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 21st 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.
[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
