Constitution Law 1

Session 1

Introduction

1.1 Meaning of the Constitution and Constitutional law

1. A constitution is a set of fundamental principles or established precedents

according to which a state or other organization is governed. 1 The fundamental
law of the state, containing the principles upon which the government is founded,
and regulating the divisions of the sovereign powers, directing to what persons
each of these powers is to be confided, and the, manner it is to be exercised as,
the Constitution of the United States.

2. A constitution may also mean the act of constituting or state of being constituted

3. The words constitution and government are sometimes employed to express the
same idea, the manner in which sovereignty is exercised in each state.
Constitution is also the name of the instrument containing the fundamental laws
of the state.

4. By constitution, the civilians, and, from them, the common law writers, mean
some particular law; as the constitutions of the emperors contained in the Code.

5. The constitution of a contract is the making of the contract as, the written
constitution of a debt.2

A constitution may be defined as the fundamental law, written or unwritten, that

establishes the character of a government by defining the basic principles to which a
society must conform; by describing the organization of the government and
regulation, distribution, and limitations on the functions of different government
departments; and by prescribing the extent and manner of the exercise of its
sovereign powers.

It may also be defined as a legislative charter by which a government or group derives

its authority to act.

The concept of a constitution dates to the city-states of ancient Greece. The

philosopher Aristotle (384–322 b.c.), in his work Politics, analyzed over 150 Greek
constitutions. He described a constitution as creating the frame upon which the
government and laws of a society are built:

1
The New Oxford American Dictionary, Second Edn., Erin McKean (editor), 2051 pages, May 2005, Oxford
University Press,
2
1 Bell's Com. 332, 5th ed.
 A constitution may be defined as an organization of offices in a state, by
which the method of their distribution is fixed, the sovereign authority is
determined, and the nature of the end to be pursued by the association and
all its members is prescribed. Laws, as distinct from the frame of the
constitution, are the rules by which the magistrates should exercise their
powers, and should watch and check transgressors.

In modern Europe, written constitutions came into greater use during the eighteenth
and nineteenth centuries. Constitutions such as that of the United States, created in
1787, were influenced by the ancient Greek models. During the twentieth century, an
increasing number of countries around the world concluded that constitutions are a
necessary part of democratic or republican government. Many thus adopted their own
constitutions.

Different forms and levels of government may have constitutions. All 50 states of the
USA have constitutions, as do many countries including Japan, India, Canada, and
Germany. It is also common for nongovernmental organizations and civic groups to
have constitutions.

In its ideal form, a constitution emanates from the consent and will of the people
whom it governs. Besides establishing the institutions of government and the manner
in which they function toward each other and toward the people, a constitution may
also set forth the rights of the individual and a government's responsibility to honor
those rights.

Constitutions, whether written or unwritten, typically function as an evolving body of

legal custom and opinion. Their evolution generally involves changes in judicial
interpretation or in themselves, the latter usually through a process called amendment.
Amendment of a constitution is usually designed to be a difficult process in order to
give the constitution greater stability. On the other hand, if a constitution is extremely
difficult to amend, it might be too inflexible to survive over time.

The ongoing evolutionary nature of constitutions explains why England may be

described as having a constitution even though it does not have a single written
document that is designated as such. England's constitution instead inheres in a body
of legal custom and tradition that regulates the relationship among the monarchy, the
legislature (Parliament), the judicial system, and Common Law. Although England's
constitution is, in a sense, unwritten because it does not originate in a single
document, many written laws have been instrumental in its creation, and England in
fact has one of the oldest traditions of constitutionalism.
In a truly constitutional form of government, public officials are subject to
constitutional rules and provisions and may not violate them without punishment. Such
constitutional governments are also called limited governments because the
constitution restricts the scope of their power over the people. However, many
governments that have constitutions do not practice true constitutionalism. The former
Soviet Union, for example, created the 1936 Constitution of the Union of Soviet
Socialist Republics, also known as the "Stalin Constitution," but that document did not
establish a truly constitutional form of government. Joseph Stalin, the ruler of the
Soviet Union from 1924 to 1953, could not be formally penalized or called to account
for his actions, no matter how heinous, before any other government official, any
court, or the people themselves. The Soviet Constitution also claimed to guarantee
Freedom of Speech, press, and assembly, but in practice the Soviet government
continually repressed those who sought to express those freedoms. Constitutions such
as that of the former Soviet Union are called nominal constitutions, whereas those that
function more truly as prescriptive documents, such as the Constitution of the United
States, are called normative constitutions.

