Reports

REPORT ON THE ARTICLE 47 WORKSHOP- HELD ON 21ST AND 22ND MARCH, 2016 AT THE KENYA SCHOOL OF GOVERNMENT

 

  1. Background

The Constitution of Kenya, 2010 Article 47[1] recognises the entitlement of every citizen to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair; and, by implication, points to the obligations of a public officer while taking administrative action. The legislation required by Article 47 was enacted as the Fair Administrative Action Act.[2] The Act says that it does not affect the common law, but it essentially puts into legislative form the familiar concepts of judicial review law. Some courts have now said that there are not now two systems of law regulating administrative action – the common law and the Constitution – but only one system grounded in the Constitution.[3].

The primary objective of this project is to assist public servants to understand their obligations, and how to ensure that their decisions making processes, and administrative actions, comply with Article 47, the Act, and the common law. The methodology is to prepare a manual for public servants on policy and decision making, in collaboration with the public bodies most concerned (the Kenya School of Government, the Public Service Commission and the Commission on Administrative Justice (the Ombudsman) The intention is also to produce a short, simple guide for the public on what they may expect under Article 47. And there is the possibility that we may be involved in training public servants using the Manual.

The idea of developing such a manual was inspired by the British Government’s publication The Judge Over Your Shoulder (often called “JOYS”) for the guidance of its staff.[4] The book has proved very useful and has been adopted, in adapted versions, by several countries, such as Malawi, Hong Kong and New Zealand. KI will develop a similar document for the Kenyan context, possibly with a different name.

KI partnered with the Kenya School of Government (KSG), the Commission on Administrative Justice (CAJ), the Public Service Commission (PSC), as well as the Bingham Centre for the Rule of Law in London and held a workshop on the 21st and 22nd March, 2016 on Article 47 of the Constitution and Judicial Review in Kenya. The primary aim of the workshop was to discuss the orientation, and to some extent the content, of the proposed manual on Article 47.

 

The Workshop was financially supported by the Swedish Government (through Diakonia), the UK Government (through ROLE UK)

 

The Attorney General, Prof. Githu Muigai, was the Chief Guest at the formal opening of the workshop and he discussed how Article 47 could be used to improve service delivery in the public service.  He related Article 47 and developments in judicial review to the Preamble of the Constitution particularly: “Recognising the aspirations of all Kenyans for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law”. He stressed that it was time to make constitutional concepts, including administrative justice, come to life, and to deal with vices like corruption and inefficiency. He observed that rights were now available against both the public and the private sector. And also commented that judicial review must not be a straitjacket – it must not imperil democratic governance.

 

The participants in the workshop comprised representatives from the partnering bodies (The Ombudsman, Kenya School of Government, Public Service Commission and Katiba Institute, academics, and NGOs. Formal presentations were given by each of those listed organisations plus a Kenyan academic, a Professor from South Africa (the country from which our Article 47 was taken, and two speakers from the UK, focussing especially on the experience with JOYS there and in other countries. There were very interesting discussions both on the present state of administrative law, and the way ahead including for the Katiba Institute project. The intention is to publish the presentations, with a summary of the discussions, in a small book.

 

The first day of the workshop was devoted to the Kenyan situation.

 

  1. The Constitutional Context

Professor Yash Pal Ghai (of Katiba Institute) traced the history of our system of administrative action back to the colonial period. Then, he said, the bureaucracy was the rules. But after independence the bureaucracy failed to realise that now they were supposed to serve a democratic system

This constitutional transformation was triggered by complaints from the public, particularly regarding massive corruption within the public service. The main source for Article 47 was Section 33 of the South African Constitution.

And now we have the Fair Administrative Act– legislation required by the Constitution. But this is not the entire constitutional or legal context.  Article 10 of the Constitution on national values and principles of governance, and Article 232 of the Constitution on the values and principles of public service[5] are also very important. And the Public Service (Principles and Values) Act, 2015, was enacted to fulfil the requirement in Article 22(3), [6]

Article 47 has implications for political leaders as well, including the President and Cabinet Secretaries. So the manual will not be only for civil servants, but will not only provide guidance to public servants, but also to Cabinet Secretaries on matters policy and decision making. A parallel document, shorter and simpler, will be tailor made for ordinary Kenyans explaining how to invoke the remedy of Article 47.

