Globalization, the Rule of (Administrative) Law, and the Realization of Democratic Governance in Africa: Realities, Challenges, and Prospects

This article reviews the impact of globalization on democracy in Africa. It sees globalization, which has largely taken the shape of neoliberalism, as leading to the development of a minimalist conception of democracy in African countries. Further, this article contends that administrative law norms, which are increasingly embraced in Constitutions and judicial decisions world over, can be useful instruments for deepening democracy in Africa. That is, the establishment and implementation of elaborate regimes of administrative law (containing principles, procedures, and remedies that circumscribe the exercise of both public and private power) can contribute to the realization of democratic governance in African countries. This article then demonstrates how administrative law can subject the exercise of power to the rule of law, contribute to the realization of social and economic rights, enhance public participation in governance, and contribute to the democratization of the exercise of power within legislatures and judiciaries. Globalization and the Law: The Next Twenty Years, Indiana University Maurer School of Law, Bloomington, Indiana, April 5-6, 2012

Globalization, the Rule of (Administrative) Law, and the Realization of Democratic Governance in Africa: Realities, Challenges, and Prospects

This article reviews the impact of globalization on democracy in Africa. It sees globalization, which has largely taken the shape of neoliberalism, as leading to the development of a minimalist conception of democracy in African countries. Further, this article contends that administrative law norms, which are increasingly embraced in Constitutions and judicial decisions world over, can be useful instruments for deepening democracy in Africa. That is, the establishment and implementation of elaborate regimes of administrative law (containing principles, procedures, and remedies that circumscribe the exercise of both public and private power) can contribute to the realization of democratic governance in African countries. This article then demonstrates how administrative law can subject the exercise of power to the rule of law, contribute to the realization of social and economic rights, enhance public participation in governance, and contribute to the democratization of the exercise of power within legislatures and judiciaries. Globalization and the Law: The Next Twenty Years, Indiana University Maurer School of Law, Bloomington, Indiana, April 5-6, 2012

Regional Mechanisms and Intra-State Conflicts: Implementing the African Union’s Principle of Non-Indifference?

The member states of the Organisation of African Unity (OAU) established the African Union (AU) in 2001, following recognition that Africa needed a more effective institution that could maintain peace and security. In particular,the 1994 genocide in Rwanda demonstrated to the continent that it needed to enhance its ability to act before conflicts became unmanageable and destructive.The AU consequently established an institutional framework for the prevention, management, and resolution of conflicts. This institutional framework consistsof two parallel frameworks, namely the African Peace and Security Architecture (APSA)

Towards Structured Sentencing in Kenya: A Case for Reform

This article engages in an empirical review of sentencing in Kenya. It argues that huge disparities exist in sentencing thus undermining public confidence and the realization of the goals of the system. The development of comprehensive sentencing guidelines is recommended as a panacea to the unwarranted discrepancies in sentencing. It is argued that sentencing guidelines are not intended to impede judicial discretion but rather to provide a framework within which the discretion would be exercised

A Conceptual Framework for Assessing the Performance of Kenyan Courts Undertaking Judicial Review of Legislative Action

Article 165 (3) (d) of the Constitution of Kenya 2010 gives the High Court the power of constitutional interpretation and to uphold constitutional supremacy by declaring void any law that is inconsistent with the Constitution or invalid any act or omission contravening it. Within the current Kenyan context, judicial review of legislative action has become the common practice. The courts are constantly drawn into the realm of legislative matters at the national and devolved levels of government established under the Constitution. However, the High Court’s role is limited to interpretation only and it cannot compel Parliament to modify the legislative action contravening the Constitution. Conversely, where the Legislature disagrees with the Court’s assessment of what the constitutional norms require it cannot substitute the Court’s interpretation with its own. The courts are subsequently tasked with the delicate prospect of balancing the legal and political constraints that underlie any case of judicial review of legislative action. This paper develops a conceptual framework for assessing how courts, in general, go about exercising their power of judicial review of legislative action in a way that enables them to adhere to the requirements of the separation of powers doctrine, while considering the legal and political constraints under which they must operate. The resulting framework proposes four possible types of courts that may emerge based on how a court balances the legal and political constraints prevailing upon it

