The rule of law is the "authority and influence of law in society, especially when viewed as a constraint on individual and institutional behavior; (hence) the principle whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and processes".[2] The phrase can be traced back to 16th century Britain, and in the following century the Scottish theologian Samuel Rutherfordused the phrase in his argument against the divine right of kings.[3] John Locke wrote that freedom in society means being subject only to laws made by a legislature that apply to everyone, with a person being otherwise free from both governmental and private restrictions upon liberty. The "rule of law" was further popularized in the 19th century by British jurist A. V. Dicey. However the principle, if not the phrase, was recognized by ancient sages and philosophers, such as Aristotle, who wrote "It is more proper that law should govern than any one of the citizens".[4]
Rule of law implies that every person is subject to the law, including people who are lawmakers, law enforcement officials, and judges.[5] In this sense, it stands in contrast to an autocracy, dictatorship, or oligarchy where the rulers are held above the law.[citation needed] Lack of the rule of law can be found in both democracies and dictatorships, for example because of neglect or ignorance of the law, and the rule of law is more apt to decay if a government has insufficient corrective mechanisms for restoring it. Government based upon the rule of law is called nomocracy.
All government officers of the Kenya, including the President, the Justices of the Supreme Court, state judges and legislators, and all members of parliament, pledge first and foremost to uphold the Constitution. These oaths affirm that the rule of law is superior to the rule of any human leader.
Showing posts with label Kenya constitutional law. Show all posts
Showing posts with label Kenya constitutional law. Show all posts
Constitutional Law: Rule of Law in Kenya
Procedure at Presidential Elections: Article 138 of the Constitution of Kenya
138. Procedure at presidential election
(1) If only one candidate for President is nominated, that candidate shall be
declared elected.
(2) If two or more candidates for President are nominated, an election shall be
held in each constituency.
(3) In a presidential election—
(a) all persons registered as voters for the purposes of parliamentary
elections are entitled to vote;
(b) the poll shall be taken by secret ballot on the day specified in Article
101(1) at the time, in the places and in the manner prescribed under
an Act of Parliament; and
(c) after counting the votes in the polling stations, the Independent
Electoral and Boundaries Commission shall tally and verify the count
and declare the result.
(4) A candidate shall be declared elected as President if the candidate receives
—
(a) more than half of all the votes cast in the election; and
(b) at least twenty-five per cent of the votes cast in each of more than
half of the counties.
(5) If no candidate is elected, a fresh election shall be held within thirty days
after the previous election and in that fresh election the only candidates shall be—
(a) the candidate, or the candidates, who received the greatest number
of votes; and
(b) the candidate, or the candidates, who received the second greatest
number of votes.
(6) If more than one candidate receives the greatest number of votes, clause
(5)(b) shall not apply and the only candidates in the fresh election shall be those
contemplated in clause (5)(a).
(7) The candidate who receives the most votes in the fresh election shall be
declared elected as President.
(8) A presidential election shall be cancelled and a new election held if—
(a) no person has been nominated as a candidate before the expiry of
the period set for the delivery of nominations;
(b) a candidate for election as President or Deputy President dies on or
before the scheduled election date; or
(c) a candidate who would have been entitled to be declared elected as
President, dies before being declared elected as President.
(9) A new presidential election under clause (8) shall be held within sixty days
after the date set for the previous presidential election.
(10) Within seven days after the presidential election, the chairperson of the
Independent Electoral and Boundaries Commission shall—
(a) declare the result of the election; and
(b) deliver a written notification of the result to the Chief Justice and the
incumbent President.
Kenya constitutional law
This section gives you details on the Kenya constitutional law.Below are some topics and a comprehensive introduction to the Kenya constitutional law
An introduction to Kenya constitutional law
The Kenya Constitutional law focuses on the organization of the state.The Kenyan Constitution does not just exist as a collection of simple rules defining and granting power, but instead these rules put into practice a legal framework of principles.
What is a constitution?
A constitution comprises a set of rules which aim to establish the duties, powers and functions of the various institutions and branches of the government. The rules enshrined in the constitution regulate the relationship between the branches of government and ensure that there can be no abuse of power by creating a separation of power and ensuring that there are sufficient checks and balances in place, allowing the three branches; legislative, executive and judicial, to function together without any one branch having a dominant and powerful position over the others. Additionally, the constitution also defines the relationship between the state and individuals and therefore defines the extent of civil liberty which shall be granted within a state.
