AN INSIGHT INTO THE HISTORY OF LABOUR LAW IN KENYA

HISTORY OF LABOUR LAW

What are labour laws?

Labour law can be said to be a body of rules regulating the legal relationships of “dependent employed persons”. Anybody who is obliged to work for someone else as a result of an employment contract is dependent or not self-employed. Labour law not only regulates the relationship between individual employees and employers but also between the state as the public authority and the employer where by the individual employee is the object of protection.

A History of the Kenyan Labour Laws.

The Kenyan Labour laws originally emanated from England and were imposed by the colonialists to Kenyan natives. The colonial government of the British already had structures set on base in their colonies, including Kenya. The secretaries of state and other British government cabinet ministries relied solely on news of the colonies from the governor. The governor was in charge of seeking parliamentary consent from the British government on new laws, as well as being able to implement minor changes in policy and loan development. Until 1925 the office was responsible for a number of aspects including labour .However it was around this time that labour became a matter of interest to the government and prompted the British government to reform the labour laws then. It was also a time period where anti-slavery and missionary societies had begun to keep a close watch on the British colonies. They were followed closely by political activists and trade union organizations, the International Labour organization and the international confederation of free trade unions had also started to exert pressure and due to this, it forced the colonial government to review its standings.

The white settlers in Kenya were also up at arms with call for smaller tribal reserves for the Africans forcing them to live on settler farms and provide labour. Higher taxes were implemented on Africans and they were forced to work ,with identity cards 'kipande' that allowed them to work and pay taxes as well as keep them in check while the settlers on the farms. This led to legislation being formed for there to be order but these laws were however advantageous to the minority white class and very limiting to the Africans.

The first trade union in Kenya was the Labour trade union of Kenya (LTUK), formed by Makhan Singh in 1935. The  enactment  of  the  Trade Union Ordinance in 1937 mandated any organization purporting  to  be  a  trade  union  to  either  apply  for registration or cease operation. European settlers used the  press,  for  example  The  East  African  Standard which  was  under  European  control,  to  clamp  down on the nascent trade unions terming trade unionists as irresponsible  agitators.  However, pressure  from  the British government, led to the creation of the post of Trade union Officer to  guide trade unionism .Thus in 1947, James Patrick  became the  first trade  union  Labour  Officer  in  Kenya.  In  the  same year,  F.W.  Carpenter,  the  acting  Labour Commissioner  stated  that,  Africans  would  only  be allowed  to  form  trade  unions  as  long  as  they embraced  the  tenets,  purposes  and  organization  of trade unions . It was, asserted that he would not sanction the formation of trade unions by uneducated laborers who still lacked good qualities of  leadership  and  organization  such  as  farm labourers.

In 1944 the International Labour Organization (ILO) issued its first charter in Philadelphia, and it was held that by the charter 'the improvement in living standards shall be regarded as the principle objective in the planning of economic development’. The aim to improve living standards, a system of industrial relations was envisaged which also featured collective bargaining^[1].

By 1945, employment management and welfare work had become integrated under the broad term ‘personnel management’. Experience of the war had shown that output and productivity could be influenced by employment policies. The role of the personnel function in wartime had been largely that of implementing the rules demanded by large-scale, state-governed production, and thus the image of an emerging profession was very much a bureaucratic one.

The Protective Labour Code

In 1946, the Labour department in Nairobi enacted the protective labour code for Africans. This helped settle down the cruel practices by land owners on Africans .The government meant to set up a new relationship between the labourers and their respective employers, the trade unions set up to cater for even the bares minimal wage worker, though they were taken care of by other legislation^[2].

After 1949 the Employment ordinances(employment of native ordinance, resident native labourers ordinance) was no longer issued out on a racial basis, previously it was issued to  Africans only but now it was issued to all races in the country.

The 1950 saw the introduction of wages and the beginning of a long process of economic individualization^[3].However it was a low wage rate. Suddenly a new consumer market came into place. In 1952^[4] violence erupted, the new laws and changed lifestyles put a toll on the people. The rise of the Mau Mau saw a time of difficulty for the British government; this in turn led to the African being imposed to new restrictions and harsh labour conditions. The rise of Tom Mboya was a welcomed call, his knowledge of the law saw him become the secretary of the Kenya Federation of Labour a trade union and the leading spokesman of East Africa.

