A Summary Of Articles In The Constitution Of Kenya That Have Constitutionalized Administrative Law

1. The constitution of Kenya 2010 and Administrative law.

The Constitution of Kenya 2010 provides for the right to a fair administrative action under Article 47 which provides that;

• Every person has the right to administrative action that is expeditious, efficient, lawful and procedurally fair.
• If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.
• Parliament shall enact legislation to give effect to the rights in clause(1) and that legislation shall;
  1. Provide for the review of administrative action by a court or, if appropriate  , an independent and impartial tribunal; and
  2. Promote efficient administration.

 Article 48 of the Constitution provides for as follows;

The state shall ensure access to justice for all persons and, if any fee is required, it shall be reasonable and shall not impede access to justice

 Article 50 of the Constitution;

• Provides for the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or , if appropriate, another independent and impartial tribunal or body
• Provides for Right to a fair trial to accused persons.
• Right to give information to an accused person in a language that he understands.
• Provides for exclusion of evidence that is obtained in a manner that violates any right or fundamental freedom in the Bill of Rights.
• Provides for rights of accused persons.
• Provides for the right to appeal.
• Provides for the right to a intermediary to assist a complainant or an accused person to communicate with the court.
• Provides for exclusion of the press or other members of the public only if it is to protect witnesses, or vulnerable persons, morality, public order or national security.
• Gives parliament a mandatory role to enact legislation providing for the protection, rights and welfare of victims of offences.

Article 59 of the constitution provides for the establishment of the Kenya Human Rights commissions and outlines its functions. 

Article 67 provides for the establishment of the National Land Commission to manage public land on behalf of the national and county governments and outlines its mandate.

Article 73 provides for the authority and responsibilities of leaders;

• That the authority assigned to a state officer is a public trust be exercised in a constitutional manner.
• Provides for the guiding principles of leadership and integrity which include among others; objectivity and impartiality, selfless service, honesty, accountability, discipline and commitment.

Article 75 provides for the conduct of state officers to behave in a manner that avoids conflict between personal interests and public or official interest in favor of a personal interest and provides for disciplinary action to be taken for state officers who contravene the said section.

Article 77 restricts a full time state officer from participating in any other gainful office, or political office and also restricts a retired state officer from receiving public funds other than pension.

 Article 79 gives the parliament a mandatory role to enact legislation to establish an independent Ethics and Anti Corruption Commission.

All these articles in the constitution prescribe general rules and principles for the lawful exercise of administrative power by state organs and state officers. They regulate the organization of administrative institutions and the fairness and efficacy of the administrative process, govern the validity of and liability for administrative action and inaction, and govern the administrative and judicial remedies relating to such action or inaction. To this extend, it is clear that the constitution has constitutionalized administrative law in Kenya.

2. Legislation enacted as a result of Constitutionalization of administrative Law in Kenya.

 There is now in place the FAIR ADMINISTRATIVE ACTION ACT (2015) to give effect to Article 47 of the Constitution, and for connected purposes. It provides for administrative action affecting public, procedure, judicial review and principles and rules of natural justice to be adhered to inter alia.

There is also in place the COMMISSION ON ADMINISTRATIVE JUSTICE ACT(2011) to restructure the Kenya National Human Rights and Equality Commission and to establish the Commission on Administrative Justice pursuant to Article 59(4) of the Constitution; to provide for the membership, powers and functions of the Commission on Administrative Justice, and for connected purposes.r