Abuse of Power and Corruption in Kenya: Will the New Constitution Enhance Government Accountability

This article suggests that corruption in the Kenyan government is largely an institutional problem, rather than a cultural one. It attributes such corruption to the predominance of arbitrary power, especially in the statutory (as opposed to constitutional) order. The statutory order grants executive, legislative, and judicial actors broad powers without establishing effective procedural mechanisms to circumscribe their exercise. In the absence of effective regulation, law often aids the abuse of power and corruption. Although the new constitution establishes principles and mechanisms that may enhance government accountability, the statutory order must be aligned with the values and principles of this new constitution if abuse of power and corruption are to be curbed

Tax administration in Kenya : draft of 14th July 2015

This paper examines Kenya’s tax administration regime from the perspective of administrative law. It seeks to determine how the Kenya Revenue Authority (KRA) makes and applies rules, and adjudicates disputes arising from the exercise of its powers relating to the administration of income tax and Value Added Tax (VAT). It aims to establish whether and to what extent, the public participate in the decision-making processes of the KRA. It also assesses the role and impact of judicial review on decision making of the KRA, and has been seen to be a useful instrument in holding the KRA accountable

Evaluating the impact of corruption (perception) indicators on governance discourses in Kenya

Kenia ha medido la corrupción desde 2007, en el marco de las actuales reformas de ejecución de la contratación. Se desarrollaron indicadores de desempeño de la erradicación de la corrupción, y se encargó a la Comisión de Ética y Lucha contra la Corrupción (EACC, por sus siglas en inglés) para monitorear y evaluar su aplicación. Este trabajo pretende evaluar el impacto de estos enfoques para medir la corrupción. ¿Cómo se construyen estos indicadores? ¿Cómo se conceptualiza la corrupción, y qué tipo de preguntas se hace en las encuestas que informan estos indicadores? ¿En qué medida estos indicadores reflejan la “verdadera imagen” de la corrupción? ¿Estos indicadores contribuyen a la toma de decisiones sobre la corrupción en Kenia? ¿Qué impacto han tenido en la lucha contra la corrupción? Mediante el estudio de la producción y el uso de los indicadores de corrupción por parte de Transparencia Internacional-Kenia y del gobierno en el contexto de la lucha contra la corrupción y la reforma institucional en Kenia durante la última década, este trabajo pretende explorar en qué medida y cómo estos indicadores afectan el trabajo de los responsables de formular políticas, la sociedad civil, instituciones y el gobierno.Kenya has been measuring corruption since the 2007, in the context of on-going performance contracting reforms. It has developed Corruption eradication performance indicators, and tasked the Ethics and Anti-Corruption Commission (EACC) to monitor and evaluate their implementation. This paper seeks to evaluate the impact of these approaches to measuring corruption. How are these indicators produced? How is corruption conceptualized, and what kinds of questions are asked in the surveys that inform these indicators? To what extent do these indicators reflect the “true picture” of corruption? Do these indicators contribute to decision-making on corruption in Kenya? What impact have these indicators had on the fight against corruption? By examining production and use of the corruption indicators by Transparency International-Kenya and the Government in the context of the fight against corruption and institutional reform in Kenya over the last decade, this paper seek to explore whether and how do these indicators affect the work of policymakers, civil society, institutions, and government

Local governance in Kenya : draft of 2nd April 2015

Promises of democratic decentralization can only be realized where the governance system facilitates public participation in and accountability of, local governments. This paper examines the nature of local governance in Kenya since the promulgation of the Constitution of 2010; the extent to which local governance practices adhere to the principles of administrative law; the extent of public participation in decision-making; and the role and impact of judicial review on local government decision-making. It focuses particularly on the administration of trade licensing, and development planning control, and the resolution of disputes arising from these two aspects of local governance