ORGANS OF NATIONAL SECURITY

National security is the protection against internal and external threats to Kenya’s territorial integrity and sovereignty,
its people, their rights, freedoms, property, peace, stability and prosperity.

National Security Council

This is a body whose main responsibility is to exercise supervisory control over national security organs.
National security council is a body in charge of security organs which protect the state from internal and
external aggression
The Council consists of
● The President.
● The Deputy President.
● The Cabinet Secretary responsible for Defense.
● The Cabinet Secretary responsible for foreign affairs.
● The Cabinet Secretary responsible for internal security.
● The Attorney-General.
● The Chief of Kenya Defense Forces.
● The Director-General of the National Intelligence Service.
● The Inspector-General of the National Police Service.
FUNCTIONS OF THE NATIONAL SECURITY COUNCIL IN KENYA.
● It exercises supervisory control over national security organs.
● It has duty to integrate the domestic, foreign and military policies relating to national Security in order to enable the
national security organs to co-operate and function effectively.
● It makes assessment and appraisal, the objectives, commitments and risks to the republic in respect of actual and
potential national security capabilities.
● The Council reports annually to Parliament on the state of the security of Kenya
● With the approval of Parliament, The Council is responsible for deploying national forces Outside Kenya for regional or
international peace support operations; or other support Operations.
● It approves the deployment of foreign forces in Kenya.
ORGANS OF NATIONAL SECURITY
♦ Kenya defense forces
♦ National intelligence service
♦ National police services
♦ Correctional services
KENYA DEFENCE FORCES.
Name security agencies making Kenya’s defense forces
✔ The Kenya army- it deals with land defense issues
✔ The Kenya air force- it deals with any threat to the national security from the air
✔ The Kenya navy- it deals with any attack from the sea
THE FUNCTION/DUTIES OF KENYA DEFENSE FORCES
1. They provide defense and protection of the sovereignty and territorial integrity of the republic. They protect
Kenyan citizen from external and internal attacks on land air and sea
2. They provide assistance in situations of emergency or disaster. They cooperate with other authorities to helps and
rescue those affected by flood, famines, earthquakes, fire outbreaks, locust control landslide and collapse of
buildings and give a report to national assembly

3. They may be deployed to restore peace in any part of the country with the approval of national assembly. Mostly
in areas affected by unrest or instability due to violent riots, tribal clashes or attacks by the cattle raiders
4. They Participate in nation building activities. They can engage in road building construction of bridge or dams
5. They take part in peacekeeping Missions under United Nations peace keeping operations in different parts of the
world and also the African Union and Commonwealth so that they can restore peace and order in the affected area
6. They assist in the preservation of internal security. When there is an attempted coup detat or overthrowing of the
government through unlawful means by a rebel force the Kenya defense force with fight off the rebel force
7. They detecting and fighting off criminals who use water masses like the Indian Ocean to commit crimes within the
Kenyan territory. E.g. Somali Pirates.
8. They provide entertainment to the public during national holiday through their music band, parading and
showcasing their aircraft acrobat and armored vehicles

CHALLENGES FACING THE KENYA DEFENSE FORCES

1. There is rampant corruption especially on matters of purchasing the military equipment and recruitment of new
members into the defense forces which has limited many qualifying Kenyans from joining the defense force and
deployment of officers on specialized duties.
2. Tribalism, regionalism and nepotism experience in Kenya defense force especially on promotion has demoralized
many hardworking officers who are left out unfairly during promotions.
3. Lack of adequate funds. They are not able to equip the forces with good equipment to facilitate their work and even
food. The air force needs adequate funds to revamp their old aircrafts which it in most cases is not provided
4. cases of indiscipline, such as the abortive coup attempt in 1982.a number of people lost their lives
5. Lack of academic advancement. The majority of the military personnel are not provided with opportunities to
acquire further education which lead into having incompetent official who do not carry out their duties effectively
6. Piracy and militia attacks and raids. This happens at the Kenyan Borders also present a major security challenge to
the Defense Forces. E.g. the pirate who hijack Kenya fishing boats. The al-Shabaab militants who engage in a fierce
gun fight with arm.merille militia from Ethiopia
7. Invasion of Kenya’s territorial waters by foreign fishermen and foreign fishing vessels. Some of them come from
the big nation’s challenges the ability of the Kenya Navy to curb illegal fishing. This has undermined the ability of
local to practice the economic activity of fishing. The unauthorized vessels is also a security threat
8. Allegations on violations of human rights. After the 2008 elections violence, the Kenya Army was deployed to
restore peace in Mt. Elgon, where they were accused of violating human rights by killing people, destroying
property, and sexually assaulting women
9. The location of Moi Airbase at Eastleigh. it poses a danger to flying aircraft since the areas is characterized by tall
buildings. The Airbase was built by Britain in 1964 when the population in the area was scarce. Today the area has
human congestion.

10. Introduction of illegal and sophisticated arms from the neighbouring countries has undermined national security
and it has increased banditry activities

11. Influx of refugees from neighbouring countries that has led to an increase in crime which causes insecurity in the
country.

12. Inadequate modern weapons which has slowed down the operations of the Kenya defense forces.

NATIONAL INTELLIGENCE SERVICE

This is an independent civilian government agency dedicated to protecting the national security interests of Kenya and
safeguarding its citizens from threats such as terrorism and corruption

FUNCTIONS OF NATIONAL INTELLIGENCE SERVICES

 ● Collects intelligence in information on threat to state security
● Keeps the state informed on the feelings of the people towards the government
● Gather information on external threat to the nation
CHALLENGES/PROBLEMS/SHORTCOMINGS/ FACING NATIONAL INTELLIGENCE SERVICE

