press-releases/572-
constitutional-implementation-after-the-5-year-transition-period-the-position-of-the-kenya-law-reform-
commission-klrc>
8
Ochiel J, 'TRANSFORMATION OF JUDICIAL REVIEW IN KENYA UNDER THE 2010 CONSTITUTION' (LLM, University of
Nairobi 2016)
9
Constitution of Kenya, 2010 art 248

5
it has been argued, is as a result of the dilution of its role by parliament with the Anti-Corruption

and Economic Crimes Act (ACECA)10 which allows those with pending court cases to contest in

elective seats. Moreover, the commission can only address cases concerning public officers but

not state officers. A similar situation can be seen in the Parliamentary Service Commission (PSC)

which has failed in limiting the powers of the legislature. An example can be seen in the handling

of the Salaries and Remuneration Commission (SRC) attempt to tax members of parliament.

Rather than liaise with other commissions as is its mandate the PSC protected the interests of

parliamentarians and threatened to disband the SRC if it did not yield to its demands.11

Ultimately the problem with the system of checks and balances is the loopholes in the system

that allows undue pressure and performance gaps, for example in the fact that when some roles

are left unfilled the president can be step in, not to mention the active frustration of the system

by politicians.

Integrity of Enforcement Officers

The new Constitution establishes rules, principles, and mechanisms that, if implemented, will

ensure accountability in the exercise of governmental power. The gains that may arise from this

may be greatly derailed however if those in power fail to conform to the values and principles of

this Constitution. This is much of the power of government is exercised by those “on the ground”

who do not simply implement laws and regulations in the course of executing their duties rather

they often interpret such laws and regulations. For example, we see many laws that encourage

10
Anti Corruption and Economic Crimes Act, 2003
11
Sihanya B, 'Constitutional Commissions In Kenya Experiences, Challenges And Lessons' (Conference on State
Implementation of the Constitution since 2010 presented at Laico Regency, 2013)

6
ministers to decide “as they think fit,” which effectively means “do as you wish” irrespective of

constitutional prescriptions and regardless of how far the measure taken may go against the best

interests of the public.12

One finds that there is little redress in this matter for example judicial review is not an adequate

tool for regulating such routine powers since only a few cases will come to the attention of the

courts.13 There is a need to address the abuse of power by public officers at the most basic level

of public administration, such as police sergeants, clerks at the lands office, municipal clerks, and

tax assessors. Without this and with the absence of an effective nomination criteria the success

of the new constitution cannot be guaranteed.

Conclusion & Recommendation

In the context of transitional justice, civil society organizations are needed to monitor the work

of the government to ensure that it enacts statutes that adhere to the principles and values of

the Constitution. There must also be bodies tasked with undertaking public interest litigation and

lastly a review of existing bylaws, regulations, codes of conduct, and governance practices with a

view to suggesting how they can be made compatible with the new Constitution should be

carried out. In conclusion, the challenges to implementation, while daunting, can be overcome

with strict measures that aim to promote the spirit of the constitution.

12
Akech M, 'Institutional Reform In The New Constitution Of Kenya' [2010] International Center for Transitional
Justice <http://ictj.org/sites/default/files/ICTJ-Kenya-Institutional-Reform-2010-English.pdf>
13
Dudley O, 'The Constitution of Kenya 2010 And Judicial Review: Why The Odumbe Case Would Be Decided
Differently Today' <http://kenyalaw.org/kenyalawblog/the-constitution-of-kenya-2010-and-judicial-review-odumbe-
case/>

7
Bibliography

Primary Sources

Cases

RM (a minor) & 3 others v Attorney General [2006] 2 KLR 697

Statutes and Statutory Instruments

Constitution of Kenya, 2010

Anti Corruption and Economic Crimes Act, 2003

Secondary Sources

Journal Articles

Otieno G, “Taking Stock: Challenges and Prospects of Implementing the Constitution of Kenya,

2010” (Africa Centre for Open Governance October 14, 2015) https://africog.org/taking-stock-

challenges-and-prospects-of-implementing-the-constitution-of-kenya-2010/

Sihanya B, 'Constitutional Implementation in Kenya, 2010-2015: Challenges And Prospects'

(2011) 5 FES Kenya Occasional Paper http://www.fes-

kenya.org/media/publications/2013/FES%20Occassional%20Paper%205.pdf

8
Sihanya B, 'The Presidency and Public Authority In Kenya’S New Constitutional Order' (2011) 2

Society For International Development: Constitution Working Paper

http://sidint.net/docs/WP2.pdf

Akech M, 'Institutional Reform In The New Constitution Of Kenya' [2010] International Center for

Transitional Justice http://ictj.org/sites/default/files/ICTJ-Kenya-Institutional-Reform-2010-

English.pdf

Blogs

Nganga M, 'CONSTITUTIONAL IMPLEMENTATION AFTER THE 5 YEAR TRANSITION PERIOD: THE

POSITION OF THE KENYA LAW REFORM COMMISSION' http://www.klrc.go.ke/index.php/media-

center/press-releases/572-constitutional-implementation-after-the-5-year-transition-period-the-

position-of-the-kenya-law-reform-commission-klrc

Dissertation

Ochiel J, 'TRANSFORMATION OF JUDICIAL REVIEW IN KENYA UNDER THE 2010 CONSTITUTION'

(LLM, University of Nairobi 2016)

9
Lecture

Sihanya B, 'Constitutional Commissions In Kenya Experiences, Challenges And Lessons'

(Conference on State Implementation of the Constitution since 2010 presented at Laico

Regency, 2013)

Websites

Dudley O, 'The Constitution of Kenya 2010 And Judicial Review: Why The Odumbe Case Would

Be Decided Differently Today' http://kenyalaw.org/kenyalawblog/the-constitution-of-kenya-

2010-and-judicial-review-odumbe-case/

10