Cecily Zamora
Kenya is a country in East Africa that gained independence from British colonial rule in 1963. The country's legal system is a mix of statute law, common law, and customary law. Statute law, or Acts of Parliament, forms the backbone of Kenya's legal framework, with over 500 individual Acts covering a wide range of legal issues. Common law, inherited from British rule, continues to influence the legal system through precedents set by Kenyan courts and British precedents from before independence. Customary laws based on community traditions and customs also play a significant role, particularly in areas such as marriage, property rights, and dispute resolution. Kenya's Constitution, promulgated in 2010, is the supreme law of the land, guaranteeing access to justice and outlining fundamental rights and freedoms. With a hierarchical court system and a commitment to judicial independence, Kenya's legal landscape presents a diverse and evolving framework.
| Characteristics | Values |
|---|---|
| History of common law | Kenya inherited its common law system from British colonial rule. |
| The British constitutional arrangement was not transplanted in the same manner as was the common law into commonwealth Africa. | |
| Instead, African countries adopted written constitutions and broadened the repertoire of common law across the continent. | |
| In constitutional law, they followed the system of judicial review as practiced in the United States. | |
| Current status | The Constitution of Kenya contains several parts, including the fundamental rights and freedoms of citizens, the structure of government, and the principles of devolution. |
| The Constitution was promulgated in 2010 and is the supreme law of the land. | |
| The powers of the Government are divided into 3 functions: executive function, legislative function, and the judicial function. | |
| The Executive consists of the President, the vice-President, Ministers, and the Assistant Ministers, who are all members of the National Assembly (Parliament). | |
| Kenya's legal system consists of statute law, common law, and customary law. |
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What You'll Learn
Kenya's legal system is influenced by British colonial rule
Before Kenya became a British Protectorate in 1895, the country lacked a structured legal system. The territory was administered by the Imperial British East Africa Company, which carried out the obligations of the British Government under relevant treaties and agreements. In 1896, the territory became known as the East African Protectorate, and in 1920, it was renamed the Kenya Colony and Protectorate. During this period, the British attempted to enact laws that would govern the entire country, but multiple parallel legal systems persisted. The impact of this multiplicity can still be observed in Kenya's current legal system.
The Kenyan Constitution, promulgated in 2010, is the supreme law of the land and takes precedence over other laws. It outlines fundamental rights and freedoms, the structure of the government, and the principles of devolution. The Constitution of Kenya reflects the influence of British colonial rule, as Kenya and other former British colonies adopted written constitutions while broadening the scope of common law. Additionally, in constitutional law, they followed the system of judicial review practised in the United States, which led to changes in the basic foundations of English common law in Africa.
Kenya's legal system also recognises statute law, also known as Acts of Parliament. These statutes are laws passed by Kenya's National Assembly and cover a wide range of legal issues, forming the backbone of the country's legal framework. The earliest law reports in Kenya were published under the citation E.A.L.R. (East African Law Reports) from 1897 to 1905, reflecting the period of British colonial rule.
In summary, Kenya's legal system is influenced by British colonial rule through the adoption of a common law system, the implementation of written constitutions, and the continuation of British legal precedents. The country's legal framework also evolved during the colonial period, transitioning from administration by the Imperial British East Africa Company to the establishment of the Kenya Colony and Protectorate. Today, Kenya's legal system operates under the supreme authority of the Kenyan Constitution, with statute law playing a crucial role in governing various legal matters.
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The Kenyan Constitution is the supreme law
Kenya is a former British colony and, as such, its legal system is modelled on English common law. However, while the country adopted common law, the British constitutional arrangement was not transplanted in the same way. Instead, Kenya opted for a written constitution, which is the supreme law of the land.
The Constitution of Kenya was first enacted on 12 December 1963, the same year the country gained independence. There have been several amendments to the Constitution since then, and Kenya is currently undergoing the Constitution Review Process. The most recent redraft was enabled in 2010, and the new Constitution was approved by 67% of Kenyan voters.
The Kenyan Constitution contains provisions for access to justice, stating that "the State shall ensure access to justice for all persons and, if any fee is required, it shall be reasonable and shall not impede access to justice". It also guarantees the right to a fair and public hearing before a court or independent tribunal for any dispute that can be resolved by the application of law.
Despite these constitutionally mandated rights, many Kenyans cannot access the country's justice system due to a lack of awareness of their basic rights, the structure of the courts, and the unaffordability of legal services. To address these issues, organisations like FIDA Kenya and Kituo Cha Sheria provide legal aid and education to marginalised and poor communities.
The Constitution of Kenya outlines the powers of the government, dividing them into three functions: executive, legislative, and judicial. The Executive consists of the President, Vice-President, Ministers, and Assistant Ministers, who are all members of the National Assembly (Parliament). The Legislative branch is multicameral, including a Senate with 60 senators elected by voters. The Judiciary is headed by the Chief Justice, who is nominated by the President and approved by Parliament. The High Court, established under Article 165, is a premier court for interpreting the Constitution and hearing appeals from subordinate courts.
