CHAPTER 3

CONSTITUTIONAL VALUES, PRINCIPLES, AND POLICY IN KENYA AND AFRICA

AGENCY, STRUCTURE, POLITICS AND POLITICAL CULTURES

This Chapter may be cited as Ben Sihanya (forthcoming 2023) “Constitutional values, principles,
policy and culture in Kenya and Africa: Agency, structure, politics and political cultures,” in Ben
Sihanya (2023) Constitutional Democracy, Regulatory and Administrative Law in Kenya and
Africa Vol. 1: Theory, Structure, Method and Systems, Sihanya Mentoring & Sihanya Advocates,
Nairobi & Siaya.

3.1 Values, Principles, Politics and Political Culture of Governance under the Constitution in
Kenya and Africa
The Constitution of Kenya is the organizing principle, rules, values, principles, and political
cultures that undergird on popular sovereignty, nationhood, and statehood which we have
discussed in Chapter 1 and 2 of this CODRALKA 1.1 Constitutional values and principles provide
a firm foundation for the governance of economic resources, political powers, and liberty as well
as social-cultural or identity politics. These then constitute Constitutional sociology, political
economy, and cultural politics of Kenya and the relevant African states under study including
Uganda, Tanzania, Nigeria, Ghana, Cameroon, Ivory Coast, Senegal and South Africa.

We adopt an Afro-Kenyanist theory methodology and praxis in integrating rules, ethics, ethos,
values, and principles into constitutional democracy to advance individual and group liberties as
well as nationhood.2 These include national ethos, mutual social responsibility, inclusivity, shared
prosperity, public participation and anti-corruption.3

Some of these were considered in the reports, debates, proposals and litigation on the Building
Bridges Initiative (BBI) and form the substance of the Constitution of Kenya (Amendment) Bill,
2020, and related progressive constitutional reforms debates.4

Constitutional values and structure find expression and are enhanced through agency and structure.
And some of the values and principles actually constitute structure to the extent that they have

1
See also Chapters 1 and 2 of Constitutional Democracy, Regulatory and Administrative Law in Kenya and Africa
(CODRALKA 1). See also CODRALKA 2…
2
….Ibid
3
…These are some of the nine (9) notable issues that the Building Bridges Initiative (BBI) 2019 and 2020 sought to
address.
4
See Ben M. Sihanya (due 2023) “BBI in the High Court, Court of Appeal and the Supreme Court of Kenya” in
CODRLKA 1...Lindsay Nyawira (2019) “Nine key issues BBI report addresses,” Star, Nairobi, November 26, 2019,
at https://www.the-star.co.ke/news/2019-11-26-nine-key-issues-bbi-report-addresses/ (accessed February 25, 2021);
Building Bridges Initiative website (2020) “Notable issues in the BBI Report 2020,” October 21, 2020, at
https://www.bbi.go.ke/post/bbi-report-october-2020 (accessed February 25, 2021).
 become national or institutional norms or culture.5 The Constitution of Kenya, 2010 provides for
national values and principles of governance under numerous articles and Chpaters. These includes
Article 10 on national values and principles of governance; Chapter 6 on leadership and integrity;
Article 201 on values and principles of public finance; Article 232 on values and principles of
public service; and other specific Chapter and articles.6These bind all state organs, state officers,
public officers and all persons in at least three (3) contexts.

First, whenever any officer or agency applies or interprets the Constitution. Second, whenever the
officer or agency enacts, applies or interprets any law. And third, whenever the officer or agency
makes or implements public policy decisions.

State and Government officers and public officers including the President are the nerve centre of the
nation and state and carry the highest level of responsibility in the management of state and
Government affairs. Therefore the values and principles are supposed to guide them as they exercise
or perform or discharge their mandate.

3.2 Conceptualization and Typology of Constitutional Values, Principles, Agency, Structure

and Political Culture in Kenya and Africa
Under this section, we conceptualize, and contextualize values, principles, ethos, agency, structure
and political cultures in Afro-Kenyan constitutional sociology, and political economy and cultural
politics. The principles and values can be categorised into at least four (4) basic groups:
nationhood, liberty and human rights, social justice, and good governance and sustainable
development 7

3.2.1 Constitutional Values and Principles on Nationhood in Kenya and Africa

First the values and principles that relate to nationhood are: patriotism, national unity, sharing and
devolution of power, the rule of law, democracy and participation of the people.8

5
Peter Wafula Murumba (2020) “BBI strengthens culture as a pillar of an inclusive Kenya,” Capital FM, December
7, 2020, at https://www.capitalfm.co.ke/news/2020/12/bbi-strengthens-culture-as-a-pillar-of-an-inclusive-kenya/
(accessed July 1, 2021).
6
Article 60 on principles of land; Article 175 on principles of devolution; and Article 201 on principles of public
finance.
7
Another typology is that there are generic or systemic values and principles. The 1969 Constitution of Kenya
emphasized rules and the Court’s enforcement of the Constitution and constitutionally compliant laws, rules and
regulations. This was reinforced by s. 3 of the Judicature Act, 1967, Cap 8 which focused on rule of law with no or
little room for values and principles. See also CODRALKA 1, Chapter 1 and CODRALKA 2...
8
Cf. “Nature of the state”- Ghai” …See also Ben Sihanya (2013) “Public Participation and Public Interest Lawyering
under the Kenyan Constitution: Theory, Process and Reforms,” Vol. 9 (1), Law Society of Kenya Journal, 1-32; Yash
Ghai (2005) “A journey through constitutions: Reflections on contemporary constitutions,” Vol. 122(4) South African
Law Journal (on liberal, ethnic, and consosciational constitutions….a new typology? Constitutional culture?)…
 3.2.1.1 Nationhood and related Values and Principles in Kenya and Africa
Nationhood includes patriotism, national unity, loyalty, sense of oneness, inclusivity (ethnic, gender
and youth inclusivity), political unity, language, recognition and respect of diversity, shared cultural
identity and uniqueness ….
According to the Oxford Dictionary, a patriot is “a person who loves their country and who is ready
to defend it against an enemy.”9
Patriotism means a balance between rights and responsibilities, and includes love of one’s
country—Kenya, and being ready to defend it… In some states, it includes military service…
Patriotism entails demanding justice for all and responsibility from all, hence the debate on the quote
from US President John F Kennedy:

“ask not what America (your country) will do for you, ask what you can do for your country.”10

A patriot asks both. Patriotism is governed by obedience to just laws or the just rule of law and
not just “law and order, questioning unjust lawsand directives including through demonstrations,
protests or civil disobedience complying with oaths and loyalty pledges; … In January 2008, the
members ofKenya’s Parliament (MP)’s oath was questioned…

Kenya’s main loyalty pledge states:

“I pledge my loyalty to the President11 and Nation12 of Kenya. My readiness and duty to defend13
the flag of our Republic. My devotion to the words of our national anthem.14 My life and strength
in the task our nation’s building. In the living spirit embodied in our national motto - Harambee!15
And perpetuated in the NATIONAL16 philosophy of peace love and unity.”17

9
Oxford Advanced Learner’s Dictionary, Eighth (8th) edition.
10
See John F. Kennedy’s inaugural address….
11
….The history of the loyalty pledge is traced back to the Civil War where sedition was common. It could be argued
that the Presidency adopts the loyalty pledge as a safety mechanisms as what Harold Hyman terms “crisis products”
with their emergence being insurrection, insurgency and war. See Michael Rosenwald (2017) “From the Civil War to
Trump: The paranoid history of loyalty oaths,” Washington Post, June 9, 2017, at
https://www.washingtonpost.com/news/retropolis/wp/2017/06/09/from-lincolns-era-to-trumps-the-paranoid-history-
of-loyalty-oaths/ (accessed July 2, 2021).
12
Is there a difference between a loyalty pledge by appointed officials vis-à-vis the elected? vis-à-vis the masses?
Should the pledge be (primarily) to the people, the Republic only or the President too with regard to the masses cf.
oath by MPs in January 2008: Hon James Orengo, Mr Ababu Namwamba…
13 13
See also the Building Bridges Initiative (BBI) debates on citizen responsibility under proposed Article 10A of the
Constitution of Kenya (Amendment) Bill, 2020…..
14
See Annex 1 to this Chapter …..
15
Meaning, let’s pool resources and pull together. See Mwende Mutuli Musau (2020) “Harambee: The law of
generosity that rules Kenya,” BBC, October 6, 2020, at https://www.bbc.com/travel/article/20201004-harambee-the-
kenyan-word-that-birthed-a-nation (accessed July 2, 2021)……
16
From 1978 to about 2002, at the peak of the Moi era “National” was rendered as …. as “Nyayo.”
17
See Kenya Loyalty Pledge (2017) “Loyalty Pledge,” at http://www.kenyamycountry.com/web/loyalty-pledge (accessed
March 5, 2021).
The Oath by the President, Acting President and Deputy President reads:

“I, ………, in full realisation of the high calling I assume as President/Acting President/Deputy

President of the Republic of Kenya, do swear/solemnly affirm that I will be faithful and bear true
allegiance to the Republic of Kenya; that I will obey, preserve, protect and defend this Constitution
of Kenya, as by law established, and all other laws of the Republic; and that I will protect and
uphold the sovereignty, integrity and dignity of the people of Kenya. (In the case ofan oath— So
help me God.)”18

It is about love of the country Kenya, the people and the Republic; not (necessarily) love of the
ruler(s). Constructive critics are patriots. Sycophants or cronies and anarchists are not. What is
national unity? How does it compare to other values like peace, love, justice … National unity is
at the foundation of establishing a nation, state and government of ideals, values, norms and
principles, including the national values under Article 10 of the Constitution 2010. Without unity,
there can be nosustainable development, good governance, patriotism or justice.

Unity was crucial in the struggle for independence, liberty or freedom and the transfer of
powersfrom the British colonialism. National unity is significant for nation building and
nationhood and statehood. National unity has been and is challenged by exclusion, incompetence,
corruption, lawlessness and impunity. Hence Tom Mboya’s clarion call at independence “we in
Kenya should not take it for granted that we are going to have unity, without knowing what it
means, and without being ready or prepared to work for it”19
The national unity is equally significant in the Azimio la Umoja Political formation of Raila
Odinga, Martha Karua, and Kalonzo Musyoka, a reflection of his record on the questfor inclusion,
social justice and the rule of law….

Remarkably, Kenya’s national anthem exhorts Kenyans to live in constitutional democracy

peace, liberty and unity….

3.2.2 Liberty and related human rights in Kenya and Africa

Second, constitutional values and principles that relate to liberty and related human rightsinclude20
human dignity, equity, social justice, inclusiveness, equality, human rights, non- discrimination
and protection of the marginalised.21

18
See the Third Schedule, Constitution of Kenya 2010…. Cf. Oaths and Statutory Declarations Act, 2012.
Affidavits under Civil Procedure Rule 2010…
19
See also….
20
“Rights of the people” (Ghai)…
21
Article 10 of the Constitution of Kenya 2010.
 3.2.2.1. Human dignity in Kenya and Africa
The term “human dignity” has been defined to mean the status of human beings entitling them to
respect, a status which is first and not to be taken for granted. It refers to their highest value, or to
the fact that they are a presupposition for value, as they are those to whom value makes sense.22

Afro-Kenyan perspectives on human dignity include self-determination, self-autonomy, and a

common heritage for Africans. Seretse Khama, former President of Botswana, once stated that
“human dignity, like justice and freedom, is the common heritage of all men” just like the use of
the totems in Botswana to signify familial ties in a community ….

Human dignity also includes mutual regard, respect and avoiding …or kuheshimiana
(tuheshimiane) tuache madharau……Hence the contented Kenyan (peasant): you do not close
my gate23….. I live whether you are there or not (in Luo, they say Adak mkata ionge)…. You will
find me with my pararad (….) legs atmy door…..24 What constitutional and international legal
provisions address human dignity directly and indirectly?

One of the first applications of human dignity in international documents instruents and documents
is the preamble of the Charter of the United Nations1945, where it is stated that:

“We the people of the United Nations determined to save succeeding generations from the scourge
of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in
fundamental human rights, in the dignity and worth of the human person, in the equal rights of men
and women and of nations large and small.”25

A similar reference is in the preamble of the Universal Declaration of Human Rights 1948
(UDHR):
“Whereas recognition of the inherent dignity and of the equal and inalienable rights of allmembers
of the human family is the foundation of freedom, justice and peace in the world, Whereas disregard
and contempt for human rights have resulted in barbarous acts which have outraged the conscience
of mankind, and the advent of a world in which human beings shallenjoy freedom of speech
and belief and freedom from fear and want has been proclaimed as the highest aspiration of the
common people.”26

Mette Lebech (2000) “What is human dignity?”

22
Faculty of Philosophy, National University of Ireland,
Maynooth…
Cf. ES Atieno Odhiambo (2002) “Hegemonic enterprises and instrumentalities of survival: Ethnicity and democracy
23

in Kenya,” in Bruce Berman, Will Kymlicka and Dickson Eyoh (eds) Ethnicity and Democracy in Africa, Ohio
University Press, Ohio; also in Vol 61, Issue 2, African Studies, at
https://www.tandfonline.com/doi/citedby/10.1080/0002018022000032938a?scroll=top&needAccess=true, Lonsdale
(accessed March 9, 2021) See Chapter 2
24
………
25
………
26
Thus human dignity is both self and others-regarding. It is about indivual liberty and social justice…
 Human dignity is provided for under the Constitution of Kenya 2010, Article 28 which provides
that human dignity is an inherent right to all Kenyans that must be respected and protected. Human
dignity is closely related to the right to equality, equity, life, food and nutrition and the non-
derogable rights under Article 25

3.2.2.2 Equity in Kenya and Africa

How do Constitutional, sociology, political, economy, and cultural politics conceptualise and
operationalize equity in Kenya and Africa?27 First, equity has at least three (3) ordinary and
technical meanings. First, equity means fairness, justice, morality, fair play, and equality. It
includes equal protection of the law as stipulated under Art. 27(1)of the Constitution 2010.28

Second, equity means treatment according to the situation, facts and circumstances or “justice of
the case.” Thus, treating unequals equally enhances injustice or inequality.

Third, equity is understood in contradistinction to the (English) common law under sec. 3 of the
Judicature Act 1967 (2018). Equity refers to the branch of the law which, before the English
Judicature Act of 1873 came into force, was applied and administered by the Court of Chancery
in England.29 It is also related to the twelve (12) doctrines of equity, including the maxim, equity
is equality; he who comes to equity must come with clean hands, he who seeks equity must do
equity…30

In contradistinction, inequality denotes the unequal or inequitable treatment of a particular group

of people, who ought to be treated equally. This is especially prevalent in the distribution of
resources, or development, social cultural resources and access to justice.

In this book, CODRALKA 1 and elsewhere, I argue that progressive scholars, lawyers and judges
are developing Afro- Kenyanist conceptualization of equity.31 Therefore, focus in this Chapter on
constitutional values is on the first ordinary meaning of equity.

27
Cf. equity vis-a-vis equality; equity as fairness or substantive and processional due process; equity in the contextof
the 12 doctrines of equity…..
….There are Afro-Kenyanist “doctrines of equity…”?...Equity is also part of the received English law under section3
of the Judicature Act…
28
See Kenya Legal Sources, at http://www.kenyalawresourcecenter.org/2011/07/definition-of-equity.html (accessed
113/7/2019). Cf. The World Bank (WB) began to integrate good governance in its policies, programmes and strategies
from …. 1982? See……..
29
Ibid
30
…. Equity is integrated into Kenya’s constitutional and legal systems …. See Art. 159 on the principles of judicial
authority; Section 3 of the Judicature Act, 1967(2018)…
31
…Cf See Aggrey Muchelule (1981) Equity in Kenya: A study of the Reception and Instances of Application of the
Doctrines of Equity in Kenya, LL.B Dissertation submitted to the Faculty of Law, University of Nairobi; Kariuki Muigua
(2005) “Sustainable Development and Equity in the Kenyan context,” Constitution of Kenya, Government
Printer….(adopts equity vis-à-vis sustainable development from an environmental law perspective
3.2.2.3 Social justice in Kenya and Africa

Social justice is the equal access to wealth, opportunities, and privileges within a society.
According to the Business Dictionary, social justice is the fair and proper administration of laws
conforming to the natural law that all persons, irrespective of ethnic origin, gender, age,
possessions, race, religion, etc., are to be treated equally and without prejudice.32

Remarkably, mutual social responsibility was a major plank of Sessional Paper No. 10 on African
Socialism and its Application to Planning in Kenya (1965).33 As TJ Mboya explained, African
socialism was distinct from Eastern or Soviet Socialism or Communism…34 There are at least
three (3) core strengths and three (3) weaknesses of Sessional Paper No. 10 are still relevant.

First, Sessional Paper No. 10 identified or recognized the three (3) challenges to life, liberty and
livelihood as well as nationhood: disease or ill health (ugonjwa), poverty (umaskini) and illiteracy
(ujinga)….. Then poor governance came in…… Second, recognition of Kenya as a mixed
economy….. And third,…. mutual social responsibility was and is closely related to the Afro-
Kenyanist concept, doctrine, perspective, theory and epistemology that: “I am because we are; and
because we are, therefore I am. It is about minding others’ welfare”35

Despite these, all the progressive and unifying components of Sessional Paper No. 10 were
sabotaged. the following three (3) key retrogressive and divisive policy statements were
implemented asthe point of focus…36

Relatedly, the concept of social justice and equity as key pillars of the Sessional Paper No. 10 of
1965, have been contested based on at least three (3) key contentions. First, Okoth Ogendo (?)
argued that Sessional Paper No. 10 was rather a search for a political ideology, rather than an
economic philosophy.37 Second, David Ndii referred to the document as development

33
See Chapter 2 of CODARLKA on Elections and political organization of Developing Country States…………..
34
…. See Dennis Mukoya TV (2019) “Tom Mboya talking Socialism in the African Sense,” at
https://www.youtube.com/watch?v=7llFyhIAiDM&ab_channel=DennisMukoyaTV (accessed November 5, 2021);
Daniel Speich (2009) “The Kenyan Style of ‘African Socialism’: Developmental knowledge claims and the
explanatory limits of the Cold War,” 33(3), Diplomatic History, 449-466; Bernhard Wilhelm (1965) “Background:
African Socialism: A challenge to Communism,” 3(6), Communist Affairs, 3-9, University of California Press, at
https://online.ucpress.edu/cpcs/article-abstract/3/6/3/112571/Background-African-Socialism-A-Challenge-
to?redirectedFrom=PDF (accessed February 25, 2021).
35
Business Dictionary, at http://www.businessdictionary.com/definition/social-justice.html (accessed 12/7/2019).
Cf. William P. Quigley (2006) “Letter to a law student interested in social justice,” at
https://law.duke.edu/curriculum/pdf/interested_social_justice.pdf (accessed 13/7/2019).
36 34
John S. Mbiti (1991) An Introduction to African Religion. Heinemann Educational Books, Portsmouth, N.H., and
London, 2nd edition … Mbiti (1969) African Religions and Philosophy, Heinemann, London.
37
See above and below.
fundamentalism.38 Third, the key challenges that faced the actualization of the ideals of the
Sessional Paper No. 10 was poor governance and lack of good faith in implementation.39

3.2.3 Good Governance, Integrity, Transparency Accountability and the Rule of Law in
Kenya and Africa
Third, constitutional values and principles that relate to good governance, integrity, transparency
and accountability.40 The term “governance” has been defined as the process of decision-making
and the process by which decisions are implemented (or not implemented).41 What is the negation
or opposite of good governance? The opposite of proper decision making and fidelity to
implementation is bad or poor governance.

How do good governance and good administration compare to unfair administrative action or
maladministration and the relation to fair administrative action (FAAA)… ?

Good governance is generally defined as a product of factors according to the United Nations,
Good Governance is measured by the eight factors of Participation, rule of law, transparency,
responsiveness, consensus oriented, equity and inclusiveness, effectiveness and efficiency, and
accountability…..42

It focuses on quality of governance or just, not just quantity of governance or the number of
adminsitration officials or units like counties. The qualitative and quantitative composition of
good governance are not mutually exclusive. Nor are they exhaustive hence we discuss some of
the various conceptualization and debates on governance in Afro-Kenyanist constitutional
democracy…..

Under section 2 of the Fair Administrative Action, 2015, administrative action is defined
(bureaucratic) as acts including powers and functions performed by authorities, tribunals, quasi-
judicial tribunals; and any action that affects the legal rights of any individual. What is the rule of
law? Second, rule by law and order ideology?43 Third, (rule of law) by lawyers?

3.2.3.1 Problematizing and Contextualizing some Constitutional Values and Principles of

Governance in Kenya and Africa44

38
…………
39
Cf. Colin Leys, Anyang’ Nyong’o, ES Atieno Odhiambo, Ben Sihanya….
40
…. “Mode of governance” in Ghai concept paper for constitutional implementation book 2019…
41
See United Nations “What is Good Governance?” at https://www.unescap.org/sites/default/files/good-
governance.pdf (accessed 13/7/ 2019). HWO Okoth Ogendo (2000) “The Quest for Constitutional Government” in
Hyden, Olowu and Okoth Ogendo (eds) (2000) African Perspectives on Governance, Africa World Press, Inc Trenton.,
op.cit…
42
Ibid.
43
ESAO (-) “Democracy and the ideology of order…”
44
See also the Bill of Rights, Chapter 15…. CODARLKA on Human Rights in Kenya and Africa.
What are the key constitutional values and principles on governance in Kenya and Africa? What
do they mean in context?
…
First, good governance is recognized as one of the fundamental national values and principles
under the Constitution 2010 as discussed above. This principle is also universally recognized.
Various states have also adopted different mechanisms forgood governance.

For instance, in Kenya, the Constitution 2010 introduced devolution as a fundamental aspect in
order to decentralize power, resource distribution, address inequality or inequity and
marginalization. It was also intended to enhance inclusive and participative decision making from
the highly divisive centralized system of governance under the Independence Constitution 1963.

Several legislation were enacted to enhance and promote good governance in Kenya. Some of
these include the County Governments Act, 2012, Public Finance Management Act, 2012,
Intergovermental Reforms Act 2012 and Public Ethics Act, 2003. These laws are cross-cutting.
Their main intention is to ensure that the local mwananchi (citizen) achieves maximum benefit
from the public goods through enhanced transparency and accountability, observance of the rule
of law and mutual social responsibility.

Good governance is also directly related to the concept of delegated sovereignty under Article 1(2)
of the Constitution 2010. Kenyans adopted thethe Constitution 2010 to address the overbearing
and bureaucratic Executive that did not safeguardand reflect their their interest or aspirations will.
Hence, the constitutionalization of good governance was a timely safeguard to preserve the
sovereign powerof the people in decision making, policy making, development, delivery of justice,
and governance.

However, the major problems include, corruption, graft, lack of inclusion of some tribes, youth
and women in elective and appointive positions; marginalized development, the lack of
transparency and accountability and hence corruption and graft in public procurement, especially
45
Government tenders.

3.2.4 Sustainable Development and Constitutional Democracy in Kenya and Africa

Fourth, sustainable isconceptualized, problematizedand contextualized in terms of development
in the proposed Constitution; and Articles 10A and 11A of the proposed Constitution of Kenya
(Amendment) Bill, 2020 (BBI), among others?.....

