GROUP 3 ADMIN LAW I (Regular Class) GROUP ASSIGNMENT

LECTURER: Dr. Seth Wekesa Date of Submission: 4/12/2024

NAME REGISTRATION SIGNATURE

NUMBER
Mwangi GPR3/5658/2023
Yvonne
Njeri
Herald GPR3/3790/2023
Bange

Otieno GPR3/3751/2023
Frankline
Ferdinand
Chege GPR3/3868/2023
Brian
Gikonyo
Vincent GPR3/3819/2023
Mugo
Ngunjiri
Omanga GPR3/3763/2023
Austine
Nyakundi
Mburu GPR3/3679/2023
Pius
Ndung’u
Ngugi GPR3/3700/2023
Susan
Wangari

Tungwet GPR3/3880/2023
Josaiah
Kiplangat

Maranda GPR3/3686/2023
Victor
Ouma
Dennis G34/3314/2022
Mugo
Mwangi
Stephen GPR3/3715/2023
Mburu
Ndung’u

Opiyo GPR3/3719/2023
Felix
Owino
Introduction
Max Weber defines bureaucracy as a formal hierarchical organization with many levels
in which Tasks responsibilities and authority are delegated among individuals, office
or departments held together by central administration.
According to Karl Marx bureaucracy rarely creates wealth by itself but rather controls,
coordinates and governs the production, distribution and Consumption of wealth.
The state and Bureaucracy are intertwined in one way or the other and as has been
opined by many scholars such as Muiru who stated that, "the bureaucratic apparatus
of a state determines whether a state progresses or regresses as much as its political
leadership. This is because the bureaucracy is intimately involved in not just the
formulation of policy but its implementation as well"

Principles of modern bureaucracy include:

1. Fixed and official jurisdictional areas ordered by rules.

2. Office hierarchy
3. Management is by written documents
4. Bureaucrats are experts
5. Official activity demands the full working capacity and is thus a full-time job
6. Management is on the basis of general rules.

Due to the core features of bureaucracy (secrecy, rigidity, hierarchy) there exists a
conflict between bureaucracy and democracy.

Limitations of bureaucracy

1. Rigid procedures slow down the decision-making process, leading to

inefficiency in government.
2. It limits administrative officials` use of common sense because rules are
written.
3. Inefficiency and waste—Resources may be wasted maintaining bureaucratic
structures rather than focusing on service delivery.
 4. Favouritism and nepotism- Bureaucracies may become politicized, leading to
favouritism, nepotism, or unfair practices in hiring or service delivery.
5. Overspecialization of duties denies officials the opportunity to learn and
explore new areas and ideas.
6. The creation of more rules complicates governance and diminishes
coordination and creates contradiction.

Due to these limitations, there have been efforts to improve the efficiency of the
bureaucratic system in Kenya. These efforts are observed over a period of time and thus
in this paper divided into pre 2010 and post 2010.

Pre 2010 strategies and mechanisms

Reforms at independence;
The immediate post-colonial public service was modeled according to the
Westminster-Whitehall tradition1. This was a public service guided by professional
ethics of impartiality, effectiveness and discipline in the management of public
affairs2.

Reforms by the 1963 Constitution of Kenya;

The independence Constitution made elaborate measures to have an efficient public
service; it provided for an autonomous Public Service Commission which was in
charge of discipline, recruitment, promotion and dismissal of public servants 3. The
independence constitution restricted members of the public service commission from
being political figures nor public officers as such figures might be indebted to their
appointees4. Members of Public Service Commission were also given security of
tenure5where they were to be removed from office after a tribunal looks into the
matter.

1 A system that was inherited from the British where executive (prime minister and ministers) was accountable
to legislature; see Odhiambo Mbai Public Service Accountability and Governance in Kenya Since Independence.
2 Odhiambo Mbai Public Service Accountability and Governance in Kenya Since Independence.
3 Ibid 6; see also Migai Akech, Administrative Law, Strathmore University Press 2016).
4 See Chapter XI of 1963 constitution of Kenya; Migai Akech Abuse of power and corruption in Kenya, Indiana

Journal of Global Legal Studies.

