WEEK 2: CONSTITUTIONAL CONCEPTS AND POLITICAL THEORY

RELATING TO ADMINISTRATIVE LAW

Essential Readings

➢ Migai Akech, Administrative Law (Strathmore University Press, 2016) Ch 1

➢ Peter Leyland & Gordon Anthony, Textbook on Administrative Law (5th Edn, Oxford:
Oxford University Press 2005) Ch 1
➢ Robert Dahl, Democracy and its Critics (Yale University Press, 1989) 1-30 & 109-113
➢ John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Harvard University Press
1980) 8, 103 & 183
➢ Craig, Administrative Law (London: Sweet and Maxwell, 2016) Ch 1
➢ Peter Cane, Administrative Law (5th Edn, Oxford, Oxford University Press, 2011) Ch 1
➢ Dylan Lino, ‘The Rule of Law and the Rule of Empire: A.V. Dicey in Imperial Context’
(2018) 81(5) Modern Law Review 739
➢ Brian Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge University Press,
2004) 24-25

Outline

➢ Administrative Law and Democracy

➢ Liberalism
➢ Separation of Powers
➢ Parliamentary Sovereignty—Does it Apply in Kenya?
➢ Rule of Law
➢ Questions to Consider

Issues Arising
 Constitutional concepts and political theory provide the theoretical basis or framework for
public administration as it relates to public activities.
 These lend explanatory significance to any analysis of an administrative law system.

1) Administrative Law & Democracy

• Administrative law is instrumental in making sure that State organs’ exercise power of is
democratic. ‘Administrative Law is ‘instrumental to the realization of day-to-day
democracy, since it requires that decisions of government must not only be subjected to
checks and balances, but must also be explained or justified to the people that they affect’
(Migai Akech, Administrative Law (Strathmore University Press, 2016) xxx)
• The oft cited definition of democracy is in the words usually attributed to Abraham
Lincoln ‘democracy is government of the people, by the people, for the people’.
• Migai Akech, Administrative Law (Strathmore University Press, 2016) 4-5:
 ‘Democracy may be defined as a form of government in which a group of people
who belong to a political organization, such as a city-state or nation-state, rule of
govern themselves. It is a system of rule by the many, as “distinguished from

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 monarchy (the rule of one person), aristocracy (the rule of the best), and oligarchy
(the rule of the few).” Democracy has its origins in Ancient Greece, where it was
termed “demokratia,” meaning rule by the people. The Greeks, who lived in
relatively small city-states, saw democracy as ‘a political system in which the
members regard one another as political equals, are collectively sovereign, and
possess all the capacities, resources and institutions they need in order to govern
themselves.’
 ‘Democracy should also be seen as “a unique process of making collective and
binding decisions.”’
 Robert Dahl sees the democratic process as having 4 distinct characteristics:
1. ‘it mandates effective participation, meaning that throughout the decision-
making process citizens should be given an adequate opportunity to
express their preferences as to the final outcome.’
2. ‘it mandates “voting equality at the decisive stage,” meaning that each
citizen should have “an equal opportunity to express a choice that will be
counted as equal in weight to the choice expressed by any other citizen.”’
3. ‘it requires “enlightened understanding,” which means that the people
must be knowledgeable enough to “know what it wants, or what is best.”’
4. ‘the people must control the agenda. That is, they must be sovereign, in
the sense of having the power “to decide how matters are to be placed on
the agenda of matters that are to be decided.”’ (See Robert Dahl, Democracy
and its Critics (Yale University Press, 1989) 1-30 & 109-113)
• Flaws of representative and majoritarian democracy
 John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Harvard University
Press 1980) 8, 103 & 183:
1. ‘the ins are choking off the channels of political change to ensure that they
will stay in and the outs will stay out’
2. The need to protect rights of minorities from tyranny of the majority—
‘though no one is actually denied a voice or a vote, representatives
beholden to an effective majority are systematically disadvantaging some
minority out of simple hostility or [prejudice]’
3. ‘No matter how open the process, those with most of the votes [or
effective minorities] are in a position to vote themselves advantages at the
expense of the others, or otherwise to refuse to take their interests into
account’
4. politically ineffective majority like women