45
Annettte Wambulwa (2021) “Why open contracting can help tame graft in public offices,” ICJ Kenya, June 9,
2021, at https://icj-kenya.org/news/why-open-contracting-can-help-tame-graft-in-public-offices/ (accessed July 5,
2021).
3.2.4.1 Conceptualization and typology of Sustainable Development in Kenya and Africa
Sutainable development conceptualized, in terms of the ability of the future generations to meet
their needs46 governs ecological, economic and social sustainability. The WorldCommission on
Environment and Development (WCED) defined sustainable development asdevelopment that
meets the “ needs of the present without compromising the ability of futuregenerations to
meet their own needs.”47
Sustainable development is a concern for thought and action at local, sub-national, national and
supranational, or transnational and international levels… Thus, sustainable development has
been developed by the World Commission on Environment and Development (WCED) (1987),
the Rio Declaration and the process of the United Nations Commission on Environment and
Development (UNCED process) (1992) and subsequent national and transnational and legal,
policy, and administrative procedures.

Ecological sustainability means the sustainable use and conservation of ecological systems. This
extends to biological diversity, soil erosion, land useand management and climate mitigation48

Economic sustainability means that development projects are inclusive and sustainable, and
therefore, do not have negative consequences especially for marginalized and minority groups
…49 Social sustainabilty includes cultural and political sustainability in terms of inclusion,
participation or kuhusishwa (in Swahili).50

Sustainable development has been debated down the ages ranging from the perspectives of the
Club of Rome,51 the Stockholm Declaration 1972,52 through the report of the World Commission
on Environment and Development (WCED), UNCED or the Rio process millennium development
goals (MDGs)53 to sustainable development goals (SDGs).54

46
Meets the needs of the future generation without compromising the needs of the current generation
47
World Commission on Environment and Development (1987) “Our common future,” Oxford University Press.
48
…See KTH Royal Institute of Technology (2020) “Ecological sustainability,” at https://www.kth.se/en/om/miljo-
hallbar-utveckling/utbildning-miljo-hallbar-utveckling/verktygslada/sustainable-development/ekologisk-hallbarhet-
1.432074 (accessed February 25, 2021); J. Hattingh & R. Attfield (2002) “Ecological Sustainability in a Developing
country such as South Africa? A philosophical and Ethical Inquiry,” Vol. 6(2), The International Journal of Human
Rights, 65-92.
49
…United Nations Environmental Programme (2015) “UNEP Environmental, Social and Economic Sustainability
Framework, at https://wedocs.unep.org/handle/20.500.11822/8718 (accessed February 25, 2021).
50
…Ibid.
51
The Club of Rome raised concerns about scarcity, limited, and finite (natural) resources…cf. Thomas
Malthus…people increasing by geometric proportion….food (?) by arithmetic proportion?
52
… Stockholm Declaration on the Human Environment, in Report of the United Nations Conference on the Human
Environment, UN Doc.A/CONF.48/14, at 2 and Corr.1 (1972).
53
… United Nations (2004) “The Millennium Development Goals Report,” at
https://www.refworld.org/docid/51f8fff34.html (accessed February 25, 2021).
54
….See United Nations (2018) “The Sustainable Development Goals Report,” at https://www.un-
ilibrary.org/content/books/9789213633175 (accessed February 25, 2021).
MDGs and SDGs, SDGs, are elaborated in the Bill of Rights in Chapter 4 of the Constitution 2010,
and the Kenyan Environment Management and Coordination Act (EMCA), 1999, as well as related
environmental natural resource laws on plants (and forests), animals, (wildlife and livestock),
microorganism. These relate to, land, water, and air...55

Sustainable development integrates intra and inter generational equity, fairness among the present
and the future generation. In light of the discussions above on the constitutional values and
principles, what are the normative, policy, legislative and institutional or administrative
frameworks on constitutional values and principles in Kenya and Africa?

3.3 Constitutional, Statutory, and Regulatory basis of Rules, Principles, Policies and Values
in Kenya and Africa56
Articles 10, 201, 232 and Chapter Six of the Constitution lay a firm foundation for values, rules,
principles and policies on economic resources, political power and liberty, as well as the related
human rights and governanceand the rule of law . Signficantlyvalues and principles are the
foundational blocks for any open constitutional democracy in Kenya. They constitute the norms
necessary for nation building and statehood.

3.3.1 Preamble to the Constitution of Kenya 201057 on Values and (Declaratory) Principles
Constitutional values are the normative standards which seek to secure constitutionalism,
democracy, the ruleof law, and good governance. These values are political, socio-cultural,
economic t e chnological.58 The Building Bridges Initiative (BBI) Reports 2019 and 2020
sought toaddress the foundational questions of national values, norms and ethos…59

Relatedly, the Constitution of Kenya (Amendment) Bill, 2020 proposed to introduceArticle 18A
(responsibilities of the citizen) to promote citizen responsibility and values including honesty, and

See Charles O. Okidi & Patricia Kameri-Mbote & Migai Akech (ed) (2008) Environmental Governance in Kenya:
Implementing the Framework of Law…..
56
Ben Sihanya to analyse the meaning of all these; hierarchy? See Chapter 1 on Conceptualising People, Sovereignty,
Constitution, State, Government, Society and Market in Kenya and Africa. Cf. religion and traditional beliefs,
practices and traditions as a basis of ethical or moral values….Christianity, Hinduism, Islam…as a basis of moral,
ethical and legal standard in Kenya, Nigeria……. Cf. Karl Marx (religion is the opium of the masses? Problematize);
Max Weber and Stephen Kalberg (2013) The Protestant Ethic and the Spirit of Capitalism, Routledge. …. on religion
(the Protestant ethic or Protestant ascetism and the spirit of capitalism; “Khadi” justice? Western law and the
development of capitalist. (cultural determinism? A reversal of Marxist econoimic determinism?…constitutional and
legal sociology. Cf David Trubek (1972) “Max Weber on Law and the rise of Capitalism,”…see also Chapter 5 of
CODRALKA 1
57
Cf. South Africa, Nigeria, Uganda, Ivory Coast….
58
Cf. This is the ambit of Article 10 of the Constitution of Kenya, 2010…
59
…See the Building Bridges Initiative (BBI) Report 2019 and 2020, at https://www.bbi.go.ke/ (accessed February
25, 2021).
integrity. It also provided for the responsibilities of the citizen to include the collective duty to pay
taxes and to ensure Utu or humanity as a basis for national development.60

Further, constitutional safeguards are the normative, institutional and structural standards and
parameters which help achieve constitutional democracy as well as the foregoing values. Some
of the values and safeguards are embodied in the Constitution while others are found outside the
constitutional principles text .61

Some of the national values and principles are spelt out in fairly general terms in the Preamble as
well as in the operative provisions of the Constitution 2010 such as Article 10 on values and
principles of good governance and 232 on principles of public service. These include patriotism,
national unity, rule of law, democracy, social justice and equality.Some operative principles of the
Chapter that may also be read as preambular rather than operative. Section 70 of the 1969
Constitution was, strictly speaking, not operative but preambular.62

With the 2010 Constitution, Kenya joined other countries which have preambular or declaratory
clauses in the Constitution. For long, the US and Indian Constitution was one of the main
references points on the significance of preamble or declaration of fundamental principles of state
policy. The argument was and still is that there arefundamental principles of state policy that bind
all state agencies and which cannot be changed at all or easilys by an amendment
(review)……Remarkably, this argument has been debated even in India. Kenya is not the same as
India on constitutional fundamentals: Constitutional amendment in Kenya may be through
parliament or a referendum as provided under Articles 255, 256, and 257. The Indian constitutional
text provides for parliamentary amendment hence the debate on Kasavananda and other cases.63
The Constitution of Kenya 2010 now has a preamble which is so named. It also contains national
values, principles and goals under Chapter 6 and many chapters begin with principles. These
spell out the values and principles, then the operative rules e.g. Chapter 5 (land and environment),
Chapter 11 (devolved Government), Chapter 12 (public finance), Chapter 13 (public service) and
Chapter 14 on national security.

60
Ibid. Cf the South African Ubuntu has almost universalized
61
For a long time, there has been an argument that public life, private law, and sectoral endeavors like education,
training and research, among others, be grounded on ethics, morality, or philosophy. The Ominde Education
Commission raised the issue in 1964…. Subsequently, there have been consensus for a code of ethics in public service,
among others. See CODRALKA 1 & 2 (forthcoming 2023); Ben Sihanya, Education Law and Policy in Kenya and
Africa (due 2021); Ghai on values post 2010... Ghai & McAuslan (1970) Public Law and Political Change in Kenya,
op. cit., at Chapter V on “Transition and interlude: from Lancaster to the Republic.”…
Cf. The situation on the ground in the actual election of leaders and governors. See Ben Sihanya (2013)
“Constitutionalism and the rule of law in Kenya’s electoral process,” Handbook on Elections Disputes in Kenya under
the auspices of the Judiciary Working Committee on Elections Preparation and the Law Society of Kenya. Chapter
26….. of Ben Sihanya (forthcoming 2023) CODRALKA I, Sihanya Mentoring & Prof Ben Sihanya Advocates, Nairobi
& Siaya….
63
See the BBI case 2022
The utility of preambles and principles or declarations of state policy lie in the fact that theyprovide
guidance in the interpretation, implementation and enforcement of the Constitution, particularly
when there is ambiguity or equivocation in the operative provisions. The preamble may have the
effect of constitutionalizing some rights that are not enumerated therein. Even though the
Constitution 2010 constitutionalizes most of the fundamental rights and freedoms prescribedin the
Preamble.

The preamble is also a reflection of the objectives or purpose or aim or the soul and the underlying
philosophy of the Constitution. Therefore, courts ought to, and frequently do, have regard to
preambular provisions of the constitutions in seeking to give effect to the letterand intendment
or spirit of the Constitution.64

Second, the preamble helps in developing a constitutional and constituted political community and
a political and cultural identity. The Preamble act as the common aspirations and the goals that the
Kenyan and African society or polity seeks to achieve. These preambular values, principles or
clauses can help in nation building and nationalism, essentially in achieving justice, national
integration and cohesion, andto reduce forces of disintegration and injustice.

However, this is only achievable when there is the political will to implement the values and
principles by all arms of the National and County Government and state or public officers.65

Constitutionally, the national anthem can be regarded as an instrument seeking to present the
aspirations and traditions or history and beliefs of the Kenyan people. Alongside the loyalty pledge,
the national anthem is meant to evoke and promote patriotism of the people to Kenya as well as
remind the people of its aspirations, glory and heritage.

Remarkably, Articles 259 and 260 of the Constitution provide that in an aspiring or practising a
constitutional democracy, the Constitution should be interpreted in a manner that implements four
(4) objectives; the Constitution purpose or objective.66

64
Cf…..the atheists case..
65
Justus Wanga (2014) “Too many interests stand in the way of the Constitution,” Saturday Nation, Nairobi,
23/8/2014, at http://mobile .nation.co.ke/news/too-many-interests-stand-in-the-way-of-the-Constitution/-
/195046/2428978/-/format/xhtml/-/t9kj74/-/index.html (accessed 03/06/2015).
66
Article 259(1); 260 of the Constitution of Kenya 2010.
First, it should be interpreted in a manner that promotes the Constitution’s purpose, 67 values and
principles. Second, the Constitution should be interpreted to advance the rule of law, and the
human rights and fundamental freedoms in the Bill of Rights.68 Third, the interpretation should
permit the development of the law. Fourth, constitutional interpretation should contribute to good
governance.

What is the difference between preambular and operative clauses? (i.e. values v. rules v.
principles?) What is the relation between clauses cast as rules vis-à-vis those cast as values, ethics,
morality, religion Are the latter to apply more brodly?69

Preambular language is largely aspirational , declaratory and hortary.70 It states general principles.
These are to be contrasted with exact, specific operative clauses: indicating the rights, duties or
obligations of specific right holders; and the rules of specific officials. The effect is that operative
clauses are justiciable etc. It is instructive that the values and principles now have a force of law,
even if some would require elaboration through legislation, administrative and judicial
interpretation.

How do the concepts, scholars and schools of law or jurisprudence capture these points of
convergence and divergence?71

The Supreme Court problematized the (false) dichotomy among rules, values and principles. In Re
Interim Independent Election Commission (2011) stated:

“The rules of constitutional interpretation do not favour formalistic or positivistic approaches

67
What constitutes the purposes? can also be said to mean: objectives, goals, aims, intention, spirit….. The meaning
of these terms has been contested including in South Africa. Is spirit the same as object(ive), intention, intendment…?
Hence purposive interpretation, construction and “translation” under Arts 2, 10, 21, 22, 23, 24, 25,
159, 232, 258, 259, 260…of the Constitution 2010….cf. South African Constitution, 1996 (under sec.
39(2))…..Nigerian Constitution….., Ugandan Constitution….
Cf. Art 20 (application of the Bill of Rights)…..cf. interpretation of the Bill of Rights versus the power clauses or the
constitution generally…..versus interpretation of the statutes, contracts, marriage affidavits, wills…..El Mann…;
Njoya……
69
The old debates: HLA Hart v. Patrick Delvin; Hart v. Ronald Dworkin…… See HLA Hart (2012) The Concept of
Law…. Patrick Devlin…. Ronald Dworkin…. One way is to argue that there are only three great schools of law or of
legal theory: natural law school; classical and analytical positivism (including Austin, Kelsen, Hart, Dworkism….);
and legal sociology, law, politics, economy, or political economy, sociology including Karl Max, Max
Weber….Where are the following in this typology: Lawrence Lessig, Kathleen Sullivan, Vicki Jackson; Mark
Tushnati Ben Nwabueze, Yash Ghai, Issa Shivji, Ben Sihanya? Must all great legal theorists be confined to a (single)
law school?
70
Problematise…. Is? ...was, Ought to be... What is the distinction between Preamble and operative clauses under
Constitution of Kenya 2010? and under South African Constitution, 1996?
71
See Chapter 1to 5 of CODARLKA 1
Page 14 of 74
 (Articles 20(4) and 259(1)). The Constitution has incorporated non-legal considerations, which we
must take into account, in exercising our jurisdiction. The Constitution has a most modern Bill of
Rights that envisions a human-rights based, and social-justice oriented State and society. The values
and principles articulated in the Preamble, in Article 10, in Chapter 6, and in various provisions,
reflect historical, economic, social, cultural and political realities and aspirations that are critical in
building a robust, patriotic and indigenous jurisprudence for Kenya. Article 159(1) states that
judicial authority is derived from the people. That authority must be reflected in the decisions made
by the Courts.”72

3.3.2 Statutory Values and Principles in Kenya and Africa

Since 2012, the National Assembly, Senate and some of the 47 County Assemblies have enacted
numerous statutes subsidiary legislation and policies on leadership and integrity as well as ethics.
Someof these include the Leadership and Integrity Act, 2017, Public Officers Ethics Act 2003,
Anti-Corruption and Economic Crimes Act 2020, Public Service (Values and Principles) Act,
2014 give effect to the provisions of Article 232 of the Constitution regarding the values and
principles of public service.

Section 9 of the Public Service (Values and Principles) Act, 2014 requires public officers to be
accountable in their administrative acts.73 For instance, Inspector General of Police (IG-P) Joseph
Boinett ordered probe into pictures of police brutality in Garissa after photographs were circulated
on social media, showing the Independent Police Oversight Authority (IPOA) take has the mandate
to investigate any complaints related to disciplinary or criminal offences committed by any
member of the National Police Service (NPS) as provided under the Independent Policing
Oversight Authority Act, 2011. Art 232 of the Constitution and Section 10 of the Act also provide
for the ethnic balance in public service appointments as core values and principles.

Generally, Chapter 6 of the Constitution (on leadership and integrity) and Chapter 13 of the
Constitution (on principles of public service) further stipulate values stated in Article 10 should
beachieved, including good governance.74

3.4 Religion vis-a-vis Values and Principles in Kenya and Africa75

72
Re Interim Election Commission [2011] eKLr
73
Cf. Or better still, what action will be taken against the police officer involved in the circulation of graphic images
of school children caught engaged in immoral acts in school buses? See Lee Mukunga (2015) “Police Officer who
took indecent photos of students sent home,” Standard, Nairobi, 9,/8/2015, at
https://www.standardmedia.co.ke/article/2000172141/police-officer-who-took-indecent-photos-of-students-sent-
home (accessed 10/12/2018).
74
Cite some of the county laws on Leadership and Integrity…These include the Leadership and Integrity Regulations,
2015 (Vihiga County), Leadership and Integrity Act, 2012 (Kilifi County)…
75
Details in the Human Rights and Bill of Rights in Kenya and Africa, Chapter 17, CODRALKA 1, Chapter 7,
CODRALKA 1 (forthcoming 2023); Daniel Wesangula (2021) “Murder at the altar: When men of the cloth turn into
killers,” Standard, Nairobi, March 4, 2021, at https://www.standardmedia.co.ke/nairobi/article/2001405266/murder-
at-the-altar-when-men-of-the-cloth-turn-into-killers (accessed March 8, 2021) , Moses Nyamori and Grace Nganga
Page 15 of 74
 Kenya is a secular state as stipulated under Art 8 of the Constitution 2010. It states:

“There shall be no State religion.”

Remarkably, the Preamble to the Kenyan Constitution also incorporates the religious values and
principles.76 Article 32 also recognizes the freedom of conscience, religion and belief as a
fundamental right under the Constitution 2010.
In other countries including Chad, Tunisia and Morocco, Islam is constitutionalized as the state
religion. In these jurisdictions, Islam is also provided for as part of the Constitutions that cannot
be amended unless the whole Constitution is made again. Islamic law and practice in criminal and
civil matters have been debated in Nigeria, especially in the Northern states inherited by the Hausa,
and Fulani.

There have also been debateson the place of religion vis-à-vis equity and equality in appointive
positions in Kenya. This was especially debated where the question was whether women could
also be appointed as Chief Kadhi. Garissa Town Member of Parliament (MP) Mr Aden Duale
argued that such appointments lack a basis in Islam:

“We will not accept women Kadhi. It is not found anywhere in the Holy Quran or the teaching of
the Prophet.”77

He further stated that:

“We wanted to run our affairs when it comes to marriage, divorce and inheritance in accordance
with the Holy Quran and teaching of the prophet. Just because Martha Koome is Chief Justice, we
will not allow women Kadhis.”78

The Kadhis’ Courts were established under the 1963 Constitution in section 66 in matters of
marriage, divorce and inheritance. Parliament also had the mandate to enact legislation under
section 66(3) to operationalize section 66(1), hence, the enactment of Kadhi’s Act, Cap 11. A
majority of Muslims also voted for the Constitution 2010 as it provided for the Kadhi’s Courts to

(2021) “God led me to Kemsa, firm owner tells MPs,” Standard, Nairobi, March 7, 2021, 4-5, at
https://www.standardmedia.co.ke/money-careers/article/2001405167/god-led-me-to-kemsa-firm-owner-tells-mps
(accessed March 8, 2021). See Chapter 5 OF CODRALKA 1..Cf. Henry John Okullu, “Church and Politics in East
Africa.”
76
Reconsider the discussions on the role of religion in Kenyan statehood…. Cf. Chapters 1, 2 and 15. See also the
Bill of Rights (infra i.e. to follow)……
77
Stephen Astariko (2021) “No woman should be Chief Kadhi - Duale,” Star, North Eastern, July 5, 2021, at
https://www.the-star.co.ke/counties/north-eastern/2021-07-05-no-woman-should-be-chief-kadhi--duale/ (accessed
July 7, 2021).
78
Ibid..
Page 16 of 74
 be governed under Islamiclaw in civil matters where both or all relatives profess Islam., The
secularlaw courts. These have not addressed inter-Islam and inter-faith conflicts....79

The question of religion as a core value vis-à-vis the secular norms in the Afro-Kenyan society is
contentious. Respect for religious diversity in aspiring constitutional democracies underpin the
fact that religion as a source of morality and ethics may be the basis of national values and
principles but are debated when enacted as rules of lawin a deeply divided society, with different
fundamental beliefs and religious ideals.80

3.5 Some social and institutional contexts on Values and Principles in Kenya and Africa
In the application of values and principles in Kenya and Africa, 81 the following institutions or
structures are important: public service, commercial institutions, educational institutions,
religiousor faith-based institutions, and civil society organizations (CSOs), among others.

3.5.1 Public service Values and Principles in Kenya and Africa

What are the constitutional, policy, legal and institutional frameworks on values and principles the
public service in Afro-Kenyan constitutional democracy? What is the trasnational legal regime on
public service, values and principles?

Domestically, Chapter 13 of the Constitution 2010 enshrines the values and principles of public
service in Kenya.

Kenya ratified the African Charter on Values and Principles of Public Service andAdministration,
2016 on August 17, 2011.82 Other signatories include Uganda, Tanzania, Nigeria, South Africa
and even South Sudan. The Charter adopts a human rights-based approach in matters public service
and administration.

There are at least nine (9) fundamental values and principles under Article 232 of the Constitution
of Kenya. First, professional ethics. Second, efficient, effective and sustainable use of national
resources. Third, impartiality and equity in service delivery. Fourth, involvement of the people in
policy making. Fifth, accountability by public officers. Sixth, transparent, timely and accurate
access and provision of information.…..83
Seventh, fair competition and merit in appointments and promotions in the public sector. Eighth,
representation that upholds the diversity of Kenyans. Ninth, equal opportunity. The PublicService

79
Cite……
80
See Chapter 5 of CODRALKA 1…….
81
See BS …..marginal and textual notes in the books and articles he read recently, on Kenyan politics, economy,
political legal sociology, (constitutional) history, culture, traditions, religion, and value systems….
82
………..
83
Article 232, Constitution of Kenya, 2010. See also …..
Page 17 of 74
 (Values and Principles) Act, 2015 was enacted to achieve at least three (3) objectives. First, to
provide a general code for the application of the values under Art. 232. Second, to enhance the
involvement of the people in policy making and administrative action. Third, to establish a measure
and monitoring mechanism of the status of implementation of public service values and principles.
These values and principles are binding upon all persons including state officers as defined under
Art. 260 of the Constitution 2010.84

The institutional framework for the regulation and monitoring and evaluation of Articles 10 and
232 in the public service, including by Public Service Commission (PSC) and the National
Commission for Social Cohesion (NCSC)……. As part of its core mandate, the PSC has drafted
several policies including the Framework for the Implementation of Values and Principles in .85

This policy framework was developed as a guideline forthe interpretation and application of
Chapter 13 o n the public service…. The PSC also played a key role in the legislation of
the Leadership and Integrity Act, 2012 which is the core operational statute for Chapter 6 of the
Constitution.86

3.5.2 Commercial,Institutional Values and Principles in Kenya and Africa

Commercial institutions, Private and public, are expected to apply some commerial values,
principles and constitutional values and principles under corporate governance, among others. The
Organisation for Economic Co-operation and Development (OECD) and the Central Bank of
Kenya (CBK) have for instance, set corporate governance principles which areto be followed by
commercial banks in Kenya.87 These include transparency and accountability; diversity and
inclusiveness, professionalism, effectiveness and efficiency; which form the core mission and
vision of the Central Bank of Kenya (CBK).88

The Kenya Public Service Commission’s (PSC) Report on Compliance with Values and Principles
2019-2020 recognised the role of the public and private organization in promoting compliance
with national values and principles. Among the notable institutions were the Kenya Bankers
Association (KBA) and Kenya Institute for Public Policy Research and Analysis (KIPPRA)
…….89

84
See the Chapter on state of state officers in Kenya…
85
See the Framework for the Implementation of Values and Principles in Articles 10 and 232 of the Constitution in the
Public Service Public Service Commission Republic of Kenya, 2015, at
https://www.publicservice.go.ke/index.php/policies-guidelines/category/61-frameworks (accessed July 7, 2021).
86
Ibid….
87
See the G20/OECD Principles of Corporate Governance, at https://www.oecd.org/daf/ca/Corporate-Governance-
Principles-ENG.pdf (accessed 11/7/2019). Cf. other private sector organisations….
88
See the Central Bank of Kenya (2021) “Our Mission,” at https://www.centralbank.go.ke/our-mission/ (accessedJuly
7, 2021).
89
Kenya Public Service Commision’s (PSC) Report on Compliance with Values and Principles 2019-2020, at
https://www.publicservice.go.ke/index.php/reports/category/69-reports-2020?download=295:compliance-with- values-
Page 18 of 74
 3.5.3 Educational Institutions in Kenya and Africa
How have education and educational institutions incorporated or promoted national values and
principles in Kenya and Africa? The fundamental role of educational institutions and Government
is the inculcation of values and principles through the curricula content. Constitutional systems
inKenya and Africa have a major roleon nation-building through valuesystems and so does the
education system.

