DOCSLIB.ORG

The Legal Profession and the New Constitutional Order in Kenya

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
The Legal Profession and the New Constitutional Order in Kenya THE LEGAL PROFESSION AND THE NEW CONSTITUTIONAL ORDER IN KENYA YASH PAL GHAI JILL COTTRELL GHAI Editors THE LEGAL PROFESSION AND THE NEW CONSTITUTIONAL ORDER IN KENYA Copyright © ICJ and Authors, Nairobi ISBN 978-9966-054-07-4 Year of publication 2014 This book is part of the ICJ/KAS annual series on Judici- ary Watch Report. The printing of this book has been possible thanks to the support of the Rule of Law programme of the Konrad Adenauer Stiftung Cover design & Layout by John Agutu Email: [email protected] Printed by Franciscan Kolbe Press, P.O. Box 468, 00217 Limuru (Kenya) Email: [email protected] CONTENTS Acknowledgements. ......................................................................................... v About the Contributors ................................................................................... vii Legal Profession: Themes and Issues Yash Pal Ghai ......................................................................................... 1 The Legal Profession 1963-2013: All This Can Happen Again – Soon Pheroze Nowrojee ................................................................................... 33 The 2010 Constitution of Kenya: Its Vision of a New Bench-Bar Relationship Willy Mutunga ......................................................................................... 59 The Legal Profession and Crisis of Ethics PLO Lumumba ........................................................................................ 77 Professional Integrity and Disciplining of Advocates: Room for Improvement George Kegoro, Anita Nyanjong and Janet Milongo ............................. 101 Legal Education and Lawyers Patricia Kameri-Mbote ........................................................................... 121 The Attorneys-General: Upholders or Destroyers of Constitutionalism? Yash Pal Ghai ......................................................................................... 139 The Director of Public Prosecutions and the Constitution: Inspiration, Challenges and Opportunities Waikwa Wanyoike ................................................................................... 167 Access to Justice: The Paralegal Approach Jedidah Wakonyo Waruhiu and John Justice Odhiambo Otieno ........... 185 iv THE LEGAL PROFESSION AND THE NEW CONSTITUTIONAL ORDER Legal Aid in Kenya: Building a Fort for Wanjiku Caroline Amondi ..................................................................................... 201 Justice without Lawyers: Juridical Structures and Practices of Law in Korogocho Slums Steve Akoth Ouma ................................................................................... 221 The Bar: Challenges and Opportunities Apollo Mboya.......................................................................................... 241 Table of Cases ................................................................................................. 253 Index ................................................................................................................ 257 ACKNOWLEDGEMENTS The ICJ Kenya has incurred a number of debts in the preparation and publi- cation of this book. Its greatest debt is to Yash Ghai for identifying the themes for and authors of the chapters of the book and working closely with the authors. ICJ is grateful to Jill Cottrell Ghai for her research and assistance with the editing of the book and for preparing the index. The ICJ Kenya is grateful to the authors for their thoughtful and insightful chapters. ICJ Kenya also extends its profound gratitude to Konrad Adenauer Stiftung Foundation for providing the fi nancial support towards the production of this pub- lication. We appreciated the invaluable support of Prof. Christian Roschmann, Dr. Arne Wulf and Mr. Peter Wendoh from the KAF team who were involved with this project. ICJ Kenya thanks the Strathmore University Press for its professionalism and speed with it printed and published the book, and to John Agutu for designing and formatting the book. The ICJ Kenya thanks its staff, Anita Nyanjong and Janet Milongo, who, to- gether with Antony Kamaru, took responsibility for the administration of the pro- ject for the book. Lastly, ICJ Kenya is cognisant of the support of its members, the council and secretariat staff for their continued support and focus on judicial reforms. We trust that you will fi nd the book interesting and useful. George Kegoro, Executive Director. ABOUT THE CONTRIBUTORS Caroline Amondi Caroline holds an LL.B from Mangalore University and and LL.M in International Constitutional and Human Rights Law from Pondicherry University. She has attained over eleven years working experience and exposure in civil, corporate, commercial and criminal litigation along with ADR