Constitutional responsibilities of public officers in (un)making public policy, rules and regulations in Kenya

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By Prof Ben Sihanya

Kenya’s constitutional and policy-making framework

The Constitution of Kenya provides for certain constitutional responsibilities of public officers when enacting or rescinding public policies, and rules and regulations that affect or are related to the enjoyment of human rights.

My overarching argument is that there are three main constitutional requirements that public officers must always consider when enacting or rescinding public policies, rules and regulations.

First, public officers are required to adhere to the set values and principles of governance. Article 10 of the Constitution binds and subjects all state officers to have due consideration to participation of the people, the rule of law, human dignity, equity, social justice and human rights whenever they make or implement any public policy decision. Articles 10, 43, 129(2) and 232 of the Constitution provide that the exercise of public authority, and public policy making, should be undertaken with popular participation and for the wellbeing of the people. This right is also provided for in Article 21 of the Universal Declaration of Human Rights (UHDR) as well as Article 13 of the African Charter on Human and People’s Rights among other international legal instruments.

Second, the Constitution under Art 21(2) mandates Government to take legislative, policy and other lawful measures to achieve the realisation of the rights provided for under the Bill of Rights. This includes the setting of standards. Article 21(1) further obligates the State to address the needs of vulnerable groups in the society. These include women, children and youth (of female gender). This position has been extensively litigated and held to be so by the Courts in several constitutional petitions. In Mathew Okwanda vs. Minister of Health and Medical Services & 3 Others, Petition No. 94 of 2012, the court agreed with the petitioners and affirmed that the success of our Constitution largely depends on the State delivering tangible benefits to the people, particularly those who live at the margins of society. The incorporation of economic and social rights set out in Article 43 sums up the desire of Kenyans to deal with issues of poverty, unemployment, ignorance and diseases.
Third, Articles 22 and 159, among others, open up the judicial or adjudicatory process for the people, in terms of access to justice through broader capacity to sue (or locus standi).

In fact, with regard to locus standi (or capacity to sue), the court in Coalition for Reform and Democracy & Others vs. Attorney General, Petition No 628 of 2014, stated that a party does not have to wait until a right or fundamental freedom has been violated, or for a violation of the Constitution to occur, before approaching the Court. The court added that a party has a right to approach the Court for relief if there is a threat of violation or contravention of the Constitution.

It is important to note that the Judiciary has been regarded as the “guard of guards.” This judicial or adjudicatory role has been called into action on several occasions as was in the case of Aids Law Project v. Attorney General & 3 Others, Petition No. 97 of 2010, as well as in Kenya Legal and Ethical Network on HIV & AIDS (KELIN) & 3 Others vs. Cabinet Secretary Ministry of Health & 4 Others, Petition No. 250 of 2015. In both cases, both aggrieved and interested parties sought the intervention of the Judiciary, and the courts ruled in their favour. It is also worth noting that the provisions of Article 159 bestows upon the Judiciary the core function of not only ensuring but also restoring constitutionality in instances where there is an attempt to erode it’s principles and values. This was also the position held by the court in Petition No 628 of 2014.

In terms of values and principles, the Constitution provides for at least three requirements. First, Article 10 articulates a set of comprehensive national values and principles of governance to bind all State organs, State officers, public officers and all persons in making or implementing public policy decisions. Second, under Article 21, Government has a mandatory duty of taking policy measures to achieve the progressive realisation of the comprehensive economic and social rights guaranteed under Article 43.

The implementation of Article 43 has been litigated in various cases, including Petition No. 94 of 2012 as well as Petition No. 15 of 2011. In both instances, the court pointed out that the inclusion of economic, social and cultural rights in the Constitution is aimed at advancing the socio-economic needs of the people of Kenya, including those who are poor, in order to uplift their human dignity.

Third, Article 232 provides that the values and principles of the public service include the involvement of the people in the process of policy making.

Art. 47 provides that every person has the right to enjoy expeditious, procedurally fair, efficient, lawful, and reasonable administrative action. The article also bolsters Arts 33, 34, 35, and 46(1) on the freedom of expression, of the media and the right of access to information.…

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