The Case for More Women in Kenya’s Supreme Court

Leo Kipkogei Kemboi and Jackline Kagume
Post Date: 29 March 2021

The Constitution of Kenya, 2010, under Article 27, requires that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender. The Two-thirds Gender principle is founded on the right to equality and freedom from discrimination, entrenched in the Constitution. The spirit of this principle is that “wwomen and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres”. Following the declaration of vacancy for the position of Chief Justice of the Republic of Kenya in January 2021, and retirement of Justice Jackton Ojwang in February 2020, there is an ongoing recruitment for Chief Justice and Judge of the Supreme Court . 

All Judges in Kenya are recruited by the Judicial Service Commission (JSC) through an open and competitive process and recommended to the President for appointment per Article 172 of the Constitution and the Judicial Service Act. The JSC is an independent commission established under Article 171 of the Constitution. The Constitution details the Commission’s composition to include the Chief Justice as Chairperson, one Supreme Court Judge, one Court of Appeal Judge, one High Court Judge, one Magistrate, Attorney General, two advocates representing the statutory body for lawyers, one person nominated by Public Service Commission and one woman and one man to represent the public, appointed by the President with the approval of the National Assembly . 

The Supreme Court is established under Article 163 of the Constitution and is the apex court in the Republic of Kenya. It is considered the final arbiter and interpreter of the Constitution . The Court is composed of the Chief Justice as the President of the Court, Deputy Chief Justice as the Vice President and five other judges. It has exclusive original jurisdiction to hear and determine disputes relating to elections to the Office of the President. The Court also has appellate jurisdiction to hear and determine appeals from the Court of Appeal and any other court or tribunal as prescribed by law. The Supreme Court may give an advisory opinion at the request of the national government, any State organ or any county government. Its decisions are final and all courts, other than the Supreme Court, are bound by its decisions.

In this piece, we argue that the Judicial Service Commission, the Supreme Court and by extension the whole Judiciary, acting within the limits of the Constitution, ought to interpret their mandate in a manner that advances rights, as outlined under Article 259. Article 259(1) requires the constitution be construed in a manner that promotes purposes, values and principles, advances the rule of law, human rights and fundamental freedoms in the Bill of Rights and contributes to good governance. Based on analysis of the laws and facts presented, we settle on two reasons why the next Chief Justice or Judge of the Supreme Court should be of the female gender.


Evaluating Kenya’s Tax Law Changes on PAYE in January 2021

Annah-Grace Kemunto
Post Date: 19 March 2021

A tax band is the range of income for which a tax rate is charged. In the first tax band an individual’s maximum PAYE tax liability is lower than their personal relief. Therefore, creating a 0% effective tax rate for income earners within the first tax band. Income earners in the first tax band still however must file nil tax returns every year. Making the distinction between a tax band and an effective tax rate explains why the number of effective tax rates in each year is always one more than the number of tax bands. Nevertheless, since 2019, there has been a consistent and intentional reduction of the number of tax bands from 6 to 4, as seen in Table 1 above, which has made the Kenyan tax system less complicated when it comes to ease of computation of taxes. The fewer tax bands also means that the tax code has become less progressive in the sense that there are fewer distinctions in tax bands and tax rates as the taxable income increases.


How Complexity in International Trade and the Global Supply Chain Undermines the Argument for Self Sufficiency

Emmanuel Wa-Kyendo
Post Date: 17 March 2021

By Emmanuel Wa-Kyendo

International trade concerns the movement of the factors of production, changes in their ownership and the movement in and goods and services. In classical economics, the factors of production are land, labor, and capital. Land cannot move but its ownership and its use can change. Labor and capital can move across borders. Goods and some services can also move across borders. In this blog, I argue that the discovery of efficient means to allocate goods, services, and the factors of production across the world is a complex process. It cannot be centrally planned. Furthermore, economic complexity is a veritable form of crisis preparedness. International trade serves to enhance that preparedness. 

I use the example of the recent US-China trade war and the Covid-19 pandemic to illustrate that the principle of comparative advantage endures in its veracity. We are better off when we specialize and trade. 


Improving the Efficiency of Committees in Kenya’s Parliament: The Case of National Assembly

Kipkogei Kemboi
Post Date: 16 March 2021

Article 93 establishes the Parliament of Kenya with two chambers namely the National Assembly and the Senate. each of the two chambers shall perform their respective functions as set out in the Constitution. Having two houses of Parliament is called a Bicameral Parliament. The bicameral system, also called bicameralism, a system of government in which the legislature comprises two houses. The modern bicameral system dates back to the beginnings of constitutional government in 17th-century England and to the later 18th century on the continent of Europe and in the United States.

The Constitution of Kenya 2010 elevated the roles and powers of the parliamentary committees. The basis of this article is to isolate constitutional provisions that spell out the mandate of Parliamentary committees and analyse whether they are effective to anticipated standards in the Constitution.  Parliament is one of the key institutions in Kenya’s Multiparty democracy. To undertake its functions as outline in Article 94 of the Constitution, Parliament will spend Ksh 39.15 billion in the year 2020/21 . Parliament’s spending is equivalent to eight days of taxes in a year . This would be equivalent to Ksh. 9.8 billion every quarter or Ksh. 107.26 million every day. 

Given the magnitude of spending and principles of Public Finance outlined in the Constitution, Parliament needs to demonstrate the value for money as per article 20. As a branch of government, Parliament is bound by article 35(3) of the Constitution and is required to publish and publicize any important information that affects the nation. Parliament deliberates by way of motions, bills and oversight mechanisms. Parliament administration is handled by the Parliamentary service commission which is an independent commission. 

Article 124 requires that when a House of Parliament considers any appointment for which its approval is required under this Constitution or an Act of Parliament the appointment shall be considered by a committee of the relevant House. The committee’s recommendation shall be tabled in the House for approval, and the proceedings of the committee and the House shall be open to the public. Parliamentary committees are increasingly addressing complex emerging issues in society which include Competition, pervasive procurement fraud, and state fragility. From practice, it is evident that committees are engines that drive Parliament. The United States Senate considers Committees as fact-finding, consensus-building, policy-recommending panels .

Roles of Committees as Organs of Parliament 

The economic concept behind parliamentary committees is the division of labour and specialization. Division of labour combines specialization and the partitions of the complex production task into several, or many, sub-tasks . Much of Parliament's work is done through committees. Parliamentary Committee membership enables members of the National Assembly and the Senate to develop specialized knowledge of the substantive issues under their jurisdiction. The processes of Parliamentary committees such as questioning and speaking time must be out rightly clear.  There’s a huge opportunity cost anytime any Committee of Parliament drops the ball in its work. In this article, I isolate two constitutional principles and give solutions that can help Parliament get more efficient trade-offs. They include the committee's powers to summon and operational efficiency. 


What Role Can the Private Sector in Kenya Play in Hastening Attainment of Herd Immunity?

Fiona Okadia
Post Date: 11 March 2021

One of the most common reasons for government intervention is to be able to maximize social welfare. This can be achieved through various means such as promoting the consumption of goods that confer positive externalities. In the case of the COVID-19 vaccination in Kenya, there is scope for private sector procurement and administration of the vaccine to paying patients to expand vaccine coverage and hasten the attainment of herd immunity within Kenya


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