mechanisms having worked for the law firms of Wasuna & Co. Advocates, Otieno, Ragot & Company Advocates and Aboge & Co. Advocates. She is currently working with the National Legal Aid & Awareness Programme (NALEAP) under the Office of the Attorney General and Department of Justice as the Ag. National Coordinator and Legal Aid officer. The position of the Ag. National Coordinator gives her an opportunity to network with key legal sector institutions and stakeholders in the justice sector, both at the county, national and regional levels. She has also had the opportunity to build and strengthen network of legal aid providers at county and national level. NALEAP is a member of the Kenya National Working Group of Supporting Access to Justice for Children and Youth in East Africa (SAJCEA). Jill Cottrell Ghai Having graduated with LLB from the University of London (London School of Economics) and then with LLMs from London and Yale, she was a university law teacher for 40 years. She has also worked in the Constitution Advisory Support Unit, UNDP, Nepal (2007-8), and has carried out various consultancies on constitution making. She is now a Director of the Katiba Institute in Nairobi, and does a good deal of research for cases, and writes in the press and for other publications, on matters relating to the interpretation and implementation of the Constitution, mainly for the Institute. She has authored, co-authored or edited several books on human rights, the Constitution, defamation and legal research. viii THE LEGAL PROFESSION AND THE NEW CONSTITUTIONAL ORDER Yash Pal Ghai Educated at Oxford and Harvard, and called to the English Bar by the Middle Temple, he has been a law teacher and adviser on the making of constitutions in a number of countries in Asia and Africa. He taught at the University of East Africa, Warwick University, and Hong Kong University. He was visiting professor at Yale, Harvard, Toronto University, the National University of Singapore, and University of Wisconsin, among others. His research interests include constitutionalism and human rights, ethnic conflicts, sociology of law, and federalism and autonomy. He has written or edited about 20 books, including Public Law and Political Change in Kenya; The Political Economy of Law: A Third World Reader Perpectives; Law, Politics and Government in Pacific Island States; The Law, Politics and Administration of Decentralisation in Papua New Guinea (with Anthony Regan), Hong Kong’s New Constitutional Order: The Resumption of Chinese Sovereignty and the Basic Law; Ethnicity and Autonomy: Negotiating Competing Claims in Multi-Ethnic States His most recent publications include The Constitution of Kenya: An Instrument for Change, Ethnicity, Nationhood and Pluralism: Kenyan Perspectives (2013) (both with Jill Cottrell Ghai), Autonomy: Practising Self-Government and Constitution and Rule of Law in China’s Hong Kong: The Contribution of the Court of Final Appeal (2014). He was the Special Representative of the UN Secretary General for human rights in Cambodia 2005-2008. Patricia Kameri-Mbote Patricia is a Professor of Law and Dean at the School of Law, University of Nairobi. She obtained her doctorate in law (Juridical Sciences Doctorate) in 1999 from Stanford Law School having previously studied law at the following Universities: University of Nairobi (Bachelor of Laws, 1987), Warwick (Master of Laws, 1989), University of Zimbabwe (Postgraduate Diploma in Women’s Law 1995); and Stanford (Juridical Sciences Master (1996). She is Senior Counsel; has been an Advocate of the High Court of Kenya since 1988 and has been engaged in the legal academy in teaching and research for over 20 years at various Universities around the world – Nairobi, Kansas, Stellenbosch, Zimbabwe. She also serves as external examiner to the Faculties of Law at the following Universities: London, Makerere, Witwatersrand, Australian National University, Dar-es-Salaam Westminster, Pretoria and Kent. She also contributed to the planning, initiation, launch and implementation of Strathmore Law School by developing the law curriculum and taking it through the accreditation processes among other related roles. Patricia is passionate about justice in society, gender equality, environmental sustainability, equitable land reform and legal scholarship and has dedicated a lot of time to these issues CONTRIBUTORS ix over time. She has published widely in the areas of her research interest which include: environment and natural resources; human rights; women’s rights: property rights - land and intellectual property; biotechnology policy and law; and legal institutions - the judiciary and legal education institutions. George Kegoro George Kegoro is the Executive Director of the Kenyan Section of the International Commission
Load more

Recommended publications
  • Constitution-Making and Reform: Options for the Process