2) Liberalism
• this is a political doctrine that takes protection and enhancement of individual freedom as
the centre of politics. It emphasizes on autonomy, equality of opportunity, and the
protection of individual rights.
• Migai Akech, Administrative Law (Strathmore University Press, 2016) 6-8:
 The idea of liberalism has contributed a lot to the modern practice of democracy.
 ‘Freedom, or individual liberty, is the preoccupation of liberalism. According to
John Stuart Mill, for example, each individual has the freedom to pursue his or her
own good in his or her own way, provided he or she does not “attempt to deprive
others of theirs, or impede their efforts to obtain it.” In particular, although
liberalism sees government as necessary and inevitable if human beings are to
preserve their liberty, it is at the same time concerned with how government

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 exercises power, and seeks to limit government “in its powers and its modes of
acting.” According to John Locke, for example, life in the state of nature is insecure
and prone to disputes since there is no law, and no one to enforce it. For this
reason, autonomous individuals voluntary choose to enter a mutually binding
covenant – the so called “social contract” – “to form a government authorized to
promulgate and enforce a body of laws in the interest of preserving order, thereby
exchanging their mutual freedom for living under a legal system, while retaining
their basic rights and liberties.” This arrangement is considered legitimate because
it is based on the consent of the autonomous individuals who constitute the polity.’
 ‘At the root of liberalism is the principle that all human beings are created equal,
and must therefore “be treated with equal respect and dignity, due as human beings
with the inherent capacity for reason and moral conduct.” Further, preserving
individual liberty and treating individuals equally means that the government must
remain neutral on the question of the good. Indeed, “the equal right of each
individual to pursue her own conception of the good” has been described as the
principle tenet of liberalism. This tenet is based on the belief that “the ultimate
principle of men and women is plural and can be realized only by voluntary
efforts.” For the most part, therefore, liberals believe that individual liberty dictates
that “government must strive to remain neutral among competing conceptions of
the good.’
 ‘It therefore envisages limited government that protects negative rights and
upholds “justice.”’
 ‘Although the logic of the ideals of liberty and equality necessitated popular
democratic government, as this would be the only form of legitimate government
given its foundation on the consent of individuals, liberals such as James Madison
were particularly apprehensive that it would tend toward oppression by the
majority faction. Madison viewed direct democracies as “spectacles of turbulence
and contention,” and thought that “the so-called “self-rule” of democracy was
something of a fiction that contained a risk of institutionalizing domination by
some over others.” This would happen since factions would lead to a “rule of the
more populous, or more organized, or more powerful, over the lesser group.”
Accordingly, liberals sought “to combine popular sovereignty with the protection
of every citizen’s rights to life, liberty, and property. This was to be achieved
through three mechanisms, namely: representative democracy as it ‘would allow
the representatives to exercise deliberation and wisdom when enacting laws,
resistant to the passions that sway direct democracies’; the separation of powers
doctrine as a means to check power with power and “make it difficult for the
governmental apparatus to be captured by any particular group and wielded against
others”; and judicial review of legislation to ensure that it does not trample on
constitutional restrictions.’ (Emphasis added)
• Peter Cane and Joanne Conaghan, The New Oxford Companion to Law (Oxford University
Press, 2008) section on liberal democracy:
 ‘Democracy is a form of self‐government that embodies and secures the political
equality of citizens. When all citizens have the vote and are eligible to stand for
public office there is the greatest prospect that laws will be enacted, and policies
adopted, that meet with popular approval and consent. Self‐government also
requires> freedom of speech, enabling people to express their political opinions
and seek to persuade others to support their favoured causes. The freedom to
participate in government and politics is not, however, the only feature of a decent
society, which ought to serve a wide range of fundamental human interests.