A participant observed that public servants are losing confidence to be able to administrate, hence it is important for the manual to capture the key frontlines of the discourse and a step-by-step guideline, for example, from the point where somebody reports and is turned down. There was a further suggestion that the manual should be online and made available and accessible to the public.

  1. The Judicial Review Landscape in Kenya

Professor Migai Akech of the University of Nairobi reported on some research he has been doing on Article 47especially in the context of tax and environmental governance. Article 47 provides that “every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.” Further, “if a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.” Additionally, “parliament shall enact legislation to give effect to the rights in clause (1) [read 47 (1)] and that legislation shall provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and promote efficient administration.” As was held in the case of Dry Associates vs. Capital Markets Authority[7], Article 47 is intended to subject administrative processes to constitutional discipline. The Supreme Court has further recognized that the power of any judicial review is now found in the Constitution.[8]

Order 53 Complexities

Indeed, the FAAA (legislation created by Article 47) has radically altered the judicial review landscape in Kenya by impacting on the Order 53 procedures and the Law Reform Act[9]– on judicial review- i.e. the requirements for seeking leave (ex-parte) first. However, there is still confusion amongst litigants as to whether to proceed by means of a constitutional petitions; or by way of judicial review using Order 53 procedures.[10]

The High Court has jurisdiction (in accordance with Article 165) over enforcement of the Bill of Rights. Article 23 further lists some of the appropriate reliefs, including “an order of judicial review”, that a court may grant in proceedings to enforce the Bill of Rights. Article 47 is one of the rights recognised under the Bill of Rights – See the Muhura case,[11] where the Court observed that the constitutional petition is the better route to follow (in seeking justice under Article 47). See also the case of: Meshack Angeng’o Omondi vs. Eldoret Municipal Council.[12]

[But there is little in the Fair Administrative Justice Act to suggest that cases under the Act are necessarily in the form of a constitutional petition. The Act is to “implement Article 47”, but constitutional petitions are not the only way to fulfil the constitution, even when court action is involved. On the other hand, the reference in the FAA Act about “subordinate courts” (next paragraph) does seem to link judicial review to constitutional petitions– Eds.]

Historically, in the UK, judicial review involved the High Court supervising lower courts (which were staffed by non-lawyers). Now, the FAAA does away with the idea that the High Court is the only body capable of granting judicial review orders. It refers to the possibility of a “subordinate court” – which almost certainly means magistrate courts at present in Kenya – being given the power by law to deal with such cases.[13]– That Act refers to Article 22(3) of the Constitution. But it presumably means Article 23(2), which says “Parliament shall enact legislation to give original jurisdiction in appropriate cases to subordinate courts to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights”

There is also an expansion of the scope of fair administrative action and judicial review to cover private bodies as well: if their “action, omission or decision affects the legal rights or interests of any person to whom such action, omission or decision relates.[14]

The Fair Administrative Action Act requires that judicial review applications must be determined within ninety days of filing the application.[15] It is not clear what happens if this deadline is not met; there is no “order” that can be appealed to the Court of Appeal. However, it does not establish timelines for filing the application (which creates some doubt about the relationship between this sort of action and judicial review, because under Rule 53 of the Civil Procedure Rules there is a six-month limit for certain types of claim.

The FAA Act also requires applicants of judicial review to have exhausted all internal mechanisms for review and all remedies available under any other written law before making an application to court[16]. The court may; however, and in exceptional circumstances, exempt applicants from the requirement to exhaust any remedy in the interest of justice.[17] Appeals lie from the High Court to the Court of Appeal.[18] But, the language used is “A person aggrieved by an order made in the exercise of the judicial review jurisdiction of the High Court may appeal …” It is a little unclear whether every decision of the High Court is an “order”.

The list of grounds for judicial review seems to be exhaustive. It says “A court or tribunal under subsection (1) may review an administrative action or decision, if…..”[19] and the list that follows does not include any phrase like “any other reason”.  The list is drawn from the common law, including ground like “reasonable expectation” that is a relatively recent addition to the common law. But the Act also says it does not affect the common law: it is “in addition to and not in derogation from the general principles of common law and the rules of natural justice”. So does this mean that if the common law develops a further new ground, actions can be brought on it, but not under this Act?

It was agreed that the Order 53 complexities indeed hinder access to administrative justice: as “Wanjiku” would need a lawyer to approach the court due to the procedural intricacies involved.

There was also a wide measure of agreement that there is need to empower the citizens to be able to pursue administrative justice.