    Constitution-making and Reform Options for the Process Michele Brandt, Jill Cottrell, Yash Ghai, and Anthony Regan Title Constitution-making and Reform: Options for the Process Authors Michele Brandt, Jill Cottrell, Yash Ghai, Anthony Regan Date November 2011 Publisher Interpeace ISBN 978-2-8399-0871-9 Printed in Switzerland Copyright © Interpeace 2011. All rights reserved. Reproduction of figures or short excerpts from this report is authorized free of charge and without formal written permission, provided that the original source is properly acknowledged, with mention of the complete name of the report, the publisher, and the numbering of the pages or figures. Permission can be granted only to use the material exactly as it is in the report. Figures may not be altered in any way, including the full legends. For media use it is sufficient to cite the source while using the original graphic or figure. This is an Interpeace publication. Interpeace’s publications do not reflect any specific national or political interest. Views expressed in this publication do not necessarily represent the views of Interpeace. For additional permissions or information please e-mail [email protected]. About Interpeace Interpeace has been enabling societies to build lasting peace since 1994. Interpeace is an independent, international peacebuilding organization and a strategic partner of the United Nations. It supports national teams in countries across Africa, Asia, Central America, Europe, and the Middle East. Interpeace also has a thematic program on constitution-making. Over 300 peacebuilding experts work to help their societies manage their internal divisions and conflicts without resorting to violence or coercion.
    [Show full text]
  • The Appointment, Tenure and Removal of Judges Under Commonwealth
    The The Appointment, Tenure and Removal of Judges under Commonwealth Principles Appoin An independent, impartial and competent judiciary is essential to the rule tmen of law. This study considers the legal frameworks used to achieve this and examines trends in the 53 member states of the Commonwealth. It asks: t, Te ! who should appoint judges and by what process? nur The Appointment, Tenure ! what should be the duration of judicial tenure and how should judges’ remuneration be determined? e and and Removal of Judges ! what grounds justify the removal of a judge and who should carry out the necessary investigation and inquiries? Re mo under Commonwealth The study notes the increasing use of independent judicial appointment va commissions; the preference for permanent rather than fixed-term judicial l of Principles appointments; the fuller articulation of procedural safeguards necessary Judge to inquiries into judicial misconduct; and many other developments with implications for strengthening the rule of law. s A Compendium and Analysis under These findings form the basis for recommendations on best practice in giving effect to the Commonwealth Latimer House Principles (2003), the leading of Best Practice Commonwealth statement on the responsibilities and interactions of the three Co mmon main branches of government. we This research was commissioned by the Commonwealth Secretariat, and undertaken and alth produced independently by the Bingham Centre for the Rule of Law. The Centre is part of the British Institute of International and
    [Show full text]
  • The Kenya Gazette
    SPECIAL ISSUE SN (APORTING RARY THE KENYA GAZETTE Published by Authority of the Republic of Kenya (Registered as a Newspaperat the G.P.O.) Vol. CXX—N0. 118 NAIROBI,21st September, 2018 Price Sh. 60 GAZETTE NOTICE NO. 9744 CAUSENO.604 OF2018 IN THE HIGH COURT OF KENYA AT NAIROBI By (1) Carolyne Sakasa Wasai and (2) Joyce Naliaka Wasai, both of P.O. Box 4585-00506, Nairobi in Kenya, the deceased's widow and PROBATE AND ADMINISTRATION sister-in-law, respectively, through Messrs. J. M. Onyancha & TAKE NOTICEthat applications having been made in this court Associates, advocates of Nairobi, for a grant of letters of in: administration intestate to the estate of Julius N. M. Ombasa, late of Kisii South. who died at Kenyatta National Hospital in Kenya, on 12th CAUSENO.637 OF 2013 January, 2010. By (1) Misheck Macharia Kamau, (2) Irungu Kamau and (3) CAUSE NO. 765 OF 2018 Jecinta Wacera Kamau, all of P.O. Box 66937-00200. Nairobi in By Frederick Mutemi Kivai, of P.O. Box 20816-00202, Nairobi in Kenya, the deceased's sons and daughter, respectively, for a grant of Kenya, the deceased’s widower, for a grant ofletters of administration letters of administration intestate to the estate of Joyce Wanjiku intestate to the estate of Brigid Mary Mutemi., late of Kaloleni, who Kamau, late of Murang’a. who died at Hamza. on 23rd March, 2012. died at Kenyatta National Hospital in Kenya, on 10th May, 2015. CAUSENO. 2092 OF 2014 CAUSE NO. 789 OF 2018 By (1) Moses Kibandi Gichuru and (2) Loise Muthoni Kibandi, By (1) Barbra Mwende Nawii and (2) Janet Mumbe Nawii, both of both of P.O.