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 Political equality does not guarantee justice, unless one thinks that justice is simply
whatever the majority approves or desires. A liberal believes that such fundamental
rights as those of speech, conscience, association, and privacy are necessary to
human well‐being: they have a special value beyond any contribution they make to
democratic decision‐making. Certain basic individual rights should therefore be
protected from political interference. If democracy means government by a
majority of citizens, or a majority of elected representatives on their behalf, there
is always the danger that individual freedom will be sacrificed to the popular
political ends of the moment, and that the legitimate interests of minorities will be
unfairly overridden.’
 ‘In his famous work, Democracy in America (two volumes: 1835 and 1840), Alexis
de Tocqueville warned that the principle of popular sovereignty had given rise in
the North American republics to a ‘tyranny of the majority’, which threatened
personal freedom. His fears about democracy were echoed by John Stuart Mill,
who sought to preserve an inviolable sphere of individual freedom or
independence, immune from legal interference or even the moral coercion of
public opinion. The state could properly restrict a person's activities only when
they threatened harm to others; over matters concerning only his own welfare, he
was his own ‘sovereign’ (On Liberty, 1859). Liberalism celebrates the right of the
individual to live according to his or her own ideas about the pursuits and purposes
that make life valuable, even when the majority disapproves.’
 ‘In a liberal democracy, political power is moderated by the rule of law: the
individual is subject to coercion only in accordance with law, previously announced
and fairly administered by independent and impartial judges. Government officials,
accordingly, must observe legal limits on their powers even when they are seeking
to give effect to the popular will, or the will of a parliamentary majority.’

3) Separation of Powers
• I.A. Saiyed, Administrative Law (Himalaya Publishing House, 2007) 23: ‘it is said that
ultimate power should not be in the hands of only One authority because “power corrupts
and absolute power corrupts absolutely”. Therefore, in modern era, there is separation of
powers. As such, the said ultimate power (capable of altering and declaring the law) is
now vested in three different wings of the Sovereign State.’—legislature, judiciary and
executive.
• Peter Cane, Administrative Law (5th Edn, Oxford, Oxford University Press, 2011) 23
 Relates to core institutions of central government: legislature, the executive (or
‘administrative’), and judiciary.
 According to Montesquieu ‘[t]he underlying idea was that concentration of power
facilitates and encourages its abuse, and that ‘the separation of powers provides a
bulwark against such abuse’.
• Montesquieu, De L’Esprit des Lois (1978):
 ‘When the legislature and executive powers are united in the same person, or in
the same body of magistrates, there can be no liberty… Again, there is no liberty,
if the judicial power be not separated from the legislature and executive. Were it
joined with the legislature, the life and liberty of the subject would be exposed to
arbitrary control; for the judge would then be the legislator. Were it joined to the
executive however, the judge might behave with violence and oppression. There
would be an end to everything, were the same man, or the same body … to exercise
those three powers.’

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 • Peter Cane and Joanne Conaghan, The New Oxford Companion to Law (Oxford University
Press, 2008):
 Propounded by Montesquieu (1748), ‘the principle requires a separation of functions
and a separation of persons discharging them. The point of the latter is easy to grasp:
it would be dangerous for the legislative and executive powers to be controlled by
the same body, for it might enforce its own laws tyrannically. Judicial separation,
or independence, from the other powers is crucial; otherwise courts might
discriminate when they apply laws—to the advantage of the government and
against its opponents. A pure separation of powers is observed in France, where
ministers may not sit in the National Assembly and the ordinary courts may not
interfere with decisions of the executive or declare laws invalid. A different
approach has been taken in the United States. Under the partial separation principle
the three branches of the government—Congress, President, and courts—are
controlled by different people, but they participate in the work of the others. For
example, the President may veto legislation and the Supreme Court can invalidate
unconstitutional legislation. Under this approach the principle provides checks and
balances to stop the concentration of power.’
• Peter Leyland & Gordon Anthony, Textbook on Administrative Law (5th Edn, Oxford:
Oxford University Press 2005) 21-22:
 ‘This doctrine of the “separation of powers” developed as a political theory to
prescribe what ought to happen in relation to the distribution of powers within a
constitution. Essentially, it suggests that the abuse of power will be limited by
distributing different functions, legislative, executive and judicial, between
governmental institutions to prevent any one of them from predominating, thus
preventing power from being concentrated in a single person or body.’

4) Does Parliamentary Sovereignty Apply in Kenya?