The colonial system of education was characterized by White racial discrimination and unequal
opportunity in Kenya and Africa. Africans or natives were relegated to a hybrid system of
education (largely informal) that incorporated mainly menial skills fit for lower-class jobs, what
Prof. William R. Ochieng refers to as “education for hewers of wood and drawers of water.”90

Other authors like Walter Rodney argued that the colonial system of education exacerbated
colonial imperialism in Africa, hence subjugating the African native to the lowest hierarchy in
society. This is thus principally the reason why educational institutions taught vocational skills
like carpentryand masonry. Most was devoid of relevant skills, knowledge and neccesssary values
and innovation,.91

As part of nation-building, Vision 2030 of Kenya constitutional engages science and technology
as a foundational pillar towards its realization. Vision 2030’s Constitutional basis lies in the
government powers and function regarding policy making, implementation and reviews….The
intention is to ensure learners are empowered, and that ethical values are ingrained in Kenya’s
educational system. That is, character and moral behaviour, not just education for self-reliance, as
was in the 8-4-4 system.

Relatedly, Free Primary Education (FPE) program introduced by National Rainbow Coalition
(NARC) administration led by President Mwai Kibaki and Raila Odinga in 2005 and the Sessional
Paper No. 1. of 2005. The NARC administration initiated FPE as a means of stabilising
Kenyaeradicating poverty, creating wealth and as a platform for economic growth.92 Sessional Paper
No. 1. of 2005 was entitled Policy Framework for Education, Training and Research for 21st

and-principles-report-209-2020-english (Accessed July 7, 2021).

90
William R. Ochieng’ (1989) A Modern History of Kenya 1885-1980, Evans Brothers Kenya Ltd, Nairobi.
91
Walter Rodney (1994) How Europe Underdeveloped Africa, East African Educational Publishers Ltd, Nairobi.
92
Simeon Hongo Ominde, Republic of Kenya (1964) Kenya Education Commission Report, Nairobi…. (Prof Simeon
Hongo Ominde, Chair, Ominde Commission; Cf. James Mwangi Kamunge, (1988) Report of the presidential working
party on education and manpower training for next decade and beyond in Kenya; Ben Sihanya (2013) “Devolution
and education law and policy in Kenya,” Law Society of Kenya Journal…. Cf. Chapter 7 CODRALKA 2, originally
Ben Sihanya (2013) “Devolution and education law and policy in Kenya,” Draft workingpaper presented at the Kenya
Human Rights Commission (KHRC) workshop on Devolution in Kenya, Palacina Hotel, Nairobi, April 18.
Page 19 of 74
century in Kenya93 It sought to mainstream equity and equality in access to education, and quality
education in Kenya.

The core point is that there has been increasing need to ensure equality of opportunity to all
Kenyans in the 21st century regardless of sex, gender, age, religious belief, ethnicity or disability.
Subsequently, there have been various changes or “reforms,” including the Competency Based
Curriculum (CBC) developed by the Kenya Institute of Curriculum Development (KICD),
established under the KICD Act No. 4 of 2013. Is the Competency Based Curriculum adopted
likely to deliver on these objectives? What about the “reforms”?

Education needs and is grappling with critical questions of values, principles and rules, and the
related questions of agency, structures and political cultures. Education reform needs a rethink of
the values and principles underlying the following four phenomena or variables. First, education
as reading, writing and arithmetic (3Rs). Second, education as broadly encompassing what I
conceptualize aseducation, training, research innovation and mentoring (ETRIM).94

Third, ETRIM as incorporating skills, knowledge, attitudes, values and innovation (SKAVI)
whereby skills focus on know-how, dexterity or psychomotor domain; knowledge relates to
know-why… or the cognitive domain; and attitudes and values relate to the affective domainAn
effective ETRIM incorporates an appropriate combination of formative or continuous and
summative terminal assessment, testing or measurement.

A good educational curriculum should not be too exam focused. Fourth, agency and structure of a
given education with individual integrity has three (3) pathways: general, professional and talent;
or academic in the, vocational and talent or gifted pathways. This includes structure of entry, stay,
exit and re-entry into the education system, for instance, the 1-7-4-2-3, 8- 4-4, and 2-6-3-395
systems, among others.

Values include how to survive (or operation and function), thrive, co-exist, competitiveness, and
integration of SKAVI. These are some of the issues that oughtto have been addressed by the
Competency Based Curriculum (CBC) officially launched by President Uhuru Kenyatta on
February 9, 2021 and subjected to review by President William Ruto. The CBC includes a 2-6-3-

………….
93
94
Ben Sihanya (2021-2023) forthcoming Professorial Inaugural Lecture……; See Ben Sihanya (forthcoming 2023)
Education Training Research Innovation and Mentoring Law and Policy in Kenya and Africa….
95
The debate on curriculum content and structure has become intense in 2018/2019, mainly related to implementation
of the competency based curriculum (CBC). See Ouma Wanzala (2019) “Knut steps up opposition to new
curriculum,” Daily Nation, Nairobi, 3/5/2019, at https://www.nation.co.ke/news/education/Knut-steps-up-
opposition-to-new-curriculum/2643604-5098362-tv45gn/index.html (accessed 17/7/2019). Ben Sihanya (2019)
“Interdisciplinarity in legal education, training, innovation and mentoring in Kenya and Africa.”….
Page 20 of 74
 3-3 system with more emphasis on competence and practical skills relevant to the 21st century.96

President Kenyatta II also established a State Department for Implementation of Curriculum

Reforms under the Ministry of Education. In support, President Kenyatta II stated that:

“We are at a tipping-point in our education system. The old must give way to the new. The
summons of our times requires us to re-imagine how we have educated our children. It requires
us to be bold, and not rigid. It calls us to imagine a system that creates responsible citizens as
opposed to subjects; a system that celebrates the creative potential of all our children as opposed to
one that leaves them with labels of failure, if they do not pass exams…. And a system that brings
about freedom as opposed to conformity. This is the promise of the Competency Based
Curriculum.”97

Kenyatta the II further stated:

response. Youth violence and pessimism are partly a result of low civic competence amongst
citizens. And this is because we have not taught our children the values of citizen participation from
an early age. This is why youth pessimism and blind activism are on the rise.”98

Relatedly, at least three (3) issues have been raised with regard to the implementation and efficacy
of the CBC. First, the content has not been sufficiently reviewed by the public. There was no
sufficient public participation and civil engagement before and during the launch. The level of
preparation in Kenyan schools for transition from 8- 4-4 and the implementation of the CBC
waslow. Second, inadequacy of the relevant infrastructure to aid its implementation. Third,
insufficient and lack of proper teacher training…

3.5.4 Religious or Faith-based Institutions and Contexts in Kenya and Africa

Religious institutions have played a role in the development of values and principles especially in
religious expression and observance in education socio-cultural, and in governance. This has
changed a lot in the pre-colonial era and under the administration or regime of Kenyatta I; Moi,
Mwai Kibaki, Kenyatta II and Ruto.99.

96
The Competency Based Curriculum (CBC) was officially launched by President Uhuru Kenyatta on February 9,
2021. Office of the President (2021) “Speech by H.E. Hon. Uhuru Kenyatta, C.G.H., President of the Republic of
Kenya and Commander-In-Chief of the Kenya Defence Forces during the official launch of the Competency Based
Curriculum (CBC) Taskforce Report on 9th of February, 2021 at KICC, Nairobi, at
https://www.president.go.ke/2021/02/09/speech-by-h-e-hon-uhuru-kenyatta-c-g-h-president-of-the-republic-of-
kenya-and-commander-in-chief-of-the-kenya-defence-forces-during-the-official-launch-of-the-competency-based-
curriculum-cbc-ta/ (accessed February 25, 2021).
97
President of Kenya (2021) “Boost for curriculum reforms as President Kenyatta unveils new State Department to
midwife CBC,” February 9, 2021, at https://www.president.go.ke/2021/02/09/boost-for-curriculum-reforms-as-president-
unveils-new-state-department -to-midwife-cbc. (accessed Juky 7, 2021).
98
Ibid…
99
Ben Sihanya (forthcoming 2023) “Constitution and Religion, Ethics and Morality in Kenya and Africa….,” initially
as think-piece and syllabus of issues for LLB 1.2 Constitutional Law Class 2021….. Conceptualize, problematize,
Page 21 of 74
 First, does the Constitution, legislative and policy frameworks in Kenya recognize the role of faith-
based organizations or religious organizations? Article 8 of the Constitution 2010 proclaims that
there shall be “no state religion”. Therefore, Kenya is a secular state that respects cultural and
religious diversity.100

……Authors including the American Constitutional Prof Mark Tushnet argue that the modern
constitutions do not adequately address the regulation of religious institutions across the world in
emerging democracies. He proposes an interrelation between liberalism in constitutional
democracy and a republican tradition in the society to create a suitable environment where religion
and secular constitutions can coexist peacefully.101

Second, how many religious organizations such as churches and mosques were registered as at
independence in 1963? 1978? 2002? 2007? 2013? 2017?102 Over the years? In 2022? In Kenya,
there are at least 8, 500 religious organisations with more than 7, 000 as at…..awaiting registration.
In 2014, the further registration of these institutions was banned paving way for the mushrooming
of rogue religious sects and t h e emergence of panda mbegu (plant the seed) pastors who extorted
money for prayers and “miracles”……103

The Office of the Attorney-General also introduced the Associations Bill, 2018 that sought to
reverse the ban on registration of churches in Kenya. This was also critiqued with religious leaders
arguing that the move was unnecessary. The matter was again debated during the Building Bridges
Initiatives (BBI).104

In Rwanda, President Paul Kagame was critiqued over issuing a controversial directive for the
closure of more than 6000 religious institutions. He also decreed that all religious leaders must
have at least theological education qualifications:

“I have closed over 6000 churches and 100 mosques in my country and I am now demanding for a
theology degree for every religious leader. Stop playing with people’s faith and making it a business.

contextualize what law constitution? Religion? Morality? Ethics? Relationship in law, on law, contract law, criminal
law, religion and health or healing; in religion, in education; in Kenya, United Kingdom(UK), US, South Africa,
Nigeria, Uganda, Tanzania, Rwanda, ex socialist states of USSR, China. What is the relationship among faith, prayer,
KEMSA, COVID-19 million….. criminal law and constitutional law? Undernatural law, positivism, sociology of
law (Karl Marx; Weber…free exercise versus establishments. Should religious leaders be regulated? “Seed,” miracle
workers (where were they during COVID-19?) cf. Draft Code…. cf. Ben Sihanya (1989) “Law, religion and morality: Is
the alliance sustainable?” Sheria, Issue No. 1 (A student’s law magazine).
100
See above……
101
Mark Tushnet (1988) “The Constitution of Religion,” Vol. 50(4), The Review of Politics, 628-658.
102
See VOA (2009) “Independent churches spread in Kenya,” VOA, October 27, 2009, at
https://www.voanews.com/archive/independent-churches-spread-kenya (accessed July 7, 2021).
103
………….
104
Ben Sihanya, “The BBI Litigation in the High Court, Court of Appeal, and Supreme Court of Kenya”…..Petition No.
12 of 2021 (Consolidated with Petitions 11 & 13 of 2021 BBI (due 2023) CODRALKA 1…..
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 Rwanda is aleady aa blessed country.”105

Religion has played various roles in the Kenyan society. For instance, during inquiries into the
Kenya Medical Supplies Agency (KEMSA) scandal in March 2021, one of the suspects, Ms Eunice
Cherono, alleged that God had led her to the KES 42 million worth of tender at KEMSA. She
claimed that:

“I can tell you without fear that God directed me there (to Kemsa). I prayed for it and I can tell
you my prayer was answered.”106

The rhetorical and absurd claims that unscrupulous individuals attach to their religious beliefs
when it comes to inquiries on their fidelity to Chapter 6, on Leadership and Integrity is what
informs the need for balanced… regulation….in Kenya and Africa.

Third, what is the typology on religious organisations in Kenya and Africa? At the centre of the
debate is the role and extent of the State regulating religious organisations. Also contentious is
the regulation of the source of church funds and their use and whether they should be subject to
taxation. Linus Kaikai remarked in August 2019 that:

“the people behind these so-called churches have gone rogue in the name of Jesus, in the name of
God. We are dealing with thieves not men of God.”107

This statement was made in the debate and calls for tighter regulations of the upsurge of religious
organisations in Kenya. Similar sentiments were raised after a proposal by Kangema Constituency
Member of Parliament (MP), Mr. Muturi Kigano in 2019 to strengthen the controls under the
Societies Act Cap, 108 to regulate religious societies. The proposed amendment sought to
empower the Registrar of Societies in the Attorney-General’s Chambers to regulate churches.108

Fourth, what is the difference between religion and spirituality?109 The general distinction is that
religion is official and institutionally organized set of shared beliefs ascribed to a particular
community or group.110 Spirituality is individualistic and describes personal beliefs as opposed to
common ideals.111

105
President Paul Kagame on the issue of regulating religious organisations in Rwanda.
106
Moses Odhiambo (2021) “God led me to Kemsa, nurse in Sh42 million deal tells MPs,” Star, Nairobi, March 3,
2021, at https://www.the-star.co.ke/news/2021-03-02-god-led-me-to-kemsa-nurse-in-sh42-million-deal-tells-mps/
(accessed July 7, 2021).
107
…….
108
………..
109
Daniel Wesangula (2021) “Murder at the altar: When men of the cloth turn into killers,” Standard, Nairobi, March4,
2021, at https://www.standardmedia.co.ke/nairobi/article/2001405266/murder-at-the-altar-when-men-of-the-
cloth-turn-into-killers (accessed March 8, 2021).
110
………….
111
…………….
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 Fifth, how does the Preamble, Article 8 (State and religion), and Article 27(4) (equality and
freedom from discrimination) apply? These constitutional provisions recognize the respect of
cultural and religious diversity in Kenya, and non-discrimination of any individuals based ontheir
religious beliefs. These fundamental rights and freedoms have been contested especially in
educational institutions with regard to the observance of Sabbath versus school programs or
routines and the question of what students and pupils may or may not wear hijab.

For instance, in Methodist Church in Kenya v. Mohamed Fugicha & 3 Others (2019) (the
famous hijab case),112 the Supreme Court of Kenya held that institutions of learning retain the
obligation of setting the dress code. The Respondent had petitioned the ban on wearing of the hijab
at St. Paul’s Kiwanjani Day and Mixed Secondary School, in Isiolo County.113

The other notable case was JWM (alias P) v. Board of Management of High School & 2 Others
(2019), otherwise termed the Rastafarian case. The High Court recognised Rastafarianism as a
religion and hence allowed the applicant’s child to maintain her dreadlocks in school.114

In South Africa, the Constitutional Court in Prince v. President, Cape Law Society (2002), upheld
the right of Rastafarians (as minority groups) to the use of Cannabis sativa for religious purposes.
The issue was whether the action of the Law Society denying Prince registration, on grounds that
he had been caught in possession of Cannabis sativa twice was constitutional. Prince argued that
he was a Rastafarian and hence used the drug for religious purposes.115

A similar case that sought the legalisation of Marijuana for medicinal and religious purposes was
filed at the High Court of Kenya in 2021….

Further, we conceptualize, problematize and contextualize the positive role of religion in terms
of the following six (6) approaches. First, faith….. Second, religion in ethics, ethos…. Third,
religion and morality…. Fourth, religion in actions or works. Fifth, religion in social organization
and economic development….. Sixth, religion in political mobilization……
These were also some of the reasons advanced by Member of Parliament (MP) Mr Muturi Kigano
in his proposed exclusion of the traditional churches including the African Inland Church (AIC),
Catholic and Anglican Church of Kenya (ACK), from the modern-day church enterprises.116 He
argued that these traditional religious institutions had contributed extensively to infrastructure,
education, health, and charity…….117

Also, related concepts of mercy, grace and salvation in the context of constitutional sociology,

112
Hijab is the veil worn by women of the Islamic faith….
113
Methodist Church in Kenya v. Mohamed Fugicha & 3 Others [2019] eKLR.
114
JWM (alias P) v. Board of Management O High School & 2 Others [2019] eKLR.
115
Prince v. President, Cape Law Society (2002) (3) BCLR 231 (CC); 2002 (2) SA 794 (CC).
116
……………..
117
……………..
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 political economy, and constitutional sociology and democracy.

3.5.5 Civil Society Organisations (NGOs, PBOs, CBOs….) in Kenya and Africa
Civil Society Organisations (CSOs) led the struggle for inclusion of the Constitution of Kenya
2010 on values and principles of governance including the incorporation of customary
international law and treaties…….The pre-independence struggle was mainly driven by trade
unions including the Kenya Federation of Labour (KFL). These werederegistered at the whims of
the Colonial Government.118

Other CSOs have been synonymous with working for the state. These include the Youth for KANU
92 (YK92) which campaigned for President Moi during the 1992 General Elections.

…..The 1980s marked the height of the emergence of human rights and govenance CSOs with the
rise of ICJ Kenya, LSK, the National Election Monitoring Unit (NEMU), Clarion, and the Citizen
Coalition for Constitutional Change (CCCC). The 4Cs and others drafted Constitution and
presenting it to President Moi to address the then lack of public participation in constitutional
review, political economy and governance issues.119

3.6 A Typology of Safeguards in Kenya and Africa

Constitutional safeguards may be divided into three (3) broad categories or typologies: First, the
normative safeguards. Second, the institutional safeguards. Third, the structuralsafeguards.

3.6.1 Normative Safeguards in Kenya and Africa: Values, norms, rules, principles Normative
safeguards include the rules, values, principles regarding liberties or rights, power,functions
and responsibilities. They inform relationships or structures. Hence norms are about rules.120
They are also about values. And they are about value judgments of right and wrong.

What are the normative standards under the Bill of Rights, among others?121

The Bill of Rights (Arts. 19-59) protects the fundamental freedoms and liberties of the
individual.122 These include the freedom of expression (Art. 33), freedom of the media (Art 34),
freedom of access to information (Art 35), right to property (Art. 40), equal protection of law or
freedom from discrimination equal protection (EP)) or antidiscrimination clause (Art. 27); and the

118
……………..
119
……………………
120
Cf. the normative system under Hans Kelsen’s pure theory of law, including the system of deriving one norm from
another, until one gets to the grund norm…..See Chapter 1, 5,,,cf. Prof Larry Lessig’s four modalities of regulating
behaviour (power? Liberties?): law, social norms, technology or architecture, and market…. See Lawrence Lessig (1999)
Code and other Laws of Cyberspace, Basic Books; Lawrence Lessig (2011) Republic, Lost, Hachette Books Group.
121
Cf. Norm as rule; judgement call v. morality; social norms; values.
122
Under the 1969 Constitution, Chapter V (ss. 70-86).
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 due process clause (as it is called in America) (Art. 47, 50).

Normative safeguards, including the Bill of Rights, operative rules of law generally, and the
rules on executive as well as presidential power have a second purpose of limiting governmental
power. E.g. when a freedom has been infringed by the Government or any other person, the
claimant may have redress (Art 19-25; Art 47-51).

The normative safeguards also seek to ensure that the Government exercises power responsibly
and in a manner that facilitates the enjoyment and protection of freedoms and liberties. This is a
major aspect or fragment of American constitutional democracy which emphasizes the facilitative
role of government in the recogntion, promotion and enjoyment of freedoms. In a sense, it qualifies
the essentially British or Montesquieian notion that focuses on limited government. Both are
incompetent.

3.6.2 Institutional Safeguards in Kenya and Africa: Agencies and Organizations

We pursue a three-pronged typology on institutions at safeguarding Kenya and Africa. First,
Government of public institutions, including at national, county and intergovernmental levels.
These include ministries, departments, and agencies (MDAs) and semi-autonomous
Governmental Agencies (SAGAs)…

Second, civil society organisations (CSOs), some of which already exercise some constitutional or
public authority, including representation in commissionsand parastatals…. These include Non-
Governmental Organisations (NGOs), Public Benefit Organizations (PBOs), and community-
based organizations (CBOs)…..123
Third, private sector organisations. Some of these also exercise public power especially under
public private partnerships (PPP).124 The institutional safeguards include the separation of powers
into three (3) broad categories or arms of Government, namely, legislative, executive and judicial
powers or (powers of adjudication).

123
See Chapter 4 on Participation and Representation in Kenya and Africa: Electoral system, System Parties, CSOs,
Business Organisations in Ben Sihanya (forthcoming 2023) CODRALKA 1 & 2. See cases on enforcement of the Public
Benefits Organizations Act, 2013; deregistration and harassment of CSOs including African Center for Open Governance
(Africog); Muhuri and Clarion in the 1990s…… In the Trusted Society of Human Rights Alliance v. Cabinet Secretary
Devolution and Planning & 3 Others [2016] eKLR, the petitioner petitioned why the provisions of the Public Benefit
Organisation Act, 2013 had not come into operation for over two and half years. Justice Louis Onguto issued an order of
mandamus compelling the CS Devolution to comply; See Jillo Kadida (2017) “Nkaissery given 30 days to implement
Public Benefit Organisation Act,” Star, Nairobi, 13/5/2017, at https://www.the- star.co.ke/amp/news/2017-05013-
nkaissery-given-30-days-to-implement-public-benefits-organisation-act/ (accessed October 11, 2020).
124
….This is especially in the energy sector where the Kenya Power and Lighting Company (KPLC) engages private
contractors to generate and transmit electricity. See the Report of the Presidential Task force on Review of Power
Purchase Agreements, released on September 29, 2021 (PPA Taskforce).
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 Moreover, these safeguards are secured by ensuring that there are checks and balances or inter-
dependence among the three (3) core organs of Government, i.e. the Legislature, Executive and
the Judiciary. The 47 County Governments are also structured in tems ofthe county legislative and
the executive. However, there is no judicial branch at county level.

What about the Parliamentary Powers and Privileges Act, 2017 that clothes members of the
National Assembly (NA) with immunity from prosecution from their acts while in office? Such a
move regatesequality before the law, which is a fundamental pillar of the rule of law.125 Relatedly,
MPs enjoy parliamentary immunity with regard to claims of defamation for anything they say
within the precincts of Parliament. This is similar to the practice in Zambia,the United Kingdom
and Egypt, among others.

