References: Chapter Five of the Constitution provides for fundamental rights. Section 84 provides that any allegation of the violation or its likelihood of Section 70 to 83 should be taken to the High Court for redress, subject to procedural rules made by the chief justice. However, ignorance and the costs implied are often a deterrent.

Further, Section 3 of the Government Proceedings Act (CAP 40) provides for the right to sue the government, stating that "Where any person has a claim against the Government after the commencement of this Act and, if this Act had not been enacted, the claim might have been enforced in accordance with the provisions of the Petitions of Right Ordinance (now repealed), or might have been enforced by a proceeding provided by any statutory provisions repealed by this Act then, subject to the provisions of this Act, the claim may be enforced as of right by proceedings taken against the Government for that purpose in accordance with the provisions of this Act." See [ LINK ].

Meanwhile, the Public Complaints Standing Committee (PCSC) is mandated to "receive, register, sort, classify and document all complaints against public officers in Ministries, Parastatals/State Corporations, Statutory Bodies or any other public institution. In addition, the PCSC is mandated to inquire into allegations of misuse of office, corruption, and unethical conduct, breach of integrity, maladministration, delay, injustice, discourtesy, inattention, incompetence, misbehavior, inefficiency or ineptitude." See [ LINK ].

References: Kenya's parliamentary process, which includes sectoral committees, provides opportunity to debate most executive/government decisions. Furthermore, Kenya has a five-year national development plan that broadly outlines the direction of development. These broad directions arise from or are interpreted through policy papers, session papers, the medium-term expenditure framework budget system and the annual budget. Obviously, in a multi-party context in which elections are held regularly, the chief executive faces elections where performance and accountability may be a factor in voters' minds.

However, there are instances where policy is the product of "roadside decrees" by the chief executive, the president, even if this practice has diminished since the 2002 ouster of the 40-year KANU regime. Such decrees increase in frequency during electoral campaigns, where the president wishes to influence voters in a particular direction. This was evident in the run up to the November 2005 referendum on a draft constitution, and during the 2007 electioneering when, for example, the outgoing president decreed some 30-odd administrative districts into existence.

As a rule, the incumbent president does not address the media. Indeed, when his decisions are questioned, he is wont to literally hide in State House, as was the case with his illegal August 2009 re-appointment of the anti-corruption commission head who was eventually 'sacked' by Parliament.

Peer Review Comments: The executive uses national holiday speeches to further expound on what policies the government is pursuing.

Party manifestos are also promulgated in the run-up to elections

References: Chapter Five of the Constitution provides for fundamental rights. Section 84 provides that any allegation of the violation or its likelihood of Section 70 to 83, should be taken to the High Court for redress, subject to procedural rules made by the chief justice. However, ignorance and the costs implied are often a deterrent.

Further, in providing for the right to sue the government, Section 3 of the government Proceedings Act provides that: "Where any person has a claim against the Government after the commencement of this Act and, if this Act had not been enacted, the claim might have been enforced in accordance with the provisions of the Petitions of Right Ordinance (now repealed), or might have been enforced by a proceeding provided by any statutory provisions repealed by this Act then, subject to the provisions of this Act, the claim may be enforced as of right by proceedings taken against the Government for that purpose in accordance with the provisions of this Act." See [ LINK ].

Meanwhile, the Public Complaints Standing Committee is mandated to "receive, register, sort, classify and document all complaints against public officers in Ministries, Parastatals/State Corporations, Statutory Bodies or any other public institution. In addition, the PCSC is mandated to inquire into allegations of misuse of office, corruption, and unethical conduct, breach of integrity, maladministration, delay, injustice, discourtesy, inattention, incompetence, misbehavior, inefficiency or ineptitude." See the Kenya Gazette notice at [ LINK ].

References: In practice, the judiciary does review actions of the executive. It regularly issues orders of mandamus, certiorari and prohibition against executive actions. Indeed, the Constitution and Administrative Review Division of the High Court of Kenya has grown to be one of the most vibrant divisions of the High Court with a rich jurisprudence.

However, events connected to the 2007 general elections spotlighted the extent to which the judiciary is unlikely to be entirely objective in such reviews. At a time when matters were nearly exploding over question tallies of presidential votes, the Chief Justice went to the State House and swore in the immediate former president for a further term, making clear his partiality to the man who had appointed him to the judicial job. This was, in effect, a loud statement to Kenyans that the Chief Justice is unlikely to take measures that discomfit the president.