“Substantively, a constitution is a body of law that:
Constitutions exist to control and regulate the power of the government. Power corrupts man, and citizens must be protected from the people in power; without this protection, citizens have no protection against tyranny. Without a constitution, the government would have the power to pass any laws, which could lead to the oppression of minorities, violation of freedom, and so on. We have seen cases of such power abuse during the reign of Hitler and Nazi Germany, where Jews were oppressed.
Codified and Uncodified Constitutions
Codified Constitutions
Codified constitutions are in theory enshrined in law. A codified constitution is one which is based on the existence of a single written authoritative document. This central written document lays down the core principles of the system of government. The main body typically outlines the duties, powers and functions of the major institutions of government.
Three key features of a codified constitution:
Uncodified constitutions are becoming increasingly rare and at present there are only three liberal democracies which continue to utilize an uncodified constitution ; these are the United Kingdom, Israel and New Zealand.
Similarly to codified constitutions, uncodified constitutions have three defining features:
The 2010 Constitution of Kenya, currently in force, replaced the 1969 constitution, that itself had replaced the 1963 independence constitution. The constitution was presented to the Attorney General of Kenya on 7 April 2010, officially published on 6 May 2010, and was subjected to a referendum on 4 August 2010. The new Constitution was approved by 67% of Kenyan voters.The constitution was promulgated on 27 August 2010.
Brief history of constitutional reform in Kenya
Kenya has had two major constitutional reforms involving wholly new texts since gaining independence: in 1969 and in 2010. In 1969, the 1963 independence constitution was replaced with a new text that entrenched amendments already made to the system of government that the independence constitution had contemplated. These changes included: changing the structure of the state from a federal, or Majimbo system, to a unitary system; creating a unicameral instead of bicameral legislature; changing from a parliamentary to a semi-presidential system with a powerful presidency; and reducing the protections of the bill of rights. Further amendments to the 1969 constitution were later effected, including, in 1982, the institution of a de jure single party government. The demand for a new constitution to replace the 1969 text with a more democratic system began in the early 1990s, with the end of the Cold War and democratic changes taking place elsewhere in Africa. The single party system was ended in 1991, and the first presidential election took place in 1992. Calls for a comprehensive review of the 1969 Constitution intensified in the late 1990s and early 2000s, helped by the victory of the opposition National Rainbow Coalition (NARC) party in the 2002 general elections. Official and civil society consultation processes led to the adoption of what became known as the "Bomas draft" constitution (after the location of the conference that adopted it). However, substantial amendments were nonetheless made to this draft prior to a referendum in 2005, resulting in a split in the then ruling coalition. The Liberal Democratic Party faction of the government, led by Raila Odinga, and supported by KANU led a successful 'No' vote against the amended Bomas Draft (called the Wako draft after the alleged mastermind of the changes). The review of the Constitution stalled and negotiations over the adoption of a new text seemed deadlocked. A deadlock only finally broken by the intervention of the African Union through a mediation team headed by Kofi Annan, following the outbreak of serious post-election violence in early 2008.
Drafting process for the Kenya 2010 Constitution
The Constitution of Kenya was the final document resulting from the revision of the Harmonized draft constitution of Kenya written by the Committee of Experts initially released to the public on 17 November 2009 so that the public could debate the document and then parliament could decide whether to subject it to a referendum in June 2010. The public was given 30 days to scrutinise the draft and forward proposals and amendments to their respective members of parliament, after which a revised draft was presented to the Parliamentary Committee on 8 January 2010. The Parliamentary Select Committee (PSC) revised the draft and returned the draft to the Committee of Experts[5] who published a Proposed Constitution on 23 February 2010 that was presented to Parliament for final amendments if necessary. After failing to incorporate over 150 amendments to the proposed constitution, parliament unanimously approved the proposed constitution on 1 April 2010. The proposed constitution was presented to the Attorney General of Kenya on 7 April 2010, officially published on 6 May 2010, and was subjected to a referendum on 4 August 2010.[1] The new Constitution was approved by 67% of Kenyan voters.[2]
Government Structure
The key changes proposed by the new constitution released are in the following areas:
An introduction to Kenya constitutional law
The Kenya Constitutional law focuses on the organization of the state.The Kenyan Constitution does not just exist as a collection of simple rules defining and granting power, but instead these rules put into practice a legal framework of principles.