In 1956 the local European politicians and small business firms were dwindling in power leading the expatriate firms in the country to form their own organization known as the Federation of Kenya Employers that still exists until today. The nineteen fifties saw the unionization of trade unions and the rise of trade unions as a whole carried through post-independence.

Pre and post-Independence period in Kenya

The Kenyan workers embarked on long talks with government and in October 1962, a landmark was established with the signing of the Industrial Relations Charter by the government of Kenya, the Federation of Kenya Employers and the Kenya Federation of Labor, the forerunner of COTU (K), the Central Organization Of Trade Unions (Kenya)  .

The Industrial Relations Charter spelt out the agreed responsibilities of management and unions and their respective obligations in the field of industrial relations, it defined a model recognition agreement as a guide to parties involved, and it set up a joint Dispute Commission .The Industrial Relations Charter has been revised twice since then, but remained the basis for social dialogue and labour relations in Kenya throughout the years.

Following the independence from the British government there was an Industrial Court in 1964; which was an additional basic cornerstone laid for the development of amicable conflict resolution in Kenya in matters relevant to labour.

Kenya being a brand new state was experiencing a flourish in its economy. It was believed that long-term and sustained high rates of economic growth would facilitate generation of employment opportunities at rates higher than the proportionate increase in the labour force^[5].This was by 1969, the government issued high wages expected to stabilize the labour force, lead to rapid growth in labour productivity and enhance industrial competitiveness and employment creation. It was also a time that saw the policies of the colonial government being either changed completely to suit the current Kenyan situation or being adopted into the Kenyan situation. However the growth of the country did not come without its own share of problems, there was a high number of unskilled people and very few educated people who actually went further than high school. The skills needed were lacking and there were hence a large number of unemployed Kenyans.

The 1970’s saw a time when government sought and also implemented to address the country’s employment problem included promotion of growth and development of the informal and jua- kali sector, adoption of fiscal and short-term measures such as tripartite agreements, among others. The tripartite agreements were particularly entered into by government, employers and organized labour (trade unions) in 1970 and 1979. Under the agreement, employers were to increase their employment levels by at least 10 percent per annum. In return, workers were to observe a wage freeze and strike free environment during the period^[6].

By 1983 the need for rapid economic growth in order to compete with other world markets became apparent. This entailed a deliberate effort by the government to increase employment opportunities for Kenyans through replacement of non-citizens. Measures used to achieve this included exclusion of foreigners in rural trade, use of work permits to control employment of expatriates, redistribution of large agricultural farms and increased investments in human capital formation^[7].

In the 1990s and early 2000s, government employment interventions targeted enhancing the acquisition and promotion of efficient use of labour market information, reliance on market forces to mobilize resources for sustained growth, provision of public infrastructure, industrial policy, enhancement of private sector investment and participation in the economy, promotion of industrial harmony and productivity and liberalization of the labour market^[8].

The Labor Law Reform Agenda

 In May 2001, a taskforce to review the labor laws was appointed by the Attorney General (Gazette Notice No. 3204), within an International Labor Organization project. The terms of reference for the Taskforce were:

1. To examine and review all the labor laws including: The Employment Act (Cap.226); The Regulation of Wages and Conditions of Employment Act (Cap. 229); The Trade Unions Act (Cap. 233), The Trade Disputes Act (Cap. 234), The Workmen’s Compensation Act (Cap. 236), The Factories Act (Cap. 514) and make recommendations for appropriate legislation to replace or amend any of the labor law statutes;
2. To make recommendations on proposals for reform or the International Labor Organization to which Kenya was a party.
3. To make recommendations on such other matters related to or incidental to the foregoing^[9].

This taskforce saw labour as a body being reformed and the laws that were in existence then repealed. The labour laws were enacted in 2007 improved the environment for employers, employees and trade unions. Parliament enacted five labour laws — the Employment Act, Labour Institutions Act, Labour Relations Act, Occupational Safety and Health Act and Work Injury Benefits Act. The aim of the laws was to repeal and replace six core labour laws^[10] and bring them into conformity with the current challenges and demands of national development and international labour standard.

Sources of Labour law in Kenya

Presently, the sources of labour law in Kenya include: The Constitution of Kenya; statutes, judicial precedents (court decisions); the Common law, that is the law which is not legislation and law as was applicable in England in 1st August 1897; Custom; International labour standards (ILO Conventions and treaties); and, legal writing- views of legal authors which are not binding but persuasive to courts.

