- Rule of Law;
- Supremacy of the Constitution
- Doctrine of the Separation of Powers
- Rights and Fundamental Freedoms
- Independency of the Judiciary
The Rule of Law
The main function of the Constitution is to ensure the Rule of Law in the Country. The Rule of Law means:
The Executive have no arbitrary powers over individuals except that which has been granted by the Legislature or Common Law or other recognized rules / conventions. Also no person may be arbitrarily deprived of life, liberty, property or detained except for a definite breach of law which must be proved in duly constituted open Court of Law.
Equality of every citizen or person irrespective of his official or social status before the Law and the Law is only one in kind. For example an immigration offence is the same for all travellers whether one is from the Rich Countries – USA, UK or Poverty Stricken Poor Countries – Uganda etc.
The rights and fundamental freedoms flow from judicial decisions; that is the law of the Constitution is the result of the ordinary law of the land.
Supremacy of the Constitution
This means that the Constitution is the main source and force of the law in the Country. Any law which is inconsistent with constitution is considered as null and void to the extent to which it is contradicts with the Constitution.
No Law can be passed (legislated) which is inconsistent with the Constitution. Also the Executive and the Judiciary perform their functions in accordance with the Constitution.
The Powers of the President and all other Public Servants are stipulated and /or defined in the Constitution.
Doctrine of the Separation of Powers
This means that the powers of the three organs (arms) of the State must be clearly described in the Constitution and these powers should be exercised by different persons as laid out in the Constitution. The three arms of the State are:
The Legislature – in Kenya it is National Assembly or Parliament. It constituted by Members of Parliament and to ex-officio (the Speaker and Attorney General). It is empowered to make Laws.
The Executive – In Kenya, this consists of the President, the Prime Minister, the Vice President and Ministers and the Civil Servants. It is empowered to carry out all the laws by the Parliament or the Local Authorities – by laws and effective administration of the Country.
The Judiciary – This includes the Attorney General Chambers, Chief Justice, the Judges and Magistrates and other Professionals involved in the adjudication of justice. This ensures the enforcement of the Laws of the land.
The theory of the Doctrine of Separation states that the legislature should never exercise executive or judicial powers; the executive should never exercise legislature or judicial powers and the judicial should never exercise executive or legislature powers. If this not complied with the concentration of these powers in the same hands results in the abuse of authority and tyranny over the people.
Rights and fundamental freedoms
Like other Democratic Constitutions, the Constitution of Kenya provides for the Rights and fundamental freedoms of the individuals. In Chapter Four – The Bill of Rights. It lists the following which are derived from United Nations Universal Declaration of Human Rights and European Convention of Human Rights:
- Right to life
- Equality and freedom from discrimination
- Human dignity
- Freedom and security of the person
- Slavery, servitude and forced labour
- Freedom of conscience, religion, belief and opinion
- Freedom of expression
- Freedom of the media
- Access to information
- Freedom of association
- Assembly, demonstration, picketing and petition
- Political rights
- Freedom of movement and residence
- Protection of right to property
- Labour relations
- Economic and social rights
- Language and culture
- Consumer rights
- Fair administrative action
- Access to justice
- Rights of arrested persons
- Fair hearing
- Rights of persons detained, held in custody or imprisoned
Independency of the Judiciary
This means that Judges and Magistrates can decide any legal case (whether criminal or Civil) without fear or bias or favour or under any pressure from the members of the other organs of the State – Legislature and Executive.
Independency of the Judiciary ensures the protection of individuals’ rights and fundamental freedoms. The Judiciary is responsible for effective administration of Justice in the Country where it protects individual against the excesses of the Government of fellow citizen / non-citizen.
There are two major Law Systems (litigation processes) in the World; the Adversarial and the Inquisitorial. Most World States practice adversarial e.g. Kenya we adopted from the former colonialist the British; where you are presumed innocent until proved guilty. In some European States e.g. France the inquisitorial is practiced; where you are presumed guilty until you prove your innocence.
The Chief Justice, the Puisne Judges, Judges and Magistrates are appointed under the law; they immunities and security of tenure for their jobs.