What is a constitution?
A constitution comprises a set of rules which aim to establish the duties, powers and functions of the various institutions and branches of the government. The rules enshrined in the constitution regulate the relationship between the branches of government and ensure that there can be no abuse of power by creating a separation of power and ensuring that there are sufficient checks and balances in place, allowing the three branches; legislative, executive and judicial, to function together without any one branch having a dominant and powerful position over the others. Additionally, the constitution also defines the relationship between the state and individuals and therefore defines the extent of civil liberty which shall be granted within a state.
“Substantively, a constitution is a body of law that:
- Attributes power to public authorities
- Regulates the fundamental relations between public authorities
- Regulates the fundamental relations between the public authorities and the individual”
Constitutions exist to control and regulate the power of the government. Power corrupts man, and citizens must be protected from the people in power; without this protection, citizens have no protection against tyranny. Without a constitution, the government would have the power to pass any laws, which could lead to the oppression of minorities, violation of freedom, and so on. We have seen cases of such power abuse during the reign of Hitler and Nazi Germany, where Jews were oppressed.
Codified and Uncodified Constitutions
Codified Constitutions
Codified constitutions are in theory enshrined in law. A codified constitution is one which is based on the existence of a single written authoritative document. This central written document lays down the core principles of the system of government. The main body typically outlines the duties, powers and functions of the major institutions of government.
Three key features of a codified constitution:
- Authoritative – In a codified constitution, the end document itself is authoritative in the sense that it constitutes ‘higher law’. All political institutions are bound by the constitution; this creates a two-tier legal system, where the constitution stands above statute law which is created by the legislature.
- Entrenched – The provisions laid out in a codified constitution are entrenched, which means that they are difficult to amend or abolish. The amendment procedure is more complex than the procedure for making ordinary statutes. Some constitutions contain certain clauses which prevent them being changed at all, such as the German ‘eternity clause’, whilst others prevent the changing or amending of parts of the constitution during times of conflict, or before a certain time period.
- Judiciable – The constitution sets out all of the duties, powers and functions of the governmental institutions in terms of ‘higher law’; this means that all political bodies are subject to the authority of the courts, including the Supreme Court and the Constitutional Court.
- Clear Rules – Rules are clearly defined which results in less confusion and greater certainty that constitutional rules can be enforced.
- Limited Government – Ends parliamentary sovereignty and thus ends the problem of elective dictatorship. Higher law would safeguard the constitution from interference by the government.
- Neutral Interpretation – The constitution would be ‘policed’ by senior judges; judges would be the guardians of the constitution. This would ensure that provisions of the constitution are properly upheld by other public bodies. Judges are ‘above’ politics, they would act as neutral and impartial constitutional arbiters.
- Protect Rights – Individual liberty would be more securely protected. The relationship between the state and the citizens would be defined, possibly through a bill of rights. Thus, they will be clearly defined and easier to enforce.
- Education and Citizenship – The central values and overall goals of the political system are highlighted in a codified constitution; this would strengthen citizenship by creating a clearer sense of political identity, which may become particularly important in an increasingly multicultural society.
Uncodified constitutions are becoming increasingly rare and at present there are only three liberal democracies which continue to utilize an uncodified constitution ; these are the United Kingdom, Israel and New Zealand.
Similarly to codified constitutions, uncodified constitutions have three defining features:
- Not Authoritative – Laws and provisions within the constitution share the same status as ordinary laws; these means that states with an uncodified constitution have a single-tier legal system, where there is no form of higher law in the hierarchy.
- Not Entrenched – The constitution can be changed through normal legislative processes for enacting statute law; this is reflected in the United Kingdom, where there is a principle of parliamentary sovereignty, through which parliament can make, dissolve and amend any law it wishes, including laws that directly affect the constitution.
- Not Judiciable – Due to the absence of a higher law, judges do not have a legal standard, enshrined in a written constitution, against which they can declare that actions of other bodies are ‘constitutional’ or ‘unconstitutional’; this is known as ‘constitutional review’.
