University of Nairobi Law School
GPR 113: Constitutional Law
Coursework Essay Instructions
April 2019
Answer one (1) of the following questions which carry a total of 30% of the final marks.
Follow the instructions below.
The essay is to be done in groups. Each group is to consist of 8 to 10 members. Every group shall
answer one question. The Class Reps are to consult and coordinate so as to ensure all the
questions are answered.
The essay must use appropriate constitutional or statutory, judicial (or case law), and juristic (or
academic) authorities. Ensure that the work embodies your original expressions. You must quote
and may paraphrase others’ expressions. And you must cite the sources used, in the text and
footnotes. Then include a bibliography.
Each candidate must fill in and sign a copy of the Anti-Plagiarism form issued with the course
assignment or available under the University of Nairobi Plagiarism Policy (March 2013). The
attached Anti-Plagiarism form is also available in the Department of Commercial Law.
Plagiarism shall be treated as an exam irregularity or exam malpractice and shall be dealt with
under the University of Nairobi regulations on exams, research, creativity and innovation,
intellectual property and anti-plagiarism.
The essay must be between 10 and 15 typewritten pages; font 12 for the text, font 11 for indented
materials and font 10 for the footnotes; Times New Roman; one-and-a-half spacing. Include a
List of Constitutions, Statutes, Rules and Regulations, cases, Abbreviations and Acronyms; and
Bibliography. The work must be paginated, centre bottom and justified. Simply staple the essay.
No fancy binding. No extras like transparent plastic or manila covers. It is the duty of every
candidate and not just the group leader to ensure that every relevant candidate signs the
assignment. Every candidate must ensure that the group submits the essay personally and register
their names, registration numbers and signatures on the essay as they submit.
The essay should be submitted together with the signed Anti-Plagiarism form, through the
Secretary, Department of Commercial Law, University of Nairobi Law School by the close of
business (CoB) or 5.00 pm on Thursday, April 25, 2019.
In case of any clarification needed, consult the Co-Lecturers on [email protected]
and
[email protected] before COB or 5.00 pm Wednesday, April 10, 2019.
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UNIVERSITY OF NAIROBI LAW SCHOOL
LLB I 2018/2019 CONTINUOUS ASSESSMENT TEST (CAT)
INSTRUCTIONS
A. Class members to form groups of between eight (8) and ten (10) members under the
guidance and coordination of the Class Representatives.
B. Every member of the group to personally verify their name, registration number
and sign.
C. The Class Representative to submit the list of group members to the Constitutional
Law Co-Lecturers by close of business (CoB) on Tuesday, April 9, 2019
D. Conceptualise, problematise and contextualise the issues. Engage legal sociology by
citing a variety of constitutional and juridical (or legal), judicial and academic
authorities; as well as political economy.
E. Completed assignments to be submitted through Secretary, Commercial Law
Department by Thursday, April 25, 2019.
Constitutional Law Coursework Questions
1. “Constitutional processes take precedence over administrative acts.”
Justice Chacha Mwita in Law Society of Kenya v AG & Another (2018).
Discuss the supremacy of the constitutional process over administrative acts.
2. “The ‘handshake’ between President Kenyatta and ODM Leader Raila Odinga has
created semblance of peace. However, this is a temporary measure aimed at securing
political stability. Lasting peace lies in ethnic and regional inclusion in state
appointments and resource allocation in Kenya and Africa.” Discuss.
3. “Under the Constitution of Kenya, decisional independence of the Judiciary is absolute.
However, the recent events illustrate the desire by the Executive to control the Judiciary.
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Citing relevant examples, discuss ways in which the Executive attempted to interfere
with the independence of the judiciary in Kenya and Africa.
4. Neo-Marxist and critical legal studies (CLS) jurists argue that juridical decisions are
intertwined with politics. Discuss the extent to which this argument is reflected in the
functioning of Kenyan Courts and the consequences on the Rule of Law.
5. With reference to constitutional, statutory and judicial authorities, discuss the legal
processes, historical challenges and prospects for credible presidential elections in Kenya
or elections leading to the declaration of a Prime Minister should the Constitution be so
amended. What lessons can Kenya learn from any (combination) of the following:
Nigeria, South Africa, Ghana, Botswana, DR Congo, Zimbabwe, Uganda and Rwanda?
6. Conceptualise, problematize and contextualize the constitutional roles of the various
agencies, independent commissions and offices in the fight against corruption in Kenya
and Africa.
7. After more than eight years of implementation, it appears that the Constitution of Kenya
2010 ought to be reviewed, particularly to address governance inadequacies and other
issues which have become apparent over time. Discuss key changes needed in the
Executive branch of the Kenyan Government.
8. After more than eight years of implementation, it appears that the Constitution of Kenya
2010 ought to be reviewed, particularly to address governance inadequacies and other
issues which have become apparent over time. Discuss key changes needed in the
Legislative branch of the Kenyan Government.
9. After more than eight years of implementation, it appears that the Constitution of Kenya
2010 ought to be reviewed, particularly to address governance inadequacies and other
issues which have become apparent over time. Discuss key changes needed in the
Judicial branch of the Kenyan Government.
10. After more than eight years of implementation, it appears that the Constitution of Kenya
2010 ought to be reviewed, particularly to address governance inadequacies and other
issues which have become apparent over time. Discuss key changes needed regarding the
constitutional commissions and independent offices.
11. After more than eight years of implementation, it appears that the Constitution of Kenya
2010 ought to be reviewed, particularly to address governance inadequacies and other
issues which have become apparent over time. Discuss key changes needed in promoting
innovation and economic growth in Kenya.
