By John Gichuhi
The Constitution of Kenya provides for the right to fair administrative action under Article 47, and also articulates the idea of constitutional supremacy under Article 2. Inclusion of these clauses in the Constitution had implications on Kenya’s administrative law, which was based on English Common Law before 2010. The question that then arises is whether Kenyan courts have reconciled the right to administrative justice as protected under the Constitution with the common law which the courts relied on prior to the 2010 Constitution. A look at what the constitutionalisation of administrative justice means for Kenyan administrative law becomes necessary.
Any administrative action should be expeditious, efficient, lawful, reasonable and procedurally fair. For procedural fairness, Article 50 provides for the right to a fair hearing. The right to access justice is provided by Article 48 of the Constitution. The Commission on Administrative Justice Act No. 23 of 2011 establishes the Commission on Administrative Justice pursuant to Article 59 of the Constitution which has the mandate to oversee the administration of justice.
Constitutionalisation of the right to administrative justice revolutionised the general administrative law in Kenya. It removed the grounding of the review power of the courts from common law. It gave parliament the power to enact law that entrenches administrative law in legislation. To this effect, Parliament enacted the Fair Administrative Action Act in 2015. By including the right in the Constitution, administrative justice obtained constitutional supremacy over legislation and common law. Parliament cannot limit the constitutional right to judicial review. Individual rights are better protected within a constitutional framework.
What the Constitution did was to give courts a new approach and wider area to look at in judicial review cases. The courts have to be alive to the right to fair hearing, access to justice and access to information. This is also buttressed by the need for purposive interpretation of the Constitution.
Proper constitutional framework on the human rights empowers all individuals in enforcing their rights against state actors. This is vital to improvement of governance structures. Accountability by administrative bodies cannot be achieved when the rights and the procedures to be followed are not properly stipulated. Administrative justice thrives when both procedural and substantive requirements are met. The Fair Administrative Action Act, 2015 was a good step forward aimed at improving the institutional and legal framework for judicial review remedies.
Divergent views may arise with regard to what constitutionalisation of administrative justice means. For instance, in the South African case of Commissioner of Customs and Excise v Container Logistics (Pty) Ltd1999 (3) SA 771 (SCA), the court was of the view that that judicial review under the Constitution and the common law are different concepts. Administrative law had not been constitutionalised in its entirety and the common law could still be used as a basis of a challenge to administrative action.
However, the above case was overruled in Pharmaceutical Manufacturers Association of South Africa Ex Parte President of the Republic of South Africa 2000 (2) SA 674 (CC where the court held that the common-law principles of administrative law applicable to the exercise of public power had been constitutionalised. The common law principles gained Constitutional force.
Obviously, common law gained rich jurisprudence over many years and cannot be ignored even post 2010. Courts have to make reference to the developed common law principles. Remedy is not always available in the Constitution and legislation.
Some courts have directly applied Article 47 of the Constitution to the adjudication of administrative justice matters. However, subjection of the cases to Article 47 does not preclude the application of established common law principles. For instance, in the case of R v Kenya National Examinations Council Ex parte Ian Mwamuli  eKLR, the court subjected the respondent’s action, being an administrative action, to direct application of Article 47 of the Constitution. The court stated that an authority is under a constitutional duty to furnish an affected person with written reasons for making any such decision.
Similarly, in the case of R v Commission for Higher Education Ex-Parte Peter Shoita Shitanda  eKLR, the court relied on common law principles to answer what in law amounts to legitimate expectation. The applicant was entitled to written reasons.
Even in the new constitutional dispensation, some courts have heavily relied on common law principles to the extent of not explicitly applying Article 47 of the Constitution. For instance, in R v District Land Adjudication and Settlement Officer Kilifi District & 2 others Ex Parte Kilifi Munga Alfred & another  eKLR, the court dismissed an application for leave to institute judicial review by entirely relying on common law principles with no explicit application of Article 47 of the Constitution.
In R v Public Procurement Administrative Review Board & Another Ex-Parte Avante International Technology Inc.,  eKLR, the court relied on common law principles to determine what amounts to irrationality, illegality and procedural impropriety. It held that where the authority whose decision is challenged displays gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision such as where the decision is in defiance of logic and acceptable moral standards, the court will interfere even if there is no illegality or procedural impropriety. The court also stated that the common law principle of proportionality is now part of our jurisprudence and therefore it is not unreasonable or irrational to take the said principle into account in arriving at a judicial determination.
In the case of Nancy Makokha Baraza v Judicial Service Commission & 9 others  eKLR, the court held that that the rights to fair administrative action and fair hearing were not violated. The court relied on common law to explain the principles of proportionality, rationality, legitimate expectation, fair hearing and natural justice.
Constitutionalisation of administrative justice gave litigants an avenue to file applications relying directly on constitutional provisions. In Bidco Oil Refineries Limited v Attorney General & 3 others  eKLR, the issue was whether there had been a breach of the petitioner’s right to fair administrative action under Article 47(1), access to justice under Article 48 and the right to a fair and conclusive hearing under Article 50 of the Constitution. The court held that refusal to consider the application for administrative review by the Commissioner did not violate Article 47(1) of the Constitution since it was justified in the circumstances.
Purposive constitutional interpretation calls for reading the Constitution as an integrated whole. In interpreting Article 47 of the Constitution, some courts have adopted this and the national values and principles of governance. In Republic v Kenya Revenue Authority ex-parte LAB International Kenya Limited  eKLR, the court stated that statutory and public bodies are subject to Article 10 of the Constitution on national values and principles of governance, which requires good governance, integrity, transparency and accountability.
In conclusion, Article 47 is intended to subject administrative processes to constitutional discipline. It also contains an implicit flexibility that enables bodies exercising administrative authority to meet the demands of modern administration. Further, relief for administrative grievances is no longer left to the realm of common law but is to be measured against constitutional standards. Constitutional recognition of the right to administrative justice does not outlaw application of common law. Courts have largely reconciled the right to administrative justice as protected under the Constitution with the common law. The Kenyan legal system’s marriage to the English common law is still intact. ^
Writer is an Advocate of the High Court of Kenya