• Peter Leyland & Gordon Anthony, Textbook on Administrative Law (5th Edn, Oxford:
Oxford University Press 2005) 18:
 The doctrine of parliamentary sovereignty ‘suggests that no other body or
individual is higher that Parliament and that Parliament has an unqualified legal
capacity to pass new legislation or repeal earlier legislation’.
 It excludes judicial review and the possibility of there being legally enforceable
limits to the work of the legislature.
 The stated historical understanding of parliamentary sovereignty is highly debated,
and it is questionable whether it has a place in current thinking and practice with
regards to the functions and powers of the legislature. Indeed, in these current
times, there is relatively little, if at all, acceptance of the idea of a legislature with
absolute power as this may lead to authorisation of oppressive laws such as
‘indefinite detention without trial, the infliction of torture, or in any way lead
inexorably to the denial of fundamental rights’. (See Peter Cane and Joanne
Conaghan, The New Oxford Companion to Law (Oxford University Press, 2008)
section on Parliamentary Sovereignty).
 Some legal scholars argue that parliamentary sovereignty still exists but ‘is no
longer, if it ever was, absolute’ (Justice Hope in R (Jackson) v Attorney-General
(2005) at paragraph 104).
 Other commentator state that Parliamentary Sovereignty can be seen in instances
where States ratify international instruments relating to human rights that prohibit
acts such as torture, genocide or racial discrimination, Parliaments of such States

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 cannot enact laws incompatible with the requirements in the ratified international
Covenant.
▪ See for example in Mary Rono v Jane Rono & Another [2005] eKLR,
where Justice Waki applied international covenants ratified by Kenya and
international customary law in finding that section 84(4) of the previous
Constitution which allowed the application of personal laws that
discriminate on the grounds of sex ,such as succession laws denying
married women the right to inherit, unlawful.

• In Kenya, the 2010 Constitution vests Parliament with powers and also imposes limitations
upon it. For instance, limitations in terms of enactment of laws that violate fundamental
rights and freedoms. It is up to the judiciary, upon a legal action being lodged in a court of
law, to determine whether Parliament has respected the fundamental rights and freedoms
at issue and, if not, the court can then declare the impugned legislation unconstitutional
and set it aside. This is what is referred to as the judiciary’s judicial review function (to
be discussed in a later lecture).
• Thus, in Kenya, Parliament does not have an unqualified legal capacity to make legislation.
Parliamentary sovereignty can only be said to apply as it relates to Parliament’s right to
make or unmake laws, and with regards to the latter point, preventing Parliament from
legislating so as to bind a future Parliament.

5) Rule of Law
• Administrative law is an essential tool in ensuring government administrative bodies
respect the rule of law.
• Albert Venn Dicey, Introduction to the Study of the Law of Constitution (1885):
 The phrase ‘rule of law’ was first elaborated by Dicey in his 1885 seminal work.
 According to Dicey, the rule of law means that ‘no man is punishable or can be
lawfully made to suffer in his body or goods except for a breach of law punishable
in the ordinary legal manner before courts of the land’.
 His account of the rule of law emphasises on three central elements:
o See Dylan Lino, ‘The Rule of Law and the Rule of Empire: A.V.
Dicey in Imperial Context’ (2018) 81(5) Modern Law Review 739,
741); Peter Leyland & Gordon Anthony, Textbook on Administrative
Law (5th Edn, Oxford: Oxford University Press 2005) 26; and I.A.
Saiyed, Administrative Law (Himalaya Publishing House, 2007) 16):
1. Supremacy of the law—the idea of ‘government through legal norms
and procedures rather than unrestrained discretion’—‘It means in the
first place, the absolute supremacy or predominance of regular law as
opposed to the influence of arbitrary power, and excludes the existence of
arbitrariness, of prerogative, or even wide discretionary authority on the
part of the government. (see Entick v Carrington (1765) 19 St Tr 1030,
Lord Camden.)’ According to Dicey, ‘A man may be recognised for the
breach of the law, but can be punished for nothing else. Therefore,
according to him, wherever, there is discretion; there is a room for
arbitrariness whereas for the supremacy of law, there must be total absence
of arbitrary power. It is because if discretion is given to any person, he is
likely to use it arbitrarily and this the supremacy of law is destroyed at the
hands of arbitrary powers’—– The government is subordinate to law
and law is not subordinate to Government.