- Less Rigidity – Higher law is harder to change than statute law. Due to this, the law constitution could become out dated and fail to respond to the ever-changing political environment. An uncodified constitution does not recognise ‘higher law’ and uses a single-tier legal system, meaning that it is easier to change the provisions within the constitution.
- No Judicial Tyranny – It is argued that judges should not have the responsibility of ‘policing’ the constitution as they are unelected and socially unrepresentative. The constitution could thus be interpreted in a way that is not subject to public accountability.
- Less Legalistic – Codified constitutions are created by people at one point in time, so they are often only properly understood by lawyers and judges. Uncodified constitutions are endorsed by history and have an organic character.
- Less Political Bias – Constitutional documents are inevitably biased as they enforce one set of values or principles in preference to others. Codified constitutions can never be ‘above’ politics as they are based on political promises and principles; therefore they may precipitate more conflict than they actually resolve.
The 2010 Constitution of Kenya, currently in force, replaced the 1969 constitution, that itself had replaced the 1963 independence constitution. The constitution was presented to the Attorney General of Kenya on 7 April 2010, officially published on 6 May 2010, and was subjected to a referendum on 4 August 2010. The new Constitution was approved by 67% of Kenyan voters.The constitution was promulgated on 27 August 2010.
Brief history of constitutional reform in Kenya
Kenya has had two major constitutional reforms involving wholly new texts since gaining independence: in 1969 and in 2010. In 1969, the 1963 independence constitution was replaced with a new text that entrenched amendments already made to the system of government that the independence constitution had contemplated. These changes included: changing the structure of the state from a federal, or Majimbo system, to a unitary system; creating a unicameral instead of bicameral legislature; changing from a parliamentary to a semi-presidential system with a powerful presidency; and reducing the protections of the bill of rights. Further amendments to the 1969 constitution were later effected, including, in 1982, the institution of a de jure single party government. The demand for a new constitution to replace the 1969 text with a more democratic system began in the early 1990s, with the end of the Cold War and democratic changes taking place elsewhere in Africa. The single party system was ended in 1991, and the first presidential election took place in 1992. Calls for a comprehensive review of the 1969 Constitution intensified in the late 1990s and early 2000s, helped by the victory of the opposition National Rainbow Coalition (NARC) party in the 2002 general elections. Official and civil society consultation processes led to the adoption of what became known as the "Bomas draft" constitution (after the location of the conference that adopted it). However, substantial amendments were nonetheless made to this draft prior to a referendum in 2005, resulting in a split in the then ruling coalition. The Liberal Democratic Party faction of the government, led by Raila Odinga, and supported by KANU led a successful 'No' vote against the amended Bomas Draft (called the Wako draft after the alleged mastermind of the changes). The review of the Constitution stalled and negotiations over the adoption of a new text seemed deadlocked. A deadlock only finally broken by the intervention of the African Union through a mediation team headed by Kofi Annan, following the outbreak of serious post-election violence in early 2008.
Drafting process for the Kenya 2010 Constitution
The Constitution of Kenya was the final document resulting from the revision of the Harmonized draft constitution of Kenya written by the Committee of Experts initially released to the public on 17 November 2009 so that the public could debate the document and then parliament could decide whether to subject it to a referendum in June 2010. The public was given 30 days to scrutinise the draft and forward proposals and amendments to their respective members of parliament, after which a revised draft was presented to the Parliamentary Committee on 8 January 2010. The Parliamentary Select Committee (PSC) revised the draft and returned the draft to the Committee of Experts[5] who published a Proposed Constitution on 23 February 2010 that was presented to Parliament for final amendments if necessary. After failing to incorporate over 150 amendments to the proposed constitution, parliament unanimously approved the proposed constitution on 1 April 2010. The proposed constitution was presented to the Attorney General of Kenya on 7 April 2010, officially published on 6 May 2010, and was subjected to a referendum on 4 August 2010.[1] The new Constitution was approved by 67% of Kenyan voters.[2]
Government Structure
The key changes proposed by the new constitution released are in the following areas:
- Separation of Powers between the Three arms of government i.e. Executive, Legislature and Judiciary.
- The Executive – who holds executive authority and the qualifications.
- The Legislature – the composition, and representation of the people. An introduction of an upper house – the Senate. The Judiciary – qualifications to hold office and appointment.