The 2010 Kenyan Constitution

The 2010 Kenyan Constitution, deals with fundamental human rights^[11]; guaranteeing the rights and freedoms of an individual. Within these rights and freedoms, there are the general principles that anchor and reflect internationally accepted and practiced labour rights.  All this is contained in Chapter four of the Constitution under The Bill of Rights^[12].

The Bill of rights applies to all law and binds all state organs and all persons.  A person is defined by the Constitution to include a company, association, or other body of persons whether incorporated or unincorporated.  Thus, there can be an enforcement of the rights against private persons such as an employer suing employee for unfair labour practices and vice versa.

Other rights are as follows: Equality and freedom from discrimination, Human dignity,Slavery, servitude and forced labour , Freedom of conscience, religion, belief and opinion, Freedom of expression, Access to information, the Freedom of Association  and Assembly, demonstration, picketing and petition . However, the most definite of these rights in relation to labour is Article 41^[13].

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[1] Amsden H.Alice (1971). International firms and Labour in Kenya; Psychology press, Google Books.

[2] ibid

[3] Anthony clayton, Donald C.savage,1974,Govermant and Labour in Kenya,1895-1963,Psychology Press,Google books

[4] State of emergency

[5] Jacob Omollo (2010). Dynamics and Trend of Employment in Kenya, I EA RESEARCH PAPER, SESSIONALN0.1/2010, Institute of economic Affairs, Kenya.

[6] See note 10 above

[7] ibid

[8] ibid

[9] SME Tool Kit Kenya,2012,Important Information Regarding Labour Law in Kenya,adapted from the website http://kenya.smetoolkit.org/kenya/en/content/en/6159/Important-information-regarding-labor-law-in-Kenya. Retrieved on 29 January at 3:00 pm

[10] These are the following :

a)The Employment Act,

b)The Regulations of Wages and Conditions of Employment Act,

 c)The Trade Disputes Act

 d)The Trade Union Act

  e)The Workman’s Compensation Act, and

   f)The Factories and Other Places of Work Act.

[11] Article 19 (2) “…preserve the dignity of individuals and communities and to promote social justice and the realization of the potential of all human beings.”

[12] Article 19 The Constitution of Kenya, 2010; on purpose of the Bill of rights is to recognize and protect human rights, fundamental freedoms, dignity of individuals and communities; and, to promote social justice and realization of the potential of all human beings.

[13] Article 41 (1): “Every person has the right to fair labour practices.”

                “       (2): Every worker has the right to fair remuneration, reasonable working conditions, to form, join or participate in the activities and programmes of a trade union and to go on strike.

               “            (3) – Every employer has the right to form and join an employer’s organization; and to participate in the activities and programs of an employer’s organization.

                 “         (4):“Every trade union and employers’ organization has the right –a) To determine its own administration, programmes and activities; b) To organize; and c)To form and join a federation.”

                 “          (5) – Every trade union, employers’ organization and employer has the right to engage in collective bargaining.

The Relationship between Law and Politics. (Kenya)

Introduction

Legislation is the second key source of law and usually takes priority over sources of law other than the Constitution.[1] It involves the law making process[2]. Article 94 of the Constitution provides for the role of parliament generally.[3] The major role of parliament is in making laws affecting the citizens who are represented by their members of parliament. There may be more than one legislative body in a country - central, provincial or state and municipal authorities may each have separate power to legislate. Rules will determine the extent to which and in what areas one legislative body has priority over another.

Primary legislation may delegate powers to a particular ministry or regulator to prepare secondary legislation designed to supplement and develop the principles set out in the primary legislation. For example, tariff setting guidelines for a regulatory authority that is established by primary legislation may be set out in secondary legislation. Secondary legislation is usually not subject to full parliamentary scrutiny guidelines and so is faster to enact. However, it may be more difficult to identify than primary legislation as it may be recorded in subsidiary documents. Most of the laws in Kenya emanate from an act of Parliament.

Politics is simply the various activities in social organizations in which people strive to increase their power and to promote their interests.[4] We speak of politics in labour unions, academic, and voluntary organizations, as well as in the state. The focus here is upon the politics of the state, especially by representatives in legislatures. Even politics is so circumscribed can occur at two levels which it is important to keep distinct. One level is that of the constitution in establishing the fundamental structure of the state. The second level is that of ordinary law and decision making, particularly the making of statutes and regulations and their application to particular cases.