In January 2008, the judiciary dismissed a suit barring the illegal and irregular sale of the giant mobile phone company, Safaricom, arguably because members of the president's cabinet were promoting the sale of the state asset.

References: The use of executive orders (roadside decrees) was a stock trade of the KANU regime to 2002, with the practice diminishing into the NARC regime from 2003. However, when the president faced defeat in the 2005 referendum over the draft constitution, executive orders returned but failed to swing the vote in his favor. His consequent concern over failing to acquire a second and final tenure in office in the 2007 general elections induced further, rampant decrees and promulgations, which similarly failed to swing the tide in his favor.

Most recently, the president mischievously overlooked legislation in re-appointing the anti-corruption boss in what amounted to an executive order. Parliament reacted by refusing to go to recess as well as to vote in budgeted expenditure, eventually easing the anti-corruption boss out of office.

When the president does not issue such orders personally, this has been done by his lieutenants.

Peer Review Comments: The use of executive orders is not as rampant as it was once was. The executive tends to use it when his close associates are involved for example his appointment of the anti-corruption boss. If he was intransigent he could have found a way to ensure the chosen successor remains whatever the parliament thinks.

He has kept a few public sector executives in office e.g. Kenya Airports Authorities despite the fact that the incumbent is way above the age limit required

Peer Review Comments: And since Parliament was clear on defending its turf against what MPs deemed intrusion by the executive, the president's re-appointee for the Kenya Anti-Corruption Commission opted out. The process to pick his successor is ongoing.

References: Section 14 of the Constitution states as follows:

"(1) No criminal proceedings whatsoever shall be instituted or continued against the President while he holds office, or against any person while he is exercising the functions of the office of President. (2) No civil proceedings in which relief is claimed in respect of anything done or omitted to be done shall be instituted or continued against the President while he holds office or against any person while he is exercising the functions of the office of President. (3) Where provision is made by law limiting the time within which proceedings of any description may be brought against any person, a period of time during which a person holds or exercises the functions of the office of President shall not be taken into account in calculating any period of time prescribed by that law which determines whether any such proceedings as are mentioned in subsection (1) or (2) may be brought against that person."

After the debacle of the 2007 presidential elections and the ensuing violence, a coalition government was formed between the two main political parties, ODM and PNU. The Constitution was duly reviewed to facilitate this coalition, splitting power between the president as head of state and a prime minister as head of government. In that haste, however, nothing was stated concerning immunity of the head of government, the prime minister.

References: The law does not protect ministers and other high executive officials from prosecution for civil and criminal complaints. For example, the Anti-Corruption and Economic Crimes Act 2003 was enacted "to provide for the prevention, investigation and punishment of corruption, economic crime and related offenses and for matters incidental thereto and connected therewith."

Further, the Public Officers Ethics Act (No. 4 of 2003) was enacted to advance the ethics of public officers by providing for a Code of Conduct and Ethics for public officers and requiring financial declarations from certain public officers and to provide for connected purposes. Section 37 of the Act provides that: "If, as a result of an investigation under this Part, the Commission is of the view that civil or criminal proceedings ought to be considered (against a public officer, including ministers), the Commission shall refer the matter to the Attorney General or other appropriate authority."

References: The head of state is required to file a regular asset disclosure form by the Public Officer Ethics Act of 2003, which was enacted "to advance the ethics of public officers by providing for a Code of Conduct and Ethics for public officers and requiring financial declarations from certain public officers and to provide for connected purposes." See [ LINK ].

Peer Review Comments: This requirement by the Public Officer Ethics Act of 2003 although loud on promise has been mute on implementation. Kenyans are yet to know wealth so far declared by the President and other public officials.

References: Ministers are required to file a regular asset disclosure form by the Public Officer Ethics Act of 2003, which was enacted "to advance the ethics of public officers by providing for a Code of Conduct and Ethics for public officers and requiring financial declarations from certain public officers and to provide for connected purposes." See [ LINK ].

References: Section 10 (3) of the Public Officers Ethics Act of 2003 provides that, "A public officer may accept a gift given to him in his official capacity but, unless the gift is a souvenir or ornament that does not exceed the value prescribed by regulation, such a gift shall be deemed to be a gift to the public officer's organization." See [ LINK ].