● Lack of trust from Kenyan citizens. The citizens are reluctant to provide information to NIS due to fear of
victimization and harassment or oppression and torture.
● Lacks financial credibility and political independence/ political neutrally. It handles sensitive confidential issues.
The extent to which NIS is Neutral in its handling of sensitive affairs is questionable.
● Lack of a clear accountability. This is because it budget allocation is done in secrecy which has sometimes brewed
tension. It is difficult to audit the activities of the Body just like any other government organization, due to the
nature of its tasks.
● complexity of communications .it had made it had for national intelligence and government agencies that seek to
intercept, process monitor and analyze information
● Threats External and internal threats have undermined the operation of the body for example Al-shabaab militia
Merille Warriors and Al-Qaeda attacks. Internally, the refugees hosted in Kenya and the illegal migrants from Somali
and Sudan are also a threat. The problem of drug trafficking is also a threat.
● Lack of Continuous training. This has made some of its staff to be incompetent in handling some certain tasks.it a
challenge given to the complexity of the task carryout by NIS.
● Limited financial and human resources. since inadequate funds are allocated to the service this limits its operations.
Sometimes even the staff employed are not enough to match the task load
● Political interference- with the aim of using the service to gain political mileage.
● Ignorance of the Kenyan people on the kind of tasks the service undertakes and the advice it gives to the
government. For example, anytime the country has been faced with tension or violence as was the case in 2008, the
public seem not to understand the role of NIS.
● The organ does not have implementation powers. This has limited NIS in terms of the ability to follow up an
implementation of the advice given to the government.

THE NATIONAL POLICE SERVICE.

The National Police service was established in 2010 with a mandate to function throughout Kenya.

It is headed by the Inspector-General who appointed by the president with the approval of the parliament. He / She
exercises independent command over the national police service.

The National polices Service Consists of;

● The Kenya Police Service, headed by a deputy inspector general also appointed by the president
● The Administration Police Service, headed by a deputy inspector general also appointed by the president

FUNCTION OF NATIONAL POLICE SERVICES

✔ It Maintains law and order to ensure that those who break the law are arrested.
✔ It Protect the law in order to safeguard both life and property.
✔ It investigates crime and prosecutes offenders in the court.
✔ It confines suspected criminals in custody/ cells they await the hearing in court
✔ It regulates traffic by directing vehicle, arresting traffic offenders and inspection vehicles to determine their
roadworthiness
✔ It conducts driving test for trainee drivers and recommends person to be issued with a driving licence by NTSA
✔ It Provides assistance and relief services to victims of natural calamities such as floods, fire outbreaks and other
emergencies.
✔ It takes part in national projects such as road construction, bridges, hospitals and other national facilities.
✔ It controls the crowd during public gathering to ensure peace
✔ It entertains the public during national days through parades
✔ It investigates and arrest international criminals such as terrorists and pirates.
✔ prevents corruption and promotes and practices transparency and accountability

CHALLENGES FACING NATIONAL POLICE SERVICE

♦ Lack adequate transport facilities. The police are not able to discharge their duties as they cannot access some
certain areas. Inadequate transport facilities hamper their movement making it difficult to respond to emergencies
♦ Frequent road accident and congestion on roads. This has added up pressure to police work.
♦ Negative attitude towards the police form the public. This makes it difficult for them to discharge duties. Due to the
negative attitude of the public on police force, the public may withhold useful information
♦ Poor working and living conditions. The police officer lives in poor houses and are given low salaries. This has
demotivated the police force to carry out their duties effectively
♦ Corruption among some officers. The police force has been accused of Corruption, sometimes demanding for
money from the public. This undermines the maintenance of law and order. Corruption among some officers
renders them ineffective in discharging their duties
♦ Easy access to dangerous and sophisticated weapon by criminals. This makes police work more difficult especially
in controlling crimes cases. Sophisticated weapons used by criminals threaten/endanger police officer’s lives.
♦ Terrorism. It is a serious challenge to the police in Kenya. Some of the terrorists have targeted members of the
police force.
♦ Political interference in the work of the police. This has led to the compromise of the integrity of the police force.
Interference by politicians demoralizes and frustrates their efforts
♦ Modernization and advancements in ICT. Incidents of cybercrimes have escalated in the world, including Kenya this
has increase the task load of the police force
♦ Lack of regular training for police officers. This has made some of the police officer to be incompetent in discharging
their duties. This challenge is even compounded by the problem of recruiting of people with low academic
qualifications into the force and who can’t deal with sophisticated cases.
♦ Inadequate modern communication equipment makes it difficult for them to relay/pass confidential information.
♦ Betrayal by some officers who collude with criminals to break the law. This result into subversion of justice.

NATIONAL POLICE SERVICE COMMISSION

The National Police Service Commission of Kenya is an Independent Government Commission established under the
Constitution of Kenya to ensure smooth functioning of the National Police Service of Kenya. The Commission consists of
the following persons, each appointed by the President

▪ A person who is qualified to be appointed as a High Court Judge, and who is appointed by the president.
▪ Two retired senior police officers, each of whom is appointed by the president.
▪ Three persons of integrity who have served the public with distinction, each of whom is appointed by the
president.
▪ The Inspector-General of the National Police Service.
▪ Both Deputy Inspectors-General of the National Police Service.

FUNCTIONS OF NATIONAL POLICE SERVICE COMMISSION

* Recruit and appoint persons to hold office

* Confirm appointments
* Determine promotions and transfers
* Exercise disciplinary control over and remove persons holding or acting in offices within the service
* Removing Persons holding or acting in offices within the service
SOLUTIONS TO CHALLENGES FACING NATIONAL SECURITY ORGANS

1. Acquired modern telecommunication equipment and vehicles to improve transport and communication in the
security force.
2. Introduction of the post of public Relations Officer/ Spokesman in the organs to coordinate and disseminate
information.
3. Raising of qualification requirements for anybody aspiring to join the security organs. This has paved way for
employment of university graduates in the forces.
4. Introduction of professional training programmes for officers with the aim of improving the effectiveness of the
organs of national security.
5. Improve the terms and conditions of service for the members of the security organs.
6. Community policing has-been introduced to help the security forces to get information from the public through
hotlines and suggestion boxes.
7. Increased patrolling by the Kenya navy as far north as Somali border to address maritime defense more seriously.
8. The aviation experts have recommended the relocation of Moi Airbase from its current location which is congested.
CORRECTIONAL SERVICES

Correctional services in Kenya are provided by the former Kenya Prisons Service.