- Devolution – only two levels of Government: National and Counties.
- Citizenship – among other issues, gender discrimination was ended, and citizens who acquire foreign citizenship will not lose their Kenyan citizenship.
- An advanced Bill of Rights that among other things recognises Socio-Economic rights of the Kenyan citizens. (Chapter Four).
- The removal of age limit of 35yrs to run for President. New draft allows people to run as long as they are of adult age. Article 137(b)
- Right to Recall legislators(Senators and Members of the National Assembly).(Article 104)
- Representation in elective bodies has to effectively meet a gender equity constitutional requirement, namely that no more than two-thirds of members shall be from either gender in its make up. Chapter 7, Article 81(b)
- Integrity Chapter, requires an Independent Ethics Commission to be set up that will monitor compliance with Integrity in all government institutions and make investigations,recommendations to the necessary authorities i.e. Attorney General and any other relevant authority.(Chapter Six)
- An advanced Human Rights and Equality Commission that will also have power to investigate and summon people involved in Human Rights abuses within the government and with the public.(Article 252)
- Equitable Sharing of resources between the National government and the County government through a resolution of Parliament. Chapter 12- Part 4.
- An Equalization Fund to improve basic access to basic needs of the marginalised communities. (Article 204)
- Any member of the Public has a right to bring up a case against the government on the basis of infringement of Human Rights and the Bill of Rights – Article 23(1)(2). The courts and government institutions are bound to the Bill of Rights as per the constitution Article 2(1), Article 10(1).
- The Salaries and Remuneration Commission that is an Independent entity and has the power of regularly reviewing salaries of all State officers to ensure the Compensation bill is fiscally sustainable. Article 230(5).
- Independence of the Judiciary is affirmed Article 160.
- An Independent National Land Commission created to Maintain oversight and manage all Land(Public) belonging to National and County Government and recommend policy on addressing complaints from public,advise the National government on ways of improving National and County land management,planning,dispute resolution. Article 67.
- Environmental Rights are recognised under Chapter 5(Part 2)
- Freedom of Media establishment from penalty on expression, by the State on any Opinion and dissemination of media. Article 34. This is subject to the Article 33.
Kenya Constitutional Law:Fundamental rights and Freedoms
Below are the basic fundamental rights that the constitution of Kenya provides for.
RIGHT TO LIFE- Every person has the right to life.
The life of a person begins at conception under Kenya laws. A person shall not be deprived of life intentionally, except to the extent authorised by this Constitution or other written law. Abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law.
EQUALITY AND FREEDOM FROM DISCRIMINATION- Every person is equal before the Kenya laws and has the right to equal protection and equal benefit of the law.Equality includes the full and equal enjoyment of all rights and fundamental freedoms.
Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.
The State should not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.
The State should take legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination.
HUMAN DIGNITY- Every person has inherent dignity and the right to have that
dignity respected and protected.
FREEDOM AND SECURITY- Every person has the right to freedom and security of the
person, which includes the right not to be—
(a) deprived of freedom arbitrarily or without just cause;
(b) detained without trial, except during a state of emergency,
(c) subjected to any form of violence from either public or private sources;
(d) subjected to torture in any manner, whether physical or psychological;
(e) subjected to corporal punishment; or
(f) treated or punished in a cruel, inhuman or degrading manner.
SLAVERY,SERVITUDE AND FROCED LABOUR- A person shall not be held in slavery or servitude.A person shall not be required to perform forced labour.
RIGHT TO PRIVACY- Every person has the right to privacy, which includes the
right not to have—
(a) their person, home or property searched;
(b) their possessions seized;
(c) information relating to their family or private affairs unnecessarily required or revealed; or
(d) the privacy of their communications infringed.
FREEDOM OF CONSCIENCE,RELIGION,THOUGHT,BELIEF AND OPINION
Every person has the right to freedom of conscience,religion, thought, belief and opinion.Every person has the right, either individually or in community with others, in public or in private, to manifest any religion or belief through worship, practice, teaching or observance, including observance of a day of worship.A person may not be denied access to any institution,employment or facility, or the enjoyment of any right, because of the person’s belief or religion.A person cannot not be compelled to act, or engage in any act,that is contrary to the person’s belief or religion.