Contradistinctively (?)…, in the United Kingdom, an amendment was introduced to the

Defamation Act, 1996, to the effect that parliamentary immunity can be waived or renounced by
members of the House on matters of slander and defamation. This parliamentary privilegederives
from the common law and is usually targeted at ensuring robust and unhindered debate in
Parliament. In some jurisdictions like Australia and Russia, parliamentary immunity is
conceptualized as freedom of speech.126

Given the numerous cases of corruption,127 drug trafficking, money laundering,128 child and wife
maintenance129 among members of Parliament (MPs), Senators and House Speakers,130 one may
easily see the mischief of MPs in seeking to protect themselves from prosecution.131 In Ethiopia,
during Prime Minister Meles Zenawi’s tenure, at least 334 pro-Government members of the House

125
A.V. Dicey (1885) An Introduction to the Study of the Law of the Constitution, Part II Chapter IV…… cf….
126
………………
127
….Kevin Rotich (2021) “The House of graft? Kenyans believe half of MPs corrupt,” Business Daily, Nairobi, January
11, 2021, at https://www.businessdailyafrica.com/bd/data-hub/the-house-of-graft-kenyans-mps-corrupt- 3253038
(accessed February 25, 2021).
128
Felix Olick (2020) “How MP Gachagua received Sh5.7 billion in 7 years,” Star, July 1, 2020, at https://www.the-
star.co.ke/news/2020-07-01-how-mp-gachagua-received-sh57-billion-in-7-years/ (accessed July 8, 2021).
129
….In 2015, Homa Bay MP, Peter Opondo Kaluma introduced a Bill in Parliament to amend the Children’s Act to
provide that estranged husbands be given the responsibility to live with and take care of children without taking care of
their estranged wives. The Bill was voted down by 97 voting against versus 65 MPs who supported it.
130
Justus Wanga (2021) “Hunted man? Long list of Ruto’s allies facing graft claims,” Daily Nation, Nairobi, July 4,
2021, at https://nation.africa/kenya/news/fury-as-more-than-30-in-ruto-camp-face-jail-3460562 (Accessed July 8,
2021); Paul Ogemba (2021) “Senate Speaker Kenneth Lusaka admits impregnating woman, seeks out of court
settlement,” Standard, Nairobi, settlement,” Standard, Nairobi, at
https://www.standardmedia.co.ke/national/article/2001417669/kenneth-lusaka-admits-impregnating-woman-seeks- out-of-
court-settlement (accessed July 8, 2021).
131
…. See the Parliamentary Powers and Privileges Act, 2017; See also the debates on the immunity of Governorsin
Jill Cottrell Ghai (2020) “Governors should not have immunity from prosecution – and should the President?” Star,
Nairobi, January 4, 2021, at https://www.the-star.co.ke/siasa/2020-01-04-governors-should-not-have- immunity-from-
prosecution--and-should-the-president/ (accessed March 11, 2021)
Page 27 of 74
voted to veto the parliamentary immunity of Opposition members, who largely belonged to the main
Opposition party, the Coalition for Unity and Democracy (CUD).

Relatedly, County Governors in Kenya also claimed immunity against prosecution including on
murder and corruption charges….. The County Governors argued that they ought to enjoyimmunity
just like the President. It has been debated that Presidents enjoy absolute immunity for actions and
omissions performed in the context of Art. 132 (on the functions of the President) and other related
functions.132

This can be contrasted to the High Court’s decision in Republic v. Chief Justice of Kenya & 6 Others
ex parte Moijo Mataiya Ole Keiwua (2010). The High Court held that a President can be sued in their
official capacity for violating the Constitution.133 Therefore, does the Constitution have structural
safeguards that can check on the arms of Government and their fidelity toconstitutional
democracy, constitutionalism and the rule of law?

3.6.3 Structural safeguards in Kenya and Africa: Organs, institutional hierarchy and
relations
Structure in constitutional democracy in Kenya and Africa134 has at least two (2) meanings. First,
the institutions as organ(isation)s that exercise public power constitute the structure. Second,
structure and structural safeguards emphasize the relations among the core normative standards,
or the core institutions and organs of Government135 or those that exercise public power.136

Structural safeguards are three-pronged. The first category is the separation of the various sets of
public powers. It has been discussed above in the relevant Chapters on the legislature, the
executive, the judiciary and the commissions andindependent offices.137

132
…………………..
133
See also Nyarotho v. Attorney General & 3 Others [2013] eKLR that held that judicial review is the route for
contraventions by a sitting President.
134
Political science and political sociology. Compare and contrast structure……
135
Structure also relates to the authoritative or hierarchical character of the constitutions, legislative, regulative, and
administrative rules and procedures.
136
The normative system of rules, values, principles and policies are also sometimes regarded structurally for instance
under Hans Kelsen’s theory of grund norm, and in Karl Marx’s formulation of the infrastructure and …. of the political
economy: economic relations of production vis-a-vis ideology or consciousness. See Shivji (1995) “The Rule of Law and
Ujamaa in the ideological formation of Tanzania;” Corrigan and Sayer (2018) “How the law rules: Variations on some
themes in Karl Marx...” Ghai (1986) “The rule of law, legitimacy and governance.” Vol. 14(2) International Journal of
the Sociology of Law 179-208; Ghai (1993) “The Constitution and governance in Africa: A prolegomenon;” op. cit….
Ghai (2005) “A journey around constitutions: Reflections on Contemporary Constitutions;” ….Ghai (2002) “The
Constitution and the economy,” a paper presented by Prof Yash Ghai, Chairman of the Constitution of Kenya Review
Commission (CKRC) at the Institute of Economic Affairs (IEA), annual lecture held on January 28, 2002…
137
CSOs also exercise public power or authority under the Constitution of Kenya 2010, South Africa and several other
African states…..
Page 28 of 74
 Second, structural safeguards relateto the authoritative or hierarchical character of the
constitutional, legislative, regulatory, and administrative institutions of government. Third, the
independence of the organs of the Government:138 This includes the competence (or ability),139
impartiality, and integrity of every arm of Government, namely, the Legislature, the Executive and
the Judiciary.

Third, the independence and competence of Parliament. At least four (4) fundamental questions
arise in this context. What role, if any, is there for Parliament to regulate or dismiss an
unresponsive Executive? Was s. 59 (vote of no confidence) utilized in Kenya and Africa?Is
complete independence and separation of powers or possible impeachment desirable? Will Art.
145 (impeachment) be easily available?...

Relatedly, Constitutional experts led by Yash Pal Ghai and Former Committee of Experts (CoE)
member Ekuru Aukot argue that the supporters of a referendum coulddraft a petition to impeach
President Uhuru Kenyatta II for failed leadership regarding the many issues affecting Kenyans
raised by CORD and the Council of Governors (CoG).

The five-judge High Court bench’s decision in David Ndii & Others v. Attorney-General & Others
(2020) (the BBI cases) technically provided grounds for initiating the impeachment of President
Kenyatta by the finding that President Kenyatta II had violated Chapter 6 of the Constitution 2010
by constituting the Building Bridges Initiative (BBI) Taskforce. How did the Court of Appeal and
the Supreme Court addresses President Kenyatta’s role in the BBI reform process, presidential
immunity and related issues?....

Compare the propaganda and manipulation of “tyranny of numbers” as an obstacle to impeachment

in ethnically divided eleventh and twelfth Parliaments.140 It is useful to note that
Parliamentary supremacy is no less evil than an Executive overlord. Neither is the nature of the

138
Cf. Former Chief Justice Willy Mutunga’s statement on 20/2/2013; the then Chief Justice alleged that he received
death threats from the Mungiki. He called it a “poison-pen letter from the Mungiki Veterans Group/Kenya Sovereignty
Defence Squad….” … See Cyprus Ombati (2013) “DPP orders fresh probe on threats to CJ Mutunga,” Standard,
Nairobi, 15/12/2013, at
http://www.standardmedia.co.ke/?articleID=2000081627&story_title=Kenya:%20DPP%20orders%20fresh%20prob
e%20on%20threats%20to%20%20CJ%20Mutunga (accessed 9/76/2014). He also stated that he had been stopped
from travelling to Tanzania by immigration officers. Were these political games by perpetrators and “victims” to
secure confidence of the people in the Judiciary and in Willy Mutunga and lay a basis for the Supreme Court of Kenya
decision in Raila v. IEBC (2013)?....
139
In the sense of jurisdiction or mandate…

140
Rawlings Otieno (2014) “Experts: Referendum only possible in March 2016,” Standard, Nairobi, 23/9/2014, at
http://www.standardmedia.co.ke/mobile/?articleID=2000135827&story_title=experts-vote-only-possible-in-march-
2016 (accessed 29/9/14)…..
Page 29 of 74
emerging judicial hyper-activism better than the Executive’s disobedience of court orders…..(?)
Every arm of Government can intefere withthe other and lead to a crisis or breakdown of operations,
or impede governance if it has concentration of power.

Impeachment of President Kenyatta II was debated as part of addressing the concerns raised by Okoa
Kenya and the Council of Governors (COG). This was amid the chorus in the National Assembly
that “we have the numbers?”141 The question of impeachment by Parliament is quite problematic
where an incumbent has a majority in the Houses and especially where the House had passed the
impugned constitutional reform proposals. These issues are substantively addressed in Chapter 7….
of CODRALKA 1 below….

The Judiciary may also declare parliamentary enactments unconstitutional and review laws made by
Parliament. For instance, in 2015 the Coalition for Reforms and Democracy (CORD) petitioned the
enactment of the Security Laws (Amendment Act), 2014 by Parliament on at least four (4) grounds.
First, that some religious groups including Islam felt that sections of the proposed laws targeted them.
Second, lack of substantive and proper public participationThird, that it violated the Bill of Rights
and hence null and void. Fourth, the question as to whether the Bill concerned counties.142 The
Judiciary may also review legislation and executive conduct. The executive plays a lead role in
vetting the CJ anddismissal of judges and magistrates. President Uhuru Kenyatta II only swore in
34 out the 41 judges that had been approved by the Judicial Service Commission (JSC) for promotion
to the Court of Appeal (7 judges), Environment and Land Court (ELC) (10 judges) and Employment
and Labour Relations Court (ELRC) (18 judges).143

This partially broke the stalemate that defined the Executive-Judiciary relations since 2019. The
Kenyatta II’s regime was also heavily critiqued for its disobedience of court orders and cherry-
picking of Court of Appeal judges in 2021….144

Relatedly, I have argued in various fora that;

“Cherry picking of judges by the President after JSC recommendations compromises the separation of

141
Ben Sihanya (2015) “Continuity of Constitutional Implementation in Kenya after CIC,” presentation at Conference
on Continuity of Constitutional Implementation in Kenya, Strathmore Law School, 27/1/2015 Would
the following sufficiently lead constitutional implementation? A-G’s office, Kenya Law Reform Commission
(KLRC)….
142
See Coalition for Reforms and Democracy & 2 Others v. Republic of Kenya & 10 Others [2015] eKLR. The
Security Laws (Amendment) Act 2014 was later passed and assented to.
143
The six (6) not gazette were justices Aggrey Muchelule, JG Odunga, Prof Joel Ngugi, Weldon Korir; Chief
Magistrate Evans Makori and High Court Registrar Judith Omange. The list was reportedly different from thatearlier
intimated according to Dr Mercy Deche ex Vice Chair of the Judicial Service Commission (JSC)….
144
High Court decided that they be deemed to be appointed. See Katiba Institute v. President of the Republic of Kenya,
Petition No. 206 of 2010.
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 powers, interdependence and checks and balances between as well as independent accountability of the
Judiciary and the Executive in Kenya and Africa.145

Scholars, academics and lawyers on the nature of restraint necessary to regulate the exercise of
Executive powers and functions in a modern democracy, necessary to safeguard the separation of
powers, the rule of law and Constitutional democracy in Kenya and Africa. This must be balanced
against the creation of a “ceremonial” Presidency, without input in legislation or constitutional
processes, and safeguarding of Chapter6 of the Constitution 2010.

3.7 Leadership and Integrity under the Kenyan Constitution, 2010, Statutes and
Regulations
Values and principles have been debated in the context of the appointment, election, service or
operation, discipline and dismissal of State and public officers.146 A sate officer under article 260
of the Constitution is defined as a holder of a state office. It refers to a person who holds an office
established by the Constitution or an office which is designated as a state office by national
legislation.147

3.7.1 Constitutional, Statutory and Regulatory Framework on Values and Principles on

Leadership and Integrity in Kenya
Chapter Six of the Constitution substantively establishes the leadership and integrity standards.
Other Articles including Article 10 (discussed earlier), Article 201 and Article 232 also provide
for the relevant values and principles.

Under Chapter 6 (Articles 73 and 75) of the Constitution, a State Officer is to behave whether in
public and official life, in private life or in association with other persons, in a manner that
controlled by three factors: first, promotes the interests of the people. Second, promotesthe public
good or public interest (Arts 73-80). Third, avoids at least three (3) outcomes:

145
See Brian Otieno (2021) “Lawyers and civil society challenge Uhuru’s decision to drop judges,” Standard, Nairobi,
June 5, 2021, at https://www.standardmedia.co.ke/national/article/2001414818/lawyers-and-civil-society-challenge-
uhurus-decision-to-drop-judges (accessed July 8, 2021).
146
Cf. This has been debated in the context of, among others, the then Hague suspects running for Presidency and
Deputy Presidency on Jubilee platform; and in the Matemu and Baraza cases. Is there conflict of authority? See Trusted
Society of Human Rights Alliance v. Attorney General, Minister for National Cohesion & Constitutional Affairs,
Director of Public Prosecutions and Mumo Matemu, Petition No. 229 of 2012 and The Prosecutor v.Francis
Kirimi Muthaura & Uhuru Muigai Kenyatta, Case No. ICC-01/09-02/11-373. See also Chapters 2 on Constitutional
Founding of the Kenyan and African State; and Chapter 22 on Lawyers, Public Interest Lawyering, and Constitutional
Democracy in Kenya and Africa on the debates on ICC v. Kapenguria 6.
147
….
Page 31 of 74
First, any conflict between personal interests and public or official duties. Second,

compromising any public or official interest in favour of a personal interest. Third,

demeaning the office the officer holds..

This has a history from the Public Officer Ethics Act (POEA), 2003 as amended.148

Failure to abide by the foregoing and related provisions, regulations, values and principles and values
may render the officer subject to disciplinary procedures which may include dismissal or removal
from office. This also means that State officers are obliged to carry themselves in the most transparent
and accountable manner possible and should not attempt to derive any form of personal advantage
from their offices.149

Significantly, Deputy Police Commissioners Grace Kaindi and Ndegwa Muhoro could not be
appointed as Deputy-Inspector General (D-IG) in charge of Kenya Police in spite of having been the
best performing candidate, due to gender balance.150

……What about Kenyatta II and William Ruto as ICC suspects or indictees? Or the twenty (20) or
so aspirants who were the subject of a disqualification suit in 2017? What of Mumo Matemu in the
High Court and Court of Appeal cases? In the Supreme Court?151 Some claimed that these issues
were not justiciable or that there is a presumption of innocence. Additionally, that they were a
matterof values and rules, not legislation. That Chapter 6 does not deal with the elected officials.

148
See the proposed amendments in the Public Officer Ethics (Amendment) Bill, 2020.
149
See also Art. 10, Constitution of Kenya 2010. Related to other issues and sections? It was alleged that the ICC
case against Deputy President Wiliam Ruto may be revived ahead of the 2022 general elections. See Patrick Vidija
(2020) “My opponents reviving ICC case to stop my presidency- DP Ruto,” Star, Nairobi, 23/1/2020, at
https://www.the-star.co.ke/amp/news/2020-01-23-my-opponents-reviving-icc-case-to-stop-my-presidency-dp-ruto/
(accessed October 11, 2020); cf. the debate on the surrender to the ICC and charge against Advocate Paul Gicheru…
See Carolyne Tanui (2020) “Kenyan Lawyer Paul Gicheru denies witness tampering charges in first ICC
Appearance,” Capital News, Nairobi, November 7, 2020, at https://www.capitalfm.co.ke/news/2020/11/kenyan-
lawyer-paul-gicheru-denies-witness-tampering-charges-in-first-icc-appearance/ (accessed November 9, 2020);
Kevin Cheruiyot (2020) “Paul Gicheru denies all the six allegations against him before ICC,” Star, Nairobi,
November 6, 2020, at https://www.the-star.co.ke/news/2020-11-06-paul-gicheru-denies-all-the-six-allegations-
against-him/ (accessed November 9, 2020). Note: it is about State Officers, etc… elected or appointed. Cf. Paul
Muite’s statist arguments ..... cf. the debate on the surrender to the ICC by lawyer Paul Gacheru in 2020…. and
comments by Deputy President (DP) William Ruto’s lawyer, Katwa Kigen… See Nyambega Gisesa (2020)
“Release me from custody, Ruto lawyer Gicheru begs ICC” Daily Nation, Nairobi, November 6, 2020, at
https://nation.africa/kenya/news/release-me-from-custody-ruto-lawyer-gicheru-begs-icc-2733126?view=htmlamp
(accessed November 20, 2020).
150 131
Bernard Momanyi (2013) “Kaindi, Arachi and Muhoro secure police jobs,” Capital News, January 25, 2013, at
https://www.capitalfm.co.ke/news/2013/01/kaindi-arachi-and-muhoro-secure-police-jobs/ (accessed March 5, 2021).
151
……..
Page 32 of 74
Section 52 of the Leadership and Integrity Act, 2012 provides for the application of Chapter 6 of
the Constitution and the Act to public officers as if they were state officers. The Constitution 2010
also defines a public officer as a person who holds an office in the National Government, County
Government or the public service.152 Therefore, a public officer includes a state officer and the
provision of the Act applies to both state officers and public officers.

The argument that Chapter 6 of the Constitution only binds appointed officers to the exclusion of
elected officials is unconstitutional, , fallacious and negates popular sovereignty. The Kenyan
people decided that they want integrity in their state and Public Officers under Chapter 6 of the
Constitution. The fact that the same people (citizens and electorate) vote or elect some of the
officers to public offices does not preclude them from demanding scrutiny and accountability
whenever such officers fall short of the irreducible standards.

Such an interpretation is erroneous and mischievous in the light of clear Constitutional provisions,
national principles and values demanding accountability and transparency under Art. 10, Chapter
Six (6) and Art. 232, etc and the express mention that the Constitution binds all state organs and
State officers under Art. 2 of the Constitution.

If Kenyan people wanted to exclude their elected leaders from the provisions of Chapter 6, nothing
would be easier than to expressly state so. Indeed, this is the reasoning behind the inclusion of the
recall clause for members of National Assembly in the Constitution. It is a recognition that those
who elect also have the power to rename. And such power must never be taken from beyond their
reach.

Consider the Gilgil weighbridge incident between police officers and Nandi Hills MP Alfred Keter
and (URP) nominated MP Sunjeev Kaur Birdi.153 In the matter, the DPP recommended the
prosecution of the two (2) elected leaders for alleged breach of Chapter Six of the Constitution.

3.7.2 Gifts and Donations to State Officers in Kenya and Africa

Article 76 further provides that a gift or donation to a State officer on a public or official
occasion is a gift or donation to the Republic and shall be delivered to the State unless exempted
under an Act of Parliament. Arts. 33 (freedom of expression), Art 75 (conduct of state officers),
10 (national values and principles), Art 232 (values and principles of public service)… and the
intention(or intendment) indicate that the occasion does not matter. Avoid conflict of interest must
be avoidable at all times and the officer serve the public interest at all times an in all places.

152
Article 260 of the Constitution 2010; Commission for the Implementation of the Constitution v. National Assembly
of Kenya & 2 Others [2013] eKLR…..
153
Angira Zadock (2015) “Alfred Keter claims officers at Gilgil weighbridge were seeking bribes,” Sunday Nation,
Nairobi, 25/1/2015, at http://mobile.nation.co.ke/news/DPP-EACC-probe-Alfred-Keter-over-Gilgil-weighbridge-
saga/-/1950946/2601724/-/format/xhtml/-/fm500h/-/index.html (accessed 6/2/15).
Page 33 of 74
In this section, we need to recall the three-pronged typology that I have developed on leadership and
integrity: First, serve the people with integrity because it is an honour. Second, public interest to
override personal interest. Third, avoid conflict of interest….

Relatively, the (BBI) Report 2019 and 2020 contained legislative proposals including the Ethics
and Integrity (Amendment) Laws Bill, 2020 which proposes to amend the Leadership and Integrity
Act, 2012 to provide for effective administration of Chapter 6, and to ensure wealth declaration
among public and state officers.

Further, the Bill contained proposed amendment to the Public Officer Ethics Act, 2003 which
seeks to bar public officers from participating in public fundarising (harambees) by providing an
alternative to channel their contributions to charitable organizations or NGOs. In the same breadth,
the BBI Report 2020 proposed the introduction of a Contribution to Charity Bill, 2020 to regulate
harambees or public fundraising. This was intended to address corruption that may be hidden
under the conduit of public collections and harambees.

It is important that political leaders and state officers exhibit the national values and principles
under the Constitution 2010, and the integrity principles fully to avoid conflict of interest. There
ought to be a regulatory framework also on the amount and source of the money donated to
churches during Harambees. This is to avoid corruption and money laundering through religious
institutions.

3.7.3 Foreign Bank accounts by State Officers in Kenya and Africa

In addition to this, a State officer is not to maintain a bank account outside Kenya except in
accordance with an Act of Parliament. The issue of foreign bank accounts was crucial especially
in the 1970s and 1980s.154 Restriction on maintaining a foreign bank account is also related to
corruption and money laundering when money is obtained through illegal activities then banked
or “laundered” as proceeds of lawful activities.