    [Show full text]
  • PROF BEN SIHANYA, JSD (STANFORD) CURRICULUM VITAE, 1/3/2021, Monday
    PROF BEN SIHANYA, JSD (STANFORD) CURRICULUM VITAE, 1/3/2021, Monday © Prof Ben Sihanya, JSD & JSM (Stanford), LLM (Warwick), LLB (Nairobi), PGD Law (KSL) IP and Constitutional Professor, Public Interest Advocate and Mentor Constitutional Democracy, ©, TM, IP, Education Law, Public Interest Lawyering Commissioner for Oaths, Notary Public, Patent Agent, Author, Public Intellectual & Poet University of Nairobi Law School & Prof Ben Sihanya Advocates & Sihanya Mentoring & Innovative Lawyering Author: IP and Innovation Law in Kenya and Africa: Transferring Technology for Sustainable Development (2016; 2020); IP and Innovation Law in Kenya and Africa: Cases and Materials (forthcoming 2021); Constitutional Democracy, Regulatory and Administrative Law in Kenya and Africa Vols. 1, 2 & 3 (due 2021) [email protected]; [email protected]; url: www.sihanyaprofadvs.co.ke; www.innovativelawyering.com Nairobi; Revised 3/2/2021; 12/2/2021; 1/3/2021 1 PROF BEN SIHANYA, JSD (STANFORD) CURRICULUM VITAE 1989 to Monday, March 1, 2021 Prof Ben Sihanya, JSD & JSM (Stanford), LLM (Warwick), LLB (Nairobi), PGD Law (KSL) IP and Constitutional Professor, Public Interest Advocate and Mentor Constitutional Democracy, ©, TM, IP, Education Law, Public Interest Lawyering Commissioner for Oaths, Notary Public, Patent Agent, Author, Public Intellectual & Poet University of Nairobi Law School & Prof Ben Sihanya Advocates & Sihanya Mentoring & Innovative Lawyering Author: IP and Innovation Law in Kenya and Africa: Transferring Technology for Sustainable
    [Show full text]
  • ISSUE-NO-1.Pdf
    OFFICE OF THE ATTORNEY VISION GENERAL AND DEPARTMENT OF To be the best institution in the region in the provision of public legal services JUSTICE The Constitution of Kenya 2010, Office of and the promotion of a just, democratic and corruption-free nation the Attorney General Act No 49 of 2012 and Executive Order No 1 of 2016 outline MISSION the key functions of OAG&DOJ: To facilitate the realisation of good governance and respect for the rule of GOVERNMENT SERVING law through the provision of public legal services, protection and promotion of human rights and upholding of ethics and integrity. Principal Legal Adviser to the Government DID YOU KNOW (PUBLIC INFORMATION): Represent the National 1. The AG has right of audience in proceedings of Public Interest or Government in civil proceedings involving Public Property; and matters before foreign courts 2. The Office shall be the depository of all laws and local and and tribunals international documents, agreements and treaties signed for and on Legislative Drafting Services behalf of the Government; Negotiate, draft, vet and interpret 3. The Attorney General shall have custody of the Public Seal of the Agreements and treaties for the Republic of Kenya; Government 4. A State Counsel is an Advocate of the High Court of Kenya and is Policy on Administration of Justice appointed by the Attorney General by Gazette Notice; Coordination of Governance, 5. All State Counsel shall perform the functions of the Office with Justice, Law and Order Sector COMPLETE LOYALTY AND DEDICATION and shall
    [Show full text]
  • The Kenya Gazette