It was agreed that it is necessary to have a series of procedures geared towards empowering citizens to complain to the most relevant and effective mechanism.

In response to a question from a participant about whether Article 47 has been relied on litigation, it was noted that there has been considerable amount of litigation and Katiba Institute had analyzed a large number of those cases. Most of this pre-dated the Act, of course

           

  1. The Ombudsman Perspective:

Fred Oundo from the Commission on Administrative Justice spoke about the Commission (also known as the Ombudsman).[20] The Commission on Administrative Justice Act, 2011 establishes the office of the Ombudsman.[21] The primary responsibility of the Ombudsman is to check maladministration on the part of public servants: for example, unreasonable delay in taking administrative action, misconduct and incompetence by public officers, and failure to observe the principles contemplated in the Constitution of Kenya. All public servants are required to be efficient, responsive and impartial, and to act accordance with Articles 73 and 232 of the Constitution of Kenya.

The Commission on Administrative Justice is the primary custodian of the right in Article 47.

It was suggested that there is need for creation of greater awareness of the FAAA (suggesting that so far there have been rather few complaints); the need to unpack and simplify the right to fair administrative action; strict enforcement measures and/ or sanctions should be put in place; and there should be closer engagement and coordination with sister commissions to ensure compliance with constitutional requirements and the tenets of the public service.

[Note: as for number of complaints, the following two paragraphs are taken from the CAJ’s Annual Report for 2014:

During the reporting period, the Commission handled a total of 86,905 complaints with 79,693new cases. There has been an increase in the number of complaints in the last three years having handled 18,257 complaints in 2013 and 4,062 in 2012. The gradual increase is attributable to a number of factors: first, there is increased awareness on the existence of the Commission, and secondly, there is growing appreciation of the Ombudsman as an alternative avenue to getting redress.

The prominent service issues in 2014 are unresponsive official conduct (19.91%), delay (19.08%), unfair treatment (13.58%), abuse of power (11.54%), maladministration (10.81 and administrative injustice (7.21). With respect to institutions, most of the complaints were directed against the National Police Service (12.94%), Ministry of Interior and Co-ordination of National Government (9.28%), the Judiciary (8.04%), and Ministry of Lands, Housing and Urban Development (7.63%).]

In response to a question on what CAJ does in relation to the complaints received, it was explained that the cases are dealt with on a case by a case basis. Some that cannot be dealt with by the CAJ are referred, say, to Kituo cha Sheria (legal aid organisation) whereas others are directly pursued in Court by the CAJ itself.

Another concern was raised as to the possibility of overlap of jurisdiction between CAJ and other commissions, for example, the EACC. In response, it was observed that the Ombudsman’s primary responsibility is to intervene only on matters of maladministration where EACC has failed to act.

In discussion it was suggested that mistrust between the public service and the people stem in part from gross inequalities in society, from the nature of capitalism and the consumerists environment.

Concrete suggestions on the proposed guide/manual included that is should be online. It was proposed that 12-15 case studies of things that have gone wrong should be included, with an analysis of what went wrong and how could it have gone right.

The Public Service Commission felt that there are too many cases – and these tend to hinder the work of the public service.

One speaker was concerned about the need to comply both with legal technicalities and with the values of the Constitution.

We need to empower the citizens of Kenya; as a society we are rather timid in dealing with the administration.

The legal system is too technical and people ought to be able to go to court without needing a lawyer.

  1. The Kenya School of Government Perspective:

On behalf of the Kenya School of Government (KSG), Obondo Kajumbi explained that the KSG was established by the Kenya School of Government Act (No. 9 of 2012) replacing the Kenya Institute of Administration, the Kenya Development and Learning Centre and the Government Training Institutes (GTIs) based in Embu, Matuga, Baringo and Mombasa.

The KSG concerns itself with three key areas: training, research, consultancy and advisory role to Government. It now offers services to both the National and County Governments, and the private sector as well as Non-Governmental Organizations (NGOs). It provides learning and development programmes with the objective of inculcating public service values and ethics in the devolved government to ensure delivery of results to the citizens. One primary requirement of public servants is to be responsive, know how to take administrative actions while remaining within the law.

Opondo Kajumbi spoke of the need for the drafters of the manual to look at it from the perspective of the actors, i.e. how to protect the implementers of those decisions- how well they can be protected in law, because if they feel vulnerable, they may shy away from taking administrative actions.