The relationship between law and politics:

In democratic orders, modern law and politics, as a general rule, intensively confront one another in legislative and other parliamentary procedures. This is where the influence of politics on law is the strongest. Nevertheless, modern law maintains a great amount of autonomy. This autonomy is achieved through: the fact that interest groups never fully determine the decisions of a pluralistic legislative body or could direct such body exclusively according to political preferences; substantive and procedural legal rules, which to a large degree determine the limiting framework where the legislature operates and creates certain parliamentary practice (routine), which it is difficult to depart from (the predominance of legal formalism); and the independent judiciary that limits excessive political aspirations and places them within the legal limits of functioning.[5] What is especially important today in many countries is the role of constitutional courts. These courts, as a general rule, routinely interfere with the politically conditioned and interwoven activities of the legislative and executive branches of power, and therefore their decisions are naturally more or less politically colored. Also, a certain level of legal awareness can be added to all this. Legal awareness always develops in political actors and directs them as an internal commitment to observing fundamental legal values and the existing law.

This dependence of law on politics is converted by Hart into an analytical relationship. It is logically inconceivable for a legal system to exist without an ultimate rule of recognition which is defined as one accepted by officials. This analytic dependence of law on politics is found in all theories, such as Kelsen’s, [6]which maintain effectiveness is a necessary condition for law. Effectiveness depends on a political order, which implies political arrangement on the structure of the order. Of course, such a political order need not be thought best or even good by a majority of the populace, yet the power positions must be controlled by persons who largely agree about the constitutional structure of power.

According to the first of these ideal-typical answers to the question of how the law and politics are related, the law is depicted as structurally rigid towards politics. Legal positivism as espoused by Hans Kelsen, Herbert L. A. Hart’s analytical jurisprudence, and Niklas Luhmann’s autopoietic approach to the law can be ascribed to this ideal-typical answer. Even the recent developments within legal positivism, in particular in the inclusive direction, do not significantly affect this idea as embraced here. Both the inclusive and exclusive legal positivisms remain anchored in the general legal positivistic idea that the law is something per se different from the political phenomenon and the kind of moral, economic or cultural values that the latter expresses. [7]This embracing of an idea of rigidity of the law does not mean that legal positivism and analytical jurisprudence claim the absence of any contact between the two different orders. Neither Kelsen nor Hart deny the fact that law, in particular in this contemporary age, is mostly produced by political actors, i.e. by institutional subjects whose primary goal is to see their values implemented into a community. For both Kelsen and Hart, the law certainly is open to receiving contributions to its content from the surrounding political world in terms of values. However, the structures of the law (either in terms of Sollen or of legal language) still tend to be rigid, i.e. to remain the same no matter the values that enter.[8] For example, the leading figure of exclusive (or ‘hard’) legal positivism, Joseph Raz, states that, in the end, “the law consists of authoritative positivist considerations enforceable by courts.”[9] Raz then brings the ontologies of all constitutive elements of what law is, namely legal authority, legal consideration and legal courts, back under the shadow of the legal world. Even the most temperate version of the current legal positivistic movement, the institutional theory, begins with the assumption of structural diversity between the law and the world of values.[10] It is even fully possible for Hart, who openly acknowledges that legal rules are a specific kind of social rules grounded upon social practices and common values (“minimum content of natural law”), to identify legal concepts and categories in terms of rules and standards by making reference to the legal linguistic structure and complex as it appears to the legal actors, without making reference to any political elements that may lie behind (or outside) such language. This does not mean that according to Hart, the legal and political phenomena are totally separate. He simply stresses the fact that the legal system, even if surrounded by a social context, is still rigid towards the values the latter produces. The legal system is a specific phenomenon, whose hard-core, namely the legal rules shaped in legal language, is affected by the different value-environments, but only in terms of the content of the messages such rules transmit to the community (e.g. behavior f instead of e), not in the way such messages are actually transmitted (e.g. with legal rights and legal obligations).[11]