An example is Samuel Gichuru155 and Chris Okemo156 who were indicted abroad by the Royal
Court of Jersey but the Kenyan Government failed or refused to repatriate them to stand criminal

154
Martin Shikuku, the then Member of Parliament (MP) for Butere Constituency, the “people’s watchman,”
articulated the issues of corruption and foreign bank accounts in and outside Parliament. Mr Charles Njonjo who was
the Attorney-General and later Minister for Constitutional Affairs would always be defensive: substantiate or withdraw
and apologise….
155
He is a former Managing Director of Kenya Power & Lighting Company (KPLC). See John Kamau (2018) “How
ex-Kenya Power boss built Sh20bn empire,” Daily Nation, 11/3/2018, at https://nation.africa/kenya/news/how-ex-
kenya-power-boss-gichuru-built-sh20bn-empire-21162?view=htmlamp (accessed October 10, 2020).
156
He is a former Finance Minister in the Moi Admnistration…
Page 34 of 74
trial.157
It was reported that KES 444 Million that had been seized from Mr Samuel Gichuru and Mr Chris
Okemo’s offshore bank account, would be repatriated to Kenya. That fund would then be used to
purchase medical supplies for COVID-19 treatment. There was no evidence that this was done. 158

What is money laundering? Examples include smuggling ivory or elephant tusks historically; child
and women or human trafficking for enslavement159 or prostitution; copyright, trade mark, patent
and related intellectual property (IP) infringement, piracy and counterfeiting anddrugs peddling.160

There have been numerous reports on depositing money (illegally) in foreign account, and on
money laundering. Examples include the Kroll Report just after President Daniel Moi left the
Presidency in 2022. It was also reported that at least $1 billion was discovered unaccounted for in
foreignaccounts.161

The Panama papers also implicated at least 191 Kenyan officials, who allegedly had foreign bank
accounts. Some of the prominent names included former Deputy Chief Justice Kalpana Rawal who
was alleged to control four (4) offshore companies.162 President Kenyatta also spoke of billions
(illegally) held abroad…163

3.7.4 Personal loans by state officers in Kenya and Africa

A State Officer may not seek or accept a personal loan or benefit in circumstances that compromise
his integrity. This seeks to secure financial probity of State officers and reduce the chances of

157
Cf. the legislative proposals on money laundering; the relevant cases…. See Walter Menya (2021) “Moi, Kibaki
men linked to US firm in power graft,” Sunday Nation, Nairobi, March 7, 2021, at 4-5, at ….. (accessed ….)
(Gichuru…).
158
Brian Ngugi (2021) “Sh444m seized from Gichuru, Okemo to be used for Covid treatment,” Business Daily,
Nairobi, January 7, 2021, at https://www.businessdailyafrica.com/bd/economy/sh444m-seized-from-gichuru-okemo-
covid-treatment-3249448 (accessed March 11, 2021).
159
For instance, in the Middle East.….
160
A ship was sunk on the orders of President Uhuru Kenyatta in spite of a court order. Were the drugs also destroyed?
Kenya is a consumer’s destination, provides transit, and is a source of (some) drugs. Drug trafficking is an offence
under the Narcotics Psychotropic Substance Act and an international crime….See the case: Republic v. Yousuf Yaqoob
& 11 Others [2014] eKLR, Criminal Revision No 42 of 2014; .Nation Team (2014) “Sh1.3bn drugs ship blown up at
sea,” Daily Nation, 29/8/2014, at nation.africa/kenya/news/sh1-3bn-drugs-ship-blown-up-at-sea-
1019142?view=htmmlamp (accessed October 10, 2020).
161
See the Kroll Report (2004); The Basel Institute on Governance, International Institute for Asset Recovery, Kroll
Report, at www.assetrecovery.org/kc/node/0086b5a2-c6c8-11dd-b3f1-
fd61180437d9.0;jsessionid=63546BFC111DD623D4FEC137B1C20A71.
162
Jacqueline Kubania (2016) “More Kenyans on Panama Papers list,” Daily Nation, Nairobi, 12/5/2016, at
https://nation.africa/kenya/news/more-kenyans-on-panama-papers-list-1197796?view=htmlamp (accessed October
11, 2020).
163
……..
Page 35 of 74
 acquiring any questionable form of personal financial gain from their office.164
Consider Moses Wetangula’s claim of KES 12million “friendly loan” to Mr Danson Mungatana in
2014.165

In the suit filed by Senator Wetangula, he alleged that he had advanced the loan to the then
Kenya Ports Authority (KPA) Chairperson Mr Mungatana based on an oral agreement. Mr
Mungatana disputed having received any such money and that the case was “based on an illegal
unenforceable contract that is against public policy.”166

……Compare the claim by Secretary General of the Central Organisation of Trade Unions (COTU)
Mr Francis Atwoli that he had loaned Mr Cyrus Jirongo KES 100 Million.167 Were the loanees State
Officers? Does the rule, value or principle apply all the same?168

3.7.5 Gainful employment of State Officers in Kenya and Africa

Article 77 restricts the activities of State officers. It states that a full-time officer shall not
participate in any other gainful employment or hold office in a political party. This is to ensure
that there is no conflict of interest.169

The question as to whether a Member of Parliament is a full time state officer still remains
unanswered. ……Compare the decision of Tuiyott, J. in John Okelo Nagafwa v. Independent
Electoral Commission (IEBC) &2 Others.170 In this case, the court considered the appearance of
a member of the Senate (Senator Orengo the then Siaya Senator and the current Governor of Siaya)
as a counsel for Senator Moses Wetang’ula before the election court.

164
See Gichuru and Okemo case… See Proceeds of Crime and Anti-Money Laundering Act (POCAMLA) 2009….
See also the regulatory and operational framework of the Assets Recovery Agency (Prevention of Organized Crimes
Act, Cap 59 Anti-Corruption and Economic Crimes Act, Cap 65; Anti-Money Laundering Act 2009, and BBI
proposals on the fact that more needs to be done to recover property and proceeds of corruption in Kenya);.Lifestyle
Audit Bill 2019: See Rawlingsl Otieno (2020) “Bill proposes tougher lifestyle audit laws,” Standard, 9/3/2020, at
https://www.standardmedia.co.ke/amp/nairobi/article/2001363425/bill-proposes-tougher-lifestyle-audit-laws
(accessed October 11, 2020). Mr. Mungatana was elected in 2022.
165
…………
166
Thomas Kariuki (2014) “Cord leader sues Mungatana over Sh12 million debt,” Daily Nation, Nairobi, 27/11/2 at
https://nation.africa/kenya/news/cord-leader-sues-mungatana-over-sh12-million-debt-
10470554?view=htmlamp (accessed October 11, 2020).
167
Abiud Ochieng’ (2017) “Jirongo liable to pay Atwoli Sh100m, court declares,” Daily Nation, Nairobi, At
https://www.nation.co.ke/news/Jirongo-liable-to-pay-Atwoli-Sh100m--court-declares/1056-4137174-
slkeyg/index.html (accessed 17/7/219)....
168
Cf. George Onyango Oloo v. Kisumu County Assembly Service Board & another; Elisha Jack Oraro & 2 Others
(Interested Parties) [2019] Eklr (on TNA, LBDA).
169
Cf. Straddling in the context of the Ndegwa Report of 1971, Government of Kenya. DN Ndegwa (Chair, Ndegwa
Commission) (1971) Report of Commission of Inquiry: Public Service Structure and Remuneration Commission,
Government Press, Nairobi…. See also Peter Anyang’ Nyong’o (1989) “State and society in Kenya: The disintegration
of the nationalist coalitions and the rise of presidential authoritarianism 1963-78,” African Affairs, 229-251; Chapter
1 (on Sessional Paper No. 1 of 1965).
170
John Okelo Nagafwa v. Independent Electoral Commission (IEBC) &2 Others
Page 36 of 74
 After considering Leadership and Integrity Act, 2012 and the Standing Orders of the Senate, the
Judge held that a Senator was not on full-time employment, saying:

“It seems that if a member of Senate was to be involved in other business of the House (e.g.
Committees), Parliamentary business may not engage a member fully from Monday to Friday, 8.00
am to 5:00 pm. In respect to non-Parliamentary business, this court was unable to find any
regulation governing the work hours.”171

The court concluded:

“The Petitioner has not persuaded this court that Hon. Orengo has used up public time in preparing
for and participating in this Election Petition. No evidence has been shown to this court to
demonstrate that Counsel’s conduct this far is inherently incompatible or fundamentally in conflict
172
with his role as a member of senate.”

The Court arrived at a constitutionally legitimate and valid finding. But the legal reasoning or ratio
decidendi was problematic. The primary reason is that there was no (clear) conflict of interest in
Senator Orengo’s representation. A Senator is obviously a “full time” officer. 173 Numerous full
time officers do not necessarily work from 8 am to 5 pm.174

Again, the better answer is based on the three pronged typology on leadership and integrity, which
were not negated by Senator Orengo in the case: First, does the officer’s work serve the public
interest and bring honour to the people (served)? Second, did the officer balance public (as Senator)
and private interest (e.g. representing a client)? Third was conflict of interest proved or
demonstrated?

In 2021, in Office of the DPP v. Orengo; Manduku & 2 Others (2021), the High Court at Mombasa
held that Parliamentarians who are advocates ought not to represent public officials accused of
corruption.

The High Court Justice Erick Ogola argued that:

“In my view, it does not require any taxing of the mind to find a glaring perception of conflict of
interest. To the accused person he has the Senator as his advocate; driven to Court in a State motor
vehicle; chauffeured by a State provided driver; and the vehicle fueled by the State. To the accused,
despite facing grave charges of economic crimes, his defence appears to have the blessings of the

171
Ibid.
172
John Okelo Nagafwa v. Independent Electoral and Boundaries Commission (IEBC) & 2 Others Petition No. 3 of
2013.
173
…. Ibid.
174
……
Page 37 of 74
State.”

The question as to what constitutes full time employment with regards to state officers, especially
lawyers, is a matter that is still contentious. The lack of a concrete determinant criteria could either
be beneficial or negative in a constitutional democracy.

3.7.6 DCJ Mwilu v. DPP on Leadership and Integrity and Legal Representation by Senators
in Kenya and Africa
In the related case of Philomena Mbete Mwilu v. Director of Public Prosecutions & 4 Others, 155
the Petitioner who was facing five graft-related charges among them acceptance of money in
circumstances that allegedly undermined public confidence in the office she holds. She also faced
the charge of improperly obtaining the execution of a security belonging to the Imperial Bank. She
sought High Court orders to bar her prosecution.

The DPP hired a UK based Queen’s Counsel (QC) Khawar Qureshi to represent the Government
in the High Court petition and the criminal matter before the Chief Magistrate.156 The Petitioner
through her lawyers sought to have Mr. Qureshi disqualified from the proceedings on the
groundsthat his appointment was irregular and unconstitutional. The application was based on two
main grounds.

First that the recruitment process breached principles applicable to public procurement under
Article 227 of the Constitution and the Public Procurement and Asset Disposal Act No. 33 of
2015157 and regulations made thereunder. Further, that the appointment of Mr Qureshi was
procured in violation of Article 10 of the Constitution. Second that the appointment of Mr Qureshi
was not done in conformity with the provisions of the Advocates Act158 in respect to the admission
of a foreign Advocate.

To counter the application to remove Mr Qureshi, the DPP also applied to have SC James Orengo
and SC Okong’o Omogeni out because they sit in the Justice and Legal Affairs Committee (JLAC)
that oversees ODPP’s office over accountability. He argued that if they were allowed to represent
DCJ Mwilu, there would be a potential conflict of interest because according to him, their positions
put them at cross purposes since they could use their influence in the committee to alter the
direction of the case.

155
Philomena Mbete Mwilu v. Director of Public Prosecutions and 4 Others, Petition No 295 of 2018. Counsel for
DCJ Mwilu include James Orengo, SC, Okong’o Omogeni, SC, John Khaminwa, LSK President Nelson Havi, Jackson
Awele, Julie Soweto, Ben Sihanya…
156
This was done vide Gazette Notice No. 12613 dated December 4, 2018. This notice appointed Mr. Qureshi as a
Special Prosecutor in CMC Anticorruption Case No. 38 of 2018, Republic v. Philomena Mbete Mwilu and Another...
157
Part XV of the Public Procurement and Asset Disposal Act…
158
Section 11 of the Advocates Act, 2017, Cap 16….
Page 38 of 74
The five Judge bench dismissed both applications, effectively allowing Mr. Qureshi to represent
the DPP and SC Orengo and SC Omogeni to represent the Petitioner DCJ.159 On Mr Qureshi’s
appointment and the alleged violation of the procurement laws, the Court ruled that even if the
case of the petitioner is that the appointment of Mr Qureshi raised some constitutional questions:
“the proper way of raising them would be by way of a substantive constitutional petition in
which the issues would be at the centre of the proceedings and not as an interlocutory challenge in
proceedings such as this.”

The Court also found that Mr. Qureshi was properly admitted to practice as a Foreign Advocate,
stating that:

“a foreign Advocate need not be a Member of the Law Society of Kenya and the Advocates
Benevolent Association as the Advocate does not ordinarily practice in Kenya. Subscription fees
in respect thereof is not necessary for such Advocate. In addition, not being a Member of the Law
Society, the written approval or a letter of no objection by the President of the Law Society of
Kenya would not be required. Simply put, the Law Society of Kenya cannot approve or disapprove
a person whom it does not supervise.”160

The Court continued:

“In the exercise of his discretion to admit a person to practice as an Advocate in Kenya, the 4th
respondent is under a duty to satisfy himself that the person he admits is a practitioner entitled to
appear before Superior Courts of the Commonwealth. A person suspended or expelled from
appearing before a Superior Court of a Commonwealth country obviously does not qualify. Once
the foreign Advocate satisfies the requirement of the relevant Commonwealth country which
entitles him or her to practice before the Superior Courts of that country, then it is needless to ask
that advocate to satisfy local requirements for issuance of a Kenyan practicing certificate.”

Thus, in the Court’s view, Mr Qureshi’s appointment satisfied the provisions of section 11 of the
Advocates Act, 2017 on the admission, practice and discipline of foreign advocates in
Kenya.…The Court in dismissing the claims that there was conflict of interest on the part of SC
Orengo and SC Omogeni held that a party alleging a conflict of interest bears the burden of
presenting clear evidence that the person said to be acting in conflict of interest is acting in a
manner prejudicial to the interests of the other party.

Was it a “Solomonic” judgment or a diplomatic decision? Or to balance perceived political interests?

159
Hellen Omondi, Mumbi, Ngugi, Francis Tuiyot, Justices William Musyoka and Chacha Mwita, JJ.
160
Philomena Mbete Mwilu v. Director of Public Prosecutions and 4 Others, op. cit.

Page 39 of 74
These cases should be compared to Majanja, J. in Isaac Aluoch Polo Aluochier v. Attorney
General.161 In this case, the appellant had alleged that more than 80 state officers had violated
Article 77(2) Constitution of Kenya, 2010, by having leadership positions in political parties
during their tenure in state office.

These state officers included the former Vice President Kalonzo Musyoka, former Prime Minister
Raila Odinga, and the two (2) former Deputy Prime Ministers, including President Uhuru Kenyatta
hadheld violated Article 77(2) Constitution of Kenya, 2010, by having leadership positions in
political parties during their tenure in state office. For instance, then former Prime Minister Raila
Odinga was the leader of Orange Democratic Movement (ODM) while former VP Kalonzo
Musyoka was leader of Wiper Democratic Movement and President Kenyatta II was the party
leader of Jubilee.

Justice Majanja held that the contention by Mr Aluochier that section 12(2) of the Political
Parties Act, 2012 was unconstitutional for allowing the President, Deputy President (DP), MPs,
Governors or MCAs to play a leader’s role in the party was unmeritorious since the scope of Article
77(2) was limited to appointed state officers rather than elected state officers (my emphasis)….

Moreover, the Court clarified that where the conduct of these state officers while holding office
in any political party was contested, then the disciplinary procedures under Article 75(2) must
apply in the first instance, before seeking any court intervention.162

Relatedly, the Supreme Court in Speaker of the Senate & Another v. Attorney General held that
where the Constitution expressly provides for procedures, these must be respected and upheld.
163 Therefore we argue that matters regarding political party discipline are in the first instance, internal
party disputes that, must be subjected to relevant political party’s internal dispute resolution mechanisms.

3.7.7 Retired State Officers in public service in Kenya and Africa: Pension andpolitics.
Article 77 also provides that a retired State officer who is receiving a pension from public funds
shall not hold more than two concurrent remunerative positions as chairperson, director or
employee of a company controlled by the State or a State organ. Other than the pensions
provided for above, a retired state officer is prohibited from receiving remuneration from any other
public funds.

There has been a long debate on the pension of retired Presidents, Vice Presidents, Chief Justices,
and Deputy Chief Justices.

161
Isaac Aluoch Polo Aluochier v. Attorney General [2013] eKLR.
162
Ibid.
163
Speaker of the Senate & Another v. Attorney General [2013] eKLR.
Page 40 of 74
Did President Kenyatta II deserve pension when he retires in terms of the Constitution, the law,
and individual performance?164 Did Deputy President William Ruto deserve pension when he
retired from that office?165 Did Moi and Kibaki deserve pension constitutionally? Legally? Or in
terms of individual performance?

Did and do former PM Raila Odinga, former VP Kalonzo Musyoka, former VP Moody Awori
deserve pension?166 Why did most of the Kenyatta II (and Ruto) supporters emphasize in 2013-
2018 that Raila and Kalonzo had to “retire from politics” before they could enjoy pension?167

President Uhuru Kenyatta II even wrote a memo to Parliament stating that both former Prime
Minister Raila Odinga and Kalonzo Musyoka should not enjoy pension benefits as they were (are)
still active in politics.168

In 2021, the former PM and former VP’s budget for the purchase of vehicles were reduced from
KES 26 million to KES 15 million.169 It was also reported that their gratuity of KES 1.5 Billion
was removed in the budget to raise public funds for COVID-19 emergency response.

However, critics attempted to draw a nexus between the statutory and constitutional rationalization
of the retirement packages of former PM Raila Odinga, former Vice President Kalonzo Musyoka,
and former Deputy Prime Minister Musalia Mudavadi, to the Building Bridges Initiative
(BBI)…...170

164
See Presidential Retirement Benefits Act 2003 as amended.
165
Retirement Benefits (Deputy President and Designated State Officers), Act No. 8 of 2015.
166
In 2020, former Prime Minister Raila Odinga and former Vice President Kalonzo Musyoka were allocated KES
200 million each in gratuity, KES 25 million each in pension; while former vice President Moody Awori was to receive
KES 44 million. See Moses Odhiambo (2020) “Inside Raila, Kibaki and Kalonzo’s Sh785 million perks,” Star,
4/5/2020, at https://www.the-star.co.ke/amp/news/2020-05-03-inside-raila-kibaki-and-kalonzos-sh785-million-perks/
(accessed October 11, 2020); .
167
Business Today (2015) “Raila and Kalonzo won’t get pension,” June 18, 2015, athttps://businesstoday.co.ke/raila-
and-kalonzo-wont-get-pension/ (accessed February 25, 2021).
168
James Mbaka and Moses Odhia (2020) “Taxpayers cough billions annually for VIP’s upkeep,” Star, 8/5/2020,
Nairobi, at https://www.the-star.co.ke/amp/siasa/2020-05-08-taxpayers-cough-billions-annually-for-vips-upkeep/
(accessed October 11, 2020).
169
Moses Odhiambo (2021) “Uhuru seeks to raise Raila, Kalonzo pension perks,” Star, Nairobi, February 19, 2021,
at https://www.the-star.co.ke/news/2021-02-19-uhuru-seeks-to-raise-raila-kalonzo-pension-perks/ (accessed
February 25, 2021); John Mutua (2020) “Raila, former VPs' Sh1.5bn pension budget frozen over Corona,” Business
Daily, April 16, 2020, at https://www.businessdailyafrica.com/bd/economy/raila-former-vps-sh1-5bn-pension-
budget-frozen-over-corona-2287278 (accessed March 5, 2021).
170
Moses Odhiambo (2021) “Treasury: No BBI link to Raila, Kalonzo, Mudavadi perks,” Star, February 25, 2021,
Nairobi, at https://www.the-star.co.ke/news/2021-02-25-treasury-no-bbi-link-to-raila-kalonzo-mudavadi-perks/
(accessed February 25, 2021).
Page 41 of 74
Did Moi and Kibaki totally keep off politics?171 President Moi was visited by many political
leaders in the preparation for the 2017 elections for “blessings.” These include President Kenyatta
II, Mama Ngina Kenyatta, Kalonzo Musyoka and (COTU) Secretary General Francis Atwoli.
What is “politics” for the purposes of pension? What of constitutional freedoms of political
expression (Art 38), freedom of association (Art. 36), right to property (40)? Is pension about past
service or future ambition to be President or Deputy President?

….Why did Kenyatta II supporters change their views on Raila and Kalonzo Musyoka after the
9/3/18 “handshake” or rapprochement? It is worth noting that thePresident’s Daniel Moi’s
retirement benefits were reportedly stopped upon death.172

Did former Chief Justices Dr Willy Mutunga (2011-2016) and Evans Johnson Gicheru (2003-
2011?) deserve (enhanced) pension constitutionally, legally and in terms of individual)
performance? Did Dr Willy Mutunga get his pension promptly? What were the issues?173

Some of the issues raised included whether the figures to be relied upon in calculating such pension
was the last gross salaries, or the pension pay out figures proposed by the Salaries and
Remuneration Commission (SRC). Did retired Deputy Chief Justices Kalpana Rawal…. deserve
(enhanced) gratuity and or pension constitutionally, legally, and in terms of individual
performance?174

171
It was noted that political ….. were made through political statements by and visits to Moi by President Uhuru
Kenyatta, Mama Ngina See Wanja Mbugua (2017) “Mama Ngina speaks on upcoming presidential election, says
the war is tough,” Citizen Digital, March 17, 2017, at https://citizentv.co.ke/news/mama-ngina-speaks-on- upcoming-
presidential-election-says-the-war-is-tough-161035/ (accessed November 9, 2020); Mercy Asamba (2017) “Uhuru
Kenyatta pays courtesy call on former President Moi,” November 19, 2017, at
https://www.standardmedia.co.ke/kenya/article/2001260663/uhuru-visits-moi-in-kabarak-photos (accessed
November 9, 2020). Kibaki made political statements and maintained political associations post retirement. See
Eric Wainaina (2020) “Kibaki says Moi built rich legacy, stabilised country,” People’s Daily, February 12, 2020, at
https://www.pd.co.ke/news/national/kibaki-says-moi-built-rich-legacy-stabilised-country-24472/ (accessed
November 9, 2020); Jeremiah Wakaya (2020) “Kibaki Mourns Predecessor Daniel Moi, Hails Him For Conceding To
Pluralism,” Capital News, Nairobi, February 4, 2020, at https://www.capitalfm.co.ke/news/2020/02/kibaki- mourns-
predecessor-daniel-moi-hails-him-for-conceding-to-pluralism/ (accessed November 9, 2020).
172
….Brian Ngugi (2020) “Treasury to end funding of Moi office, lay off staff,” Business Daily, 17/2/2020, at
https://www.businessdailyafrica.com/bd/news/treasury-to-end-funding-of-moi-office-lay-off-staff-
2280594%3fview=htmlamp (accessed October 10, 2020).
173
…Michael Omondi (2019) “Ekwee Ethuro, Kaparo and Willy Mutunga demand lavish perks,” Daily Nation,
Nairobi, 31/1/2019, at https://nation.africa/kenya/news/ekwee-ethuro-kaparo-and-willy-mutunga-demand-lavish-
perks-133872?view=htmlamp (accessed October 10, 2020). They are former National Assembly Speakers, former
Senate Speaker and former Chief Justice, respectively.
174
Cf. the debate on former MPs’ pension in 2019, 2020…. Prof Kivutha Kibwana’s complaint that he served as a
Professor and MP without pension and may not get pension as Governor after his two terms… “I worked at UoN for
25 years, but got no pension. The rule was: serve for 15 years and be 50. I was 48. Since I did not serve as MP for two
terms, I missed a pension. Governors have no pension. 45 years of public work, no pension. Every Kenyan deserves
a pension per the law.” See Kivutha Kibwana on Twitter (2020) at
https://twitter.com/governorkibwana/status/1322825887100928000?s=20 (accessed November 9, 2020).
Page 42 of 74
The application of the Statute Law (Miscellaneous Amendments) Bill 2018 signed into law by
President Kenyatta II would guarantee DCJ Kalpana Rawal her pensionbenefits of more than KES
1 million, like the former CJ Willy Mutunga. This leads to a discussion on what are some of the
values and principles ascribed to the public service inKenya and Africa?

3.7.8 Values and Principles of Public Service in Kenya and Africa175

Article 232 of the Constitution provides that the values and principles of public service include:….
high standards of professional ethics; efficient, effective and economic use of resources;
responsive, prompt, effective, impartial and equitable; provision of services; involvement of the
people in the process of policy making; accountability for administrative acts; transparency and
provision to the public of timely, accurate information……

Values and principles also include fair competition and merit as the basis of appointments and
promotions; representation of Kenya’s diverse communities; and affording adequate and equal
opportunities for appointment, training and advancement, at all levels of the public service, of men
and women; the members of all ethnic groups; and persons with disabilities.

