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The Independence, Accountability, and Effectiveness of Constitutional Commissions and Independent Offices in Kenya
Get PDFOne of the concerns that animated the search for a new constitution in Kenya was how to build more effective mechanisms for accountability. Towards this end, the 2010 Constitution of Kenya establishes constitutional commissions and independent offices in an attempt to dismantle and democratize the Kenyan state. This paper proceeds on the basis that what determines whether an independent institution ends up as an effective force for accountability in governance is its institutional design. The paper thus interrogates the constitutional and statutory design of the regime meant to effectuate the independence, accountability, and effectiveness of these independent institutions to determine whether they can deliver on their mandate
The Role of Administrative Law and Economics in Tempering Discretion and Balancing Conflicting Objectives in Public Procurement Decision Making
Get PDFThe mandate of government is characterised by significant interdependence, complementarity and overlap between economic and social policy objectives. The pursuit of both economic and social objectives, therefore, is often necessary and inevitable in any system of public procurement regulation. The coexistence of economic and social objectives in a system of public procurement regulation, however, often results in conflicts and dilemmas. The conflicts and dilemmas occur when government bureaucrats make economically efficient but socially undesirable decisions or socially desirable but economically inefficient decisions. Moreover, public procurement laws often give government bureaucrats discretion to decide whether, the extent and the ends for which they can use procurement as a tool of economic or social policy. Although discretion is inevitable in any system of public procurement regulation, and public administration in general, it is also highly amenable to abuse. The disciplines of administrative law and economics offer useful conceptual tools that could be used to achieve an optimal balance or resolve conflicts between economic and social objectives in public procurement decision making. The disciplines of administrative law and economics offer useful conceptual tools for resolving the problem of discretion and its correlation with the incidence of corruption, favouritism and other forms of malfeasance in public procurement decision making. The two disciplines espouse a rule-based approach to public procurement regulation and decision making, characterised by circumscribed discretion and commitment to the values of competition, transparency and accountabilit
COVID-19 Vaccines Confer a Prophylactic Effect on Common Cold
Get PDFCommon cold is an upper respiratory infection with relatively high mortality and infection rate. This is especially true among immunosuppressed individuals. The infection can be caused by human coronaviruses of which common cold coronaviruses-229E, -NL63, -OC43, and -HKU1 are the major etiological agents. These viruses also belong to the same family as the SARS-CoV-2 virus that cause the COVID-19 pandemic. The pandemic has led to the development of the various COVID-19 vaccines. The coronaviruses all express similar types of proteins, the membrane, spike, envelope protein, and the nucleocapsid. The spike protein is the main antigenic determinant and also induces an endoplasmic reticulum stress response. Cross-reactivity on the antigenic determinants between both groups of coronaviruses exists due to similar main antigenic orientation. Studies on the strength of the immune responses evoked by either SARS-CoV-2 or the human common cold coronaviruses towards each other is inconclusive; averagely demonstrating that antibodies (Abs) against SARS-CoV-2 can neutralize antigens (Ags) on common cold coronaviruses. Due to cross-reactivity, theoretically vaccines against SARS-CoV-2 can be used to fight common cold coronavirus infections due to the two expressing similar antigenic determinants that elicit an immune response for the homologous antigen
The Influence of Utility Efficiency on Financial Sustainability of Water Service Providers in Kenya
Get PDFThe purpose of this study was to establish the influence of utility efficiency on financial sustainability among water service providers (WSPs) in Kenya. The study adopted the pragmatism research philosophy and explanatory sequential mixed design to provide empirical based solution to the financial sustainability concerns among the water service providers in Kenya. The target population constituted 616 senior managers from whom, a sample of 352 selected managers was selected and a structured questionnaire used to collect the quantitative data from the respondents. Additional data was collected using interview schedule from key informants representing the ministry of Water, Sanitation and irrigation (MWSI), Water Services Regulatory Board (WASREB), and the eight Water Works Development Agencies (WWDAs). Data collected, was coded, cleaned and analysed to obtain both descriptive and inferential statistics. These were in terms of mean, standard deviation charts, statistical tests, ANOVA and regression analyses. The findings of the study was that