Unlocking the revolutionary potential of Kenya's constitutional right to fair administrative action

Tuya, John Mayani

Unlocking the revolutionary potential of Kenya's constitutional right to fair administrative action

Master Thesis

2018

Publisher

University of Cape Town

Department

Department of Public Law

Faculty

Faculty of Law

Abstract

One of the remarkable features of the Constitution of Kenya, 2010 is its explicit recognition in Article 47 of the right to fair administrative action as a fundamental right in the bill of rights and the replacement of parliamentary sovereignty with constitutional supremacy. These aspects of the 2010 Constitution sought to effect broad revolutionary changes to Kenya's administrative justice jurisprudence, which was previously premised in large part on the common law. The constitutional right to fair administrative action has been further elaborated in the Fair Administrative Action Act, 2015 (FAAA), which gives content to the grounds for judicial review and outlines the relevant procedure. But despite this, Kenyan courts have in most cases failed to give meaningful effect to the revolutionary potential of Article 47. In such cases, courts often revert to the limited and outmoded options under the common law, thereby disregarding the broader and more flexible pathways to judicial review of administrative action available under the 2010 Constitution. The main question to be addressed is: whether the revolutionary potential of Article 47 of the 2010 Constitution has been realized in Kenyan law and practice; and if so, how does Kenya's administrative law jurisprudence compare with that in Malawi and South Africa, comparable jurisdictions where the right to administrative justice has similarly been constitutionalized. The central argument to be made in this study is that considerable scope exists for unlocking the revolutionary potential of Article 47 by way of: i) clarifying the meaning of 'administrative action' and the new grounds for judicial review; ii) elaborating how common law-based judicial review relates with Article 47 and provisions of FAAA; and iii) articulating the horizontal effect of Article 47. Using a comparative law approach, the case is made that much can be gained by examining the best practices from jurisdictions, like South Africa, with more progressive jurisprudence that can be adopted in those, like Kenya and Malawi, which still experience problems in giving meaningful effect to the right to fair administrative action.

Keywords

Public Law

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