(Cuaprer 6 ‘Tue Ruue or Law Inttlecal ownenhip of the concep ofthe reo hw woul be ical to clan Ths becuse the: ‘Re flaw in sme form my be ced ck Aro a at teen champ by Ron Jai medi a aw ike Engh lnm, uch ax Hote, Locke, Rowse, ‘Montes nd the Arras ound: Geran phonphes Kat Hegel nd the nth cemary nate of he chet thscontary ch esky dene Sue» igh, Raw, Sal ‘ing Zena Le Kean Yee™ “Tuts Dicevaw concernion “The concept ofthe rule of ints Westin and most repated foramultion, i howeverfensrbuted 0 AV Dice." Dicey pred onarucve nelle moments to tu the English Constitation nd noticed hati fad hele of lw a cent featre.”* The ful of awe argued wis one expresion ih east hee though ined conceptions. Inthe fin place the concept ental hac nan canbe ily mae to sul is body o in goods excep for tice each of oti the ofr gl mae fie the ‘nary sf the land nti sere argued tat hele ow ‘ontated with every ter of goverment based on dhe exercise ‘by pemone in authority of wide atbitray or dieroionry powes of ‘omtrint! This postltion was aot ently an ination. The Maga Carter had recognized cl eae that aera ane a he ci? 8) Sr ‘Stu jor maa tna Gm yn ae ft hn tpn Mand Ma 7 A=rs Kaas Moony nd Ong Aart o ‘eho Canttr aw tay "Noe man salle ie rnin or sipped ati ight ot scion. or outived or ele or dpe hs sng) ‘ter wn wl we rose wih oc gt in, eae tod mcg ol enh a bythe of In the second sense, the concept entail noc only tht no man i awe the Lo tao tht every man, whatever be his/her nk fr candion, sec 10 the edna La of the rl and amet to he jin of oly tat. Dicey undercard deed for jul proceace being fected in ondary sibums ence ‘levating the ae ofthe judicial branch of wate Aint en was ‘not nove: Locke akeady held thao man ithe cv sity can be exempted frm the wn of “The Diceyan term ‘tle of hw has. thied conception That ™ “The conto pera! by there flaw the ground hat the encalpracin ofthe comttion (Ree the ht te peony othe tg of ple meting) ae wth the foul fue ecsons dering the gs pate prs ‘in price cas trough Ble the curs where ue many ‘econ te secur 6 1) ge oe gh Ina reo pears lf the al pnp ‘he coma Dicey pasehe re fw exemplifed by the English Constiution, as sound concept and ondined the dtingusing cance of English constitonali Of ds charscterii, he bowed” Forcgn observers of Engh mono sich or example 2s Vie, De Ll de Toequvile, ot Gest, hae bec fi re ack th Ine Ele thse with het tht Engh sey sovered at ely anyother prt of Eto arte ale of (Camcisus oF rim Dicexay concernion Te is notewordhy that Dicey concerted on the snasion and ‘incumstaneesprevaing in the UK the tine of it wring, For {Fr atm 9 Mors vr era and Og ar The ae oe s instance the unique history of running government on the wheel ‘of Tagely unwriten consiton could have deen the UIC 19 4 constitutional scheme whereby ondnary courts ater than the ‘consttotion, athe heat ofthe rule of a Thus, Dicey cso te airy cores fhe he bdr of the tule of could not eal py orto the devon ‘oui of At Ia ch coon the oat eo of rch ‘tote propl pec for rans of poets grange” Ie probly forthe tenon ofthis ditinctive cradle cht i hi ‘ot een easy to decper the exact meaning ofthe ue of wat xpoundeby Dicy:nether ass idea been unanimouy accepted ‘The Diceyan conception of the rue of lw ha, consequent teen a subject of mach academic critica, According to Gt,” sone ofthe shortcomings of the Dicean conception che the Tollowing: The conception Favours judi legslaon which makes ‘he nfs and not more cern the concep fed to ake in ccont soil diferemition and lel snetione inequalities dha ‘cited bodh in aubsentive and procera! lw Between ten ad ‘women: and the model fas narow concepein of sate Power ‘sith the jcc banc ofthe government beng the pase Branch Inthe sese that i operation depended primarily on mobilization ‘ofthe lw by private etizens which mobilization remains Inge dependent on their power to hie ll serve, and