 

  1. The Public Service Commission Perspective:

The first speaker from the PSC was Judith Bwonya.  She observed that Article 47 (read alongside Article 232) of the Constitution) can be looked at from two angles: as an obligation (for the public servant); and, as a right (for the citizen). The PSC has performed various tasks in this connection, namely- revision of the policies they found in place (Code of Conduct and Ethics); disciplinary action procedures- issuance of adequate notice, issuance of written reasons for their decisions, etc. observance of the right to be heard- providing a fair hearing. Section 9 of the Public Service (Principles and Values) Bill, 2014 now provides for the accountability for administrative acts. Article 47 also ensures accountability of public servants. Additionally, in ensuring accountability, there are efforts to clarify job descriptions, clarifying who is responsible for what. Service delivery charters are also being put in place.

The Public Service Commission (PSC) performs various functions as concerns Article 47, including but not limited to: establishment and abolishment of offices in the public service; developing the public service; oversight role of the various ministries; and, capacity building for the public service. Cases handled that are pertinent to Article 47 of the Constitution include disciplinary action, promotion (salary progression) cases, including a number of retirement cases. PSC has also reviewed the Public Regulatory (Bodies) as well as a number of manuals, and development of Regulations for the removal of the Director of Public Prosecution (DPP).[22]

The PSC has faced and continues to face several challenges, including delay in the passage of the Public Service (Values and Principles) Bill, 2014– The PSC is also grappling with funding constraints- to actualize the provisions of Article 47 and related legislation. Challenges faced include: delay in the passage of the PSC Act- they are still using the old regulations despite the new Constitution; lack of awareness, not just on fair administrative action under Article 47 of the Constitution, but also in the Bill of Rights. Embracing change is proving to be a challenge as well.

The Article 47 project has indeed come at a good time. People are living in the past or an old culture: it is an uphill task. If possible, there should be a long term plan for implementation of the project. Research is needed on why there is resistance to change. “Let this not be a document that grows mould on the shelves”. There is indeed the need to encourage and support each other.

Participants raised a number of issues regarding the administrative decisions made by the public service, for instance, the disciplinary action process, i.e. whether the decisions can be made available to the public. The response was that an access to information request could be made for decisions.   Additionally, PSC is looking to automate its systems, including their decisions.

The CAJ observed that there is need for more awareness of the Article 7 right. They receive relatively few complaints. The concept of access to administrative justice needs to be unbundled, so people understand it better.

 

  1. Article 47 in the Kenyan Courts:

Jill Cottrell Ghai presented on Article 47 in the courts.  She observed that litigation began quite early – but by a limited range of litigants and on a limited range of issues. The first case in which the Article was mentioned was in November 2010 (perhaps raised by the judge himself).

She commented that the Article has been used to challenge actions that do not seem to be “administrative” – like dismissing a county executive member. The South African Act excludes such decisions, but the Kenyan Act does not. There is inconsistency as to whether it applies to employment relations – or this is governed by statute.

The speaker pointed to a few of the cases where the courts had helped to explain what reasonable executive action means.

She said she had looked at 38 cases decided so far this year (a few of them just preliminary or conservatory orders).  Litigating tends to be a rather elite activity (not a surprising finding). Businesses and corporations had sued, some politicians, some lawyers. But some more ordinary citizens too: workers dismissed because of strike, school pupils, boda-boda riders in CBD, a person unable to get ID card, market traders and jua kali workers. They sue for things like: to strike their name from the Truth, Justice and Reconciliation report, to stop a prosecution, to protect property and commercial interests.  The cases are often not well argued – including on the government side. In 17 cases the applicant/petitioner succeeded; and the main reasons were either absence of any hearing, or no reasons for decisions. “Reasonable expectations” were mentioned often but not really used.  The reasons for losing were often: failure to establish breach of the right, remedies had not exhausted or, despite allegations, there actually had been consultation.

Participants agreed that it would be unfair to tell members of the public to take public officers to Court, without first telling them what is expected of them while making administrative decisions.

There was a wide measure of agreement that not all issues can necessarily be resolved through the law as notably perceived by lawyers; other enforcement mechanisms such as civic education can be employed.

There was also a concern as to whether the society really accepted these values, or were the values imposed on them? In response, it was noted that there was indeed a good reception from the people on the values.

Regarding the content of the manual, we want to avoid being heavily legal in the document, this entails use of simple expressions- that are not necessarily Latin.