In the United States, individual state constitutions must conform to the basic principles
of the U.S. Constitution—they may not violate rights or standards that it establishes.
However, states are free to grant rights that are not defined in the U.S. Constitution, as
long as doing so does not interfere with other rights that are drawn from it. For this
reason, groups or individuals who seek to file constitutional claims in court are
increasingly examining state constitutions for settlement of their grievances. In the
issue of School Desegregation, for example, groups such as the National Association
for the Advancement of Coloured People (NAACP) began in the 1990s to shift focus to
the state level, with the hope of finding greater protection of rights under state
constitutions.

In many states, however, courts have construed their respective state constitutions to
provide rights that are equivalent to those provided under the U.S. Constitution. For
example, in Jackson v. Benson, 578 N.W.2d 602 (Wisc. 1998), the Wisconsin Supreme
Court, citing settled precedent, noted that the Wisconsin Constitution's provisions
relating to Equal Protection provide the same rights as those provisions in the federal
counterpart, even though the Wisconsin provisions are phrased quite differently. The
NAACP claimed that a school program in Milwaukee, which allowed parents of certain
qualifying students of public schools in the city to send their children to any private,
non-sectarian school of their choice at no cost, was enacted with discriminatory intent.
The court treated the state and federal constitutional claims of the NAACP as alike.

1.2 Constitutional Law

Constitutional law essentially encompasses all the foundational laws that our country is
based upon. The creation and execution of laws by the government and the scope of
power and authority given to the government is regulated by constitutional law. Just as
it sounds, it is based off of the tenets of a constitution and all the elements within the
constitution that outline the power of the government, state and people.

Constitutional law is the body that governs the implementation and interpretation of
the constitution. It sets forth of the terms of the Constitution and directly describes the
range and use of these terms. It covers areas of law like relationships between states
and the federal governments, the rights of individuals and citizens of this country and
all other areas concerned with constitutional law.

Because the constitution lays out so many rules it has been argued that it is open to
interpretation and not meant to be taken literally. Judges are often divided by how
much they stick to the constitution and how much they interpret it in different ways.
Some say a literal translation of the constitution is best, others say that the terms are
far too vague to be used specifically and that the constitution should be treated more
as a guideline than anything else.

All other forms of law necessarily fall under the auspices of constitutional law. Because
it is so huge, there are many details to go into; enough books have been written about
this type of law to render anything but a summary unnecessary. Suffice to say,
constitutional law is the law that supersedes all others and one that literally
determined the founding of the nation of the United States of America.

1.3 The Distinction between Public Law and Private Law

Private law is concerned with the relationship that individuals have with one another.

It may also involve other entities than individuals, e.g. public authorities in their legal
persona e.g. when an individual signs a contract with the municipal council to supply
construction materials.

Public law, to which Constitutional law is subsumed, is that law concerned with the
power of the State. They are concerned with the location of state powers.

1.4 Public Law and Criminal Law

Criminal law is generally a part of public law but usually taught separately

1.5 Public Law and Politics

Public law is intricately linked to political science and government. E.g. some sources
of the constitution are actually political i.e. the constitutional conventions

1.6 Constitutional Law and Administrative law

‘Constitutional law is concerned with the role and powers of administrative institutions
within the State and with the relationship between the citizens and the State’

H. Barnett, Constitution and Administrative law (6th edn, Routledge

Cavendish, 2006) p. 3

‘Administrative law may be said to be the body of general principles which govern the
exercise of power and duties by public authorities.’

H Wade and W. Forsyth, Administrative Law (9th Edn, OUP, 2004) p. 5.

1.7 The Scope of the Kenyan Constitution

PREAMBLE

CHAPTER ONE: art 1 -3 - Sovereignty of The People and Supremacy of the Constitution