    SPECIAL ISSUE THE KENYA GAZETTE Published by Authority of the Republic of Kenya (Registered as a Newspaperat the G.P.O.) Vol. CXVII—No.35 NAIROBI, 2nd April, 2015 Price Sh. 60 GAZETTE NOTICE NO.2235 CAUSE NO. 2131 OF 2013 IN THE HIGH COURT OF KENYA AT NAIROBI By John Cheretei, of P.O. Box 1, Nginyang in Kenya, the deceased’s father, through Messrs. Kerongo & Co., advocates of PROBATE AND ADMINISTRATION Nairobi, for a grant of grant of administration intestate to the estate of Joseph Kasait Cheretei, late of Nginyang, who died at District TAKE NOTICEthat applications having been made in this court Hospital, Chemolingot in Kenya, on 1st January, 2011. in: CAUSE NO.642 OF 2006 CAUSE NO. 2710 OF 2013 By (1) Selinah Jepkoech Kibogy and (2) Margaret Chemutai By (1) Jane Wairimu Karanja and (2) Rose Wanja Karanja, both of Rugut, both of P.O. Box 408-00517, Nairobi in Kenya, the deceased’s P.O. Box 805, Murang’a in Kenya, the deceased’s daughters, for a widow andsister, respectively, through Messrs. Kamotho Maiyo & grant of grant of administration intestate to the estate of Julius Karanja Mbatia, advocates of Nairobi, for a grant of grant of administration Ng’ang’a, late of Nairobi, who died at Kenyatta National Hospital in Kenya, on 4th December, 2007. intestate to the estate of Phillip Kimaiyo Kandie, late of Nairobi, who died along Langata Road, on 26th February, 2006. CAUSE NO. 1454 OF 2014 CAUSE NO. 1985 OF 2011 By (1) Betty Chepkorir Mosonik and (2) Erick Kiprono Mosonik, both of P.O.
    [Show full text]
  • Creating the New Constitution: a Guide for Nepali Citizens
    Creating the New Constitution: A Guide for Nepali Citizens Creating the New Constitution: A Guide for Nepali Citizens Editors Yash Ghai Jill Cottrell Contributors Bipin Adhikari Lok Raj Baral Surendra Bhandari Jill Cottrell Yash Ghai Krishna Hachhethu Krishna Khanal Dhruba Kumar Sapana Malla Kumar Regmi Geeta Pathak Sangroula Yubaraj Sangroula Pitamber Sharma Tek Tamrakar Mihir Thakur International IDEA publications are independent of specifi c national or political interests. Views expressed in this publication do not necessarily represent the views of Internatinoal IDEA, its Board or its Council members. @ International Institute for Democracy and Electoral Assistance 2008 Applications for permission to reproduce or translate all or any part of this publication should be made to: International IDEA SE - 103 34 Stockholm Sweden International IDEA encourages dissemination of its work and will promptly respond to request for permission to reproduce or translate its publications. Cover Photo: Deependra Bajracharya Graphic Design: Subarna Humagai ISBN : 978-91-85724-51-2 Preface The International Institute for Democracy and Electoral Assistance (International IDEA) is an intergovernmental organization that supports sustainable democratic change worldwide, including support to the constitution-making process. Since 2006, and on the basis of requests by national parties including political parties and more recently the Constituent Assembly, International IDEA has been providing support to the constitution-making process in Nepal. This support has focused mainly on the pro- visioning of resource materials and the convening of dialogues among national political actors on topics of key importance to the constitutional process. International IDEA will continue supporting the constitution-making process by open- ing avenues through which a broad cross-section of Nepali society can come together to discuss a host of constitutional issues.