THE FUNCTIONS OF CORRECTIONAL SERVICES IN KENYA.

1. Rehabilitate/correct criminals through counseling.

2. Deter known criminals from committing other crimes.
3. Administer Punishment to sentenced criminals as prescribed by the court rulings.
4. Confine prisoners convicted by the courts. This is done to ensure that the rights and freedoms of the public are
protected.
5. Provide vocational training for prisoners. This makes prisoners productive citizens of the country at the end of their
jail term.
6. Watch over the behaviors of suspected criminals whose cases are still pending in the law courts.
7. Take care of the welfare of prisoners. They provide prisoners with the necessary medical attention.
8. Confine suspected dissidents who are a threat to state security.

METHODS USED TO REHABILITATE CRIMINAL OFFENDERS IN KENYA

✶ Confirming of convicts in correctional centers

✶ Use of the extra-mural penal employment scheme
✶ Use of probation department

CATEGORIES OF CORRECTIONAL SERVICES IN KENYA

♦ Open/short term institutions: hold prisoners convicted of less serious crimes. They have training programs in :-
Agriculture, Carpentry and Tailoring
♦ Closed/long term institutions: hold offenders convicted of serious offences who are imprisoned for a long time.
Prisoners are given training in carpentry, leatherwork, soap manufacturing, mechanics, blacksmith, and sign writing.
REASONS FOR TRAININGS IN CORRECTIONAL SERVICES
▪ Make prisoners useful members of the socially after release
▪ Raise revenue to the government
CLASSES OF CORRECTIONAL SERVICES IN KENYA

✔ Principal institutions : handles highest correctional centers which handles serious offenders
✔ District I & II centers
✔ Youth institutions
✔ Borstal
✔ Youth correctional centers
✔ Extra – mural panel employment community based in treating petty offenders

CHALLENGES FACING CORRECTIONAL SERVICES IN KENYA

1. Overcrowding in prisons. This has led to poor living conditions and sanitation. Reasons for overcrowding in the
prisons
2. Increase in crime, too many people are being held in the remand due to the failure to raise money to obtain bails,
many remanded prisoners because their cases are pending in courts and Sending of petty offenses to prison
3. Frequent outbreak of diseases in prisons. This results from congestion and poor conditions/sanitation in the cells.
HIV and AIDS, tuberculosis and cholera are rampant in prisons.
4. Mistreatment by warden. This has been influenced by inadequate training of the wardens. Some inmates were
killed by wardens at King’ong’o prison inmates were allegedly tortured and killed by warders when they attempted
to escape.
5. Poor remuneration and living conditions of the prisons officers have demoralized them hence they don’t do their
duties as expected
6. Food shortage, and inadequate medical facilities. Food shortage has made some of the prisoners to suffer from
food related diseases. Prisoners lack drugs and medical personnel this has made prisoners died from infectious
diseases including HIV and AIDS.
7. Corruption in the prisons. whereby corruption has forced the prisoners to pay to get some services, enough food,
blankets and even medical care.
8. Inadequate number of prison warders. this has led to overworking of the prisons wardens hence brutal handling of
prisoners
9. Inadequate finances have led to provision of poor service such as food, medical care and vocational training of
prisoners
10. Some inmates have become hardened thus, difficult to rehabilitate
THE REFORMS UNDERTAKEN BY THE GOVERNMENT TO IMPROVE THE CONDITIONS OF CORRECTIONAL SERVICES
● Provision of better food and improved medical services
● Provision of better clothing
● Efficient transport as new vehicles have been brought
● Direct involvement of the national government in the affairs of those receiving correctional services
● Releasing of petty offenders to decongest correctional services
● Further education has been given new emphasis
● The work of rehabilitation rather than punishment has been emphasized
● Access to recreational facilities has been increased
● Streamlining of the hearing of cases to reduce keeping of suspected offenders in remand
Short comings of correctional sentences in Kenya
● Correctional sentences do not always transform prisoners to better people as some prisoners seem to enjoy prison
life
● Counseling used in prison doesn’t necessarily work
● Financial constrains also reduce effectiveness of prison sentence as those who acquire skills in prison are sometimes
unable to business for lack of money
● Rampant unemployment forces ex-convicts to commit crimes so as to survive due to unemployment
● Prison life facilitates interaction between hard core criminals and petty offenders. In some cases petty offenders
leave prison with more skills to commit bid crimes
● Stigmatization of ex-convicts makes them bitter and makes some to re-strange crimes to go back to prison.

JUDICIARY

It is the one that administers justice through the court system. It consists of the judges, Magistrates and other judicial
officers. Courts are graded according to the seriousness of the cases they handle and the punishment they give. Some
courts can hear cases from particular areas like districts while others have power to hear cases from countrywide

Jurisdiction refers to the right or power to administer justice and apply laws.

The courts and tribunals are guided by five principles in exercising their judicial authority

❖ Justice must be done to all, irrespective of status

❖ Justice shall not be delayed
❖ Alternative forms of dispute resolution must be pursued including mediation, arbitration, reconciliation etc
❖ Justice shall be administered without undue regard to procedural technicalities
❖ The purpose and principles of the constitution must be protected and promoted.

Judicial Authority is derived from the people and is vested in courts and tribunals established by the constitution.

FEATURES OF KENYA’S JUDICIARY

● Rule of law
● Independence of judiciary
● Principle of innocence
● Legal representation
● A case can be heard in public or camera
THE SOURCES OF KENYAN LAWS

● African customs/customary laws

● Religion
● Legislation/act of parliament
● Judicial precedents
● Constitution ( main source)

THE STRUCTURE OF THE JUDICIAL SYSTEM IN KENYA.

The Hierarchy of the court system in the Kenyan judiciary is in accordance with;
 ▪ The seriousness of the cases the courts handle.