 

8.0       Comparative Perspectives: Section 33 of the South African Constitution

Professor Cora Hoexter spoke about the situation in South Africa. There exist overlap and similarities between Section 33 of the South African Constitution and Article 47 of the Kenyan Constitution. To a considerable extent, the Promotion of Administrative Justice Act (PAJA) inspired the drafting of the Fair Administrative Action Act (FAAA, for short), but the FAAA – Prof. Hoexter said – is better than the PAJA.

The PAJA came into force in November, 2000. The legislation has indeed brought about some benefits: constitutionalisation of administrative justice; codification of common law, i.e. codification of administrative justice generally brought along some benefits. However, these processes brought about some difficulties as well (the difficulties and benefits of both codification and constitutionalisation).

1994 was characterized by the end of apartheid with its institutionalization of racial segregation, and the embracing of constitutional supremacy. Constitutional sovereignty was achieved through two constitutions: the interim Constitution of 1993 and the final one of 1996. The Interim Constitution included in its the Bill of Rights: Section 24 on administrative rights borrowed from Article 18 of the Namibian Constitution. It sought to end the legacy of administrative injustice as witnessed in the past: the Constitution used as a tool of oppression.

The interim Constitution paved the way for the 1996 Constitution It too contained rights to administrative justice, with lots of resemblance to Article 47 of the Kenyan Constitution. For instance, Article 47 talks about administrative action being lawful, procedurally fair, expeditious, etc. although Kenya’s right to reasons is slightly more liberal than the South African one. Whereas, Kenya talks about rights likely to be affected by administrative action, South Africa talks about adversely affected rights. Article 47(3) is also very similar to the Section 33 of the South African Constitution.

There were worries about burdening the administrators with a range of new duties, for instance the duty to give reasons. For this reason Section 33 was deliberately watered down in PAJA.

Despite the requirement for the legislation to be produced within three years, the Department of justice did nothing. It was not until the end of 1998 that the South African Law Reform Commission was tasked to produce draft legislation. The Act was passed the day before the deadline.

The definition of administrative action in particular was subjected to extreme elaboration and refinement – precisely to cut down its scope.

Section 12 of the FAAA expressly preserves the common law, PAJA does not. However, the Constitutional Court has said the common law survives, and it to an extent still informs the provisions of the PAJA, – for example- the doctrine of legitimate expectation.

There has been some conceptual confusion. The courts had difficulty understanding the idea of constitutionalisation of the common law. In 2000, the Constitutional Court in the Pharmaceutical Associations Case[23] dealt with the confusion: Common law principles were subsumed under the Constitution, and it was affirmed that there are not two systems of law but only one system of law and everything and everyone answers to the Constitution.

The concept of administrative action has become more prominent that it ought to be: And there is a tendency to circumscribe it.

Prof. Hoexter had some criticisms of PAJA. Section 6(2)(8) of the PAJA on the grounds for judicial review has also been widely criticized  for introduction of the concept of “Wednesbury unreasonableness”[24]– and, leaving out the principle of proportionality. Kenya has avoided these pitfalls.

Section 7 (1): introduction of 6 months’ time limit for judicial review (UK has a 3 months’ time limit). South Africa- 6 weeks’ time limit to approach the tribunal. Thus, Kenya opting for “a reasonable time” is good.

Section 7(2): was also criticized for the strict requirement of exhausting internal remedies before approaching the tribunal. It was rather unfortunate that Kenya reproduced this provision. In South Africa this requirement has been narrowly interpreted.

Worse still, is the definition of administrative action under PAJA. Its simplification in the FAAA is good.

The phrase “adversely affected” has raised a lot of controversy as well. There is inconsistency between Section 1 (definitions) and Section 3 on procedural fairness. The Act purported to apply to things that it did not cover. This threshold issue had the effect of distracting the attention of the Court away from substance to issues of technicality- and instead focused on the definition of administrative action; serving no value to administrators.

In the Albutt case, the Constitutional Court declined to decide whether the President’s refusal to pardon offenders amounted to administrative action,[25] and in the New Clicks case whether making regulations are administrative action.[26]

Courts have found ways of getting round the issue of defining “affirmative action”. For example, taking a liberal interpretation in a case like Greys Marine[27] This watered down the provisions immensely by holding that affirmative action means “action that has the capacity to affect legal rights”. On that basis almost anything can be administrative action, including the right to be promoted.