    [Show full text]
  • Toward a Rule of Law Culture: Practical Guide
    TOWARD A RULE OF LAW CULTURE Exploring Effective Responses to Justice and Security Challenges PRACTICAL GUIDE Leanne McKay TOWARD A RULE OF LAW CULTURE Exploring Effective Responses to Justice and Security Challenges PRACTICAL GUIDE Written by Leanne McKay and edited by Adewale Ajadi and Vivienne O’Connor With contributions by Adewale Ajadi, Diane de Gramont, Hamid Khan, Rachel Kleinfeld, George Lopez, Tom Parker, and Colette Rausch UNITED STATES INSTITUTE OF PEACE Washington, D.C. United States Institute of Peace 2301 Constitution Avenue, NW Washington, DC 20037 www.usip.org © 2015 by the Endowment of the United States Institute of Peace. All rights reserved. First published 2015 To request permission to photocopy or reprint materials for course use, contact the Copyright Clearance Center at www.copyright.com. For print, electronic media, and all other subsidiary rights e-mail [email protected] Printed in the United States of America The paper used in this publication meets the minimum requirements of American National Standards for Information Science—Permanence of Paper for Printed Library Materials, ANSI Z39.48-1984. This guide is available in English, Arabic, and French at www.usip.org. The views expressed in this publication are those of the author alone. They do not necessarily reflect the views of the United States Institute of Peace. ii TOWARD A RULE OF LAW CULTURE A RULE OF LAW TOWARD Contents List of Figures .............................................................................................................................
    [Show full text]
  • Decolonising Accidental Kenya Or How to Transition to a Gameb Society,The Anatomy of Kenya Inc: How the Colonial State Sustains
    Pandora Papers: The Kenyatta’s Secret Companies By Africa Uncensored Published by the good folks at The Elephant. The Elephant is a platform for engaging citizens to reflect, re-member and re-envision their society by interrogating the past, the present, to fashion a future. Follow us on Twitter. Pandora Papers: The Kenyatta’s Secret Companies By Africa Uncensored President Uhuru Kenyatta’s family, the political dynasty that has dominated Kenyan politics since independence, for many years secretly owned a web of offshore companies in Panama and the British Virgin Islands, according to a new leak of documents known as the Pandora Papers. The Kenyattas’ offshore secrets were discovered among almost 12 million documents, largely made up of administrative paperwork from the archives of 14 law firms and agencies that specialise in offshore company formations. Other world leaders found in the files include the King of Jordan, the prime minister of the Czech Republic Andrej Babiš and Gabon’s President Ali Bongo Ondimba. The documents were obtained by the International Consortium of Investigative Journalists and seen by more than 600 journalists, including reporters at Finance Uncovered and Africa Uncensored, as part of an investigation that took many months and spanned 117 countries. Though no reliable estimates of their net worth have been published, the Kenyattas are regularly reported to be one of the richest families in the country. The Kenyattas’ offshore secrets were discovered among almost 12 million documents, largely made up of administrative paperwork from the archives of 14 law firms and agencies that specialise in offshore company formations.
    [Show full text]
  • Develop the Court Practice Directions on Children Cases. 8
    Published by: National Council on the Administration of Justice (NCAJ) Supreme Court Building, City Hall Way, Nairobi P. O. Box 30041 – 00100, Nairobi Tel. +254 20 2221221 [email protected] www.judiciary.go.ke Copyright © 2019 by National Council on Administration of Justice (NCAJ) Report writers: Dr. Sheila P Wamahiu, Jaslika Consulting, Kieya Kamau (Advocate) and Roselyne Kabata (Advocate) Cover design by: John Muriuki, Directorate of Public Affairs and Communications, Judiciary Design and Layout: Davies Mbinji, Artful Eyes Productions Copyright in the volume as a whole is vested in the NCAJ. Permits free production of the extracts from any of its publication provided that due acknowledgment is given and a copy of the publication carrying the extracts is sent to the publisher’s offices. Disclaimer: This publication has been developed with financial support from the United Nations International Children’s Emergency Fund (UNICEF). The views expressed herein do not necessarily reflect the views or policies of UNICEF. Creating a Culture of Justice International Development Law Organization Status Report on Children in the Justice System in Kenya By: The National Council on the Administration of Justice (NCAJ) Special Task Force on Children Matters Status Report on Children in the Justice System in Kenya 3 About the NCAJ The National Council on the Administration of Justice (NCAJ) is established under Section 34 of the Judicial Service Act (No. 1 of 2011). It is a high-level policy making, implementation and oversight coordinating mechanism as reflected in its membership comprising State and Non-State Actors from the justice sector. Its mandate is to ensure a coordinated, efficient, effective and consultative approach in the administration of justice and reform of the justice system.