pry on the feaccute branch of the government — pecially the overt and ‘covet police and ether ecury agencies. Appar" opines that on all handk>® Dicey’ ana lefcieinpariculr he argues tended 6 uly exaggerate the ‘mere of the ral of aw’ ween itis ow seen that the ele ow 2st preva in Bei subject one ination The tation ‘wth the extension of governmental activities into new fel such Seeman 51 Spm Ags Tne pe 08 32 Appear rary EC en. Mors Kir tr a Ope Amba 2% education, pubic heh, town plnning, the protection of the “tnmployed fete thas become comtnon o erat io excetine tuhoie joc dts which, dhe eof prevailed without ‘xception. Would have been ented to the ordinary cour." Kapur categorically sates thatthe “rae of "as enunciated by Dicey is now subject to serious imitations” He cits the great Increase inthe actives of the State during the pas saty Yeats ‘402 having ited the ule of lw’ fa more seriou When Dicey in 1885 wrote the Ft eon of his Lon of he oti, the pray fancoom ofthe wate were the preservation of wand ‘onder defence and foreign elation Toy the ance the Stat ‘ne more postive at they regulate the national ein miro ‘ways. Disresionary author i thus sn every deal inevitable Enphais has, however, been pice upon the dinton Between nary power and arbitrary power thats power exer by an agent sponse to none and ube to no conta" ‘Writing eter in 1933, Jennings ha sted hat ee exposition given by Dicey of the concept crates 2 fale impression ‘Commenting decades ber de Sith decribed the concept one ‘of open texte’ which lends ill tan exticmely we ane ‘of interpreations? He did not noedhle l10atep 30 Imerpretation of dhe cnet Writes de Sith ‘One can at eat ay da the consp slit opty (tht the powers enced by pts a fice» lepimate Rounds they mut he fd shorty cone by lt and (i) cha the lw sald confor ery nr ‘st af ste bth ubtaniv and pacer The rule of law therefore precludes abitary ction on the pt of ‘hoe who ram and cond goverment” The forgoing leas us 3 tp ee he a Ere gtd weed pheno io a apn grantee na 28 Aerie rf pl 9 35 Wimp Trl nes 9 6 2B GU amy atin de Po 4 ep No ois Mery an One Ants . to conclde that atthe core of the rept for the rule of hw ns fin clear and certain rls he normative fies) the ete imteational amework to enforce the ligand, ehe abience of awbinarine. Perhaps becae ofthe above misioerpreationshe nteratonal ‘Comminion of Jurist IC) convened a number of conferences for purpows of agteing upon an adapeion of Dicey exposition of ‘he rule of tht could be made nena The most notable re ‘of theve conferences was the Deelation of Dehi of 1959” This Declaration conceptualized the rue of lw enti: (0) The right wo epreseattve and responsive government — ‘hat se right to be governed ty eprenentatve boy ‘were othe people, (6). The poviion ofa retnedy Fr every zen wronged by goverment (6). Cerin nnn standards or principe fr the Law ~ the contained in the UDHR. 1948 and the Eoropeas ‘Conention on Human Rights 1953 nchaing edo ‘of eligion,fcedom of sembly and asocution, the isence of retentive penal as (The eight co-n fr tri which involves Censingy of Crimi ow the preuiption of immocence: reson ful reliting tare accuaton and detention pending tra the rahe to Teal advice public wil the Pt to peal the abenceofevel snd uns punishment; 0d (©) The independence of the judiciary including proper round and procedate for te ronal of ods. ‘Tue nue oF Law AND nis 2010 CoxsrmeTION IF ics agree that an accurate meaning ofthe rule of was Been supplied then ic not dificult to idem eaces in the 2010 ‘Consition of Kenya, To begin with the emacament ofa witen ‘omsttion iim el, evidence af the ule of la True, the ‘objet of any sound coostinton is dfn to esa dhe rle ‘ofa Khas Been argued tat dhe law rues pial action 3ST pty seh nly jerita Morte rd Ong An oo ‘meh Contr aw Kay {ar more duly where there it 4 writen contiation prescribing ‘more findamentlRanetone of government than where there 4 supreme lephstre an the UK" Unk the UK, Kens boss ‘ofa writen conti. A remarlable festa of hit Constiton ‘sthat ie deca ise sovereign over and above aber lw atons, auchorits, precedents customs of conventions. place i the Social an plioal dapematon ie ear (1) This Constution the supreme Iw of the Republic and bid all pono ad all Nate og t both ech of poverncn | (2) Noperon may clan or exe Sate authority except at suthoraed unde hit Consion, ° Ay lw including customary law, dat is incontent ‘wth the Comstion i wo to the extent of the inconsistency. and any actor omison in contenenion of {his Contin ta, “Ths, each “acsion of 3 public authoriy can Be tee by dhe Gonsittion, oe by the’ ws made in accordance with the ‘Consition, odetennive whether wat egal rile Kenya Js therefor, ke the rst of democracies in Afi," anchored all her programme, scons and policy dictions on dhe rule of law the ive point of which ss the Constiaton, Looked t fem Jeanings’ point of view ths development of enacting » supreme ‘writen consi coul be interpreted 3 andament prot of {he ale to uphold the ue of awe In all crieal regan, the Famowork erected in the new consictonal oder am tempt a eprentatve and reponse Tam BL The 19 Common oe Rep oS dc py pe The ‘Spa gm pa nS ey ne ‘Sea nn Roa Ege pts slp ‘Sate apn mons grep ke Ee ee es a cd ors nts Monto ard Ong Aes "ec o ements, pas fhe vale ar principe {good govermance, igri, tangreney and account Stary the cece sytem cond tobe reproettie of eh all gender, pone wit des well are to Aira sffage Bed onthe apation fr fa apracntaion, xliy ofthe vote and ie ad fa lector ™ Although Dicey ndenood the mane of pling igh © te the prnnce of adi inthe UK in Key hate ‘Seemed bythe Comsittion nlf which a Chapter 4 gran 3 ‘rer of eniemens These inci the its 0 He egy {ha eso frm dicriminstion, humanity edo of niece, rgon, Ble and opi; feedon Of expesion: Iulia rigs ace 0 joe; ant humane erate and fat Nearing of nepected, iced o deed prom” Egat of sey pr fn the i al he igh al protein ad petite iw alo gamed” ‘Anacapa ard 4 pbc wri before» cour of to" in the me vein, no one 0 e consid or a ato Connon which he ne wa commited or omited not Soden in Kenya or rine under inert ns postion that eran in honor of Dicey theory The Coneaion Fehr snc the sgh wo owwenbip and enjoyment of pre rope In adion, Parmer consane fom acing [Eerta ake sy rae propery or ejoent xc in tbe Tied cumstances pond by she supreme a The materia secon ea 3 ae 27 aeett BY Pane eg 221 th Mam ae cm le at orn ma bpd ig lS oe ‘Tp a my tn sop i pond nome ie ey fmt 20, eeerine Monten ard Ong Ann o ‘Te New onan oR (2) Patient sal nx cma aw tha pei the State of say peso |) wo abitaily deprive a penion of property of any ‘Scripon oo any interest ino ight over, ny oy say ern = tight unde th Aro thet of aye ‘sound specie or cootempited in Arie 27). ‘The cmurgeferenced article 27(8) prohibit diect or indice, discrimination on the grounds of ree, xx, pregnancy. mara seas heh sus, eae or sca erigi, colour age, ably, region, conscience, bebe, cure des langage ob The 0 dels re tet ply that dscrimimion inthe ownership tnd enjoyment of property proscribed, major improvement Dicey oigl ples: The provisions are certain to beni sspecly the femule gener, which at Guo ober bose, at inthe pe salfned detncions of profound proportions, more 10 im the ownenhip or enjoyment of property. why one of the key principles ofthe lind plicy is theshinination of gender ‘Sscimincion i aw, customs apd practices telted eo and ad ‘property in and’, Thete te however wo majoras whe the "ght enjoy or own propery maybe conceded. The fi senaro Isvwher dhe deprivation in question elt fom an acqustion of land ora testi land in acondance with the caper on and and emionment:™ Under th Ramework fr insane, “The Sate ype he we fay la or ayn ight ‘er any Bid in the nee of dtc, pb ey, pb Putte ray pbb ea, rn ae pig “The second lmiation operates where the eniement is comsrined fra public purpose In this ese prompe payment in il fo fompensition require. Further, the person whose property Fights ae resected eed to dhe right of accesso 4 cour of aaron. 