▪ The punishment they give out.

▪ The geographical area of operation

COURT SYSTEM IN KENYA

The court system consists of

✹ Superior Courts
✹ The Subordinate Courts

SUBORDINATE COURTS IN KENYA

✔ Magistrate court
✔ Kadhi court
✔ Court martial
✔ Local tribunal

SUBORDINATE COURTS IN KENYA

❖ Magistrate court
❖ Kadhi court
❖ Court martial
❖ Local tribunal

THE COURTS HAVE EITHER ORIGINAL OR APPELLATE JURISDICTION

≈ Original jurisdiction refers to the ability of a court to hear cases brought to a court for the first time.
≈ Appellate jurisdiction is the powers of a court to hear appeals brought in from a lower court

The Judiciary consists of the judges of the superior courts, magistrates, other judicial officers and staff.

The Head of the Judiciary is the Chief Justice with the Deputy Chief Justice as the Deputy Head of the Judiciary.

Chief Registrar of the Judiciary is the chief administrator and accounting officer of the Judiciary.

THE FUNCTIONS OF JUDICIARY

♦ Protects the constitutional rights and freedom of individuals and punish criminals
♦ Guarantee rule of law exercising justice
♦ Helps in the development of law
♦ Administer justice
♦ Guardian of our constitution
♦ Swears in new president and other members of cabinet
♦ Appoints receivers for bankrupt businesses
♦ Arrange for administration of estates of deceased persons by appointing estate trustee
SUPREME COURT

It’s the highest court and operates from Nairobi. It’s the final court.It consists of 7 judges: Chief Justice as the president,
Deputy Chief Justice and five other judges. They are appointed by the president on recommendation of the Judicial
Service Commission and approval of the National Assembly. They retire at the age of 70 years.
QUALIFICATIONS
 ► Should have a degree in law or be an advocate of the High Court
► At least 15 years’ experience as a superior court judge, or judicial officer etc
► High moral character, integrity and impartiality
FUNCTIONS OF THE SUPREME COURT
1. Hears and determines disputes relating to elections. Has exclusive original jurisdiction to hear and determine
disputes relating to the office of the president.
2. Hears and determines appeals from the court of Appeal, High Court etc.
3. Listens to petitions on the interpretation or application of the constitution
4. May give advice on any matter concerning county government to national assembly or any state organ on their
request.
5. Makes rules for the exercise of its jurisdiction
6. May review the certification of the court of Appeal in matters of public interest and may affirm, vary or overturn the
certification.
COURT OF APPEAL

It’s the second highest in the land. It has 12 judges appointed by the president on recommendations of the JSC. Each
judge must have 10 years’ experience as superior court judge or a distinguished academic or legal practioner.

Its function is to listen to appeals from High Court or any other court or tribunal set up by parliament.

It has no original jurisdiction (power to hear and determine cases brought to it for the first time)

HIGH COURT

It began as the Majesty’s Court for East Africa in 1897. In 1902 it came to be known as the High Court of East African
Protectorate based in Mombasa.

In 1921 a new supreme court was created and its headquarters moved to Nairobi. It was later changed to the High Court
of Kenya in 1964.

In consists judges appointed by the president on the advice of JSC. The judges will then appoint the principal judge.
Qualifications are the same as Court of appeal judges.

THE DIVISIONS OF THE HIGH COURT

✶ Family division
✶ Commercial division
✶ Civil division
✶ Criminal division

THE FUNCTIONS OF HIGH COURT

1. Supervise functions of a subordinate court. The judges scrutinize the monthly returns of the small courts.
2. Hears and determines criminal cases. It has unlimited original jurisdiction in criminal and civil matters.
3. Deals with election petitions
4. Correct mistakes or irregularities in decisions made by lower courts
5. Safeguards rights or fundamental freedom in the bill of rights. It determines where a right or freedom has been
denied, violated or threatened.
6. Hears appeals from lower courts and tribunals
7. It determines whether any law is inconsistent with constitution or not. It handles issues to do with interpretation of
constitution.
The services of a judge can be terminated by the president on recommendation of the Judicial Service Commission. A
tribunal determines the case. Reasons can be

✵ Inability to perform the functions of the office arising from mental or physical incapacity
✵ A breach of code of conduct prescribed for judges by an act of parliament
✵ Bankruptcy
✵ Incompetence
✵ Gross misconduct or misbehavior.

CHIEF MAGISTRATE’S COURT/ MAGISTRATE COURTS

✹ Resident magistrate courts.

- Principal resident magistrate court.

- Senior magistrate court.
- Resident magistrate court.

✹ District magistrate courts

- District magistrate court 1.

- District magistrate court 2.
- District magistrate court 3

▪ Magistrate Courts are subordinate courts whose original and appellate jurisdiction is limited to a geographical area.
They have power to deal with inheritance, legitimacy, administration of estates, land issues, inheritance, divorce etc.
▪ The courts are also empowered to hold inquests upon the occurrence of a sudden death to determine whether its
cause is suspicious or were natural.

KADHI COURTS

Deals with Islamic issues of marriage, divorce and inheritance

They are headed by the chief kadhi assisted by a number of Kadhis, who are appointed by the judicial service
commission. The Kadhi must profess the Muslim religion and must possess knowledge of the Muslim law

They were set up to look in matters of inheritance, marriage, divorce and other personal law among the Muslims.

Appeals from these courts are heard in the high court and from the court of Appeal.

Laws used in the Kadhi courts come from the Koran Hadith, Islamic Scholarship and Islamic culture.

SPECIAL COURTS AND TRIBUNALS

♠ COURT MARTIAL: Convened by the chief of general staff and commander of the Kenya Defence Forces. These are
military courts convened by the chief of General and Commander of the Armed Forces.
They are criminal courts in their own rights and their powers are totally penal or disciplinary. They are meant to enforce
and ensure discipline within the armed forces.
They try cases involving assisting an enemy, cowardice, desertion, insubordination, neglect of duty, malingering,
drunkenness and absence without leave.
There are no appeals from the courts martial to the high court. In Kenya the courts martial were set up after the abortive
coup of August 1982 when soldiers of the Kenya Air Force were to appear in court for toppling the government.
♠ Industrial and commercial courts: Deals with employers and unionisable employees.
♠ special tribunals.
- Rent Restriction tribunal
- Business premise Rent tribunal
♠ Professional Tribunals.
- Law society of Kenya
- Public law institute.
- Law reform commission.