5 Constitution of Kenya 1963 article 186(7)
Reforms through Africanization;
The government after independence took to public sector reforms through
Kenyanization to transform the sector from colonial administration into a local
independent administration6. This move was aimed at incorporating state development
and independent administration and resulted in the public service becoming a
significant national prestige tool for strengthening patriotism among Kenyans 7.

The setbacks of this move resulted in is ethnic imbalance as those replacing the white
colonial public servants were predominantly drawn from members of the Kikuyu
community who had close relationship with those who controlled the state power 8.

Public sector reforms can be traced to the 1960’s with the 1965 sessional paper no. 10
being a key institutional framework to guide the reform process9 as it promoted
Africanization. The sessional paper was intended to ensure effective governance and
enhance a state performance culture in regards to delivering quality services to
Kenya10. The immediate post-independence public service performed in an effective
manner to the extent that it was ranked the among the best performing public services
in the Sub-Saharan Africa11.

Strengthening Provincial Administration

The government further expanded the reach of the provincial administration through
district commissioners and provincial commissioners. This enhanced government
presence across the country, but entrenched centralized control.

Creation of Reform Commissions;

6 Public Sector Reforms in Kenya: Challenges and Opportunities by Alfred Ongera and Beverly Musili Kenya
Institute for Public Policy Research and Analysis (KIPRA) working paper No. 29 of 2019
7 Ibid
8 Odhiambo Mbai Public Service Accountability and Governance in Kenya Since Independence.
9 Public Sector Reforms in Kenya: Challenges and Opportunities by Alfred Ongera and Beverly Musili
10 ibid
11 ibid
Good performance moments in the public sector were short lived and the 1970 saw a
deterioration in the public service sector as justified by the over staffing, poor services
offered, poor remuneration, indiscipline and unethical staff. This necessitated the
urgent need of reforms and one of the reforms was appointing commissions to look
into the public service. One of such commission was the Ndegwa commission which
was to investigate the appropriate structure and remuneration in the public service 12.

The key finding with these commissions/committees was that productivity,

performance, and the manner in which civil servants rendered their services needed
improvement13. For instance, it was noted by the Ndegwa Commission that structure
of civil service in Kenya was a key barrier towards effective performance and
therefore recommended that public servants be allowed to participate in private
businesses. This recommendation was a major departure from the known universal
principle that does not allow professional public servants to own private property or
engage in business14. This proposal was implemented resulting in widespread
corruption and abuse of office15.

Other commissions established by the government of Kenya to advice on how to

streamline the performance of the civil service 16 were the Pratt Commission (1963)17 ,
the Adu Review Committee (1964) 18, Millar-Craig Commission (1967)19, Wamalwa
(1972-1980), Waruhiu (1979) and Ramtu (1985) commissions.

The set back of reforms by commissions was that the recommendations by the
commissions were never implemented in totality. One instance was the proposal of

12 Odhiambo Mbai Public Service Accountability and Governance in Kenya Since Independence; the commission’s
report was submitted to the president in 1971 and had strict conditions under which a public servant could own
property and run a private business; it also recommended the establishment of the office of ombudsman to
investigate and monitor the performance of officers of the public sector.
13 Public Sector Reforms in Kenya: Challenges and Opportunities by Alfred Ongera and Beverly Musili
14 Odhiambo Mbai Public Service Accountability and Governance in Kenya Since Independence.
15 See the observation of Habel Nyamu the former principal Kenya Institute of Administration in 1975 and Gok,

1980: Waruhiu Committee Report 1980)

16 Public Sector Reforms in Kenya: Challenges and Opportunities by Alfred Ongera and Beverly Musili
17 which focused on setting remuneration and terms of service in civil service and saw rapid increase in salaries

among the top echelon

18 focused on training recommended the expansion of the curricula offered by the Kenya Institute of

Administration by introducing new programmes to continue improving performance and productivity of public
servants
19 which noted that in comparison with smallholders’ income, the public servants’ income levels had significantly

improved, a fact that prompted the commission to recommend a salary increase for low-income earners only
the Ndegwa Commission of strict conditions under which a public servant could own
a private property and run a business and the creation of the office of ombudsman to
investigate and monitor the performance of public servants which was not
implemented20.