utility efficiency had a positive and statistically significant influence on the financial sustainability of WSPs in Kenya (r=0.368, F= 10.719 (1,250df), β= 0.273, t(251)=3.274, p-value=0.002). Based on the findings, various recommendations were made one, there is need for each WSP in collaboration with the responsible county governments to undertake studies geared towards disaggregation of NRW, WSPs to institutionalize high levels of integrity which would reduce commercial losses, WSPs to ensure high levels of integrity, competence and efficiency of staff at the point of hire and National Treasury and Planning together with the Water Works Development Agencies (WWDAs) should ensure efficient and effective application of infrastructure financing in order to achieve value for money for all investments
The Implementation of Article 12 of the Convention on the Rights of People with Disabilities in Kenya
Get PDFEquality and non-discrimination before the law are fundamental human rights principles enshrined in both international and regional human rights instruments. However, earlier human rights instruments did not expressly protect persons with disabilities from discrimination and, therefore, they were regarded as objects of charity, rather than subjects of human rights. Through the years, the law has developed to provide better protection for persons with disabilities, culminating in the ratification of the Convention on the Rights of People with Disabilities (CRPD). Article 12 of the CRPD provides for the right to equal recognition before the law for persons with disabilities which entails the right to legal capacity. This provision reflects a long established and non-derogable human rights principle also enshrined, for example, in article 16, as read together with article 4 (2), of the International Covenant on Civil and Political Rights (ICCPR). Despite the significant development of legal protection, the implementation of the right to legal capacity for persons with disabilities leaves a lot to be desired. Many jurisdictions conflate legal capacity with mental capacity, the latter of which is a controversial concept. Persons with disabilities are denied the right to make personal decisions and to participate in judicial proceedings, on the basis that they lack the requisite mental capacity. Such denial of the right to make decisions constitutes a violation of the long established and non-derogable right to legal capacity enshrined in article 12 of the CRPD. The paper discusses the implementation of article 12 of the CRPD in Kenya. It examines the conflation of legal capacity and mental capacity for persons with disabilities and interrogates the approaches employed in the determination of mental capacity. Furthermore, the paper examines different Acts of Parliament in Kenya and discusses their level of compliance with article 12 of the CRPD. 
An Analysis of Walter Khobe’s ‘The Jurisdictional Remit of the Supreme Court of Kenya Over Questions Involving the Interpretation and Application of the Constitution’
Get PDFThis paper will analyse the arguments by Walter Khobe Ochieng’ in his paper, ‘The Jurisdictional Remit of the Supreme Court of Kenya Over Questions Involving the Interpretation and Application of the Constitution,’ in which he examines the jurisdictional limits of the Supreme Court of Kenya under article 163(4)(a) of the Constitution of Kenya, 2010 and where he powerfully argues that the Supreme Court of Kenya is entitled to assume what he terms a derivative jurisdiction. This paper will examine the position taken by Walter Khobe Ochieng’ but centring the analysis on the question of election laws. Walter Khobe Ochieng’ argues that this innovative (generic) jurisdiction is proper within the Constitution. This paper will examine the position taken by Walter Khobe in light of the Constitution’s apportioned scope of authority to the Supreme Court, vertically and horizontally, critically examining how the apportioned role is expected to be manifest in a democratic context. The paper will eventually reach the conclusion that the Supreme Court’s claim to a derivative (implied) jurisdiction is conceptually dicey and cannot be sustained under the Constitution
Role of the Courts in Ensuring Free and Fair Elections in Kenya : A Tale of Fifty-Six Years of Legal Sophistry and Intellectual Dishonesty
Get PDFAlthough the Judiciary has made many decisions that are consistent with the ideal of free and fair elections in the last fifty-six years, its dominant approach to electoral dispute resolution generally entails making superficially sound but disingenuous and deeply flawed decisions. This ‘clever’ approach, referred to as ‘legal sophistry’ in this article, generally entails an inflexible emphasis of legal and procedural technicalities; eschewing or suppressing serious genuine questions regarding the validity and integrity of elections; disingenuous adoption of discreditable case law from countries that practice pseudo or sham democracy; and manipulation of the law in favour of incumbency. Legal sophistry is inconsistent with the transformative agenda of the 2010 Constitution, which, inter alia, requires the Judiciary to promote the values and principles embodied in the Constitution and determine (electoral) disputes without undue regard to technicalities of