FREEDOM OF EXPRESSION- Every person has the right to freedom of expression,
which includes—
(a) freedom to seek, receive or impart information or ideas;
(b) freedom of artistic creativity; and
(c) academic freedom and freedom of scientific research.
The right to freedom of expression does not extend to—
(a) propaganda for war;
(b) incitement to violence;
(c) hate speech; or
(d) advocacy of hatred that—
(i) constitutes ethnic incitement, vilification of others orincitement to cause harm; or
(ii) is based on any ground of discrimination
In the exercise of the right to freedom of expression, every person shall respect the rights and reputation of others.
FREEDOM OF THE MEDIA- Freedom and independence of electronic, print and all other types of media is guaranteed.The State shall not—
(a) exercise control over or interfere with any person engaged in broadcasting, the production or circulation of any publication or the dissemination of information by any medium; or
(b) penalise any person for any opinion or view or the content of any broadcast, publication or dissemination.
Broadcasting and other electronic media have freedom ofestablishment, subject only to licensing procedures that—
(a) are necessary to regulate the airwaves and other forms of
signal distribution; and
(b) are independent of control by government, political interests
or commercial interests.
All State-owned media shall—
(a) be free to determine independently the editorial content of
their broadcasts or other communications;
(b) be impartial; and
(c) afford fair opportunity for the presentation of divergent
views and dissenting opinions.
RIGHT TO ACCESS INFORMATION- Every citizen has the right of access to—
(a) information held by the State; and
(b) information held by another person and required for
the exercise or protection of any right or fundamental
freedom.
Every person has the right to the correction or deletion of untrue or misleading information that affects the person.The State shall publish and publicise any important information
affecting the nation.
FREEDOM OF ASSOCIATION- Every person has the right to freedom of association,which includes the right to form, join or participate in the activities ofan association of any kind.A person shall not be compelled to join an association of any kind.Any legislation that requires registration of an association of any kind shall provide that—
(a) registration may not be withheld or withdrawn unreasonably; and
(b) there shall be a right to have a fair hearing before a registration is cancelled.
RIGHT TO ASSEMBLE AND DEMONSTRATE- Every person has the right, peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities.
POLITICAL RIGHTS- Every citizen is free to make political choices, which includes the right—
(a) to form, or participate in forming, a political party;
(b) to participate in the activities of, or recruit members for, a
political party; or
(c) to campaign for a political party or cause.
Every citizen has the right to free, fair and regular elections based on universal suffrage and the free expression of the will of the electors for—
(a) any elective public body or office established under this Constitution; or
(b) any office of any political party of which the citizen is a member.
(3) Every adult citizen has the right, without unreasonable restrictions—
(a) to be registered as a voter;
(b) to vote by secret ballot in any election or referendum; and
(c) to be a candidate for public office, or office within a political
party of which the citizen is a member and, if elected, to
hold office.
RIGHT TO LIFE- Every person has the right to life.
The life of a person begins at conception under Kenya laws. A person shall not be deprived of life intentionally, except to the extent authorised by this Constitution or other written law. Abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law.
EQUALITY AND FREEDOM FROM DISCRIMINATION- Every person is equal before the Kenya laws and has the right to equal protection and equal benefit of the law.Equality includes the full and equal enjoyment of all rights and fundamental freedoms.
Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.
The State should not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.
The State should take legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination.
HUMAN DIGNITY- Every person has inherent dignity and the right to have that
dignity respected and protected.
FREEDOM AND SECURITY- Every person has the right to freedom and security of the
person, which includes the right not to be—
(a) deprived of freedom arbitrarily or without just cause;
(b) detained without trial, except during a state of emergency,
(c) subjected to any form of violence from either public or private sources;
(d) subjected to torture in any manner, whether physical or psychological;
(e) subjected to corporal punishment; or
(f) treated or punished in a cruel, inhuman or degrading manner.
SLAVERY,SERVITUDE AND FROCED LABOUR- A person shall not be held in slavery or servitude.A person shall not be required to perform forced labour.
RIGHT TO PRIVACY- Every person has the right to privacy, which includes the
right not to have—
(a) their person, home or property searched;
(b) their possessions seized;
(c) information relating to their family or private affairs unnecessarily required or revealed; or
(d) the privacy of their communications infringed.