Moi-Kibaki era;

Signing Performance Contracts;

The performance-based reforms were introduced. An example is the performance

contracting which was first signed in 1989 between the government and Kenya
Railways that was followed by that between government and National Cereals Board
in 199021. Due to lack of political goodwill, the performance contracting failed and
was again re-introduced in 2003 by the government in its Economic Recovery
Strategy for Wealth and Employment Creation 2003–2007 for adoption as a tool for
management of public resources and as a key element of the civil service reform
strategy22.

A performance contract is a written agreement between the government and the head
of the state agency, like a state corporation or local agency, that delivers services to
the public, in which quantifiable targets are specified for a period of time and
performance measured against agreed targets at the end of stated periods 23. The
performance contracting implementation was expanded and by 2006 almost the entire
public service in executive was engaging in performance contracting 24

Statutory Reforms;

Statutory reforms were implemented through creation of statutes aimed at eradicating

corruption, enhancing accountability and reducing amount of wastage in public

20 Odhiambo Mbai Public Service Accountability and Governance in Kenya Since Independence.
21 Public Sector Reforms in Kenya: Challenges and Opportunities by Alfred Ongera and Beverly Musili
22 Ibid; Migai Akech, Administrative Law, Strathmore University Press; Performance contracting as a performance

management tool in the public sector in Kenya: Lessons of learning Kempe Ronald Hope, Sr.
23 Performance contracting as a performance management tool in the public sector in Kenya: Lessons of learning

Kempe Ronald Hope, Sr.

24 Ibid
service. This saw the enactment of the Anti-Corruption and Economic Crimes Act
2003, which solely focused on issues to do with corruption and ethics in the civil
service, and the Public Officer Ethics Act 2003 25, Public Service Commission
Regulations of the Public Procurement and Disposal Act 2005 which helped to
strengthen these initiatives 26 and the Leadership and Integrity Act of 2012.

Privatization;

Most of the public service sector was nationalized especially under Kenyanization.
The Sessional paper no 10 of 1965 guided nationalization under which a few private
sector operations were brought under government control 27. The sessional paper
however pointed out that nationalization was needed where assets in Private sector
threatened security or undermined integrity of the nation; or when productive
resources were being wasted or other less costly means of control are not available28.

It was pointed out by the Report on Review of Statutory Boards (1979) that the
growth in parastatal sector had not been accompanied by development of efficient
systems. Similar findings were made by the Report on Working Party on Government
Expenditures (1982) and Sessional Paper No.4 of 1991 that decried on continued
deterioration of the performance of state corporations and emphasized on the need to
implement privatization and divestiture of state corporations 29.

Privatization is one of the reforms that took place in a bid to enhance public service
efficiency and by the end of 2002 most of the nonstrategic commercial public
enterprises had been privatized 30. Privatization is the transfer of ownership or control
of public assets and/or functions from public to private entities driven by citizens or
the government31. Privatization typically embraces measures such as divestiture,

25 Sections 11-21 Public Officer Ethics Act, Cap 183 Laws of Kenya
26 Public Sector Reforms in Kenya: Challenges and Opportunities by Alfred Ongera and Beverly Musili
27 The Effect of Privatization on Firm Financial Performance in Kenya by Gitari John Muthii and Jagongo Ambrose
28 The Effect of Privatization on Firm Financial Performance in Kenya by Gitari John Muthii and Jagongo Ambroses
29 The Effect of Privatization on Firm Financial Performance in Kenya by Gitari John Muthii and Jagongo Ambrose
30 Ibid; Privatization Programme 2008
31 Migai Akech Privatization and democracy in East Africa
commercialization or corporatization, commodification, contracting out and public-
private partnership32.