The said values and principles of public service apply to public service in all State organs in both
levels of Government; and in all State corporations.

3.7.9 Values and Principles of Public Finance in Kenya and Africa176

Article 201 provides for the values and principles of public finance in Kenya. It provides that the
followingprinciples shall guide all aspects of public finance in the Republic:

First, there shall be openness and accountability, including public participation in financial
matters.177
Second, the public finance system shall promote an equitable society, and in particular:
(i) the burden of taxation shall be shared fairly;
(ii) revenue raised nationally shall be shared equitably among national and county governments;
and
(iii) expenditure shall promote the equitable development of the country, including by making
special provision for marginalised groups and areas;

175
See also Chapter 16…. of CODRALKA 1 on Planning, Policy and Public Finance under the Constitution in
Kenyaand Africa (Public Finance Political Economy)……
176
Cf. Building Bridges Initiative (BBI) discussions and debate.
177
See the Public Participation Bill 2020 which seeks to promote and establish a framework for public participation
at both the county government and national government levels.

Page 43 of 74
Third, the burdens and benefits of the use of resources and public borrowing shall be shared
equitably between present and future generations.

Fourth, public money shall be used in a prudent and responsible way; Fifth, financial management
shall be responsible, and fiscal reporting shall be clear….175

3.8 Application of Leadership and Integrity Standards and the Implementation

Challenges in Kenya and Africa
In order to ensure compliance with the provisions of Chapter 6 concerning leadership and
integrity, Article 79 requires Parliament to enact legislation to establish an independent ethics and
anti-corruption commission. This is the Ethics and Anti-Corruption Commission (EACC) Act,
2011, which replaced the Kenya Anti-Corruption Commission (KACC)176 and the Leadership and
Integrity Act 2012.

The Ethics and Anti-Corruption Commission (EACC) is mandated to carry out an oversight role
to ensure that public institutions uphold the national values, principles of governance and maintain
a strict code of integrity. Some of the debates in 2019 and 2022 among others included whether
the DCI ought to focus on non corruption cases considering that corruption cases are the mandate
of EACC. Or review the overlaps and secure coordination? How should Kenya address
independent prosecution under Arts 157 (on the Director of Public Prosecutions), Article 158 (on
the removal of the DPP), in light of the closeness among ODPP, DCI, and the EACC?

Addressing the challenges in fighting corruption, and ensuring equity and equality in opportunities
in Kenya were part of the core recommendations of the Building Bridges Initiative Report 2020.
It sought to ensure sustainable development, effective public service delivery, transparency,
accountability and non-discrimination in Kenya by awarding opportunity on merit and competence
irrespective of age, gender, sex, status, educational levels, religion, beliefs or political affiliation….

It also sought to secure diversity as a qualification under Arts. 10, 54, 55, 56, 57, 81, 100, 130(2),
and 232 Constitution of Kenya, 2010. This would go a long way in building consensus for
the progressive and inclusive achievement of the Sustainable Development Goals (SDGs), the

Cf. South Africa, Nigeria, Uganda, Tanzania…….

175
176
Cf. Mumo Matemu was appointed the EACC Chair after the Matemu case was reversed on appeal. Cf. High
Court’s v. Court of Appeal decisions using IFLAC methodology.
sPage 201 of 74
“Big 4 Agenda”177 and Kenya’s Vision2030.178

3.8.1“War” on corruption in Kenya and Africa179

The war against corruption in Kenya dates back to 1956, when the Prevention of Corruption Act
was enacted. But corruption persisted in the colonial and post-colonial Government. The Kenyatta
I period enactedthe anti-corruption law by introducing the straddling policy that allowed public
servants to engage in business under the Duncan Ndegwa Report (1971)..

This institutionalized conflict of interest. And there are numerous corruption matters, including
Ken- Ren Chemical and Fertilizers Company involving Ministry of Finance under President
Kenyatta I and Mwai Kibaki .180

In 1991, President Moi established the Anti-Corruption Police Squadas a Specialized entity within
the Police Departmentto prosecute cases of corruption. After 3 years, fire consumed the office
premises, bringing an end to the work of the unit.181

However, the Goldenberg looting scandal emerged in 1994.182 This resulted to a need for special
anticorruption arrangements. The Kenya Anti-Corruption Authority (KACA) was created in
1997 with Mr. John Harun Mwau183 as its first Director.184

In July 1998, Mr. Mwau obtained warrants of arrests against senior Treasury officials on
allegations that they had defrauded the Government of more than KES 200 million in taxrevenue.
Mr Simon Nyachae (as Head of Public Service?) condemned the move, saying the arrests were
without basis.185 The then A-G, Mr Amos Wako entered a nolle prosequi (nullprosecution…)

177
… Moses Njagih (2020) “We will only lay foundation for Big Four agenda,” Standard, Nairobi, November 13,
agenda (accessed February 25, 2021).
178
…George Wachira (2020) “BBI opens window for resetting Kenya’s economic fortunes,” Busines.
179
Cf. debate on “weaponizing war on corruption,” Building Bridges Initiative (BBI) debate and proposals, and 2022
succession politics ….
180
….Edwin Mutai (2019) “Kenya pays final Sh2.5bn for ghost fertiliser plant,” Business Daily, Nairobi, December
16, 2019, at https://www.businessdailyafrica.com/bd/news/kenya-pays-final-sh2-5bn-for-ghost-fertiliser-plant-
2273884 (accessed February 25, 2021).
181
………….
182
…. See the Report of the Judicial Commission of Inquiry Goldenberg Affair, 2021, at
http://kenyalaw.org/kl/fileadmin/CommissionReports/Report-of-the-Judicial-Commission-of-Inquiry-into-the-
Goldenberg-Affair.pdf (accessed July 8, 2021).
183
He was the self-proclaimed Boss (of the Party of Independent Candidates of Kenya (PICK).
184
President Daniel Moi created Kenya Anti-Corruption Authority after the IMF suspended aid over official
corruption in Moi’s Administration….
185
……………..
sPage 202 of 74
terminating the charges brought by Mr Mwau against the Treasury officials.186

Mr Mwau was later suspended by President Moi and a tribunal was appointed to investigate
whether he remained fit to hold office. The tribunal was a political response to the arrest made by
Mr Mwau. Mr Mwau had less than a year in office and therefore his performance could not have
been the main issue. Mr Mwau was later removed from office by the tribunal.187

Justice Aaron Ringera took over after Mr Harun Mwau. Justice Ringera almost suffered a similar
fate as Mr Mwau after he brought corruption charges against Mr. Kipng’eno arap Ng’eny in 2000,
then a senior Minister. A suit was filed in the High Court, in which an order was obtained declaring
that KACA powers to prosecute corruption cases were unconstitutional. This led Justice Ringera
to resign the following year.188 In 2001, Kenya created the Anti-Corruption Police Unit (ACPU)
operated by the then Criminal Investigation Directorate (CID), later the Directorate of Criminal
Investigation (DCI).

Kibaki appointed Mr John Githongo as a Special Advisor on anti-corruption when t h e

N A R C Coalition tookpower in 2003.189 Mr Githongo left office in controversy in 2005,
going into exile in the UnitedKingdom and linked senior officials in Kibaki’s administration to
the Anglo Leasing scandal.190 The Kenya Anti-Corruption Commission (KACC) was then
established again in 2003,191 whenKibaki became the President. Justice Ringera was recruited
afresh to head the new KACC. Heserved until 2009 along with commissionersMs. Fatuma
Sichale and M r . Smokin Wanjala when theirterms ended and Parliament refused to renew
their terms.192

PLO Lumumba, was appointed as the new KACC Chairman. He had a difficult time during his
first year in office. In 2011, KACC changed to the Ethics and Anti Corruption Commission
(EACC). All the five KACC commissioners were required to vacate office and, if interested, seek

186
George Kegoro ( 2015) “Why EACC appointments shouldn’t be rushed after Matemu, Keino exit,” Saturday
Nation, Nairobi, May 16, 2015, at http;//mobile.nation.co.ke/news/EACC-Appointments-Mumo-Matemu-
Resignation/-/1950946/2718960/-/format/xhtml/item/1/-/964dkg/-/index.html ( accessed 04/06/2015). The DPP’s
187
………………….
188
Ibid.
189
Mr John Githongo had been the head of Transparency International in Kenya…..See Transparency International
(2005) “Transparency International congratulates John Githongo on receiving the German Africa Award,” 12/4/2005,
at https://www.transparency.org/en/press/transparency-international-congratulates-john-githongo-on- receiving-the-
ger (accessed October 11, 2020).
190
Ibid.
191
In 2003, the Anti-Corruption and Economic Crimes Act created the Kenya Anti-Corruption Commission (KACC).
192
Ibid.
sPage 203 of 74
 fresh appointments.193

During Mwai Kibaki’s presidential tenure, Parliament passed a Bill that stripped Kenya Anti-
Corruption Commission (KACC) of its investigative mandates. This was especially after a 2004
Kroll Report stated that two (2) of President Moi’s sons had acquired more than 1 billion Euros
(pounds…) during Moi’s tenure which was, kept in foreign bank accounts.194

The effect of the removal of the KACC’s powers to investigate crimes committed before May 2003
provided a leeway for protecting key suspects of state-sponsored corruption scandals. These
included the Anglo-Leasing and Goldenberg scandals.195

KACC Director SMs Irene Keino and Prof Jane Onsongo resigned after allegedly meeting the then
Solicitor General Njee Muturi, Member of Parliament (MP)Mr Samuel Chepkonga and the
Adviser to President K e n y a t t a I I on Constitutional Affairs, Mr Abdikadir Mohamed. Among
the KACC officialswho resigned, Prof Jane Onsongo was the only commissioner who made it
back.196 In May 2021, Ms Keino applied to return to public service as a member of the Independent
Electoral and Boundaries Commission (IEBC).197

Mr Matemu was later selected as Chairman of the EACC. Did Matemu have the competence and
qualifications, or skills, knowledge, attitude, values and innovation (SKAVI), or interest, or
“passion” to fight corruption from his past record?198 Mr Matemu’s appointment was challenged
in a Nakuru court by a CSO named Trusted Society of Human Rights Alliance. A bench of three
High Court judges nullified Mr. Matemu’s appointment, but their decision was overturned by
Court of Appeal and he was sworn in by Chief Justice in 2013……

President Uhuru Kenyatta later named a Tribunal led by retired High Court Judge Jonathan
Havelock to investigate the conduct of the EACC commissioners including Mumo Matemu. This
resulted in the resignation of all the commissioners.199

193
Was this a privative clause? Ad hominem legislation? What was the political economy of the recomposition of
KACC? EACC?
194
Kroll Report (2004), op. cit.
195
Ibid.
196
Why?
197
……Samwel Owino (2021) “Ejected from Anti-Graft Agency, Irene Keino is still fighting for IEBC job,” Daily
Nation, Nairobi, May 27, 2021, at https://allafrica.com/stories/202105270248.html (accessed July 9, 2021).
198
Mumo Matemu v. Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR. (Coram: Justices Kihara
Kariuki, PCA, Ouko, Kiage, Gatembu Kairu & Murgor, JJ.A) Note the comparative methodology in this High Court
decision. Drawing from the South Affrican constitutional practice……
199
Aggrey Mutambo (2015) “Tribunal in limbo as Matemu quits top anti-graft job,” Daily Nation, Nairobi, May 12,
2015, at http://mobile.nation.co.ke/news/Matemu-resigns-as-EACC-boss/-/1950946/2714698/-/format/xhtml/-
sPage 204 of 74
 3.8.2 Addressing Past Integrity problems in Kenya: Analysis of Mumo Matemu v. Trusted
Society of Human Rights Alliance & 5 Others200
This was an appeal filed at the Court of Appeal at Nairobi challenging the High Court’s decision
setting aside the appointment of M r . Mumo Matemu as the Chairperson of the Ethics and
Anti-Corruption Commission. Upon gazettement of Mr. Matemu as the Chairperson of the Ethics
and Anti-Corruption Commission, the Trusted Society of Human Rights Alliance, a non-
governmental organization (NGO) based in Nakuru, challenged the appointment in the High Court
by way of petition.

The main arguments in the petition before the High Court were that Mr. Matemu did not meet the
requirements for appointment to the office of the Chairperson of the Ethics and Anti-Corruption
Commission (EACC), and that the process of his appointment was unconstitutional. The High
Court (Justice Joel Ngugi, Mumbi Ngugi and GV Odunga) sustained the petition questioning the
constitutionality of the appointment, and ruling that the appointment of Mr. Matemu to head the
Ethics and Anti-Corruption Commission did not pass the constitutional requirement under the
substantive “rationality” test…201

The High Court had in its landmark decision held that:

“So it is in this case. We have already established that on available evidence the Interested Party
faces unresolved questions about his integrity. The allegations which he is facing are of a nature
that, if he is confirmed to this position, he will be expected to investigate the very same issues
which form the gist of the allegations against him. It requires no laborious analysis to see that this
state of affairs would easily lead many Kenyans to question the impartiality of the Commission or
impugn its institutional integrity altogether.”

The Court added:

“Were that to happen, it would represent a significant blow to the very institution the Interested
Party is being recruited to head and lead in its institutional growth. In our view, this makes the
Interested Party unsuitable for the position. As in the Centre for PIL and Another v. Union of India
[Petition Writ no. 348 of 2010], we find that the appointing authorities did not sufficiently take into
consideration the institutional integrity of the Commission or its ability to function effectively with
the Interested Party at its helm when they made or approved the appointment.”202

/7d30pfz/-/index.html (accessed 04/06/2015).....

200
Mumo Matemu v. Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR, Civil Appeal No. 290 of 2012,
(Coram: Justices Kihara Kariuki, PCA, Ouko, Kiage, Gatembu Kairu & Murgor, JJ.A)….
201
…………………
202
………………………
sPage 205 of 74
 The High Court also held thus:

“There is no doubt that, if true, these are serious allegations and they would, ineluctably, affect any
reasonable person’s assessment of the integrity of the Interested Party or his suitability to head the
Commission. We are not in a position to make any findings whether these allegations areproved or
not. That will have to await appropriate legal proceedings tailored for that purpose. However, what
we are prepared to hold at this point is that the allegations are serious enough and sufficiently
plausible to warrant any reasonable person who is charged with the constitutional responsibility of
assessing the integrity or suitability of the Interested Party for an appointment to a State or Public
Office, especially one which is as sensitive as the Chairperson of the Ethics and
Anti-Corruption Commission, to conduct a proper enquiry before such an appointment. We say
so on a cursory assessment of the evidence made available to us...”202

The parties in the Appeal case included: the Trusted Society of Human Rights Alliance – an NGO
based in Nakuru (1st respondent), the Attorney-General (2nd respondent), the Minister of Justice and
Constitutional Affairs (3rd respondent), the Director of Public Prosecutions (4th respondent), the
Kenyan Section of the International Commission of Jurists (5th respondent) and the Kenya Human
Rights Commission (6th respondent).

The issues for determination as found by the Court of Appeal (CoA) were at least five (5): First,
whether the Trusted Society of Human Rights Alliance, an NGO, had the locus standi
(capacity) to file the petition at the High Court? Second, whether the High Court had jurisdiction
or power to review and set aside theappointment of Mr. Mumo Matemu as Chairperson of the
Ethics and Anti-Corruption Commission?

Third, whether the High Court properly applied the principle in the Anarita Karimi Njeru case
requiring that constitutional petitions be pleaded with reasonable precision?203

Fourth, whether the High Court in its rationality test misapplied the doctrine of Separation of
Powers thereby usurping the powers and functions of other arms of Government?

Fifth, whether the appointment of Mr. Mumo Matemu was undertaken in accordance with the
Constitution and the law?

The Court of Appeal ruled in favour of Mumo Matemu and ordered that the whole judgment and
orders of the High Court be set aside. It found that the appointment process was a cumulative process,
with various stages and appointing organs – the Selection Panel, the National Assembly and the

203
……..
sPage 206 of 74
Executive.204

According to the CoA, the process of recruitment, selection and appointment of Mumo Matemu
alongside the other nominees was duly followed as laid down under section 6 of the Ethics and Anti-
Corruption Commission Act 2001. That there was no evidence to show that there was no proper
inquiry on the suitability of Mr Matemu in the cumulative process. The Court of Appeal held that the
High Court’s conclusion of procedural impropriety on the part of the appointing organs (Selection
Panel, the Executive and the National Assembly) and unsuitability on the part of Mr. Mumo Matemu
could not be sustained.

3.8.3 Corruption and EACC after Mumo Matemu 2015 in Kenya and Africa
Following Mr. Mumo Matemu’s resignation on May 11, 2015, EACC remained structurally
incapacitated for nearly two years. The Commission for Implementation of the Constitution (CIC)
argued that lack of commissioners meant EACC was incapacitated. 205 Indeed, Article 250(1) of
the Constitution and section 4 of the EACC Act characterizes the EACC (Commission) as
consisting of commissioners…………

Further, section 11(1) (d) of the EACC Act provides that decisions of the Commission, including
making recommendations to the DPP for prosecution can only be legally made by the
commissioners. The absence of the commissioners at the EACC thus worked to disable the
commission in a sense, though technical work by the Secretariat would still continue. The making
of such recommendations to the DPP in the absence of commissioners would likely attract legal
challenges, which deal an even greater blow to the fight against corruption.

In the context, when pessure increased on President Kenyattas II’s admnistration, he had a “list of
shame.” How was the list procured? Who were in the list? Until 2021, no substantive action was
taken with regard to any of the individuals named in the “list of shame”…… Remarkably, Mr Ukur
Yattani, who was named in this list, during his tenure as Marsabit County Governor, was later
appointed as theCabinet Secretary for Finance.206

Who did Mr Kenyatta II obtain the list from? Was that constitutional, legal or lawful? Was it

204
……….
205
Daily Nation Correspondent (2014) “Anti-graft agency can now lock up suspects,” Daily Nation, Nairobi, August
22, 2014, at http://mobile.nation.co.ke/news/Anti-graft-agency-can-now-lock-up-suspects/-/1950946/2428116/-
/format/xhtml/-/rockjf/-/index.html (accessed 29/9/14.
206
Abdi Rizack (2019) “The rise and rise of Ukur Yatani: From District officer to Treasury boss,” Star, Nairobi,
July 24, 2019, at https://www.the-star.co.ke/news/2019-07-24-the-rise-and-rise-of-ukur-yatani-from-district-officer-
to-treasury-boss/ (accessed November 5, 2021).

sPage 207 of 74
regular? Procedural? Does that vitiate any presidential or parliamentary action? Was the naming
and shaming in Parliament part of the “political justice” – the politicization of crime and the
criminal justice system (CJS) and process?

sPage 208 of 74
Former Inspector-General of Police David Kimaiyo designated the Ethics and Anti-Corruption
Commission headquarters as a police station in a Gazette Notice dated August 15, 2014. The
commission could then detain suspects at the Integrity Centre.204 How was this move expected to
enhance the operations of the anti-graft agency in terms of confidentiality?

Why does non-compliance with rules, values, and principles like lack of integrity, corruption,
tribalism, stealing or looting of votes, money and land persist in spite of constitutional and
regulatory reforms? Is it because there is a Kenyan Constitution and value system on the one hand
and tribal, monarchical or oligarchic uthamaki or dynastic “value” system like the ultimate
Constitution (mundu witu or mundu wa nyumba).207

The BBI Report 2020 also proposed an amendment to Chapter 6 on Leadership and Integrity to
strengthen relevant institutions to expedite the investigation, prosecution, and resolution of graft-
related cases in Kenya.208

These amendments also relate directly to the Public Finance Laws (Amendment) Bill 2020 which
sought to amend the provisions of the Public Finance Management Act 2012 (PFM) to provide
for offences and sanctions for public finance-related corruption, and to make sure that any loan or
borrowing agreement that does not conform to the Act or any other written law is invalidated.

The Public Procurement and Assets Disposal Act, 2015 would also be affected since through this
legal framework, Accounting Officers would be obligated to uphold transparency in public
procurement and respect for the public procurement regulations and laws.209

The fight against corruption was also in the proposed amendment to the Anti-Corruption and
Economic Crimes Act (ACECA) No. 3 of 2003……… which sought to enhance the penalties for
economic crimes and corruption offences, procedure, hearing and sentencing of corruption- related
offences, including the need to cultivate a culture and duty of reporting any suspected or actual
cases of graft to the relevant institutions.210

207
Cf. Constitution; Building Bridges Initiative; Kivutha Kibwana (2018) “We shall only progress if we have shared
values,” Daily Nation, Nairobi, 4/11/2018, at https://www.nation.co.ke/oped/opinion/We-shall-only-progress-if-we-
have-shared-values/440808-4835436-uxqurf/index.html (accessed 19/12/2018); John Lonsdale (1992) “The moral
economy of Mau Mau: Wealth, poverty and civic virtue in Kikuyu political thought,” UnhappyValley: Conflict in
Kenya and Africa, 2, 315-504, op. cit….
208
Building Bridges Initiative Reports 2019 and 2020, at https://www.bbi.go.ke/ (accessed February 25, 2021).
209
Ibid.
210
…See the Anti-Corruption and Economic Crimes (Amendment) Bill, 2019 at
http://kenyalaw.org/kl/fileadmin/pdfdownloads/bills/2019/Anti-
CorruptionandEconomicCrimes_Amendment_Bill_2019.PDF (accessed February 25, 2021)
 The BBI Report 2020 also proposed at least two (2) amendments to the ethics and integrity
laws in Kenya. First, it proposed amendments to the Leadership and Integrity Act 2012 to provide
for financial declaration by public officers, conflict of interest and a framework, for dealing with
public finance.

Second, it proposed amendment to the Public Officer Ethics Act No 4 of 2003 which sought to bar
public officers from public finance collection and to provide a clear framework for the filing of
financial declarations by public officers.211 These were intended to ensure compliance with
Chapter 6 of the Constitution and the rule of law among the political class.

The post-election violence (PEV) in 2007-08 significantly affected, economic, political and social
relations in Kenya and Africa... This is because of the loss of life or limb, liberty and livelihood as
well as because the key suspects were politicians and civil servants.

Hence, in the next section, we conceptualize, problematize and contextualize (CPC) the ICC cases
and their impact on integrity standards in Kenya and Africa.

3.9 ICC Cases and Integrity Standards in Kenya and Africa

As Kenyans awaited the ICC ruling on the “Ocampo Six (6)” in 2011, the question that dominated
political, constitutional and juridical discourse was whether Uhuru Kenyatta and William Ruto
could contest the presidency if charges against them were confirmed, which came to pass.