Though it is often difficult to find common elements in the American and the Scandinavian legal realisms, their attitudes concerning the issue of law and politics bring them to the same path: the proposal of an idea of law as partially rigid towards politics. Legal realists see the law as a phenomenon whose essence eventually consists of being a specific normative phenomenon, i.e. in terms stressing the separation and rigidity of the legal structure towards the political world. As for legal positivism and analytical jurisprudence, law is conceived as a technology instrumental to politics, with its own space and its own rules.[12]  However, the legal realists’ theories also constantly stress the fact that the law is more than a logical and closed system of rules written on paper, more than the law-in-books. For the legal realists, the law is an empirical phenomenon, constituted by a combination of human behaviors and prevalent ideas among human beings as to what constitutes the law. The law is primarily the law-in-action.[13] The legal realists then open the door to the empirical aspects of the legal phenomenon as constitutive elements of the very nature of law, an opening both to the concrete behaviors of human beings and to their socio-psychological underpinnings. As a consequence, the idea of what the law is ends up including a normative hard-core but also elements of a non-normative nature, in particular of sociological and political origins.[14] For this very reason, the theories of the legal realists can generally be seen as having the idea of a partial rigidity of the law in relation to politics.  For example, the rigidity of the law towards politics exists in the basic assumption by American legal realists that the law is not simply paper rules.

How politics has affected the Kenyan society in general

Through politics there has been an appearance of vices that are in favor of the ruling class and their so called ‘followers’. It can be observed that they are highly favored because one of their own is in power; such vices are corruption and nepotism that have become predominant in the Kenyan political scenario.

In Kenya it has been observed that political patronage works in governments which tend to be unpopular with the citizenry to ensure that only their narrowly drawn and often ethnic constituencies have access to public resources, such as lucrative public procurement   contracts.[15] Accordingly, public resources are therefore a means through which such governments “purchase” legitimacy to remain in power. A Standard Newspaper commentary (Monday 21^st June, 2010) observes that tribe has become a factor in influencing decision making, appointments, deployment of resources and promotion in many public sector institutions in Kenya. The commentary observes that tribalism is now a major concern in many institutions with a clear lack of consideration of regional balance in appointments or promotions leading to a growing disproportionate distribution of personnel in the country. Nepotism has been observed as a vice that politics has brought about.

Another vice predominant in the Kenyan scenario is corruption a recent example is that of the procurement of the Standard gauge Railway line. Critics allege corrupt networks are “eating something big” on the project and want it suspended. Supporters say saboteurs – and political enemies of the Jubilee Government – are out to derail the project either because they bid and lost, or they just want to rain on President Uhuru Kenyatta’s party. However this may yet turn out to be one of the corruption scandals that have become synonymous with Kenya.

Kenyans are frequently asked for bribes to gain access to services such as education and health care. While, expressing concern about the significant increase in the level of corruption in both public and private institutions that year, Transparency International reported in this study that 45% of respondents claimed to have paid bribes to speed up access to basic services compared to 29% in 2007. According to this report, this is a stack reminder that corruption remains a significant challenge to public service delivery in Kenya. According to the study, some parents paid as much as Kshs. 2,654 to secure admission for their children to private universities. Respondents also paid bribes to obtain employment, licenses or permit to avoid a brush aside with the law or some punitive measure.[16]

These are just some of the negative effects of politics in Kenya and how it has been used without regard to the law. The vices that I have stated above clearly show the dictatorial nature that the politics of Kenya tend to take and the way they lock out the Kenyan populace in accessing fairly the services offered.

It is also fundamentally important to note that politics are not bad in any way when practiced accordingly with regard to the law. It is through good politics and political ideologies that economies have surged forward. It is important to note that politics are necessary in any community if progress is to be achieved. In any way democracy advocates that the will of the majority be heard and sometimes the only way for this to happen is through politics. Also it is by the practice of good politics that the countries grow and move forward; good politics should be encouraged. However there should also be a regulation so as to prevent the bad elements of politics from creeping in to the political spheres. Whether this is attainable remains a question to be answered by each and every country on its own.

Regulation of politics through the law in Kenya:

The enactment of the Constitution of Kenya 2010 has been a milestone in this regard. This Constitution has empowered the citizenry who are now more informed and together with the civil society, are now actively involved in the push for accountability and good governance.