Privatization was facilitated by the Privatization Act of 200533 and had been
addressed in the Sessional Paper No. 6 of 2005 titled; Privatization of State
Corporations and investments. Notable privatization under Kibaki was the
privatization of KenGen, Kenya Reinsurance, Safaricom and Mumias Sugar.

Reforms post the 2010 constitution;

The 2010 constitution came with reforms to the public service giving in to the
demands of citizens who wanted independent and accountable public service
commission with transparent appointment processes34. The constitution indeed
provided solutions to the problems in public service first by according itself
supremacy35 and obligating every individual to uphold the constitution 36. The reforms
of the 2010 constitution are:

(a) The devolution and Access of services;

This was a major reform of the constitution as it enhanced access of public services
by many citizens. Article 6 divided the territory of Kenya into counties37 mandated
national State organs to ensure reasonable access to its services in all parts of the
Republic with regard taken as to the nature of the service 38.

(b) National values and principles of governance;

32 Ibid
33 Act No 2 of 2005 aimed to provide for the privatization of public assets and operations, including state
corporations by requiring the formulation and implementation of a privatization programme by a privatization
commission to be established by the act and for related purposes.
34 Constitution of Kenya Review Commission, Final Report of the Constitution of Kenya Review Commission 2005
35 constitution of Kenya 2010 Article 1
36 2010 Constitution of Kenya Article 3
37 Cok 1st Schedule
38 CoK art 6
The constitution declared that these principles are binding to all State organs, state
officers, public servants and all persons. Among these principles are patriotism, rule
of law, devolution of power, good governance, integrity, transparency and
accountability39.
(c) Elevating Fair Administration to a right;

The 2010 constitution made fair administration a right by providing for it in the Bill
of Rights under article 47 which provides that every person has a right to
administrative action that is expeditious, efficient, lawful, reasonable and procedurally
fair. This provision is buttressed by the Fair Administration Action Act of 2015 which
together with article 47 give citizens a tool that they can use to test whether they are
experiencing good or bad administration 40.

(d) Provisions of Chapter 6 on Leadership and Integrity;

The 2010 constitution aimed at achieving accountability in the public service through
the provisions of chapter 6. First of all, it views public officers as holders of public
trust whose functions are to serve citizens and not to rule over them 41. It goes ahead to
point out that authority of the public officer is to be exercised in a manner that is
consistent with the purpose and objects of the constitution 42.

This chapter also entails strict rules of conflict of interest which are to aid in
preventing abuse of power that often leads to corruption. Article 75 imposes a duty on
state officers to behave in a manner that avoids any conflict between personal interest
and public or official duties whether in public and official life, in private life or in
association with others. It prescribes punitive measures to be taken where one
contravenes the provisions of chapter 6 to the extent that one can be dismissed or
removed from office43.

39 CoK 2010 article 10

40 Migai Akech administrative law, Strathmore University Press 2016
41 2010 CoK article 73
42 Arts 73(1) CoK
43 Cok arts 75(2)
The scope of this chapter in ensuring public service is reformed is wide to the extent
that article 79 provides for the establishment of the ethics and anti-corruption
commission44 which is tasked with managing ethical standards in public service.

(e) Creation of the office of ombudsman;

The Ndegwa commission had recommended the establishment of the office of an

ombudsman to investigate and monitor the performance of public servants 45. This
recommendation was never implemented since 1971 when the commission’s report
was submitted to the president until the 2010 constitution came in force. The 2010
constitution provides for the Commission on Administrative Justice which is
established pursuant to article 59 of the constitution. The commission is an avenue
where citizens can complain alleging e654 violation of their rights in the Bill of
Rights where right to fair administrative action is provided for.

(f) Vetting of appointed senior officials by parliament;

The 2010 constitution ensures that those senior officials appointed by the president
are vetted by parliament. This reform ensures that those who take roles to serve in the
public service are qualified and meet the eligible standards thereby ensuring
competency in the public service.