References: Part IV of the Public Officers Ethics Act of 2003 (Cap 203) requires officers to declare their own assets and those of spouses and children younger than 18. This annual declaration is made to the service commission employing such officers. However, the law is not clear on who audits these reports, and the media have yet to report any action arising out of these declarations of wealth. See [ LINK ] and www.kacc.go.ke/archives/speeches/mombasa-beach.pdf.

References: Section 11 of the Public Officers Ethics Act of 2003 (Cap 203) only addresses conflicts of interest during employment. There is no law governing involvement in private business during and after tenure of public office. Indeed, the Kenyan political elite is the cream of the private sector.

Peer Review Comments: There are few cases of politicians going to run private sectors though some get appointed to run public sector corporations.

The are few politicians of high calibre to compete in running private sectors. However successful businessmen do go into politics and continue running their business empires e.g. the main shareholder of Sarova hotels

References: No laws exist restricting private sector participation by former senior executives of the government. Even for current executives, the Anti Corruption and Economic Crimes Act and the Public Officers Ethics Act only provide restrictions in the event of possible conflicts of interest.

References: The inclination is to score '0' since there does not seem to be any effort to monitor the provisions of Section 11 (3) of the Public Officers Ethic Act, which requires gifts given to officers to be surrendered to their respective organizations. However, the conflict of interest provisions of the same act and the moral crusade of civil society has, in instances, been a deterrent to officers who would otherwise have gladly accepted and retained such gifts for themselves. For example, see the concern raised over the veracity of wealth declaration form contents at [ LINK ].

References: It is unclear who should audit these declarations beyond the accounting officer and employing commission who receive and handle them confidentially. While there was a lot of fanfare when originally introduced in 2003, the issue of asset declarations has taken a back seat on the national radar even as the Kenya Anti Corruption Commission seemingly faces a stalemate in prosecuting a former cabinet minister who refused to declare his wealth.

Peer Review Comments: It would seem the political class is united in declaring wealth they are not keen on disclosing to the public.

References: Part IV, Section 29 of Cap 203 binds the employing service commissions to confidentiality over all information received and may only avail this on a High Court order or to an agent of the person who made the declaration. The law states as follows:

(1) A Commission shall keep information collected under this Part confidential; (2) No person shall disclose, allow access to or acquire information collected under this Part and held by a Commission except in accordance with this section. (3) No person shall disclose information that was disclosed or acquired in contravention of this section if the person knows, or has reasonable grounds to believe, that the information was disclosed or acquired in contravention of this section. (4) Information collected under this Part and held by a Commission may be disclosed to and accessed or acquired by - (a) authorized staff of the Commission; (b) a person authorized by an order of a judge of the High Court; or (c) the person who provided the information or his representative. (5) A person who contravenes subsection (2) or (3) is guilty of an offense and is liable, on conviction, to a fine not exceeding two million shillings or to imprisonment for a term not exceeding two years or to both.

References: Citizens cannot access such disclosure forms. Part IV, Section 29 of Cap 203 binds service commissions to confidentiality over all information received and may only avail this on a High Court order or to an agent of the person who made the declaration.

References: The cost factor does not arise because the law protects the confidentiality of such declarations. Part IV, Section 29 of Cap 203 binds service commissions to confidentiality over all information received and may only avail this on a High Court order or to an agent of the person who made the declaration.

References: To the extent that the law (Section 29 of the Public Officers Ethics Act (Part IV)) requires such disclosures to remain confidential, it is not possible to evaluate their quality.

References: During the KANU era that ended in 2002, there was hardly any distinction between party and state activities/resources primarily because for much of that 40-year period, Kenya was a de facto, single-party state. For example, while KANU had no known resources, such as finances, it could, in 2003, claim to have built and to own the 30-story Kenyatta International Conference Center. See [ LINK ].

Into the post-2002 NARC era, use of state resources declined somewhat. However, when Kibaki was faced with imminent defeat in the 2005 referendum on the draft constitution and a similar outcome for the 2007 general elections, good governance and the dividing line between party and government were thrown out of the window, as research by the Kenya National Commission of Human Rights shows clearly.

Since the 2008 creation of the Grand Coalition government, the situation has been somewhat farcical with the President largely traveling with his PNU party ministers while the prime Minister also largely travels with his ODM party ministers.

Peer Review Comments: In the current era the party plays a role only during the period just before elections. The party then goes to the background. Party official have minimal influence in their party capacities.

Indeed the recent practice has been that the party that will be used by the government/head of state is not usually known until the election are very close. Party stalwarts have been frustrated by the current head of state for his minimal participation in party affairs.