This has been projected in the various demonstrations that have been staged recently thus showing that the Kenyan citizenry is ready to fight bad politics. Through this Constitution, the country has witnessed hiring and vetting of judges through public participation. This has been the case for senior public officers. The Kenyan Parliament has increasingly become assertive and in some instances has vetoed certain decisions of the executive which was not there in the past. The Judiciary has equally become assertive and independent in their judgments. There are instances where the Bench has overturned the decisions of the executive on the grounds of their unconstitutionality. This has shown that the constitution of Kenya clearly appreciates the doctrine of Separation of powers. The checks and balances as provided for in the constitution and as expounded by the Separation of Powers Doctrine of Parliament, Executive and Judiciary should not only be upheld to the spirit and letter, but also enhanced to ensure none of these institutions exceeds their mandate as has been the case with the Executive arm of government in the past.

Chapter 6 of the Constitution sets criteria of all those aspiring for various public offices as follows: the selection shall be on the basis of personal integrity, competence and suitability, or election in free and fair elections; objectivity and impartiality in decision making where nepotism, favoritism, improper motives, and corrupt practices are discouraged; public interest is demonstrated by honesty, integrity, accountability, and commitment to the service of the people.[17] Most importantly, such officers must meet the moral and ethical considerations as shall be laid down in an Act of Parliament. This is a clear attempt of the Kenyan people to control the influence of their leaders in the management of public affairs. This being a people driven Constitution, is a further indication that the political patronage had been the main challenge in the management of public affairs and had to be controlled.

Chapter 6 of the Constitution regarding Leadership and Integrity should be fully operationalized by having Parliament enact enabling legislations as provided for in Section 80 of the Constitution.

The Ethics and Anti-Corruption Commission as established under Section 79 of the Constitution for purposes of ensuring full compliance with the requirements of leadership and integrity as enshrined in the Constitution should be fully operationalized. Although this Commission exists, it has been mainly moribund since its inception because of the various underlying political interests undermining its authority.

The various institutions created under the New Constitution like Magistrates and Judges Vetting Board, Judicial Service Commission, Police Service Commission, Constitution

Implementation Commission, National Cohesion and integration commission among others should continuously be enhanced and strengthened to improve on the management of public affairs as anticipated in this Constitution. By extension, it is hoped that this will help to control the influence of political patronage on the management of public affairs in the country.

Conclusion:

It is therefore paramount to note that politics in Kenya are inferior to the law of the land. The law has been used as a tool to check politics and this is a plus to our country. Therefore we can say that our country has one of the best laws in the world; however the implementation bit still raises questions. A clear distinction between the law and politics should always prevail in that there will not be a point where the laws will be made for political reasons. The separation of powers advocated for by the constitution must also prevail.

Finally, the remedy for the sort of politics we do not like is more politics. But in this case, it is politics of the proper kind and in the proper venue, conducted through the forms and practices of the Kenyan Constitution.

References:

Judicature Act Cap 8

Cambridge Advanced learners Dictionary & Thesaurus(http://dictionary.cambridge.org/dictionary/british/legislation)

The Constitution of Kenya 2010

Michael D. Bayles, Principles of Legislation (Detroit: Wayne State University Press, 1978).

Drechsler, H., Hiligen W., and Neumann, F., et al. (eds.):Gesellschaft und Staat, Lexikon der Politik (9., neubearbeitete underweiterte Auflage), Verlag Franz Vahlen, Munich 1995.

Hans Kelsen, The Pure Theory of Law, tr. Max Knight (berkely and Los Angeles: University of California Press, 1967), pp. 208-11

Wilfrid J. Waluchow, Authority and the Practical Difference Thesis: A Defense of Inclusive Legal Positivism, 6 LEGAL THEORY 80-81 (2000); and Raz, Authority, Law and Morality, in RAZ, ETHICS IN THE PUBLIC DOMAIN, supra at 210-219.

HERBERT L. A. HART, The Concept of law 86-88, 181-182 (Oxford: Clarendon Press, 1961); and Hans Kelsen, Science and Politics, in H. KELSEN, WHAT IS JUSTICE? WHAT IS JUSTICE? JUSTICE, LAW, AND POLITICS IN THE MIRROR OF SCIENCE 372 (Berkeley, CA: University of California Press, 1957).

The Problem about the Nature of Law, in RAZ, ETHICS IN THE PUBLIC DOMAIN, supra at 192

Neil MacCormick, Institutional Normative Order: A Conception of Law, 82 CORNELL LAW REVIEW 1062 (1997).