    [Show full text]
  • Alternative Justice Systems Baseline Policy, 2020
    AlternativeALTERNATIVE JUSTICE SYSTEMS FRAMEWORKJustice SystemsPOLICY Baseline Policy traditional, informal and other mechanisms used to access justice in kenya (alternative justice systems) August 2020 Copyright © Judiciary of Kenya, 2020 Published by The Judiciary of Kenya P.O. Box 30041 - 00100, Nairobi Tel. +254 20 2221221 First edition: August 2020 All rights reserved. No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage and retrieval system, without written permission from the author or acknowledging the source except for the inclusion of brief quotations in a review. Cover photo: Allan Gichigi/UNODC Design and layout: Amina Darani/UNODC This publication was produced with technical assistance from the United Nations Office on Drugs and Crime (UNODC) and with the financial support of the European Union through the Programme for Legal Empowerment and Aid Delivery in Kenya (PLEAD). Its contents are the sole responsibility of the Judiciary of Kenya and do not necessarily reflect the views of the European Union or UNODC. JUSTICE AS FREEDOM1: TR ADITIONAL, INFORMAL AND OTHER MECHANISMS FOR DISPUTE RESOLUTION IN KENYA August 2020 Alternative Justice Systems Baseline Policy 1 This phrase is borrowed from Amartya Sen,Development as Freedom (Oxford University Press: Oxford, 1999). Accord- ing to Sen (at page 3), development should not be gauged solely from an economic perspective or opportunities that any project is likely to create. Rather, we need to take a transformative approach. This perspective entails reviewing also rights that any initiative promotes or curtails. Aligning AJS Mechanisms and Judiciary to the Constitution of Kenya (2010) and The Judiciary’s Blueprint for Sustaining Judicial Transformation TASK FORCE ON THE TR ADITIONAL, INFORMAL AND OTHER MECHANISMS FOR DISPUTE RESOLUTION IN KENYA Letter of transmittal Date: Friday, 17th August, 2020 Hon.
    [Show full text]
  • Decreeing and Establishing a Constitutional Order: Challenges Facing Kenya Yash Ghai 10 August 2009
    Decreeing and establishing a constitutional order: challenges facing Kenya Yash Ghai 10 August 2009 There is a renewed interest in a new constitutional order in Kenya. A bad constitution is blamed for the post-election crisis, allowing the president to pack the electoral commission with his cronies shortly before the election; a largely unaccountable electoral commission declaring presidential election results without proper counting or reliable records; enormous powers vested in the office of, or illegally appropriated by, the president; the centralisation of power in Nairobi; the lack of public participation; the lack of autonomy, effectiveness and legitimacy of state institutions, particularly those for accountability and justice, principally judges, police, prosecution and the attorney general; opportunistic political parties and unprincipled politicians; and resulting corruption and wide scale impunity. People often ask: would Kenya have been a better place today if the “Bomas” draft had not been sabotaged? This essay argues that a good constitution, while critical, is not equivalent to constitutional order. Enactment of a constitution is distinct from the adherence to its values, institutions and procedures. A constitution by itself makes no difference. Kenyan society determines the extent to which the constitution will be observed, manipulated, or disregarded, and therefore the extent to which constitutional reforms will have meaning. The notion of a constitutional order is broader than merely the text of the constitution. It represents a fundamental commitment to the principles and procedures of the constitution and therefore emphasises behaviour, practice, and internalisation of norms. A central feature is the depersonalisation of power. Power belongs to state offices, not to individuals, however exalted.
    [Show full text]