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The role of the Executive, headed by the President
Kenya is a former British colony that gained independence in 1963. The country became a full republic in 1964, changing the title of its head of government from Prime Minister to President. The President of Kenya is the head of state and head of the executive branch of the Government of Kenya. The executive branch is established by Chapter Nine of the Constitution, which vests the country's executive authority in the President.
The President is the Commander-in-Chief of the Kenya Defence Forces and has the power to pardon convicted individuals. They are also responsible for chairing Cabinet meetings and directing and coordinating the functions of ministries and government departments. The President can assign responsibility for the implementation and administration of any Act of Parliament to a Cabinet Secretary.
The President is part of the country's Cabinet, which also includes the Deputy President, the Attorney-General, and Cabinet Secretaries nominated and appointed by the President with the approval of the National Assembly. The Deputy President's role is to be the main assistant to the President and deputise for them in the execution of their functions. The President has the power to assign and dismiss Cabinet Secretaries.
The Constitution of Kenya limits the number of ministries to a minimum of 14 and a maximum of 22. Each ministry is headed by a Cabinet Secretary, who cannot be a Member of Parliament (MP). The President also appoints high commissioners, ambassadors, and diplomatic and consular representatives.
The President's role, along with the other branches of government, is established and defined by the Constitution of Kenya. The National Assembly, which is part of the Legislature, can impeach the President in the event of a gross violation of the Constitution or any other law, or if the President has committed a crime under national or international law.
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The impact of customary laws based on traditions and customs
Kenya is a former British colony and its legal system is modelled on English common law. However, customary laws based on traditions and customs also have an impact in the country. Customary laws are traditional common rules or practices that have been passed down through generations and are native to the expected conduct in a community.
Customary laws have a significant impact on personal law matters such as marriage, inheritance, and traditional authority. However, because customary laws developed during a time of patriarchy, some of their norms conflict with modern human rights norms that guarantee equality between men and women. For instance, FIDA Kenya, an NGO committed to creating a society free from discrimination against women, has assisted women in areas of law such as succession and inheritance, family law, and gender-based violence cases.
Customary laws also have an impact on land tenure and land disputes and land rights. For example, Kituo Cha Sheria, a legal aid centre in Kenya, provides legal advice on land disputes. While customary laws are considered inferior to formal laws, there is a growing movement to make them the backbone of the Kenyan legal system. This involves ensuring that customary laws are reformed and developed to conform to human rights norms and promote equality.
The Kenyan Constitution, which is the supreme law of the land, states that any law, including customary law, that is inconsistent with the Constitution is void to the extent of its inconsistency. This means that the application of customary law in Kenya is subject to the provisions of the Constitution and any other written law. As such, customary laws that conflict with human rights norms guaranteeing equality between men and women would be considered void.
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The convergence of common law and civil law systems
Kenya is a former British colony and protectorate. Before 1895, when it became a British Protectorate, Kenya had no structured legal system. As a result of British influence, Kenya's legal system is modelled on English common law. However, the British constitutional arrangement was not transplanted in the same way as common law into commonwealth Africa. Instead, African countries adopted written constitutions and broadened the repertoire of common law across the continent.
There are two main types of legal systems in the world: common law and civil law. Most countries adopt features from one or the other into their own legal systems. Common law systems are typically those that were former British colonies or protectorates, including the United States. Civil law systems, on the other hand, are generally more prescriptive and are based on specific codes such as civil code, corporate law, administrative law, tax law, and constitutional law.
In recent decades, the two great Western legal traditions, common law and civil law, have become closer to each other. This convergence can be attributed to increasing commercial and cultural internationalisation and amalgamation. The unification of Europe and the unification of legal rules by means of conventions and model laws have also played a role in bringing the two systems together.
As the world becomes increasingly globalised, the legal systems of common law and civil law will continue to converge and influence each other. This evolution of legal systems will create a more efficient and cohesive global legal framework.
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Frequently asked questions
Yes, Kenya is a common-law country. Before 1895, Kenya had no structured legal system. After it became a British colony, it adopted a legal system modelled on English common law.
The primary source of law in Kenya is its Constitution, which serves as the supreme law of the land. The Kenyan Constitution was promulgated in 2010 and outlines the rights and responsibilities of citizens and the state.
In addition to the Constitution, Kenya's legal system also recognises Acts of Parliament, international treaties, and customary law as sources of law. Customary law is derived from the customs and traditions of various ethnic groups within the country and is applied in personal law matters.
The High Court is the premier court in Kenya and has original jurisdiction in all criminal and civil matters. It interprets the Constitution, hears appeals from subordinate courts, and supervises administrative bodies. Subordinate courts include Magistrates’ Courts, Kadhis Courts, and Court Martial, among others established by Acts of Parliament.