HART, THE CONCEPT OF LAW, supra at 55, 189-195. See also Hart, Postscript, in H. L. A. HART, THE CONCEPT OF LAW 240, 255 (Oxford: Clarendon Press, P. A. Bulloch and J. Raz eds., 2nd ed., 1994).

KARL N. LLEWELLYN, THE COMMON LAW TRADITION: DECIDING APPEALS 189 (Boston: Little, Brown & Company, 1960); and Alf Ross, Tû-tû, 70 HARVARD LAW REVIEW 818-822 (1957).

Some Realism about Realism, 44 HARVARD LAW REVIEW 1237, points 5 and 6 (1931); and ROSS, ON LAW AND JUSTICE 18, 34-38, 55 (London: Stevens & Sons, 1958).

ROSS, TOWARDS A REALISTIC JURISPRUDENCE: A CRITICISM OF THE DUALISM IN LAW 49 (Copenhagen: Ejnar Munksgaard,.1946).

Migai Akech, J.M. (2005). Development Partners and Governance of Public Procurement in Kenya: Enhancing Democracy in the Administration of Aid. A Paper Prepared for the Global Administrative Law Conference at the NYU School of Law on April 22-23, 2005.

Transparency International (TI) [2008]. Global corruption barometer. New York: TI.

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[1] Judicature Act Cap 8

[2] Cambridge Advanced learners Dictionary & Thesaurus (http://dictionary.cambridge.org/dictionary/british/legislation)

[3] The Constitution of Kenya 2010

[4] Michael D. Bayles, Principles of Legislation (Detroit: Wayne State University Press, 1978).

[5] Drechsler, H., Hiligen W., and Neumann, F., et al. (eds.):Gesellschaft und Staat, Lexikon der Politik (9., neubearbeitete underweiterte Auflage), Verlag Franz Vahlen, Munich 1995.

[6] Hans Kelsen, The Pure Theory of Law, tr. Max Knight (berkely and Los Angeles: University of California Press, 1967), pp. 208-11

[7] Wilfrid J. Waluchow, Authority and the Practical Difference Thesis: A Defense of Inclusive Legal Positivism, 6 LEGAL THEORY 80-81 (2000); and Raz, Authority, Law and Morality, in RAZ, ETHICS IN THE PUBLIC DOMAIN, supra at 210-219.

[8] HERBERT L. A. HART, The Concept of law 86-88, 181-182 (Oxford: Clarendon Press, 1961); and Hans Kelsen, Science and Politics, in H. KELSEN, WHAT IS JUSTICE? WHAT IS JUSTICE? JUSTICE, LAW, AND POLITICS IN THE MIRROR OF SCIENCE 372 (Berkeley, CA: University of California Press, 1957).

[9] The Problem about the Nature of Law, in RAZ, ETHICS IN THE PUBLIC DOMAIN, supra at 192

[10] Neil MacCormick, Institutional Normative Order: A Conception of Law, 82 CORNELL LAW REVIEW 1062 (1997).

[11] HART, THE CONCEPT OF LAW, supra at 55, 189-195. See also Hart, Postscript, in H. L. A. HART, THE CONCEPT OF LAW 240, 255 (Oxford: Clarendon Press, P. A. Bulloch and J. Raz eds., 2nd ed., 1994).

[12] KARL N. LLEWELLYN, THE COMMON LAW TRADITION: DECIDING APPEALS 189 (Boston: Little, Brown & Company, 1960); and Alf Ross, Tû-tû, 70 HARVARD LAW REVIEW 818-822 (1957).

[13] Some Realism about Realism, 44 HARVARD LAW REVIEW 1237, points 5 and 6 (1931); and ROSS, ON LAW AND JUSTICE 18, 34-38, 55 (London: Stevens & Sons, 1958).

[14] ROSS, TOWARDS A REALISTIC JURISPRUDENCE: A CRITICISM OF THE DUALISM IN LAW 49 (Copenhagen: Ejnar Munksgaard,.1946).

[15] Migai Akech, J.M. (2005). Development Partners and Governance of Public Procurement in Kenya: Enhancing Democracy in the Administration of Aid. A Paper Prepared for the Global Administrative Law Conference at the NYU School of Law on April 22-23, 2005.

[16] Transparency International (TI) [2008]. Global corruption barometer. New York: TI.

[17] The constitution of Kenya 2010