2 kt ort Kinin Mote rd Ons tet aie ae law Further sil prorison my Be made fr compensation o be po cccupans i go faith of ind acquired under claws (3) of the arc eventhough hey may not hai et and" Court of aw ate envied 0 play a crcl role in the proestion of human rights nd i epecly the High Court, ‘hich is cntrazed with the power “o hear and determine lictions for eke as dei vication or iningement of, oF het to, rght o damental redone et to Priament to enact legislation (0 give jurisdiction to subordinate cours 9 Thar and determine appistons for reds of den ilaon ‘or infingement of of treat, ghto fadament eedom it ‘he Bill oF Right I he couse of enforcement or interpretation of rigs, cours should ideally breathe more if int constiional ronson They ought to expundather than restit the scape a the ‘ght well ino apply the meme ride. One ay ui tht the doctrine ofc precedent cou lyre the ‘new constitutional onder As diced eer in thi pubiotion, ‘now more than ever Before the doctrine of judi independence Iw been given lea consul meaning, bein Dicey tiple limbed theory. ‘StoNmeANCE OF THE RULE OF LAW In conclasion, itis important co observe tt the Dicey dete i ood or nothing” sere namerule fh been anced that the observance of he rae of ae rite to pres in Bod the under-developed and developed work In this regal he role of aw ido be dhe ey that ca unlock eter economic ed ethia weak. After Present ofthe Wold Bank a ven ‘Med tha for Afia to develop needs rong, well xablabed Fale of i regs to ene eo trade ult property an out Ss kadai, 28 Ra od nT yg Wa ea ie ne tas Rters Knsa oroy ndOs sr e ‘ho Now Consors aK ‘ofporery™Thiscoune shoul be applicable to Kens Preamble argh 3 ofthe UDR. reckons tha teen ha human ‘ght shoal he protected by the ral of an ht way the rle ‘flaw has come tobe identified withthe concep ofthe righ of ‘man. During forum organized bythe Inernational Commision ‘of Juris in Delhi in 1959 alluded o above representatives of no ewer than iy thw countered ther ection tht the tale of lw is dynamic concepe which should be employed £0 Ssfogard and adance the poliial and cil righ ofthe individ Ina fee moiety. Se Wie, rae, ol tak Gg new, at Bogen lp ti ety Ras ay Rea an Teri eee Sen O26 Send toe 2 eae tag ee 5 (Cuaprer 7 SEPARATION OF PowERS De Smith recounted the history and epochs of the doctrine of separation of powers in the mou dams ormat.The doctrine, he recon” seca tack Arie: wt dewoped by Locks i ben {yo fron by the Frech pba pesoper Momeni ‘was ued a0 as of he Engl Consston of the ety Saeco cnmey ut) Mee rather thin ro Engh Conon: the dicipe of Mest, partment (he Nor Americ enced on fn a tay the dacrine sree 3 nue of aroun manfatn. ord Akins sted to, perhaps, one of the eat and most infcal satements in poll ail eal thought. He concened that power tends to corrupt and that ‘absolute power tends to orrape absolutely I 1650, Locke warned ayant the concentation f sate powers ina few hand. He pointed ou tat where sate power i fred with 2 few persons, the liberty and security of cizens ‘ficn rot in iminene danger The paces he sapped to hit Yesing sate of afin the dnwibution of power to dierent inividal and insations. Locke posited thre power legiatve, an exccrive ar a feertive. "By ederaie' he meant de power to cont frega afar The piosopher did no envisage an Independent judiciary and nether tid he beheve in ndepersence and qui a findameneaatbutes of sepration of powers, for hein weond a having el "Ther canbe but one spree power hich the legit, to which al the res ae and it Be 20 AC Sepp np fe pe