CUSTODIANS OF JUSTICE IN KENYA

♦ Court system
♦ Law society of Kenya
♦ Public law Institute
♦ Law reform Institute
♦ Industrial court
♦ Rent restriction tribunal

CIRCUMSTANCES UNDER WHICH A JUDGE MAY BE REMOVED FROM OFFICE

✶ Inability to perform the functions of the office arising from mental or physical incapacity
✶ A breach of code of conduct prescribed for judges
✶ Bankruptcy
✶ Incompetence
✶ Gross misconduct or behavior
THE DUTIES OF CHILDREN’S COURT

✵ Commit a child/youth to corrective training center/remand homes

✵ Commit him/her to an approved school/borstal training
✵ In rare cases, have his/her jailed
✵ Authorize the juvenile to be caned
✵ Commit the child to the care of a fit person/body
✵ Put the young person on probation

CONDITIONS THAT MAY LEAD A CHILD TO BE TAKEN TO CHILDREN COURT

1. Has been deserted by guardian/parents

2. Can’t be controlled by guardian/parents
3. Is falling into bad association/company or exposed to moral or physical danger
4. Habitual truant
5. Frequents public gambling or found buying, receiving or giving drugs
6. He is the president of supreme court
7. Swears in the president
8. Chairs judicial service commissions
9. Head of judiciary
10. Appoints a bench to determine a case
11. Recommends to the president to set up a tribunal to investigate a judge to determine his/her suitability in office

OBJECTIVES OF SENTENCING A PERSON WHO HAS BROKEN A LAW

≈ To deter the criminal from future crimes’
≈ Deter others from committing similar crime/offence
≈ Secure the offender from public wrath
≈ To reform the criminal
≈ Protect the people for a period the offender is in prison
SPECIAL COURTS IN KENYA

⁕ Court martial
⁕ Industrial courts
⁕ Rent restriction tribunal
⁕ Business premises rent tribunal
⁕ Law society of Kenya
ADVANTAGES OF SPECIAL TRIBUNALS

❄ They ensure that certain types of civil disputes receive specialized judicial attention
❄ They made quick decisions
❄ Cost of the proceedings is low
❄ Procedures followed is very simple

DISADVANTAGES OF SPECIAL COURTS

* At times proceedings are held in camera so some requirement of justice may not be followed
* In some cases, parties are not allowed legal representation
* Rights to appeal are also limited
* Its decisions sometimes may be illegalized and in consent

JUDICIAL SERVICE COMMISSION

membership
� The Chief Justice who is the Chairperson of the Commission.
� One Supreme Court judge elected by the judges of the Supreme Court.
� One court of appeal judge elected by the judges of the court of appeal.
� One High Court Judge and one magistrate, of whom one must be a woman and one a man elected by members of
the association of judges and magistrates.
� The attorney General.
� Two advocates, one woman and one man each with atleast fifteen years of experience, elected by members of the
statutory body responsible for the professional regulation of advocates (LSK).
� One person nominated by the public Service Commission.
� One woman and one man to represent the public, not being a lawyer, appointed by the president with the approval
of the national assembly.
� The chief registrar of the Judiciary, who will be secretary to the commission.
FUNCTIONS OF THE JUDICIAL SERVICE COMMISSION
▪ Recommend to the president persons to be appointed as judges
▪ Review and make recommendations on the conditions of service of judges and judicial officers and the staff of the
judiciary
▪ Appoint, receive complaints against, investigate and remove from office or discipline registrars, magistrates, other
judicial officers and other staff of the judiciary
▪ Prepare and implements programs for the continuing education and training of judges and judicial officers
▪ Advice the national government on improving the efficiency of the administration of justice
CHALLENGES FACING THE JUDICIARY

1. Interference from the executive. This begins with the appointment of the judges by the president. Many times they
decide for the judges what to do
2. Corruption in the judiciary has made the public doubt its ability to protect Kenyans. The Ringer report of 2003 made
the public know how the rich people used the judiciary to acquire their selfish motives. corruption common among
the Judges who sometimes compromise their integrity due to greed
3. Incompetence of some of the judges. Some are appointed on tribal and political grounds thus are unable to do their
duties effectively
4. Few judicial offices in service e.g. this has led to delay in administering justice and increase in pending cases
5. Lack adequate finances to cater for its needs. This frustrates their operations.
6. Lack of continued professional development. Judicial officials though qualified lack continued professional
development i.e. they don’t keep abreast with the latest developments in the law and its practice.
7. Ignorance of the public. Some members of public lack knowledge about judicial affairs and legal rights e.g. members
of the public fear the courts and also find the legal language complex. This has made the judiciary deny many people
their rights.
8. Information about the judiciary has not been made available to the public. it appears to be a preserve of a few.
9. Litigation fees are high therefore limiting the public access to the courts.

