THE RULE OF LAW

  It is a cardinal principle in the operation of AL. It provides that matters of governance should be based on the established laws and principles but not on the personal whims of the governors. It provides the starndards against which official action is accessed. It has its origin in the french phrase la principe de legalite. This refers to governance based on law and not of men. Lord Edward Coke is said to be the orinator in concept when he declared that the king must be under God and Law. The classic exposition of the principle of rule of law is to be found in the work of A.V Dicey the title ”introduction to the study of the law of the constitution”. Although the principle has different meaning, it is mainly understood to refer to 3 things in public administration that is:

1. •         Legality
2. •         Judicial independence
3. •         Fairness.

 

a)      legality

This aspect of the rule of law requires that everything must be done according to the law. In relation to administrative law every gvt authority which does some act that adversely affects the rights of a person must be able to justify that action as authorised by law. This authorisation could either be express or discretionary. Every gvt action must be legally sanctioned and any person aggrieved by such action must have the right to go to court and have such action or ommission invalidated if not in line with the laws. It requires gvt action to be conducted within a framework of recognised rules and principles and abhors(discourages) unlimited discretion. It would apply in cases where the legislature appears to have given overwhelming discretionary powers to a public authority. Rule of law seeks to strike a balance between the need of fair and efficient administration and the need to protect citizens from oppressive government.

The principle of legality is also applicable to criminal procedure and imposes a number of obligations including the requirement that no one should be punished except for some legally defined crime and the prohibition gainst retrospective application of legislation. This principle prevents Government authorities or those in Government from acting ultra vires.

 

b)     Judicial independence

Disputes about the legality of gvt actions are to be decided by judges who are independent of the executive. In the common law set up, dispute between citizens and the gvt are resolved by ordinary courts.

c)      Fairness

The rule of law requires that the law should be even handed between the citizens and the government. It denies the government unnecessary privileges or excemptions from ordinary law.

Incorporation of the Rule of Law by the Constitution

Express references in the constitution as regard the rule of law. The constitution requires respect for the rule of law in numerous aspects in its preamble. It requires respect for rule of law in numerous aspects in its preamble it recognises the aspirations of all Kenyans for a government based on the rule of law:

• Under Article 10 which provides for national values and principles which are supposed to bind all state officers, public officers and all persons also recognises the rule of law.

• In Article 91, an obligation is imposed on all political parties to promote the rule of law.

• Article 131(2)(e) requires the president to ensure the protection of the rule of law.

• Article 156(4)(a) and Art 156(6) requires the attorney general as the principle legal advisor to the government to promote, protect and uphold the rule of law.

• Article 238(2)(b) requires that national security be promoted and guaranteed in accordance with utmost respect for the rule of law.

• Article 259(1)(b) requires interpretation of the constitution to be in manner that promotes rule of law.

 

Natural justice require that procedure should not be secondary to the substance of a decision. Its logic is that as government powers and actions become more drastic and invasive, fair procedure would make them more tolerable. In origin and character, rules of natural justice are largely common law, though continually embraced by legislation. Courts play a critical role in ensuring that rules of justice do not run amok....the rules protect citizens from unfair actions while protecting public officials from unwarranted accusations. Decisions made without bias are not only more acceptable but also of better quality because they are consultative and avoid further friction in their enforcement