law and procedure. Legal sophistry undermines the ideal of free and fair elections in at least three significant ways. First, it encourages electoral fraud and malpractice. Secondly, it leads to absurd or unjust outcomes, such as judicial affirmation of flawed elections. Lastly, legal sophistry undermines democracy, the rule of law and public confidence in the courts as honest arbiters of political disputes. The entrenchment of legal sophistry as the Judiciary’s dominant approach to electoral dispute resolution has defied constitutional, legal and institutional reforms specifically designed to end it. The resilience of legal sophistry may be attributed to the factors that have influenced the evolution of the Judiciary from its inception to date, especially colonial legacy, corruption, patronage politics, impunity and the institutional degradation of the pre-2010 years
An Overview of the Fisheries Resources Institutions in Kenya
Get PDFThere has been a steady evolution and growth of fisheries institutions in Kenya. The enactment of the Fisheries Management and Development Act (FMDA), 2016 led to the establishment of the Kenya Fisheries Service (KFS), a state corporation, backed by other institutions such as the Kenya Fisheries Council (KFC) and the Kenya Fish Marketing Authority (KFMA). The establishment of these institutions is especially important because of the current focus on the fisheries sector in the country and beyond. However, it is contended in this paper that the institutions cannot deliver on their mandates unless all the governance instruments are put in place including the Fisheries Management and Development (Marine and Inland Fisheries) Regulations, the Beach Management Units (BMU) Regulations, and the Fish Safety regulations. What is more, the archaic Fisheries Policy, 2005 should be reviewed and updated in line with the present legislation and the African Union (AU) Africa Blue Economy Strategy, 2019. Lastly, there is need to streamline and harmonise the functions and mandates of all institutions. For instance, the certificate and diploma courses on fisheries currently being offered by Kenya Wildlife Service (KWS) should now be transferred to the newly established KFS where the course should naturally belong. In terms of reform areas, the FMDA, 2016 needs to be amended to create a formal intergovernmental consultative forum in line with the intentions of its section 2
Testing Alternatives : Private Prosecutions as a Useful Anti-Corruption Tool in Kenya
Get PDFKenya’s legal framework affords the Director of Public Prosecutions (DPP) vast powers to decide when to prosecute. As described sharply in the 2010 Constitution, the DPP is not subject to any person or authority, nor doeshe/she require the consent of any authority to commence a criminal case.Whereas corruption has grown exponentially in the past two decades, there are only a handful of convictions. Perhaps, this demonstrates the DPP’s poor follow-through in prosecuting corruption-related offences, despite their more than adequate discretion in prosecutions. Analysing judicial decisions, the paper advocates private prosecutions as a useful check on the DPP’s discretion not to prosecute graft cases.
The paper is arranged along three arguments. First, corruption is rampant in Kenya and as corruption swells, the authority with the power to wrestle it through prosecution,which is the DPP – and the AG before it – has been slow to prosecute corruption cases historically. Secondly, the DPP enjoys near monopoly over the authority to prosecute to-date. Third, private prosecutions offer an avenue for the anti-corruption crusade by checking the DPP’s power, which has practical and legal limitations
EFFECT OF MONITORING AND EVALUATION SYSTEMS ON WASH PROGRAMS: A CASE STUDY OF CHIGUTU WASH PROGRAM IN KINANGO SUB-COUNTY, KWALE COUNTY
Get PDFThe objective of this study were to establish the extent to which availability of finances impact the effectiveness of monitoring and evaluation system for Compassion International Sponsored Projects Kenya Chigutu WASH programme. The study employed a descriptive survey research design. The target population was 66 employees of Chigutu WASH Programme working under the WASH programme and in human resources, finance and administration departments. Due to their small number, a census was conducted. Numerical data collected using questionnaires was coded and entered and analyzed with help of a computer Statistical Package for Social Scientists (SPSS) version 21 software programme. The data was analysed using Correlation and regression where the study used karl-pearson correlation to relate the variables.An interview guide were also used to interview key informant persons in the organization who included departmental heads, senior managers, M&E experts and consultants. The findings of the study were, in relation to the first objective found that that theThe projects funds should have adequate provision for monitoring and evaluation activities. The availability of finances will determine what can be achieved as far as implementation, strengthening and sustainability of monitoring and evaluation system is concerned. A key function of planning for monitoring and evaluation is to estimate the costs, staffing, and other resources needed for monitoring and evaluation work