And courts have relied on routes to review other than PAJA. The principle of “legality” began to be developed in 1998, and is applied to all exercise of public power even if it cannot be called “administrative action”.  There is no longer much reason to use PAJA.

In discussion, Prof. Akech said he thought Kenya need an equivalent of PAJA s. 4 (about administrators holding a public inquiry or calling for comments from affected parties). He compared it favourably with s. 5 of FAAA, which does not have the public inquiry procedure. But Prof. Hoexter said s. 4 was largely ignored!

Another key observation made was in regard the Article 47 cases in Kenyan courts and the tendency by judges to confine themselves to the natural justice principle, hence the question on how well the judges see it beyond common law. In response, the importance of subsidiary legislation was reiterated. There is no need to rely strictly on Article 47 when there is the FAAA. It was however noted that the FAAA being fairly new, it may not be cited much.

There was general consensus on the need to educate lawyers (litigants) and judges alike to the broader sense of the FAAA to cure the confinement to Article 47. There is indeed a great opportunity to use the FAAA.

 

  1. The United Kingdom: The Development and Use of JOYS

Steven Bramley, UK Government Legal Department lawyer reminded us of how  the judicial review landscape in the UK started to develop radically after the case of Ridge v Baldwin in 1963.[28] This was the decision that applied the rules of natural justice to administrative decision making (and not just to lower courts and tribunals and bodies that could be described as “quasi-judicial” – making decisions somewhat like courts. The case caused a huge rise in judicial review cases, and there are now about ten thousand a year.

The Judge Over Your Shoulder (JOYS) was developed by government litigators, has been borrowed from by various jurisdictions and is still being developed and refined by litigators. The main purpose is to improve decision making – to get it right first time.

Steven feels that the first edition was the best, though later editions have expanded it. Maybe – he suggested – it would be a good idea to have a short version even for the public service, and also be made accessible to the public. He warned that it should not be allowed to become a source of legitimate expectations about how public decisions would be made.

There have been important impacts of JOYS, including that now the precise terms of what advice Ministers have received is revealed. There is a realisation of the importance of recording what is decided.

In the UK JOYS is linked to a major education enterprise for public servants, mixing the manual with e-learning, and involving very interactive presentations.

Katiba Institute should focus on legal awareness, helping public servants become aware of what is expected of them; not as an imposition.  The project should succinctly address key issues, including at what point should they contact a lawyer – so that the scarce resource of legal advice is most effectively used?

Similarly, the UK agreed with Kenya (KI) that the document is not meant for lawyers, and should be simple and easy to comprehend.

Another interesting point noted was the principle of disclosure. The question as to how we (in Kenya) can navigate the reluctance by the Kenyan Government about public information sharing was raised. In response, it was observed that information sharing is more of a moral obligation on the part of the civil servant. Further, “justice must be open and transparent.”

Another interesting question was raised regarding monitoring and evaluation: has there been a drop off in cases as a result of JOYS and other initiatives? The response to this was not quite in the affirmative – citing the increasing complexities of the law as one reason why a reduction in the number of challenges has not been detected. Further, it is important to note that this exercise is not necessarily meant to reduce the number of people complaining; but, the desired result is getting the administrator to get it right at first instance.

 

  1. Exporting JOYS:

Jan van Zyl Smit described how of the UK JOYS has been exported, in the sense that local variations have been adopted in New Zealand and Malawi [and also in Hong Kong –eds.]

The speaker presented a series of questions that may help guide Kenya’s conceptualisation and development of a Kenyan equivalent of JOYS:[29]

Rationale and other preliminary questions

  1. What is the rationale for having a Kenyan administrative law guide for civil servants? For example, is the primary aim to reduce litigation, increase legal awareness, improve interactions with government lawyers, and/or raise the quality of administration and decision-making?
  2. Who is the intended audience (for example, junior or senior civil servants, government lawyers)?
  3. Will the guide be an internal government document or made available to the public (perhaps with supplementary confidential guidance for internal use)? Will the guide be made available free of charge?
  4. Will the guide be available only in hard copy or also online?
  5. What process will be followed when putting together the guide? Who will be involved? Will there be broader consultation?

What will the guide cover?