REFORMS IN JUDICIARY TO IMPROVE ITS PERFORMANCE

● Increase legal education to judicial officers and the public

● Improvement on terms and conditions of service of judges and other officers to avert corruption
● Recruitment of more judicial officers
● Computerizing judicial data
● Vetting of serving judges
● Weeding out of corrupt judges

RULE OF LAW

Rule of law refers to equality before the law irrespective of statue, religion, race, sex etc.
This means the exercise of government authority according to written and established laws and procedures.
It also means that all persons are equal before the law. The rule of law is important e.g. in Kenya all citizens and
residents are governed by the same law regardless of their status, colour and religion. The rule of law requires that all be
treated equally before the law
ELEMENTS OF THE RULE OF LAW

✶ Principle of legality which means that the state can only exercise those powers given to it by law
✶ Separation of powers of the three arms of government to promote checks and balance on each other
✶ Quality before the law everyone must be treated equally under the law.
✶ Fair judicial decision made without favors or fear of intimidation in the administration of justice
THE PRINCIPLES OF RULE OF LAW

≈ Independence of the judiciary must be guaranteed

≈ Discretion of security forces should not be allowed to pervert law/go against law
≈ Laws should be stable relatively stable not changing too often
≈ All laws should be prospective and open when passed, it should only take effect in the future
≈ Making of laws should be guided by open, stable, clear and general rules
≈ The principles of natural justice should be followed
≈ The court should have powers to review the implementation of the law
≈ Courts should be easily accessible
WAYS IN WHICH THE RULE OF LAW IS APPLIED IN KENYA

♦ By ensuring all citizens are subjected to and governed by the same law/people are equal before the law
♦ By ensuring matters are handled according to the law of the land
♦ By ensuring independence of the judiciary
♦ By ensuring that everybody has a right to legal representation
♦ By ensuring that all suspected criminals are assumed innocent until proven guilty
♦ By ensuring an accused person is given a fair hearings

NATURAL JUSTICE

The concept of natural justice refers to the requirement that the people/bodies that resolves disputes adhere to at least
minimal standards of fair decision making/fairness

It refers to the requirement that the people of the bodies that resolve disputes adhere to at least minimal standards of
decision making.

The rule of law is governed by the principles of natural justice which ensures fairness in the exercise of administrative
powers.

PRINCIPLES OF NATURAL JUSTICE

✔ Fair hearing before decision is made

✔ Judges/body hearing the case should act on good faith/without bias
State elements of natural justice/conditions which govern the right of a fair hearing process

♦ Prior notice of hearing

♦ Right to be heard
♦ Knowledge of allegations made against him/her
♦ Right to legal representation
♦ Reasons for decisions made against/for.
WAYS IN WHICH JUDICIARY ENSURES FAIRNESS IN THE ADMINISTRATION OF JUSTICE

♥ Judicial service commission ensures that judges and magistrates discharge their duties without interference
♥ Suspected criminals are held innocent until proved guilty in a court of law/giving them a chance to be heard by
courts
♥ Persons found administrating mob justice are liable for prosecution
♥ Suspected criminals are entitled to legal representation by advocates of their choice
♥ Persons not satisfied with the verdict are allowed to appeal to a higher court.

Suggest ways which can be used by the government to reduce crimes in Kenya

✶ Encourage co-operation between the police and public to combat crime

✶ Educating public on matters on criminology/criminal activities
✶ Improving on the social and economic conditions of the people in order to reduce temptation to engage in criminal
activities
✶ Government should ensure that there is enforcement of the law
✶ The terms and conditions of law enforcement officers should be improved
✶ Law enforcement officers should be fully equipped for appropriate equipment
✶ Encouraging people to lead a morally upright life.

Why should there be separation of powers between legislatures, Executive and Judiciary arms of government

▪ In order to make the co-ordination of government programs and administration effective

▪ To enable the government, facilitate division of labour
▪ It helps prevents abuse of power/provides checks and balances
▪ It promotes effective service delivery
▪ It’s a constitutional requirement
▪ To enhance accountability
▪ To promote transparency openness in government dealings
▪ It ensures that no arm of the government interferes with the other
What is the difference between criminal and civil law?

● Civil case/dispute is between individuals while a criminal case is case where law of land the land has been
broken
What is independence of judiciary?

● This is the capacity of the courts to perform their constitutional mandate without
dependence/pressure/directives from anybody/institution
THE IMPOTENCE OF THE INDEPENDENCE OF JUDICIARY

✔ It is the basis of the rule of law

✔ It enables the courts to interpret the law without fear or favors safeguards judiciary from the abuse of power by
other arms of government
✔ Helps in the establishment of efficient and markets
✔ It promotes liberty since its separated from the legislature and executive
✔ It ensures that liberty exists
PRINCIPLES OF THE INDEPENDENCE OF THE JUDICIARY

✵ Judicial officers shall decide matters before them impartially, in accordance with the law
✵ There shall be no interference of judicial process
✵ Court and the judiciary must have confidence of the community in order to maintain their authority.
LIMITATIONS OF THE INDEPENDENCE OF JUDICIARY

≈ Courts depends on legislature for most of the laws they interpret

≈ Judiciary depends on executive for funding/execution of their decision
≈ Mass-media questioning the decision of courts may undermine its independence
HOW THE INDEPENDENCE OF JUDICIARY IS MAINTAINED IN KENYA?

♦ Constitution provides for the judiciary as a separate organ from other organs of the government
♦ The method of appointing judicial officers safeguards their independence
♦ Judges serves longer in services than any other civil servant
♦ Judges enjoy security of tenure which makes them impartial
♦ Its demonstrated by the oath of allegiance to perform duties without fear or favour
♦ Judges/magistrates are not answerable to the executive
♦ It has a separate system of command
♦ Salaries and allowances of judges and magistrates are fixed by statutes and not discussed in parliament
♦ Judges enjoy security of tenure.
WAYS USED BY KENYA GOVERNMENT TO CURB CORRUPTION

▪ Improving conditions and remuneration of public servants

▪ Creating awareness on evils of corruption
▪ Strict penalties on corruption
▪ Establishment of KACC
▪ Using leadership and ethnic code as a yardstick to leaders