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 2. Formal equality before the law—‘it means “equality before the law, or
the equal subjection of all classes to the ordinary law of the land
administered by the ordinary law courts.”’
3. Predominance of legal spirit—‘[T]he establishment of individual
rights through gradual, bottom-up (common-law) development’—
As per Dicey, ‘like in England, even if written Constitution is absent in any
country then also the citizens can be ensured their freedom if they have
the “right” enforceable in the Court of law. According to him the “rights”
would be secured more adequately if these “rights” were enforceable in
“Law Courts” than by mere declaration in Documents, like the
Constitution’. ‘It means the constitution is the result of the ordinary law as
developed by the courts through the common law tradition and provides
for the legal protection of the individual not via a bill of rights, but through
the development of the common law.’

• Peter Cane and Joanne Conaghan, The New Oxford Companion to Law (Oxford University
Press, 2008) section on rule of law:
 ‘The rule of law is an ideal to which every legal system aspires, and against which
it must be judged. It expresses the value of legality, which is closely linked to the
equally important values of justice and freedom. Neither justice nor freedom can
survive without scrupulous adherence to the rule of law, which affords the citizen
protection from arbitrary power—power exercised, whether by government
officials or private individuals or corporations, in a manner that pays no regard to
the citizen's legitimate interests or concerns. The law should constitute a barrier
against whim or caprice, as well as against unfair treatment that betrays contempt
for the citizen, or a minority group. It should be a safeguard against tyranny,
whether the tyrant be a powerful fellow citizen, an overbearing official, or a
ruthless political faction seeking the support of an elected majority in Parliament.
The law can only perform that role, however, when it meets certain standards of
law-making that acknowledge the citizen's dignity, as a recipient of intelligible laws
which he can understand and obey in recognition of their contribution to justice
and the common good.’
• Peter Leyland & Gordon Anthony, Textbook on Administrative Law (5th Edn, Oxford:
Oxford University Press 2005) 26:
 ‘the rule of law at its broadest is a framework that constrains arbitrary use of power.
And for this reason, it is frequently linked to the separation of powers and the idea
that such power, where exercised, should always be subject to the principles of
accountability before the law. That is, it is a set of rules within which, for example,
private citizens should be allowed to lead their lives without undue interference
from the state and its representatives. But when the intervention of the state
becomes inevitable or desirable, then responsibility for actions taken should always
be followed.’
• Migai Akech, Administrative Law (Strathmore University Press, 2016) 9-10:
 ‘The essence of the rule of law ideal is that “people ought to be governed by law.”
The broadest understanding of the rule of law is that ‘the sovereign, and the state
and its officials must operate “within a limiting framework of the law,” in
two senses. First, they must abide by the existing law. And second, even when they wish
to change the law, they must respect the restraints imposed on their law-making power by the
dictates of natural justice or customary law, and in more recent times, constitutional requirements.’
(Emphasis added)