  1. What will the guide cover and how detailed will it be? For example, the UK’s JOYS includes an introduction to good administration and administrative law, and a section on making a decision which covers the key grounds for judicial review. The latest edition has more than doubled in length since 1987.
  2. Will the guide cover the judicial review process? For example, later editions of the UK’s JOYS consider what happens in a typical judicial review case and the role of the civil servant (35% of the latest edition). This helps to demystify the court process and might be particularly relevant in countries where civil servants face high levels of judicial review challenges.
  3. If the guide does cover judicial review process, will it also consider the pre-action stage and alternative dispute resolution for example? Will it consider other accountability mechanisms such as ombudsmen?
  4. How many case examples will be included? Will there be any reflective discussion of the case-law? Will the guide offer case examples only from Kenya or other jurisdictions? Recent or old?
  5. Are there any specific areas that need to be addressed in detail? (For example, in the UK’s JOYS, the guide also considers questions of EU law, the European Convention of Human Rights, the Human Rights Act and devolution.)

What approach will the guide take?

  1. Will the guide give practical examples? (For example, the UK’s JOYS gives an outline for recording reasons. It also suggests how certain issues might arise in a civil servant’s daily work – for example, it advises taking care in drafting official press statements to avoid giving the impression of a fetter.)
  2. Will the guide offers tactical suggestions? See for example, the approach in the latest edition of the UK’s JOYS.
  3. Will the guide offer advice on how civil servants should carry out particular aspects of their role, for example consultation exercises and/or the preparation of recommendations to ministers (eg New Zealand)?
  4. How will the guide deal with cross-cutting issues – as they arise and/or in a standalone section? For example, where will the guide deal with the broader constitutional landscape? At the start (Malawi) or at the end (UK’s JOYS)?
  5. Will the guide suggest good practice even beyond strict legal requirements? For example, the First Edition of the UK’s JOYS suggested “Quite apart from any legal obligation ordinary courtesy may require the giving of reasons”.

Format and other presentation questions

  1. If the guide is made available online, will the guide have interactive features such as hyperlinks in the text? Are there existing legal resources that the guide could link to? Will it include a glossary or hyperlinks to define key terms?
  2. Will the guide include a summary or checklist of “questions to ask yourself” at the end of the document? Is this still feasible given the complexity of the law?
  3. Will the guide include summaries throughout the document, at the end of each section or after a particularly detailed discussion?
  4. Will it include features such as flowcharts, bullet points and/or textboxes for certain highlights (such as case examples or key time limits)?
  5. Will the guide use annexes for supplementary material?

Making the most of the guide

  1. How often will the guide be updated? If online, is there a way of providing regular updates? Will feedback be sought when revising the guide?
  2. How will the key lessons in the guide be delivered in training sessions? What will be the method of delivery? Is the guide intended to be a training document in itself or a reference document? Will there be case studies and interactive exercises?
  3. Do you need lawyers to deliver the training or can non-lawyers do so?
  4. How will the guide fit into broader legal awareness training for civil servants in Kenya?
  5. Will the guide suggest when to seek further legal advice?

In discussion, participants agreed that the idea is to be helpful to the public service; not as a demand, for instance, that failure to do something would lead to punitive action.

Another participant raised the question regarding the service charters by the PSC, including the Police etc. that are not necessarily adhered to. We are moving away from promises and bad practice. The charters raise lots of legitimate expectation from members of the public.

There was also a wide measure of agreement that there is need to understand the incentives for the civil servants so far as decision-making is concerned- why do they make bad decisions, for example. Not whom to blame per se, but we need to ask ourselves- why did they make the wrong decision?

The Public Service Commission raised the issue of the relationship between Article 232 and Article 47.  They proposed that Article 47 should not be dealt with in isolation, but in relation to the various regulations and provisions Instead of having several manuals talking about different Articles of the Constitution we could have a consolidated manual instead capturing all the information as a guide for the public servant. PSC is willing to offer its partnership and support in the generation of the manual along these lines.

To this end, it was reiterated that the reason for approaching KSG for the forum was to create content for the manual for public servants regarding Article 47. There is no need to delay the final product. Similarly, this does not mean that our work on Article 47 halts. Additionally, the first edition can be experimental in nature, and so it does not necessarily have to be perfect at this point. It is a long-term project/ engagement.

           

  1. Conclusion and Way Forward

The following key points emerged from discussion and had general support:

  • The manual should be simple, and made available and accessible to the public;
  • The need for quick dispensation of (public) administrative decisions;
  • The State should proactively provide information necessary to the public;
  • There is need for creation of awareness on the FAAA and unpackaging the right to fair administrative action generally through training of public officers on Article 47. The proposed manual would be a useful tool towards this realization.
  • The need to empower the citizens to be able to pursue administrative justice, i.e. a series of procedures geared towards empowering citizens to complain.
  • The need to educate lawyers and judges on the FAAA as well as Article 47.