Following lawyer Paul Gicheru’s surrender to the ICC and his subsequent release on January 29,
2021, there were debates on whether this was related to the likelihood of the alleged revival of
the cases against William Ruto and Joshua Arap Sang.212

3.9.1 Constitutional, statutory, regulatory, administrative and transnational law on

integrity and the Kenyan Presidency
On the question of integrity and the Kenyan presidency, I opined that there was need to adopt a
three-pronged typology regarding the rules of interpretation of constitutions, statutes, and related
juridical instruments. I used the British formula as modified by American methodology, for two
reasons: First, Kenyan laws and institutions are largely adaptations of British and Commonwealth
traditions.213

… See the Building Bridges Initiative Reports 2019 and 2020, at https://www.bbi.go.ke/ (accessed February 25,
211

2021).
212
International Criminal Court (2021) “Paul Gicheru on interim release with conditions in Kenya,” February 1, 2021,
at icc-cpi.int/Pages/item.aspx?name=pr1563 (accessed February 25, 2021).
213
Ben Sihanya (2012) “Constitution and Rome Statute on qualification for election as President,” Standard, Nairobi,
22/1/2012, at https://www.standardmedia.co.ke/article/2000050474/constitution-and-rome-statute-on- qualification-
for-election-as-president (accessed 8/8/2019).
Second, the American interpretation methodology applies because under the new 2010 Constitution,
Kenya has adapted an American-style presidency and juridical process…. The typology entails, first,
the plain meaning, literal, textual meaning rule. Second, the mischief or history rule. Third, the
golden, ambiguity, absurdity, or structure rule.

The textual rule requires that the words are to be given the ordinary or lay person’s meaning, unless
the text explicitly defines some of its terms otherwise. Using this formula, it is arguable that on the
face of it, Article 137 (on qualification for election as President), did not disqualify Uhuru Kenyatta
or Ruto from vying for the presidency if charges were confirmed under the Rome Statute of
ICC.214 The general rule of interpretation under this formula is that whatever is not specifically barred
is permitted……… (but not necessarily guaranteed) by necessary implication……..

However, it is instructive that the Constitution usually does not specify, and is not expected to deal
with, all scenarios that may arise, like qualifications for presidential nominations or elections. It
provides general principles and the statute, rules and regulations, or tradition or political culture, may
supply details (provided they are not inconsistent with the Constitution).

The rule’s primary aim is to determine the “mischief and defect” that the relevant law has sought to
remedy, and what process, decision, ruling or outcome would effectively implement that remedy.
This methodology required that the Constitution be read in totality, and not by selectively focusing
on Article 137 (on qualifications and disqualifications for election as President) ………..

Kenyans needed to look at relevant constitutional provisions, including Article 10 on national values
and principles of governance; Chapter Six on leadership and integrity of State officers,and Article
129 on the need for executive authority to meet standards of service orientation, or administrative
and economic efficiency215 and juridical derivation….. and due process…..

The main mischief that the 2010 Constitution sought to address is the imperial presidency,
personification of Executive power, related presidential excesses, and the historically unregulated
or underregulated presidential processes such as qualifications for nomination and election,
performance and retirement.

214
Cf. Njaramba Gichuki (2012) “Constitution does not bar Uhuru, Ruto from seeking the presidency,” Standard,
May 19, 2012, at https://www.standardmedia.co.ke/commentary/article/2000058418/constitution-does-not-bar-
uhuru-ruto-from-seeking-the-presidency (accessed October 12, 2020).
215
Arts 47(1) Constitution of Kenya 2010.
These underregulated processes have ushered in presidential manipulation, lawlessness, impunity
and intrigue (or presidential fitina and nyoko nyoko)……, especially with respect to nominations
and elections under Jomo Kenyatta, Daniel Arap Moi , Mwai Kibaki, Kenyatta II, Kenyataa I and
Ruto administrations…..

The basis of regulation is that the presidency is the most significant office in the State bureaucracy
and in Kenya.

Thus, persons who supported the withdrawal of Uhuru Kenyatta II and Ruto from the presidential
elections argued that to allow persons undergoing a criminal process to vie for the top seat, would
expose, demean and even criminalise the presidency...216 They argued that this was against the
rules, values and principles of the Constitution. They argued that the charges related to crimes
against humanity, including murder, forcible transfer of population, and persecution, are some of
the most serious under the Constitution and transnational legal process.
Third, the golden rule seeks to avoid absurdity or ambiguity. It allows for interpretation by ignoring
ordinary meaning, in order to avoid an absurd, clumsy, anachronistic, ambivalent or
counterintuitive outcome. Some observers argued that should the ICC charges be confirmed, and
Uhuru Kenyatta and Ruto successfully contest the presidency, then, as State officers, they would
be required by the Constitution to step down during the hearing process, or face impeachment.217

This is indeed an absurdity that the officers, courts or anyone interpreting, protecting anddefending
the Constitution would be keen to avoid. The law and legal institutions are required to be purposive
and not act in vain.

216
See also Chapter 6 Constitution of Kenya 2010; including the three pronged typology on integrity in public
service…….
217
Arts. 10 and 75 Constitution of Kenya 2010.
These rules were developed to focus on statutory interpretation under Constitution, rules, values
and principles found in numerous instruments and common law conventions and parliamentary
sovereignty in the UK.216

But they are applied to constitutional interpretation too, especially in the context of American
and Kenyan constitutional supremacy and popular and parliamentary sovereignty in Constitution
and law making, respectively.217

And constitutions are interpreted to require higher standards of probity and abundance of caution
or acting ex abundanti cautela. Indeed, Article 259, in providing guidance to constitutional
interpretation, requires that it is interpreted in a manner that promotes its purposes, values and
principles, advances the rule of law, and human rights and freedoms, permits the development of
the law, and contributes to good governance.

Hence constitutional objectives and aspirations are higher than statutory objectives. In thiscontext,
statutory and other juridical instruments on qualification are relevant in ascribing particular
standards to constitutional objectives. For example, the integrity and anti-corruption legislation
and the Public Officer Ethics Act, 2003 require a public officer charged with an offence in a court
of law to vacate office until cleared.

During this debate, limited attention was paid to the Political Parties Act, 2011, the Elections Act,
2011 the Independent Electoral and Boundaries Commission (IEBC) Act, 2011, political party
constitutions, and nominations, as well as related electoral rules. These laws were important
because first, they gave meaning to the more generic constitutional provisions on qualifications.
Second, they shift the decision-making power on this matter to various bureaucrats and courts.

216
Not “unwritten” Constitution……See Chapter 1 of Ben Sihanya (forthcoming 2023) CODRALKA 1 on
“Conceptualising People, Sovereignty, Constitution, State, Government, Society and Market in Kenya and Africa.”
cf. “informal constitution” in the UK, USA, China, Kenya, Nigeria, South Africa, Uganda…….
217
Cf. South Africa, Nigeria, Uganda, Tanzania…..
For example, under section 24 of the Elections Act…… qualification entails satisfying…. moral
and ethical standards prescribed by the Constitution (Chapter Six and articles 10 and 137, etc)
andthe Act. And disqualification is hinged on factors that "in any way" contravene Chapter Six of
the Constitution. IEBC had a role here. But IEBC had indicated that it was upon the courts to
determine the eligibility of Uhuru Kenyatta and Ruto to vie.218

Despite the fact that the ICC cases were supposed to be treated as what Kenyatta II characterized
as “personal challenges”, the Government of Kenya under President Mwai Kibaki invested
heavily in the matter, in at least three ways. First, the Government of Kenya was reputed as non-
compliant with ICC, decisions or requests. Second, the A-G was ordered by Justice Lenaola to act
as A-G of Kenya, not a personal advocate of President Uhuru Kenyatta. Third, the Government of
Kenya sent a huge delegation to the 14th Assembly of State Parties at the Hague, the Netherlands
in 2015.219 The 14th Assembly of State Parties (ASP) further highlighted the challenges that faced
the process of securing justice for the direct and indirect victims of the 2007/2008 post-election
violence.220

3.9.2 Uhuru Kenyatta and William Ruto Integrity issues in Kenya and Africa: International
Centre for Policy and Conflict & 5 Others v. Attorney General & 5 Others
This was a case on leadership and integrity under the Constitution of Kenya 2010…. A five judge
bench in International Centre for Policy and Conflict & 5 Others v. Attorney General & 5
Others221 was urged to make a determination of the question whether Uhuru Kenyatta and William
Ruto were qualified to offer their candidature for the office of President and Deputy President
respectively in 2013.

The Court held that that was an issue which was within the exclusive jurisdiction of the Supreme
Court and that in the premises, it lacked jurisdiction to deal with a question relating to the
election of a President or Deputy President.

218
Nation (2012) “Court has final say on Uhuru and Ruto, says IEBC boss,” Daily Nation, Nairobi, 21/11/2012, at
https://nation.africa/kenya/news/politics/court-has-final-say-on-uhuru-and-ruto-says-iebc-boss-837340 (accessed
October 11, 2020).
219
….Cite source and authority on transnational legal process (TLP), especially ICC…See the Rome Statute that
establishes the ICC and its jurisdiction, at https://www.icc-cpi.int/resource-library/documents/rs-eng.pdf (accessed
October 10, 2020)….
220
Ben Sihanya (2016) “Key issues that must be in place for Kenya to secure electoral justice in the 2017 polls,”
Standard, Nairobi, August 11, 2016, at https://www.standardmedia.co.ke/kenya/article/2000211577/key-issues-that-
must-be-in-place-for-kenya-to-secure-electoral-justice-in-the-2017-polls (accessed March 8, 2021).
221
International Centre for Policy and Conflict & 5 Others v. Attorney General & 5 Others [2013] eKLR. The judges
were: A. Mbogholi Msagha, Luka Kimaru, Hellen A. Omondi, Pauline Nyamweya, and George K. Kimondo, JJ….
 The Court held that its mandate was limited to interpreting the provisions of the Constitution in
respect of the provisions of Chapter Six on leadership and integrity. On the effect of the ICC cases
on the integrity of Uhuru Kenyatta and William Ruto, the Court held that:
“We have already placed on record the rights of the citizens of this country to make political
choices, and indeed the rights of the 3rd and 4th Respondents to seek public office. Article 1 of the
Constitution of Kenya places all sovereign power on the people of Kenya which shall be exercised
only in accordance with the Constitution. It shall not be, and can never be the role of this court to
exercise that power on behalf of the people of Kenya. That right must remain their best possession
in a democratic society and is inalienable.”222

The Court also appeared to shift the burden of determining the integrity question to the
Independent Electoral and Boundaries Commission (IEBC) and EACC, stating:

“Institutions like the IEBC and the Ethics and Anti Corruption Commission are bestowed with
necessary power to conduct, inquire and take disciplinary action. The court should not descend into
the arena of inquiry… its proper rule is to ensure the inquiry is undertaken in the standards
acceptable in the Constitution”…
Yet IEBC had indicated that it would determine the suitability of the two based on what the High
Court would say…..223

In essence, the Court held that President Uhuru Kenyatta II and Ruto’s trials at the ICC. The Hague
could not be a reason to stop them from vying in elections since no local or international trial had
convicted them to imprisonment for more than six months.218 This judgment is seen to have
lowered the integrity standards anticipated under the Constitution of Kenya 2010. What were the
findings of the ICC on Kenyatta? Ruto?..........224

3.10 Leadership and Integrity Questions in the post 2017 and Post 2022 Kenya and Africa
In 2018, following the handshake, there was a fresh bid by President Uhuru Kenyatta through the
office of the Directorate of Criminal Investigations (DCI) to “ fight” corruption. Wachira Maina
222
Paragraph 156….. of the court’s decision in 222 International Centre for Policy and Conflict & 5 Others v. Attorney
General & 5 Others, ibid, at 155.
223
Pamela Chepkemei (2012) “Court has final say on Uhuru and Ruto, says IEBC boss,” Daily Nation, Nairobi,
21/11/2012, at https://www.nation.co.ke/news/politics/Court-has-final-say-on-Uhuru-and-Ruto-/1064-1625758-
il6t3/index.html (accessed 14/7/2019).
224
Ben Sihanya (2015) “Confrontation with ICC counterproductive,” Standard, Nairobi, November 30, 2015, at
https://www.standardmedia.co.ke/commentary/article/2000184000/confrontation-with-the-icc-counterproductive
(accessed March 8, 2021); Ben Sihanya (2015) “Ruto should stop rallies, try due process route,” Standard, Nairobi,
October 20, 2015, at https://www.standardmedia.co.ke/commentary/article/2000180132/ruto-should-stop-rallies-try-
due-process-route (accessed March 8, 2021).

218
………..
described the President’s efforts as laudable, although they did not address the roots of corruption
in Kenya……….225

First, it started through the appointment of the Director of Public Prosecutions (DPP) Mr. Noordin
Haji and a new Attorney General Mr. Paul Kihara Kariuki. Second, President Uhuru Kenyatta II
shook hands with his opponent Raila Odinga. Third, a money repatriation effort(s) were allegedly
initiated through the Ethics and Anti Corruption Commission (EACC), the DCI and the DPP.

The DCI embarked on Friday arrests, especially senior state and public officials towards the end
of 2018….. Among those arrested included top officials from National Hospital Insurance Fund
(NHIF) and Kenya Pipeline Corporation (KPC). The purge continued in 2019 with former Nairobi
Governor Dr Evans Kidero being arrested on a Friday morning in April by detectives from the
Ethics and Anti-Corruption Commission (EACC). Kidero faced corruption charges in Court.226

Prof Tom Ojienda, a key contestant for the LSK Male Representative to the JSC and the
current Kisumu senator was also arrested on a Friday evening in December 2018, sparking
interest and concerns by lawyers aboutthe manner in which the DCI and the DPP were
approaching corruption related allegations.227 About 41 KRA employees were also arrested in
May 2019 and arraigned in Court for charges on aiding tax evasion.228

Significantly, related leadership and integrity issues arose on the appointment of Mr. Bernard
Chungato public office as part of a team to lead prosecutorial reforms. It was argued that this
contravened Chapters 6 and 13 of the Constitution and section 5(j) of the Truth Justice and
Reconciliation Act (TJRC) Act.229

225
Wachira Maina (2018) “State Capture: Inside Kenya’s inability to fight corruption,” Africa Centre for Open
Governance……
226
See Evans Odhiambo Kidero v. Republic [2019], Anti-Corruption and Economic Crimes Appeal 11 of 2019. eKLR;
Evans Odhiambo Kidero v. Republic [2019] eKLR, Anti Corruption & Economic Crimes Revision 23 of 2019 eKLR.
227
Tom Odhiambo Ojienda v. Director of Public Prosecutions & 4 Others, Petition No. 2470 of 2018. They largely
included SC Orengo, SC Okong’o Omogeni, Nelson Havi, Tom K’opere and Ben Sihanya.
228
Capital News (2019) “DCI arrests 41 KRA employees for aiding tax evasion,” at
https://www.capitalfm.co.ke/news/2019/05/dci-arrests-41-kra-employees-for-aiding-tax-evasion/ (accessed
15/7/2019).
229
See Ramadhan Rajab (2013) “Chunga and Bosire testify before TJRC,” Star, 9/4/2013, at https://www.the-
star.co.ke/news/2013-04-08-chunga-and-bosire-testify-before-tjrc/ (accessed October 12, 2020).
The TJRC Report had recommended that Mr. Chunga should never hold public office. Lawyer
Nelson Havi asked in a Facebook posting: “Isn’t Noordin Haji guilty of incompetence, gross
misconduct and misbehaviour?” 230

Mr. Chunga later reportedly wrote to say “no thank you.” He stated, “many thanks for appointing
me as the chairman of the taskforce. However, due to pressing commitments I have undertaken
elsewhere, I regret to advise that I will not be able to undertake the appointment.”231

Further, the EACC sought to question the appointment of Prof Ben Sihanya as the Chairperson
of the ODM Party Disciplinary Committee (DC). EACC alleged that such appointment
contravened Section 12(1)(b), (c), (d) and section 13 of the Political Parties Act, and section 23(2)
and 23(3) of the Leadership and Integrity Act, 2012. EACC alleged that such provisions apply
equally to “public officers” as to “state officers.”

Ben Sihanya on his part argued that he was not a State officer; and that his appointment as ODM
Disciplinary Committee (DC) Chairperson was a “voluntary, non-salaried, quasi-judicial
position;” that he was not an officer of the ODM Party as contemplated under the Political Parties
Act or any other law; and that at no time does the Chair or member of the committee get involved
in the political affairs of the party.”232

Additionally, Sihanya responded to the EACC Chair Mr. Twalib Mbarak by stating that:

“The Constitution of Kenya 2010 is the supreme law and should have guided your inquiry herein,
especially Articles 20, 27, 33, 36, 38 and 77 but you have not cited any of the material provisions
which I now contextualize.”233

In reference to such appointment as Chairperson of ODM Disciplinary Committee, he added that:

“neither do they participate in the party’s day-to-day activities such as campaigns.”234

230
A petition was filed by a group of lawyers to stop Chunga's appointment…. See Paul Ogemba (2019) “Chunga’s
past records return to haunt him as lawyers seek to block his return to public service,” The Standard, 8/7/2019, at
https://www.standardmedia.co.ke/article/2001333128/lawyers-group-moves-to-block-chunga-appointment-over-
tainted-past (accessed 17/7/2019). ....
231
See Mary Wambui (2019) “Ex-CJ Chunga declines job in ODPP inspectorate task force,” Daily Nation, 8/7/2019,
at https://nation.africa/kenya/news/ex-cj-chunga-declines-job-in-odpp-inspectorate-task-force-184386 (accessed
October 12, 2020). See ibid, at 138.
232
… Justus Ochieng’ (2020) “ODM, EACC lock horns over university don’s role in party,” Daily Nation, Nairobi,
1/10/2020, at https://nation.africa/kenya/news/politics/odm-eacc-lock-horns-over-don-role-in-party-2453624
(accessed October 12, 2020).
233
Ibid; See also Joseph Wangui (2020) “Reprieve for UoN lecturer in trouble over ODM position,” Daily Nation,
Nairobi, 9/10/2020, at https://nation.africa/kenya/news/reprieve-for-uon-lecturer-in-trouble-over-odm-position-
2461790 (accessed October 12, 2020).
234
Ibid.
According to an official of the University of Nairobi the “EACC launched an independent probe into
the matter and as such, the institution should not be dragged into it.”235 The official denied that the EACC
claims were based on attempts to block the candidature of Sihanya from the Law Deanship
elections scheduled for January 2021.

The University of Nairobi then wrote to Sihanya a Notice to Show Cause (NTSC) why he should
not be disciplined on the basis of the EACC claims. Sihanya and ODM filed a petition at the
Employment and Labour Relations Court (ELRC).

The judge ordered that:

“pending the inter partes hearing or further orders of the Court, there be stay of
implementation of the Respondent’s (EACC) findings, determination and decision
contained in its letters dated 18/8/2020 and 15/9/2020 and the 1st Petitioner (Prof Sihanya)
to peacefully continue in his service as Chairperson of the Disciplinary Committee of the
ODM Party and as a lecturer at the University of Nairobi School of Law accordingly.”236

In 2021, it was reported that there were cases including passers-by “chicken sellers” winning
lucrative tenders to supply COVID-19 equipment at KEMSA.237

A sample of the numerous historical and continuing cases of corruption, or breach of

constitutional, regulatory and administrative standards on leadership and integrity in Kenya and
Africa may be summarized in Table or Matrix….below….

3.11 Matrix on corruption scandals under Presidential and Premier Administration in

Kenya and Africa238

235
Ibid.
236
See Prof Ben Sihanya Murumbi and ODM v. EACC & Office of the Registrar of Political Parties & 1 Other (2020),
ELRC Petition/E055/2020. The judge ordered that “pending the inter partes hearing or further orders of the Court,
there be stay of implementation of the Respondent’s (EACC) findings, determination and decision contained in its
letters dated 18/8/2020 and 15/9/2020 and the 1st Petitioner (Prof Sihanya) to peacefully continue in his service as
Chairperson of the Disciplinary Committee of the ODM Party and as a lecturer at the University of Nairobi School
of Law accordingly.”
237
Edwin Mutai (2021) “Chicken seller declares less taxes in Sh1bn Kemsa deal,” Business Daily, Nairobi, February
25, 2021, at https://www.businessdailyafrica.com/bd/economy/chicken-seller-declares-taxes-in-sh1bn-kemsa-deal--
3303132 (accessed February 25, 2021); Moses Nyamori (2021) “Puzzle of two-month old firm that bagged Sh1b
Kemsa deal,” Standard, Nairobi, February 25, 2021, at
https://www.standardmedia.co.ke/article/2001404504/puzzle-of-two-month-old-firm-that-bagged-sh1b-kemsa-deal
(accessed February 25, 2021); Moses Nyamori and Grace Nganga (2021) “God led me to Kemsa, firm owner tells
MPs,” Standard, Nairobi, March 7, 2021, 4-5, at https://www.standardmedia.co.ke/money-
careers/article/2001405167/god-led-me-to-kemsa-firm-owner-tells-mps (accessed March 8, 2021)..
238
These are based on court cases and the Auditor General’s reports. They are a moving target and too numerous to
list. The reader should list others. ….cf. Uganda, Tanzania, Nigeria, South Africa….under the respective presidents
and premiers….
William Under Uhuru Under Mwai Kibaki Under DanielMoi Under JomoKenyatta
Ruto Kenyatta
1. The Kenya Goldenberg Saga Land grabbing by Land grabbingby state o
Pipeline (involving state officers the“yeo-man” rese
Company: KSh1 schemes.
KES 95 billion 8billion)
scandal on
suspicious
payments to
contractors.
2. Free learning funds Controversial purchase
National scandal at the Education of Mama NginaKenyatta
ministry (involving properties and morethan 115,
Youth Service:
KES companies in London, land
KES 9 billion
4.2 Billion shillings). New York and South
scandal on Africa and even a
suspicious 10,000 hectareranch in
payments Australia by state
officials.
tocompanies.
3. Kenya Power &
Lighting KSh 283 million City
Hall cemetery scandal
Company:
Multimillion
scandal
where
KPLC
employees

wereaccused of
registering
companies to
award
themselves
contracts and
sneaking in
unqualified
companies into
the KPLC
database.
4. National Cereals
and KSh 2 billion
maizescandal
Produce

Board (NCPB):
KES 1.9 billion
maize scandal.
Money paid to
(illegal)
importers and
other dealers
while farmers
are ignored.
5. Controversial
Chicken gate purchas
IEB eof land for the Kenyan
Cscandal (59
Million)
 embassy in Japan (Kshs
1Billion).
6. Eurobond
sc Anglo-Leasing scandal
andal(2015 which involved faketenders
Billion) to fictitious firms to supply
passports and navy
equipment, amongothers.

7.
Karen Land
saga,Waitiki
Likoni land

8. Anglo Leasing
(KES 3billion)

Uhuru Kenyatta
payout
9. Kimwarer &
Arror Dam
scandals (KES
21Billion? DP
Ruto, and
al
leged
involvement and
noneprosecution
of former
Attorney-
General
Githu Muigai,
and
former
Solicitor
-General Njee
Muturilinks)239

10. Kenya Prison

Service scandal
(KES 4 Billion?)