CHAPTER TWO: The Republic – art 4 - 11

—Declaration of the Republic

—Territory of Kenya

—Devolution and access to services

—National, official and other languages

—State and religion

—National symbols and national days

—National values and principles of governance

—Culture

CHAPTER THREE, art 12 - 18: Citizenship

—Entitlements of citizens

—Retention and acquisition of citizenship

—Citizenship by birth

—Citizenship by registration

—Dual citizenship

—Revocation of citizenship

—Legislation on citizenship

CHAPTER FOUR, art 19 - 59: The Bill Of Rights

a) Part 1— General provisions relating to the Bill of Rights: Rights and fundamental
freedoms; Application of Bill of Rights; Implementation of rights and
fundamental freedoms; Enforcement of Bill of Rights; Authority of courts to
uphold and enforce the Bill of Rights; Limitation of rights or fundamental
freedoms; Fundamental Rights and freedoms that may not be limited

b) Part 2— Rights and fundamental freedoms: Right to life; Equality and freedom
from discrimination; Human dignity; Freedom and security of the person;
Slavery, servitude and forced labour; Privacy; Freedom of conscience, religion,
belief and opinion; Freedom of expression; Freedom of the media; Access to
 information; Freedom of association; Assembly, demonstration, picketing and
petition; Political rights; Freedom of movement and residence; Protection of
right to property; Labour relations; Environment; Economic and social rights;
Language and culture; Family Consumer rights; Fair administrative action;
Access to justice; Rights of arrested persons; Fair hearing; Rights of persons
detained, held in custody or imprisoned;

c) Specific application of rights;

— Interpretation; Children; Persons with disabilities; Youth; Minorities and

marginalised groups; Older members of society

d) State of emergency;

e) Kenya National Human Rights and Equality Commission

CHAPTER FIVE: Land and Environment

Part 1— Principles of land policy: Classification of land

— Public land; Community land; Private land

— Landholding by non-citizens

— Regulation of land use and property

— National Land Commission

— Legislation on land

Part 2— Environment and natural resources: Obligations in respect of the environment;

Enforcement of environmental rights; Agreements relating to natural resources;
Legislation relating to the environment

CHAPTER SIX, art 73 – 80 - Leadership and Integrity:

Responsibilities of leadership; Oath of office of State officers; Conduct of State officers;

Financial probity of State officers; Restriction on activities of State officers; Citizenship
and leadership; Legislation to establish the ethics and anti-corruption commission;
Legislation on leadership

CHAPTER SEVEN art 80 - 92: Representation of the People

—Electoral system and process; General principles for the electoral system

—Legislation on elections

—Registration as a voter

—Candidates for election and political parties to comply with code of conduct
—Eligibility to stand as an independent candidate

—Voting

—Electoral disputes

—Independent Electoral and Boundaries Commission and delimitation of electoral units

—Independent Electoral and Boundaries Commission

—Delimitation of electoral units

—Allocation of party list seats

Part 3—Political Parties: Basic requirements for political parties; Legislation on political
parties

CHAPTER EIGHT: The Legislature

—Establishment and role of Parliament; Establishment of Parliament; Role of

Parliament; Role of the National Assembly; Role of the Senate; Composition and
membership of Parliament; Membership of the National Assembly; Membership of the
Senate; Qualifications and disqualifications for election as member of Parliament;
Promotion of representation of marginalised groups; Election of members of
Parliament; Term of Parliament; Vacation of office of Member of Parliament; Right of
recall; Determination of questions of membership

Part 3—Offices of Parliament

— Speakers and Deputy Speakers of Parliament; Presiding in Parliament; Party

leaders;

— Procedures for enacting legislation; Exercise of legislative powers; Bills

concerning county government; Special Bills concerning county governments;
Ordinary Bills concerning county governments; Mediation committees

— Money Bills

— Presidential assent and referral

— Coming into force of laws

— Parliament’s general procedures and rules

— Powers, privileges and immunities

— Public access and participation; Right to petition Parliament

— Official languages of Parliament

— Quorum
 — Voting in Parliament

— Decisions of Senate

— Committees and Standing Orders

— Power to call for evidence

— Miscellaneous

— Location of sittings of Parliament

— Parliamentary Service Commission

— Clerks and staff of Parliament

CHAPTER NINE: The Executive

Part 1—Principles and Structure of the National Executive: Principles of executive

authority; The National Executive

Part 2—The President and Deputy President: Authority of the President; Functions of
the President; Power of mercy; Exercise of presidential powers during temporary
incumbency; Decisions of the President; Election of the President; Qualifications and
disqualifications for election as President; Procedure at presidential election; Death
before assuming office; Questions as to validity of presidential election; Assumption of
office of President; Term of office of President; Protection from legal proceedings;
Removal of President on grounds of incapacity; Removal of President by impeachment;
Vacancy in the office of President

—Functions of the Deputy President; Election and swearing-in of Deputy President;

Vacancy in the office of Deputy President; Removal of Deputy President

—Remuneration and benefits of President and Deputy President

Part 3—The Cabinet: Decisions, responsibility and accountability of the Cabinet;

