Abstract

The 2010 Constitution introduced mandatory gender quotas for elective public bodies in Kenya through the provisions of articles 27(8) and 81(b). However, there exist no constitutional mechanisms to ensure the effective implementation of these quotas and this lacuna has contributed to an on-going constitutional impasse since 2013 when the First Parliament under this Constitution was elected into office. This article undertakes a retrospective interrogation of the state of women’s political representation in Kenyan politics leading up to the introduction of constitutional gender quotas with the promulgation of the 2010 Constitution. It further analyses the influence of electoral systems on women’s representation in Parliament vis-à-vis the implementation of gender quotas to increase their participation and representation in politics. It argues for changes in the Kenyan electoral system to facilitate the successful implementation of the constitutional gender quotas provided for under articles 27(8) and 81(b) of the Constitution.

Abstract

With just a day to the end of his tenure in 2009, President Kufuor approved the single spine salary scheme, which increased public and civil sector salaries. After the 2016 elections, the outgoing President Mahama embarked on a spree of midnight actions—increasing salaries of national service personnel, making multiple appointments and recruitments, cutting sods for projects and signing a number of contracts. The exponential rise in midnight actions in a space of two inter-party transitional periods is alarming and requires urgent legislative response. The Presidential (Transition) Act (PTA) of 2012, which was enacted to enhance smooth presidential transitions, did not anticipate the increasing midnight actions. Accordingly, this article recommends that the PTA should be amended to address midnight actions in Ghana. The article reviews the responses to midnight actions in the United States and Australia and makes recommendations for Ghana’s legislative response based on the findings made. The article also considers the nature, practice and regulation of pre-election midnight actions and its place within Ghana’s transition framework. The article recommends that the proposed amendments to the PTA should also cover pre-election midnight actions.

Abstract

The Constitution of Kenya, 2010, stipulates that sovereignty lies with the people. This sovereignty can be exercised directly by the people through voting at periodic elections and referenda and indirectly through elected representatives, among others. Presidential elections in Kenya— as elsewhere in Africa—are usually hotly contested. Irregularities and illegalities are bound to occur. The Constitution of Kenya 2010 codified some rights, including those of the voter and the manner of conducting elections. The adjudication of presidential petitions was vested in the Supreme Court. Relevant enabling legislation and regulations have also been formulated. The Supreme Court has applied both the quantitative and qualitative tests in determining election petitions at different times. In the Presidential Election Petition of 2013, some of the issues canvassed revolved around whether there was a valid voters’ register and whether there were irregularities and if the illegalities observed were of a high enough threshold to affect the integrity of the election. The Supreme Court, applying the quantitative test determined that the election results would stand. However, in the 2017 Presidential Election Petition, the court, applying the qualitative test, deviated from its 2013 decision and nullified that election. The question that this article interrogates is whether the Supreme Court acted with constitutional fidelity in both these decisions. This article analyses the jurisprudence from the 2013 and 2017 decisions of the Supreme Court.

Abstract

Ever since the Constitution of the Federal Republic of Nigeria 1999 was adopted, Nigerians have roundly denounced it as not being a proper reflection of their common will, but a bitter pill delivered by the departing military junta. The continued chasms and contours in the denigration of the document, pressured governments upon governments to make effort at repairing it. The result has been several constitutional conferences convoked to force a new constitution, but all have achieved little. More than two decades after its enactment, the question remains why Nigerians are unhappy with the document, and what can be done to address their unhappiness?

This article presents a critical inquiry into these issues. It examines how the current Constitution came to be and how its problem of legitimacy has become a national malaise. It argues that even though the people’s pursuit of a new constitution is in order, the route adopted may just be the disorder. Also, the fact that the relentless agitation for a brand-new Constitution has continued to meet with a brick wall may be a pointer that it is the wrong approach to a generally understood problem. It recommends that a more viable solution may lie in adopting a known, yet difficult pathway, i.e. one in which constitutional legitimacy, though not acquired in the original sense, can however be perfected over time through a progressive acceptance of the Constitution by the people. It submits that this progressive acquisition of legitimacy can be attained by the people continuously demanding good governance and strategically owning the political process, with a view to using the same Constitution’s amendment process, to rework it for their good.

Abstract

The Constitution of Kenya makes public participation indispensable when it comes to matters of governance and development. Both national and county governments are required to inculcate public participation in their operations. This article explores the meaning, scope and role of public participation within the context of devolution in Kenya. The article then argues that public participation must embrace the realities of the digital revolution in the 21st century, and suggests some of the ways in which information technology can be embraced as an effective platform for public participation in Kenya.

Abstract

The scourge of corruption has permeated all levels of government, with anecdotal accounts referring to ‘devolved corruption’, used to explain the fact that corruption has been rampant in the counties since the introduction of devolved governments in 2013. Where corruption flourishes, development and the rule of law fail. It is therefore essential that the government and other stakeholders take concerted measures to tackle corruption. Despite efforts to respond to this challenge, not much has managed to deter the vice. However, in the recent past, courts have made rulings that raised questions about what should happen when governors are on trial for corruption. The decisions of the courts have drawn mixed reactions from different quarters. There are those who believe the rulings by the courts amount to the unconstitutional removal of elected governors as they do not follow the laid-down procedure in the Constitution and other relevant laws. To others, the decisions are a timely and adequate response to the scourge of corruption. It is against this backdrop that this case review analyses the two cases of Moses Kasaine Lenolkulal v Director of Public Prosecutions and that of Ferdinand Ndungu Waititu Babayao v Republic [2019] eKLR which had similar outcomes in barring the accused governors from accessing their offices while corruption investigations were ongoing. The authors argue that the courts’ approach was progressive and in line with the 2010 Constitution of Kenya.