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  Rule of law and certainty and predictability of laws: ‘This formulation of the rule
of law is particularly appealing to capitalism since, in the words of Hayek, “it makes
it possible to foresee with fair certainty how the authority will use its coercive
powers in given circumstances and plan one’s individual affairs on the basis of this
knowledge.”’
 ‘A third formulation of the rule of law contrasts it to the “rule of man,” and is
often expressed either as “the rule of law, not man” or “a government of laws, not
men.” Basically, it expresses the “idea that to live under the rule of law is not to be
subject to the unpredictable vagaries of other individuals – whether monarchs,
judges, government officials, or fellow citizens.” In this understanding, the law
shields us from ‘the unfamiliar human weaknesses of bias, passion, prejudice, error,
ignorance, cupidity, or whim.” And to make the rule of law, not man’ possible, it
is necessary to establish a judiciary as the guardian of the law and populate it with
judges who are ‘unbiased, free of passion, prejudice, and arbitrariness, loyal to the
law alone.’
• Brian Tamanaha’s 4 ways in which the rule of law furthers freedom (see Brian Tamanaha,
On the Rule of Law: History, Politics, Theory (Cambridge University Press, 2004) 24-25 and
Migai Akech, Administrative Law (Strathmore University Press, 2016) 10-11):
1. ‘it guarantees political liberty or self-rule since the individual participates in
the making of laws, and to that extent is “at once ruler and ruled.” This
presumes that in a democracy citizens will not enact laws that would
oppress themselves.’
2. ‘’the rule of law guarantees legal liberty, that is, “the freedom to do
whatever the laws do not explicitly proscribe.”’
3. ‘the rule of law guarantees personal liberty in so far as it restricts the
government “from infringing upon an inviolable realm of personal
autonomy,” otherwise known as human rights, which are the claims all
human beings are justly entitled to make merely by virtue of their being
human. These restrictions either prohibit the government from interfering
with protected rights, or require it to “satisfy a high burden”, such as
demonstrating compelling necessity, before interfering with them. And
these restrictions are necessary because human beings “do not
unreservedly transfer their natural rights to the sovereign when they
establish a commonwealth,” and only give up their rights to the extent that
the government pursues “the public good of the society, which is
understood as the preservation of the lives and possessions of those who
compose it.”’
4. ‘the rule of law promotes the “institutionalized preservation of liberty,” by
dividing the powers of government into the separate compartments of
legislative, executive and judicature. It does so by “preventing the
accumulation of total power in any single institution, setting up a form of
competitive interdependence within the government.” More particularly,
“Allocating the application of law to an independent judiciary insures that
a consumable legal institution is available to check the legality of
governmental action.’
• Peter Cane and Joanne Conaghan, The New Oxford Companion to Law (Oxford University
Press, 2008) section on rule of law:
 Still on the rule of law and certainty and predictability of the law—the principle of
nulla poena sine lege is fundamental to the rule of law (no-one should be
punished in the absence of law, stipulating the prohibited conduct in advance of
his/her actions): ‘A retrospective penal law is an arbitrary invasion of personal

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 liberty; and laws that punish conduct committed without any intentional
wrongdoing are usually condemned on the same ground. Arbitrariness is avoided
only when the laws are framed in a manner that enables the citizen to conform to
their demands, and when such laws are faithfully applied by judges and other
officials according to their true meaning. If citizens and officials were not equally
bound by the law, there would be no security against oppression.’
 ‘The need for the law to be faithfully applied to particular cases shows the
importance of fair judicial procedure. The facts of a case must be fairly and
accurately ascertained, giving the person affected an opportunity to address the
court or tribunal, which must be open-minded and unbiased. He must be able to
challenge the details of the case presented against him, as well as offer evidence or
argument in favour of his own position; and these requirements are of special
importance in the case of criminal proceedings. The defendant's right to a fair
criminal trial, based on public testimony in open court before an impartial judge,
or judge and jury, may be considered a prime ingredient of the rule of law.’
 ‘We can also say that separation of powers between legislature, executive
government (ministers and officials), and judiciary is a natural and necessary ally of
the rule of law. The citizen is shielded from arbitrary state power only if those
officials who may employ coercive force are constrained by rules of law they
cannot themselves remove. Parliament may confer discretionary power on
ministers or officials, but such power must be used for its proper purpose in
furtherance of the public good; and the appropriate limits and conditions can be
determined and enforced by independent judges. In the absence of a legally
recognized power to act, an official is as much bound by the ordinary laws of the
realm as the private citizen. English common law, at any rate, acknowledges no
general governmental discretion to commit trespasses or other wrongs for reasons
of “state necessity”: see Entick v Carrington (1765).’ (Emphasis added)
• Guiding questions in thinking about the rule of law: Are the rules sufficiently clear and
understandable? Are they applied predictably and not retrospectively? Do they permit of
fair challenge? Are they equally enforced?

6) Questions to Consider
1. Do administrative bodies have executive, legislative and judicial powers?
2. Do you believe that overall government regulation serves useful purposes? Why or
why not?
3. Write short notes on the following:
a. Democracy
b. The rule of law
c. Separation of powers
d. Liberalism