FORM FOUR NOTES

TOPIC 7: DEVOLVED GOVERNMENT

What is devolution?
Devolution refers to the granting of powers from the central government of a sovereign state to a lower level such as
regional or local level
What is a devolved government?
 This is a form of government in which there is transfers of authority and powers from the central government to
local government/
 In Kenya devolved government is a system of governance in which power is shared between the central government
and the county governments.
 Devolved government in Kenya can be traced to the second Lancaster house conference of 1963 when the
independence constitution was drawn which is as the Majimbo/federal constitution or Lancaster constitution.
 The making and promulgation of the constitution of Kenya 2010 is an event that reintroduced the idea of devolved
government.
 Kenya under the constitution of 2010 is divided into 47 counties.
OBJECTIVES OF DEVOLUTION OF GOVERNMENT OF KENYA
The main objective of devolution of power is to limit the power of the central government.
 To democratic and accountable excessive of power
 To foster national unity by recognizing diversity
 To give powers of self-governance to the people and promote the participation of the people in making decisions on
matters that affects them at the local level
 To recognize the right of communities to manage their own affairs to further their development
 To promote and protect the interests and rights of minorities and marginalized communities
 To ensure equitable sharing of national and local resources throughout the county
 To facilitate the decentralization of state organs and services from the capital of the county
 To have checks and balances and the separation of powers
 To promote social and economic development and the provision of services throughout the county
PRINCIPLES OF DEVOLVED GOVERNMENT
● Devolved government shall be based on democratic principles and the separation of powers
● It shall have reliable sources of revenue to enable them to govern and deliver services effectively
● It shall ensure gender balance in their representative bodies.

SRTUCTURE AND FUNCTION OF THE COUNTY GOVERNMENT.

Constitution 2010 provides for a devolved government in which the country is divided into 47 counties. ORGANS/ARMS
OF COUNTY GOVERNMENT
 County assembly
 County executive
The boundaries of county are altered by independent electoral and boundaries commission.
Factors which are considered when changing county boundaries
 Population density and demographic trends
 Geographical features
 Physical and human infrastructure
 Historical and cultural ties
 The cost of administration
 The view of the communities affected
 The objective of devolution of government
COUNTY ASSEMBLY
It is the legislative arm of the county
THE COMPOSITION OF THE COUNTY ASSEMBLY
 Members elected by the registered voters of the wards
 Special seat members who are nominated by political parties.
 Members representing marginalized groups. (including persons with disabilities and youth)
 The speaker who is an ex-officio member
Qualification to be elected as a member of a county assembly
 One must be a registered voter.
 One must satisfy educational, moral and ethical requirements.
 One must be nominated by a political party or be an independent candidate.
Disqualification from be elected as a member of the county assembly
 If one is of unsound mind.
 If one is bankrupt.
 If one is serving a prison sentence of at least six months.
 If one is a state officer or public officer.
 If one has been a member of the independent electoral and boundaries commission within five years.
 If one has been charged in court of law to have misused or abused a state or public office.
 If one has not been a citizen of Kenya for at least 10 years.
The office of a member of county assembly becomes vacant
If the member dies.
If the member is absent for eight seating of the assembly without written permission.
If one is an independent candidate and joins a political party.
If one resigns in writing to the speaker of the assembly
If a member resigns from the political party that elected him or her to office
If a member has been removed from the office according to the law/impeached
If it gets to the end of the term of the assembly
If one gets disqualified for election after the court rule on election petition against him/her.
FUNCTIONS OF COUNTY ASSEMBLY
1. County assembly makes and amends of the county for effective performance and exercise of power by county
government. This make the county assembly to exercise the legislative authority.
2. County assembly exercises authority over the county executive committees and other executive organs
3. County assembly receives and approves plans and policies for the management and exploitation of the county’s
resources
4. County assembly approves policies for the development and management of the infrastructure and institution in the
county
5. It approves oversight budge and development projects
6. It approves investment decisions and loans
7. It monitors the execution of projects under approved development plans and assessing and evaluating their impact
of development in the county
8. It summons any person to appear before it for the purpose of giving evidence or providing information
The process of law making in the county
County assembly is the legislative organ of the county government which make laws which enhance the performance
and the exercise of power of the county government
The principle of law making that the county assemblies adhere to
 The laws they make should not be in conflict with laws passed by the national assembly.
 The county assembly should its business in an open manner.
 The county assembly should facilitate public participation and involvement in legislation
 The county assembly should not exclude the public or media from any sitting
THE COUNTY EXECUTIVE COMMITTEE
This is the executive arm of the county who main duty is to formulate and implement policies.
It is head by a Governor who is the chief administrator of the county
What is the composition of county executive committee?
 Governor
 Deputy governor
 Members appointed by the county governor with the approval of the assembly
POWERS AND FUNCTIONS OF THE COUNTY GOVERNOR
1. The Governor is the chief executive officer of the county since all public servants in the county are answerable to the
governor, the governor heads the management and coordination of the county administration.
2. The governor nominates the deputy governor whose work is to deputize the governor/who is the principal assistant
in the running of the county.
3. Governor appoints members of the county executive committee from those who are not members of the county
assembly with the approval of the county assembly. The appointed members by the governor are in charge of
various departments in the county government.
4. The governor supervises the county executive committee members to ensure service delivery in the respective
departments
5. The governor participates in law making process by giving assents to the bill which have been passed by the county
assembly into by-laws, as a member of county executive committee he prepares proposed legislation
6. The governor is in charge of implementation of the county and national legislation which helps in promoting security
and unity hence creating suitable environment for development
7. The governor represents the county in national and international fora and events to articulate development agenda
for the county.
8. The governor submits to the county assembly an annual report on the implementation status of the county policies
and plans.
A County Governor can be removed from office under the following circumstances.
 Gross violation of the Constitution or any other law.
 When the county governor commits a crime under national or international law.
 When the governor abuses office or is accused of gross misconduct.
 When he/she suffers from Physical or mental incapacity that hinders Performance of the functions of office.