FREEDOM OF CONSCIENCE,RELIGION,THOUGHT,BELIEF AND OPINION
Every person has the right to freedom of conscience,religion, thought, belief and opinion.Every person has the right, either individually or in community with others, in public or in private, to manifest any religion or belief through worship, practice, teaching or observance, including observance of a day of worship.A person may not be denied access to any institution,employment or facility, or the enjoyment of any right, because of the person’s belief or religion.A person cannot not be compelled to act, or engage in any act,that is contrary to the person’s belief or religion.
FREEDOM OF EXPRESSION- Every person has the right to freedom of expression,
which includes—
(a) freedom to seek, receive or impart information or ideas;
(b) freedom of artistic creativity; and
(c) academic freedom and freedom of scientific research.
The right to freedom of expression does not extend to—
(a) propaganda for war;
(b) incitement to violence;
(c) hate speech; or
(d) advocacy of hatred that—
(i) constitutes ethnic incitement, vilification of others orincitement to cause harm; or
(ii) is based on any ground of discrimination
In the exercise of the right to freedom of expression, every person shall respect the rights and reputation of others.
FREEDOM OF THE MEDIA- Freedom and independence of electronic, print and all other types of media is guaranteed.The State shall not—
(a) exercise control over or interfere with any person engaged in broadcasting, the production or circulation of any publication or the dissemination of information by any medium; or
(b) penalise any person for any opinion or view or the content of any broadcast, publication or dissemination.
Broadcasting and other electronic media have freedom ofestablishment, subject only to licensing procedures that—
(a) are necessary to regulate the airwaves and other forms of
signal distribution; and
(b) are independent of control by government, political interests
or commercial interests.
All State-owned media shall—
(a) be free to determine independently the editorial content of
their broadcasts or other communications;
(b) be impartial; and
(c) afford fair opportunity for the presentation of divergent
views and dissenting opinions.
RIGHT TO ACCESS INFORMATION- Every citizen has the right of access to—
(a) information held by the State; and
(b) information held by another person and required for
the exercise or protection of any right or fundamental
freedom.
Every person has the right to the correction or deletion of untrue or misleading information that affects the person.The State shall publish and publicise any important information
affecting the nation.
FREEDOM OF ASSOCIATION- Every person has the right to freedom of association,which includes the right to form, join or participate in the activities ofan association of any kind.A person shall not be compelled to join an association of any kind.Any legislation that requires registration of an association of any kind shall provide that—
(a) registration may not be withheld or withdrawn unreasonably; and
(b) there shall be a right to have a fair hearing before a registration is cancelled.
RIGHT TO ASSEMBLE AND DEMONSTRATE- Every person has the right, peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities.
POLITICAL RIGHTS- Every citizen is free to make political choices, which includes the right—
(a) to form, or participate in forming, a political party;
(b) to participate in the activities of, or recruit members for, a
political party; or
(c) to campaign for a political party or cause.
Every citizen has the right to free, fair and regular elections based on universal suffrage and the free expression of the will of the electors for—
(a) any elective public body or office established under this Constitution; or
(b) any office of any political party of which the citizen is a member.
(3) Every adult citizen has the right, without unreasonable restrictions—
(a) to be registered as a voter;
(b) to vote by secret ballot in any election or referendum; and
(c) to be a candidate for public office, or office within a political
party of which the citizen is a member and, if elected, to
hold office.
Kenya Constitutionl Law: Supremacy of the constitution
The Constitution of Kenya is the supreme law of the Republic and binds all persons and all State organs at both levels of government.No person may claim or exercise State authority except as
authorised under the Constitution.
The validity or legality of this Constitution is not subject to challenge by or before any court or other State organ.Any law, including customary law, that is inconsistent with the Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid.
The general rules of international law shall form part of the law of Kenya.Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.
Every person has an obligation to respect, uphold an defend this Constitution. Any attempt to establish a government otherwise than in compliance with this Constitution is unlawful.
authorised under the Constitution.
The validity or legality of this Constitution is not subject to challenge by or before any court or other State organ.Any law, including customary law, that is inconsistent with the Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid.
The general rules of international law shall form part of the law of Kenya.Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.
Every person has an obligation to respect, uphold an defend this Constitution. Any attempt to establish a government otherwise than in compliance with this Constitution is unlawful.
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