(g) Security of tenure;

The 2010 constitution provides for security of tenure of public servants with the aim
that those who serve in public service are not subject to control by anyone and they
carry with themselves the best interests of the public at any time. This is enhanced
through the provision of term limits such as the Director of Public Prosecutions the
Controller of Budget and the Auditor General, who shall hold office for a non-
renewable term of 8 years46,

44 See the Ethics and Anti-Corruption Commission Act 2011

45 Odhiambo Mbai Public Service Accountability and Governance in Kenya Since Independence.
46 Article 157 (5) 228 (3) and 229(3) 2010 Cok
(h) Chapter 13;

Public service is provided for by an entire chapter of the 2010 constitution. This
chapter brings with it reforms that are to ensure efficient, accountable and impartial
public service with article 232 providing for the principles of Public Service which
apply to public service in all state organs in both levels of government and in all state
corporations 47.

The chapter further provides for the Public Service Commission under article 233
whose functions laid out in article 234 are among them, to establish and abolish
offices in public service, promote values and principles of article 10 and 232 of the
constitution, ensure public service is efficient and effective. It also provides for the
Teacher’s Service Commission under article 237 with its functions laid out in sub-
article 2.

Mwongozo code of conducts;

The public service under Uhuru witnessed the Mwongozo code of governance for
state corporations issued jointly by the Public Service Commission and the State
Corporations Advisory Committee in 2015. The Mwongozo code of governance was
aimed at increasing efficiency and accountability in the use and deployment of scarce
public resources48. This code of conduct in chapter 4 provided for Ethics and
Integrity49, Code of Conduct and Ethics 50, Conflict of interest51, Corporate Reputation
and image52, Corporate Social Responsibility and Investment53 and Whistle-blowing54
where whistle-blowers were to be protected from victimization if they provide
information in good faith.

Statutory Reforms;

47 CoK 2010 Article 232

48 Foreword of the Mwongozo code of governance by President Uhuru Kenyatta.
49 Chapter 4 (4.1) Mwongozo code of governance.
50 Ibid (4.2)
51 Ibid (4.3)
52 Ibid (4.4)
53 Ibid (4.5)
54 Ibid (4.6)
Statutory Mechanisms post 2010 include the Public Private Partnerships Act of 2013
and 2021 which prescribed the procedures for participation of the private sector in the
financing of development projects through public private partnerships 55. The
Privatization Act of 2023 which aimed at privatizing state corporations to enhance
public service in state corporations since it has been evident that private entities run
better than government run corporations. This act was however declared
unconstitutional by the High Court.

Digitization of government services;

Other reforms taken are the use of technology/digitization of government services

through e-citizen and introduction of mobile payment for government services
through a single pay bill which was aimed at ensuring efficiency and accountability in
government services.

Performance Management Systems

Huduma Centers:
Established as one-stop centers for government services, they reduced bureaucratic
bottlenecks and enhanced service delivery.

Bibliography:

Statutes:
- 1963 Constitution of Kenya.
- 2010 Constitution of Kenya.
- Ethics and Anti-Corruption Commission Act 2011
- Public Private Partnerships Act 2021
- Public Officer Ethics Act, Cap 183 Laws of Kenya

55 S 3 of the Public Private Partnerships Act 2021

Journals and texts:
- Constitution of Kenya Review Commission, Final Report of the Constitution of
Kenya Review Commission 2005.
- Migai Akech Abuse of power and corruption in Kenya, Indiana Journal of Global
Legal Studies.
- Migai Akech, Administrative Law, Strathmore University Press 2016.
- Migai Akech Privatization and democracy in East Africa.
- Odhiambo Mbai Public Service Accountability and Governance in Kenya Since
Independence.
- Performance contracting as a performance management tool in the public sector in
Kenya: Lessons of learning Kempe Ronald Hope, Sr.
- Privatization Programme 2008.
- Public Sector Reforms in Kenya: Challenges and Opportunities by Alfred Ongera
and Beverly Musili Kenya Institute for Public Policy Research and Analysis (KIPRA)
working paper No. 29 of 2019.
- The Effect of Privatization on Firm Financial Performance in Kenya by Gitari John
Muthii and Jagongo Ambrose
- World Development Report released in 1997.