Secretary to the Cabinet; Principal Secretaries; Other offices

—Attorney-General

—Director of Public Prosecutions

—Removal and resignation of Director of Public Prosecutions

CHAPTER TEN: Judiciary

—Judicial authority and legal system: Judicial authority; Independence of the Judiciary;
Judicial offices and officers

—System of courts: Superior Courts - Supreme Court; Court of Appeal; High Court
—Appointment of Chief Justice, Deputy Chief Justice and other judges; Tenure of office
of the Chief Justice and other judges; Removal from office

—Subordinate courts

—Kadhis’ Courts

—Judicial Service Commission: Establishment of the Judicial Service Commission;

Functions of the Judicial Service Commission: Judiciary Fund

CHAPTER ELEVEN: Devolved Government

—Objects and principles of devolved government

—Objects of devolution

—Principles of devolved government

—County governments

—County governments

—Membership of county assembly: Speaker of a county assembly

-- County executive committees

—Election of county governor and deputy county governor

—Removal of a county governor

—Vacancy in the office of county governor

— Functions of county executive committees

—Urban areas and cities

—Legislative authority of county assemblies

—Functions and powers of county governments

—Respective functions and powers of national and county governments

—Transfer of functions and powers between levels of government

—The boundaries of counties

—Boundaries of counties

—Relationships between governments: Cooperation between national and county

governments; Support for county governments; Conflict of laws: Suspension of county
governments
—Qualifications for election as member of county assembly; vacation of office of
member of county assembly

—County assembly power to summon witnesses

—Public participation and county assembly powers, privileges and immunities

—County assembly gender balance and diversity

—County government during transition

—Publication of county legislation

— Legislation on Chapter

CHAPTER TWELVE: Public Finance

—Principles and framework of public finance: Equitable sharing of national revenue;

equitable share and other financial laws

—Equalisation Fund

—Consultation on financial legislation affecting counties

—Other public funds: Consolidated Fund and other public funds; Revenue Funds for
county governments

—Contingencies Fund

—Revenue-raising powers and the public debt: Power to impose taxes and charges:
Borrowing by national government: Borrowing by counties: Loan guarantees by
national government; Public debt

—Revenue allocation: Commission on Revenue Allocation

—Division of revenue: Annual Division and Allocation of Revenue Bills; Transfer of

equitable share; Budgets and spending; Form, content and timing of budgets; Budget
estimates and annual Appropriation Bill; Expenditure before annual budget is passed;
Supplementary appropriation

—County appropriation Bills

—Control of public money: Financial control; Accounts and audit of public entities;
Procurement of public goods and services

— Financial officers and institutions: Controller of Budget; Auditor-General; Salaries

and Remuneration Commission; Central Bank of Kenya.

CHAPTER THIRTEEN: The Public Service

—Values and principles of public service

—The Public Service Commission: Functions and powers of the Public Service
Commission; Staffing of county governments; Protection of public officers

—Teachers Service Commission

CHAPTER FOURTEEN: National Security

Part 1—National Security Organs

238—Principles of national security

239—National security organs

240—Establishment of the National Security Council

Part 2—The Kenya Defence Forces

241—Establishment of Defence Forces and Defence Council

Part 3—The National Intelligence Service

242—Establishment of National Intelligence Service

Part 4—The National Police Service

243—Establishment of the National Police Service

244—Objects and functions of the National Police Service

245—Command of the National Police Service

246—National Police Service Commission

247—Other police services

CHAPTER FIFTEEN: Commissions and Independent Offices

—Application of Chapter

—Objects, authority and funding of commissions and independent offices

—Composition, appointment and terms of office

—Removal from office

—General functions and powers

—Incorporation of commissions and independent offices

—Reporting by commissions and independent offices

CHAPTER SIXTEEN: Amendment of the Constitution

—Amendment by parliamentary initiative

—Amendment by popular initiative

CHAPTER SEVENTEEN: General Provisions

258—Enforcement of this Constitution

259—Construing this Constitution

260—Interpretation

CHAPTER EIGHTEEN: Transitional and Consequential Provisions

SCHEDULES

First Schedule – Counties; Second Schedule - National symbols; Third Schedule -

National Oaths and affirmations; Fourth Schedule - Distribution of functions between
National and the county governments; Fifth Schedule - Legislation to be enacted by
Parliament; and Sixth Schedule - Transitional and consequential provisions.