Situations in which the office of the county governor and deputy governor may become vacant
 If the governor dies
 If the governor resigns in writing to the speaker of the county assembly
  If the governor is removed from office through impeachment
 If the governor is convicted for a crime and he/she is imprisoned for at least twelve months.
 If the county government is dissolved by the president.
 If the governor is mentally incapacitated
FUNCTION OF THE DEPUTY GOVERNOR
1. The deputy governor is the deputy chief executive of the county hence he/she assists the governor in the
management and coordination of the county administration
2. The deputy governor acts as the county governor when the governor when the governor is absent.
3. The deputy governor assists the governor in the supervision of the work of the county executive committee since
he/she is the principal assistant in running of the county.
4. The deputy governor assists in the preparation of bill for county legislation since he/she is a member of county
executive committee.
5. He/she deputizes the governor in the implementation of both county and national laws in the county which help in
promoting security and unity.
6. The deputy governor takes over the role of the governor in the event the governor has died and if the governor has
resigned by writing to the speaker of county assembly.
Grounds upon which a county governor may be removed from office
 If the deputy governor has violated the constitution.
 If the deputy governor has committed a crime under national and international law.
 If the deputy governor has abused office or due to gross misconduct
 If the deputy governor is physical or mental incapacitated to perform the function of the office
Functions of the county executive
1. County executive committee implements county legislation/law
2. County executive committee implements national legislation
3. It manages and co-ordinates the function of the county administration and its departments
4. It performs functions placed upon it by national legislation
5. It prepares proposed legislation for consideration and debate by the county assembly
6. It presents complete and regular report on matters relating to the county to county assembly
Functions and powers of the county government
1. County government promotes agriculture. This includes crop and animal husbandry, provision of livestock sale
yards, construction and maintenance county abattoirs (slaughterhouses), controlling plant and animal disease and
development of fisheries by promoting fishing farming and regulating fishing activities
2. Provision and supervision of county health services by making laws that regulate and constructing health facilities
and pharmacies, provision of ambulance services and promoting primary health care service through vaccination
and immunization programmes. It also covers licensing and control of undertakings that sell food to the public,
provision of veterinary service, cemeteries, funeral parlours and crematoria and provision of refuse removal, refuse
dumps and solid waste disposal.
3. It promotes environmental management by Putting legislation/law to regulate and control air and noise pollution,
public nuisances and outdoor advertising.
4. Putting structures in place to facilitate cultural activities, public entertainment and public amenities. betting, casinos
and other forms of gambling; racing; liquor licensing; cinemas; video shows and hiring; libraries; museums; sports
and cultural activities and facilities; and county parks, beaches and recreation facilities.
5. Maintaining county infrastructure and transport system by regular maintenance such as roads, street lighting, traffic
and parking, public road transport, ferries and habours
6. Ensuring animal control and welfare. This is through licensing of dogs and provision of facilities for accommodation,
care and burial of animals.
7. Putting in place legislation that encourage development of trade by overseeing trade licensing and ensuring fair
trading practices and by encouraging local tourism and creation of cooperative societies.
8. Regulating county planning and development through survey and mapping, boundaries and fencing, housing,
electricity, gas and energy regulation.
9. It provides and manages promote education at the pre-primary, vocational education, Polytechnic, craft and child
care centres.
10. Implementing specific national government policies on natural resources and environmental conservation, including
soil and water conservation, including soil and water conservation and forestry.
11. Putting in place legislation to regulate counties public work and services including storm water management in built
up areas and water and sanitation services.
12. Ensuring that firefighting services and disaster management centres are available and working in the country and
have laws to regulate these services.
13. Putting measures to control drug usage and access to pornography in the county.
14. Ensuring the participation of communities in governance at the local level and assisting them to develop the
administrative capacity to effectively exercise the functions and powers in the governance at this level.

Relationship between the county and national government

1. A function or power of government at one level may be transferred to a government at the other level by
agreement between the governments
2. National and county government performs their functions and exercise their powers with due respect to each other
3. The national and county government liaise to exchange information and co – ordinate policies and administration to
enhance capacity
4. Both government co- operates in performance of their functions and exercise of powers and at times set up joint
committees
5. Through national legislation, procedures for settling disputes between national and county governments are
provided
6. Parliaments sets our legislations to ensure that county governments have adequate support to enable them perform
their functions
7. National government has powers to intervene in a county government if the latter is unable to perform its function
8. In case of a conflict national legislation prevails over county government
Give importance of national legislation on county governments
● The maintenance of national security
● The maintenance of economic unity
● The protection of common markets
● Promotion of economic activities across regional or county boundaries
● Promotion of equal opportunities or equal access to government services
Challenges facing county government
1. Inadequate resources to provide them with a solid revenue base has led to inadequate funds making it difficult for
counties to meet all of their obligations
2. Interference in their working by the national government and politicians which creates conflict of interest thus
hindering the county from performing its duties effectively.
3. Duplication of roles in the county with those of the national government causes conflict between the personnel of
the two level of the government.
4. Rivalry and wrangles among leaders in the county due to personal and ideological difference has created enmity,
hatred and divisions in the county thus undermining unity in the county
5. Inadequate skilled personnel to man key departments within the county this causes delays in the provision of
specialized services in the county
6. Embezzlement on misuse of devolved funds by corruption county officials has denied county government funds
required for implementation of various development and maintenance of infrastructure and facilities and it has
undermined effective service delivery/ hampers smooth running of the government.
7. Delay in remittance/ disbursement of funds to the country by the national government hence slowing down and
halting operations and service delivery by counties.
8. Over-employment by counties results in bloated wages bills at expense of development projects hence minimal
development in the counties.
9. High population in some counties makes it difficult in the provision of quality service and it has led to over straining
of county resources.
10. Underdeveloped/poor transport and communication network which hinders movement of goods and service to
areas of need
11. Natural calamities in some counties such as drought, landslides and floods calling for emergency reliefs leading to
diversion of some resources
What are the disadvantages of devolved government?
 Devolution might not always lead to improved governance and economic performance. This depends on a number
of variables such as the choice of leaders and how knowledgeable they are
 It might reduce the ability of the national government to redistribute resources and therefore the ability to help the
less developed regional and local units
 It might also lead to the capture of local government by political elites, especially if the devolution rules and systems
are not well designed, and hence allow local politicians to use local resources to consolidate their hold on political
power through patronage
 If not well planned, it can lead to translation of central government bureaucracies such as inefficient utilization of
resources and lack of accountability to the regional governments at local levels