11. Ministry of
Health (MAfya)
scandal) (KES 5
 Billion).

12. JKIA, KQ, KAA

saga
(President
Ke
nyattafamily)

239
Sam Kiplagat (2021) “Rotich claims bias in dams scandal case,” Business Daily, Nairobi, January 27, 2021, at
https://www.businessdailyafrica.com/bd/economy/rotich-claims-bias-dams-scandal-case-3269868 (accessed
February 25, 2021). Deputy President (DP) William Ruto stated that: “You’ have heard that the government has lost
about Sh21 billion which is a flat lie! The money in question is about Sh7 billion, and for every coin that has been
paid, we have a bank guarantee…” See Mireri Junior (2021) “DPP: We've not summoned DP Ruto over Arror and
Kimwarer dams,” Standard, Nairobi, https://www.standardmedia.co.ke/national/article/2001426958/dpp-weve-not-
summoned-dp-ruto-over-arror-and-kimwarer (accessed November 5, 2021).
 13. Huduma Number. PS
Karanja Kibicho said
that there were plansto
initiate Phase 2 of
Huduma namba
registration from May
2021.240

14. Standard Gauge

Railway: Value of
SGR land
compensation.
Allegedly more than
KES 35 Billion was
irregularly paid for
fake compensation
claims, double
payments and price
inflation...241

15. Fake gun procurement

scandal worth KES 40
Billion. Deputy
President William
Ruto’s office
allegedly
involved….242

240
Mary Wambui (2020) “Second round of Huduma Namba registration coming soon, says PS,” Daily Nation,
17/9/2020, at https://nation.africa/kenya/news/second-round-huduma-namba-registration-coming-soon-kibicho-
2166282 (accessed October 12, 2020); Patrick Vidija (2021) “Second phase of Huduma Namba registration to start
in May – Oguna,” Star, February 10, 2021, Nairobi, at https://www.the-star.co.ke/news/2021-02-10-second-phase-
of-huduma-namba-registration-to-start-in-may-oguna/ (accessed March 5, 2021).
241
See Mohammed Yusuf (2020) “Cost of China-built Railway haunts Kenya,” VOA, 26/2/2020, Africa, at
https://www.voanews.com/africa/cost-china-built-railway-haunts-kenya (accessed October 12, 2020); It Is reported
that Kenya may have lost around $3.4 billion, land compensation payments made by the National Land Commission
wthout verifying the true value of the land. See Zadock Angira (2020) “Sh3.4b lost in false Standard Gauge Railway
land claims,” People’s Daily, 10/9/2020, at https://www.pd.co.ke/news/sh3-4b-lost-in-false-standard-gauge-railway-
land-claims-51601/ (accessed October 12, 2020); The Standard Team (2020) “It is time to review SGR deal, get value
for money,” 24/5/2020, at https://www.standardmedia.co.ke/editorial/article/2001372404/its-time-to-review- sgr-
deal-get-value-for-money-from-it (accessed October 11, 2020).
242
See Felix Olick and Esther Mbugua (2020) “Why Ruto is under fire over fake military deal,” Star, Nairobi,
17/2/2020, at https://www.the-star.co.ke/news/2020-02-17-why-ruto-is-under-fire-over-fake-military-deal/ (accessed
October 12, 2020). Ms Ngilu said that “DP Ruto’s office is a shame to the presidency which Uhuru is part of;” Betty
Njeru (2020) “DP Ruto: Access to my office by Echesa and his co-accused was a breach of security,” 6/3/2020,
Standard, at https://www.standardmedia.co.ke/nairobi/article/2001363057/ruto-access-to-my-office-was-a-breach-
of-security (accessed October 10, 2020).
 16. KES 8 billion scandal
at Kenya Medical
Supplies Authority
(KEMSA) during
COVID-19
pandemic243

17. KES 7.8 Billion

KEMSA procurement
scandals244

18. President Uhuru

Kenyatta stated thatthe
Government was
losing KES 2billion
daily…245

County Governments
County/Governor Scandal

1. Nairobi County: Loss of KES 1.7 billion through irregular

procurement of health services for staff. loss of
Evans Kidero & KES 1.7 billion through irregular procurement
of health services for staff.

Evans Kidero foundation scandal (KES 2.7

243
Steve Otieno (2020) “Kemsa scandal: DPP sends back files to EACC,” Daily Nation, 3/10/2020, at
https://nation.africa/kenya/news/kemsa-scandal-dpp-sends-back-files-to-eacc-2455568 (accessed October 11, 2020).
244
Edwin Mutai (2021) “Auditor-General feels the heat over Kemsa scandal report error,” Business Daily, Nairobi,
January 27, 2021, at https://www.businessdailyafrica.com/bd/economy/auditor-general-kemsa-scandal-report-error-
3269840 (accessed February 25, 2021); Ktn News (2021) “KEMSA scandal: Covid-19 related material suppliers to
KEMSA risk losing millions,” February 3, 2021, at https://www.standardmedia.co.ke/ktnnews/ktn-
newsdesk/video/2000204925/kemsa-scandal-covid-19-related-material-suppliers-to-kemsa-risk-losing-millions
(accessed February 25, 2021)….
245
See Brian Osweta (2021) “Does Kenya Really Lose Sh2 Billion to Graft Daily?” Daily Nation, Nairobi, February
7, 2021, at https://nation.africa/kenya/newsplex/fact-check-does-kenya-really-lose-sh2-billion-to-graft-daily--
3282360 (accessed November 5, 2021).
 Billion)

Alleged embezzlement of KES 357.4 million

Former (impeached) Governor Mike Mbuvi of public funds;247 conflict of interest, money
Sonko246 laundering and conspiracy to commit an offence
of corruption in a KES 14.1 Million
heavy equipment tender;248

2. Samburu County Charged with the offences of conspiracy to

commit an offence of corruption, abuse of office
Moses Kasaine Lenolkulal contrary, conflict of interest, unlawful
acquisition of public property, and KES 87.6
million fraud 249

3. Kiambu County Charged with offences related to conflict of

interest, dealing with suspected stolen property,
Former (impeached) Governor Ferdinand abuse of office involving a tender
Waititu250

246
See the impeached Governor Mike Sonko’s impeachment debate in 2020 and court cases in 2021…. Sonko signed
away transfer of Nairobi City County government powers on February 25, 2020 vide the Deed of Transfer of Functions
to the National Government. This facilitated the creation of the Nairobi Metropolitan Service (NMS). Article 187 is
an unjustified nuclear option… better Article 181 impeach Sonko…reorganize power structure politically and
constitutionally; Japheth Ogila (2020) “Nairobi Governor Mike Sonko sent home after Senate upholds his
impeachment by Nairobi County Assembly,” Standard, Nairobi, December 18, 2020, at
https://www.standardmedia.co.ke/politics/article/2001397657/its-over-for-sonko (accessed February 25, 2021).
Sonko later said he signed under the influence of alcohol he had been given…. See Nancy Agutu (2020) “Sonko: State
House gave me liquor before signing Nairobi deal,” Star, Nairobi, July 24, 2020, at https://www.the-
star.co.ke/news/2020-07-24-sonko-state-house-gave-me-liquor-before-signing-nairobi-deal/ (accessed March 8,
2021)
247
Andrew Wasike (2019) “Kenya arrests Nairobi governor for alleged corruption,” AA, December 6, 2019, at
https://www.aa.com.tr/en/africa/kenya-arrests-nairobi-governor-for-alleged-corruption/1665737 (accessed February
25, 2021); Joseph Wangui (2021) “Sonko loses bid to halt his Sh537m graft suit,” Business Daily, Nairobi, February
24, 2021, at https://www.businessdailyafrica.com/bd/economy/sonko-loses-halt-his-sh537m-graft-suit-3301876
(accessed February 25, 2021).
248
Susan Muhindi (2020) “Sonko's Sh14 million corruption case begins in camera,” Star, October 6, 2020, at
https://www.the-star.co.ke/news/2020-10-06-sonkos-sh14-million-corruption-case-begins-in-camera/ (Accessed
February 25, 2021).
249
Anti-Corruption and Economic Crimes Revision 7 of 2019, Moses Kasaine Lenolkulal v. Republic [2019] eKLR;
In Moses Kasaine Lenolkulal v. Republic [2019] eKLR, the court (Justice Murgor, DK Musinga and Gatembe Kairu
J) decided that the bail conditions ordered in did not “remove the appellant from office, but merely required compliance
with constitutionally sanctioned terms that of necessity limited his access to the County offices until determination of
the trial.” Acc No. 3 of 2019….See case….and debates ….In 2019,,2019, a key witness in the corruption case against
Samburu County Governor Moses Kasaine Lenolkulal claimed that he had no evidence against the Governor and the
ten (10) co-accused, and that he was not aware of any plot by the eleven accused to steal county funds. See Paul Letiwa
(2020) “Key witness in Lenolkulal graft case says he has no evidence,” Daily Nation, Nairobi, 18/3/2020, at
https://nation.africa/kenya/news/key-witness-in-lenolkulal-graft-case-says-he-has-no- evidence-254830 (accessed
October 12, 2020).
250
Impeached by Kiambu County Assembly on 19/12/2019 and removed by Senate on 29/1/2020.
 worth Sh588 million and fraudulent acquisition
of Sh221 million public property.251
4. Migori County
EACC probing 23 firms linked to Governor
Governor Zachariah Okoth Obado Obado in Sh2.5B graft scandal252 In 2020,
Obado was arraigned in court together with his
four children on corruption charges amounting
to KES 73 million.253
5. Bungoma County Controversial purchase of “non-carcinogenic”
Former Governor Kenneth Lusaka254 wheelbarrows at KES 110,000 each

3.12 Building Bridges Initiative (BBI) 2019 and 2020 Reports, Proposals and (Post)
Amendment Debates
The Building Bridges Initiative (BBI) 2019 and 2020 Reports and the Constitution of Kenya
(Amendment) Bill, 2020 identify at least following seven (7) key issues.

First, that national ethos and inclusivity regardless of race, colour, tribe, sex, gender, ethnicity or
beliefs are key. Second, that Chapter 6 (on leadership and integrity) needs to be strengthened to
provide a clear framework for expeditious, just and fair investigation, trial and prosecution of graft-
related cases in Kenya… Also, consider debate on Conflict of interest Bill, 2019.255

Third, the BBI reports recommend that elected and appointed officials be bound by ethos, ethics,
values, principles. Fourth, a separation of ethics from anticorruption and combine it with integrity,
integration at both the national and county government levels.256

Fifth, to establish an Ethics and Integrity Commission (EIC) separately and independently in the
Constitution (Chapter 6 on leadership and integrity, and Chapter 15 that establishes the EACC),
under the Office of the President.257 Its mandates would be dealing with issues of ethics, ethical

251
Cyrus Ombati (2019) “Waititu, wife, daughter to be charged with graft,” Standard Digital, Nairobi, 17/7/2019, at
https://www.standardmedia.co.ke/article/2001334161/waititu-wife-daughter-to-be-charged-with-graft (accessed
17/7/2019)....
252
Brian Wasuna (2019) “EACC probes 23 firms linked to Obado in Sh2.5bn graft scandal,” Daily Nation, Nairobi,
26/9/2019, at https://mobile.nation.co.ke/news/EACC-probes-firms-linked-to-Obado/1950946-4777834-
1080ap7z/index.html (accessed 17/7/2019); ....
253
Benjamin Muriuki (2020) “Governor Obado, his four children in court over Ksh.73M corruption charges,” Citizen
Digital, 27/8/2020, at https://citizentv.co.ke/news/governor-obado-his-four-children-in-court-over-ksh-73m-
corruption-charges-343364/ (accessed October 10, 2020).
254
Speaker after 2017 elections.
255
Cf. Tom Ojienda, “Analysis of Conflict of Interest Bill, 2019.” See Betty Waitherero (2020) “Secret warrants
rulings reveal conflict of interest in corruption cases,” Star, Nairobi, 9/3/2020, at https://www.the-
star.co.ke/opinion/star-blogs/2020-03-09-secret-warrants-rulings-reveal-conflict-of-interest-in-corruption-cases/
(accessed October 12, 2020).
256
Of the National Cohesion and Integration Commission (NCIC) Act, 2008.
257
See the proposed amendments in the Ethics and Integrity Laws (Amendments) Bill, 2020 in the BBI 2020 Report
standards, monitoring and conducting ethical and integrity tests in public institutions, making
annual ethics and integrity reports, and advising the President accordingly.

Sixth, to provide for resignation, stepping down, stepping aside, 258 “stepping away,” stepping
back259…. How do the Kenyan law and practice compare to the US, UK where officers resign
on mere suspicion and or on being charged with an offence….? Stepping aside is conceptualized
as a disciplinary procedure and or contested form of suspension, especially in employment and
labour relations law, to allow for investigations to be carried out.

For instance, former Finance Minister David Mwiraria under Kibaki was forced to “step aside” to
pave way for investigations over an alleged deal to steal £400 million. In the United Kingdom
(UK), former Prime Minister Theresa May was forced to step down due to nationwide calls for a
new leader, and debates on May’s role in the Brexit deal.260

This would apply to National Government and County Government (officials) equally with
necessary modifications or mutatis mutandis for elected and appointed officials, to consider for
the President, Deputy President (DP), Prime Minister (PM), the two (2) Deputy Prime Ministers
(DPMs), 47 Governor(s), Deputy Governor(s)….261

Seventh, the Building Bridges Initiatives 2020 Report and Constitution of Kenya (Amendment)
Bill, 2020 also proposed to introduce Article 18A (citizen responsibility) to enhance the role of
citizens in nation building, and in upholding constitutional values and principles. These include
fairness, integrity, transparency and accountability, including the Leadership and Integrity Act,
2012.

Eighth, the BBI 2019 and 2020 Reports, and the Constitution of Kenya (Amendment) Bill, 2020
propose the recognition of national ethos as fundamental in Kenya’s social fabric. The current
constitution largely places obligations only on the State, not individuals. Relatedly, a culture of
national ethos will promote national unity and patriotism due to the respect of diversity.262

258
Nzau Musau (2015) “They’ve stepped aside, but what does it mean for Kenyan Government officials implicated
in corruption?” Standard, Nairobi, March 29, 2015, at
https://www.standardmedia.co.ke/politics/article/2000156495/theyve-stepped-aside-but-what-does-it-mean
(accessed July 10, 2021).
259
…. To clarify these concepts… principles….?
260 ….
261
See the proposed amendments under the Ethics and Integrity Laws (Amendment) Bill, 2020 in the BBI 2020 Report.
262
Oliver Mathenge (2021) “How BBI referendum would alter the Kenyan Constitution,” Star, Nairobi, February 23,
2021, at https://www.the-star.co.ke/news/big-read/2021-02-23-how-bbi-referendum-would-alter-the-kenyan-
constitution/ (accessed February 25, 2021).
The BBI 2019 report proposed to take away the investigative powers of the Ethics and Anti-
Corruption Commission (EACC),263 and to amend Article 248 to strengthen the Office of the
Director of Public Prosecutions (ODPP), and the Directorate of Criminal Investigations (DCI).264
Was the EACC’s constitutional mandate reviewed?

Under the BBI Report 2020 reports, the EACC’s functions were retained with more emphasis on
enhancing cooperation among constitutional commissions, especially in addressing corruption,
graft, conflict of interest, ethos and integrity challenges in Kenya and Africa….

3.13 Values, Principles, Ethos, Agency, Political Economy Culture and Constitutional
Sociological Democracy: Post-Independence, BBI and Transition from Uhuru Kenyatta….
Crucial questions have emerged since independence and in the context of constitutional reforms
and presidential succession in Kenya. There are at least three (3) core matters. First, are there pan-
Kenyan values and principles that constitute cultural politics, political culture or tradition, or a
culture of political economy and constitutional sociology regarding the production (or acquisition)
retention and maintenance (reproduction) and transition or sharing of political and economic
powers?

The emergence of the Kenyan state post-independence was pegged on national values including
Harambee which were pegged on harmonious living, togetherness, peace, love and unity. These
were critical foundational values that would create a conducive environment for the emergence
of nationalism. However, more than five (5) decades later, these aspirations have not been realized,
especially due ethnocentric politics and marginalization through socio-economic policies.

….Second, given the enduring control of politics and the political economy by the Kikuyu and
Kalenjin oligarchy since independence in 1963, is there a pan-Kikuyu, pan-Thaguci,265 pan-
Kalenjin, or pan-Kikuyu-Kalenjin political culture and transition? Kenyan politics have been
dominated by at least three (3) tribes, including Kalenjin, Kikuyu and the Luo. The Luo-Kikuyu
political alliance, rivalry and a mix of the two has greatly shaped Kenyan politics.

263
Building Bridges Initiative (BBI) Report, 2019, Chapter 2 (lack of national ethos), section 35 on (a full time focus
on ethics), at http://kenyalaw.org/kl/fileadmin/pdfdownloads/BBIFinalVersion.pdf (accessed March 8, 2021). It states
that “The EACC should be focused on stopping economic crimes and given constitutional protection as a Chapter 15
Commission. Its ethics mandate should be redirected to an Ethics Commission to be under the Office of the President.
The NCIC should be subsumed in the Ethics Commission and its mandate brought in line.”
264
See Edward Kahuthia (2020) “Care, lest BBI tampers with graft war,” Daily Nation, Nairobi, March 18, 2020, at
https://nation.africa/kenya/blogs-opinion/opinion/care-lest-bbi-tampers-with-graft-war-245150 (accessed November
9, 2020); See Annex C (Administrative Measures) on Corruption of the BBI Report, 2020, Clause 58 (Article 243)
Constitution of Kenya (Amendment) Bill, 2020….
265
ESAO….
The Luo-Kikuyu alliance contributed to first liberation or independence, but it disintegrated in
the 1964-66 period when the Kikuyu-Kalenjin was formed. The Luo-Kikuyu alliance contributed
to the second liberation or reintroduction of multi-party democracy and the NARC revolution. The
third phase of the alliance is the quest for the “third and final liberation” in the context ofthe
post-March 9, 2018 Handshake period between Kenyatta II and Raila Odinga. The third liberation
is a much pan-ethnic alliance….

….In a clear strategy to gain political power, there have been power sharing and alliancebuilding
between these three major ethnic groupings, and the Luhya, Kamba, Swahili and the Northern
Frontier Districts (NFDs). Remarkably, the political economy has been controlled by the Kikuyu-
Kalenjin diarchy or axis while the Luhya-Luo-Kamba axis in the Opposition formost of the
post 1966 period.

Third, is there an alternative political culture to the pan-Kalenjin political culture? Can a Kikuyu
or Kalenjin rule through a pan-Kenyan political culture? This question has been addressed
ambivalently by politicians since Kenyan politics and political parties are primarily ethnic-based,
rather than nationalistic nature. What are the core components of a Luo or pan-Kenyan political
culture? In the post-independence era, Jaramogi Oginga Odinga and Tom Mboya were the main
players in the politics of the Luo nation. Jaramogi’s stance was however largely critiqued due to
his egalitarian socialist leanings. The State worked hard to demonize him and to confine him to
tribal or regional leadership.

However, a keen evaluation of Tom Mboya’s impact reveals a cross-ethnic contribution to Kenya’s
socio-economic development. This was especially through his role in trade unionismand the
Kennedy-Mboya airlifts under the African-American Students Foundation, which he co- founded
with William Scheinman. The Mboya airlifts were a pan-Kenyan initiative which supported
Kenyan students irrespective of their ethnicities.266

Remarkably, Tom Mboya (a Luo) also openly supported Jomo Kenyatta (a Kikuyu) during the
KANU-era……..

What are the challenges and prospects of real transition to a pan-Kenyan political economy, and
constitutional sociology, cultural politics and constitutional democracy, especially in the context
of the Building Bridges Initiative (BBI) and the (post) 2022 succession and transition politics? 267
The key lies in devolution which offers the key to inclusion, access to state resources, and equitable
and sustainable development. This is due to the decentralized governance system…..

266
Some of the beneficiaries were Prof Wangari Maathai, George Saitoti, Joe Barrage ‘Joe B’ Wanjui and Barack
Obama (Senior)….
267
See Chapters 1, 3, 4, 8, 17 29 and 31 of CODRALKA 1; Chapters 1, 3, 5, 6, 11 and 13 of CODRALKA 2, and
CODRALKA and 3…..
3.14 Summary of Findings, Conclusions and Recommendations on Constitutional Values,
Principles, Policy: and Culture: Agency, Structure, Politics and Culture in Kenya and Africa
The central argument is that the Constitution of Kenya 2010 is the organizing principle on
constitutional values, principles, policy and culture. We argue that constitutional values,
principles, policy and culture provide a firm foundation for the governance of economic resources,
political powers, and liberty. Further, that national values and principles are important in realizing
the promise of the rules and policies of the Constitution of Kenya 2010.

Unfortunately, some of the founding values at independence and those in the Constitution of Kenya
2010 have been corrupted and thus compromise constitutional implementation. For instance,
instead of tribal inclusion and mutual social responsibility, the Kenyan and African Presidents and
Premiers increasingly promote tribal and oligarchic appointments, tendering, accumulation,
corruption and exclusion.268

Therefore, it is critical that the presidency leads in the implementation of the founding and
constitutional values and principles. And that legislative and judicial organs as well as the
intelligentia, independent media, civil society organizations, and people in their masses help in the
development of a common law of Kenya and relevant African state.269

We therefore need to adopt an Afro-Kenyanist theory and methodology in integrating ethics, ethos,
values, and principles into constitutional democracy to advance individual and group liberties as
well as nationhood. These include mutual social responsibility, lack of a national ethos, corruption,
shared prosperity, inclusivity and public participation.

Also, consider these discussions in light of the proposals made in the BBI Report 2019 and BBI
Report 2020 released on October 26, 2020, and in the subsequent debates including proposals at
Bomas of Kenya, and in public fora on the Building Bridges Initiative (BBI) are on constitutional
amendment, the debates on the Constitution of Kenya (Amendment) Bill, 2020 in the 47 County
Assemblies.
Additionally, we argue that there is need to adopt a holistic and inclusive appreciation of Afro-
Kenyanist theory and methodology on constitutional values, principles, ethics and ethos, then
leadership, integrity, and Afro-Kenyanist sociology, and constitutional democracy will develop
in Kenya and Africa.

268
Cf. John Lonsdale (1992) “The moral economy of Mau Mau: Wealth, poverty, and civic virtue in Kikuyu
political thought,” op. cit.
269
See also Chapter 1 (supra).
 Like the other Chapters of CODRALKA Vols 1, 2, 3, this Chap 3 of CODRALKA 1 has integrated
the following:
- Constitutional sociology, political economy and cultural politics
- structure, agency and conjucture
- interdisciplinarity, multidisciplinarity and cross disciplinarity
- HASS and STEM
- present, past (history, tradition practice or custom) and future (reforms, recommendations,
proposals)..
CPC ... Conceptualize, Problematize, Contextualize
3 Rs: Read, Reflect, Rest
A luta continua vitoria e certa (the struggle continues, )

As Poet Yussuf O. Kassam says, “The drum inspired the dancers / now the dancers inspire the
drummer.”

...Let wisdom flow from and back to the Oracle’s Shrine in class, and through books, articles,
online, and in appropriate fora…

Prof Ben Sihanya, JSD (Stanford), Adv.

Scholar, Public Intellectual and Mentor, IP, Ed and Constitutional Professor and Public Interest
Advocate, Intellectual Property & Constitutional Democracy
University of Nairobi Law School, Sihanya Mentoring & Sihanya Advocates
Email: sihanyamentoring@gmail.com; sihanya@innovativelawyering.com;
info@sihanyaprofadvs.co.ke
Url: www.innovativelawyering.com

*** END*** Thu tinda! ***Wishing You Success***

Revised 27/2/2013; 26/9/2013; 14/6/2014; 14/10/2014; 16/02/2015; 16/06/2015; 31/08/2015;

10/2/2016; 29/6/2016; 14/4/2017; 10/4/2018; 8/2/2019; 4/2/2019;
7/3; 16/7; 17/7; 22/10; 23/10/2019; 15/2/; 26/2/; 11/10/2020; 28/10/; 9/11/; 9/11/2020;
10/11/2020; 19/11/2020; 20/11/2020; 25/2/2021; 5/3/2021; 8/3/2021; 9/3/2021; 11/3/2021;
4/7/2021; 9/7/2021; 5/12/2022; 2/1/2023.