[1] Article 47 of the Constitution of Kenya (2010) on “Fair Administrative Action” provides:

47 (1): “Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.”

47 (2): “If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.”

47 (3): “Parliament shall enact legislation to give effect to the rights in clause (1) [read 47 (1)] and that legislation shall:

  • provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and,
  • promote efficient administration.”

[2] No 4 of 2015, Commencement date- 25th June, 2015. Schedule 4 gave a deadline of four years for enactment, but Parliament extended the time.

[3] Suchan Investment Limited v Ministry of National Heritage & Culture[2016] eKLR

http://kenyalaw.org/caselaw/cases/view/119283/

[4] The 4th edition is available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/256111/judge.pdf. The 5th edition is nearly complete.

[5] That Article provides:

(1)           The values and principles of public service include—

(a)            high standards of professional ethics;

(b)           efficient, effective and economic use of resources;

(c)            responsive, prompt, effective, impartial and equitable provision of services;

(d)           involvement of the people in the process of policy making;

(e)            accountability for administrative acts;

(f)            transparency and provision to the public of timely, accurate information;

(g)           subject to paragraphs (h) and (i), fair competition and merit as the basis of appointments and promotions;

(h)           representation of Kenya’s diverse communities; and

(i)            affording adequate and equal opportunities for appointment, training and advancement, at all levels of the public service, of––

(i)            men and women;

(ii)           the members of all ethnic groups; and

(iii)          persons with disabilities.

(2)           The values and principles of public service apply to public service in—

(a)            all State organs in both levels of government; and

(b)           all State corporations.

[6] The Act provides that ethics on the part of a public officer require, honesty, high standards of integrity, transparency, ability to account for actions, respect towards others, objectivity, patriotism,  and observance of the rule of law (s. 5). It also provides for complaints, and for public participation.

[7] Dry Associates Limited vs. Capital Markets Authority & Another Interested Party- Crown Berger (K) Ltd. [2012] eKLR

[8] See: CCK vs. Royal Media Services Ltd. [2014] eKLR

[9] Sections 8 and 9 of the Law Reform Act, Cap. 25

[10] Under the court Civil Procedures Rules – based upon the court rules in the UK, which neither has a written constitution nor recognises a formal right to administrative justice.

[11] Peter Muchai Muhura vs. Teachers Service Commission [2015] eKLR

[12] Meshack Angeng’o Omondi vs. Eldoret Municipal Council and Another [2012] eKLR

[13] Section 9(1) of the Fair Administrative Action Act

[14] Section 3 of the Fair Administrative Action Act

[15] Section 8 of the Fair Administrative Action Act

[16] Section 9(2) of the Fair Administrative Action Act

[17] Section 9(4) of the Fair Administrative Action Act

[18] Section 9(5) of the Fair Administrative Action Act

[19] S. 7(2).

[20] “Ombudsman” is a Swedish word, meaning representative (of the people) Sweden has had a complaints office linked to Parliament since 1809.

[21] The Kenya National Human Rights and Equality Commission was established by the Constitution, but Article 59(4) allowed the Commission to be restructured to form more commissions and this was done by the creation of the Ombusdman and the Gender and Equality Commission.

[22] The PSC is the body to deal with petitions for the removal of the DPP – Art. 158(2) and (3).

[23] Pharmaceutical Manufacturers Association: in Republic ex-parte President of the Republic of South Africa and others 2000 (2) SA 674 (CC) at 33

[24] According to English courts, a decision could be reviewed for unreasonableness only if it was “so unreasonable that no reasonable person could have reach it”. The case was Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223.

[25] Albutt v Centre for Study of Violence and Reconcilation [2010] ZACC 4

[26] Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others (CCT 59/2004) [2005] ZACC 14; 2006 (8) BCLR 872 (CC); 2006 (2) SA 311

[27] Greys Marine Hout Bay (Pty) Ltd and Others v Minister of Public Works and Others (347/2004) [2005] ZASCA 43; [2005] 3 All SA 33 (SCA); 2005 (6) SA 313 (SCA)

[28] [1964] AC 40, [1963] UKHL 2

[29] See also the short paper produced by Katiba Institute for the workshop “Thoughts about “JOYS” for Kenya”.