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12. One way through which the Executive interferes with the structure of government and
undermines the independence of independent constitutional organs is through the
Executive Orders. Discuss how the Kenyatta 2 administration has used the Executive
Orders to alter governance structures and thereby undermine the supremacy of the
Constitution
13. Discuss the historical background of constitutional amendments and reforms in Kenya
since 1963, highlighting the key issues and whether the various amendments or reforms
addressed the prevailing challenges. Cite appropriate authorities.
14. “Devolution is meant to bring equality and equity in the distribution of national
resources. However, this faces serious challenges from the National Government. In the
end, it may be difficult to achieve the intended objectives of devolution. How can the
proposed constitutional amendment strengthen devolution?
You may use the materials from the course outline, handout, and related materials. Some of the
authorities include:
Books, Monographs and Articles
1. Ben Sihanya (2019) Constitutional Democracy in Kenya and Africa Vol. 2: Presidency,
Premier, Legislature, Judiciary, Commissions, Devolution, Bureaucracy and
Administrative Justice in Kenya, Sihanya Mentoring & Innovative Lawyering, Nairobi &
Siaya. (some chapters cited below and in the course outline, some are issued as
handouts).
2. Ben Sihanya (2019) Constitutional Democracy in Kenya and Africa Vol. 1: Tribalism,
Elections, Governance, Human Rights, the Just Rule of Law, and Due Process, Sihanya
Mentoring & Innovative Lawyering, Nairobi & Siaya. (some chapters cited below and in
the course outline, some are issued as handouts).
3. Ben Sihanya (2019) “Securing judicial independence and accountability in Kenya,” Vol
10, Issue No 11, Nairobi Law Monthly, 38-43.
4. Ben Sihanya (2019) “Constitutional questions on the presidential appointment of the CS ,
Interior and National Government Coordination, National Government Implementation
and Communication Cabinet Committee and Regional and County Coordination”
Working article at Sihanya Mentoring & Innovative Lawyering
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5. Ben Sihanya (2018) “Constitutional Commissions and Independent Offices in Kenya
Experiences, Challenges and Opportunities,” forthcoming as Chapter 8 in Ben Sihanya
(2019) Constitutional Democracy in Kenya and Africa Vol. 1: Tribalism, Elections,
Governance, Human Rights, the Just Rule of Law, and Due Process, Sihanya Mentoring
& Innovative Lawyering, Nairobi & Siaya.
6. Ben Sihanya (due 2019) “Amending the Constitution of Kenya Post 2017: Interests,
Process and Outcomes,” A forthcoming book chapter on Constitutional Implementation
edited by Prof Yash Pal Ghai, Katiba Institute, Nairobi.
7. John Kamau (2018) “Ex-intelligence boss Mwangi Muriithi's failed bid to get justice,”
Daily Nation, Nairobi, 9/12/2018, at https://www.nation.co.ke/news/ex-deputy-director-
of-intelligence-muriithi/1056-4887516-q55l8tz/index.html (accessed 30/1/2019)
8. George Odunga (2010) “Are the courts the culprits?” Vol 10, Issue No 10, Nairobi Law
Monthly 58-61.
9. Yash Ghai and Jill Cottrel Yash (2019) “Quest for independence is an invitation to
struggle,” Vol 10, Issue No 11, Nairobi Law Monthly, 35-37.
10. Yash Ghai & J.P.W.B. McAuslan (1970) Public Law and Political Change in Kenya: A
study of the legal framework of Government from colonial times to the present, Oxford
University Press, London.
11. Ben Sihanya (2017) “Electoral justice in Kenya under the 2010 Constitution:
implementation, enforcement, reversals and reforms,” Vol 13(1), Law Society of Kenya
Journal 1-30.
12. Yash Ghai (2018) “Why I support calls to amend the Constitution,” The Standard,
Nairobi, 29/4/2018, at 22.
13. Yash Ghai (2018) “Amending the Constitution or amending politicians,” The Star,
Nairobi, at 27/1/2018, at https://www.the-star.co.ke/news/2018/01/27/amending-the-
constitution-or-amending-politicians_c1703747 (accessed 2/8/2018).
14. Moses Nyamori (2015) “Violation of electoral process still a challenge, says Prof Ghai,”
The Standard, Nairobi, 3/12/2015, at
https://www.standardmedia.co.ke/article/2000184289/violation-of-electoral-process-still-
a-challenge-says-prof-ghai (accessed 24/5/2017)
15. Yash Pal Ghai and Jill Cottrell (2007) “Constitution making and democratization in
Kenya (2000-2005) 14:1 Democratization 1-25
16. Ben Sihanya (2017) “Key issues that must be in place for Kenya to secure electoral
justice in the 2017 polls,” The Standard, Nairobi, 11/8//2017, at
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http://www.standardmedia.co.ke/article/2000211577/key-issues-that-must-be-in-place-
for-kenya-to-secure-electoral-justice-in-the-2017-polls (accessed 23/5/2017).
17. Ben Sihanya (due 2019) Constitutional Democracy in Kenya and Africa Vol I: Tribalism,
Elections, Governance, Human Rights, the Rule of Law, and Due Process, Sihanya
Mentoring & Innovative Lawyering, Nairobi & Siaya.
18. Ben Sihanya (due 2019) Constitutional Democracy in Kenya and Africa Vol 2:
Presidency, Bureaucracy and Administrative Justice in Kenya, Sihanya Mentoring &
Innovative Lawyering, Nairobi & Siaya.
19. Ben Sihanya (due 2019) “Presidential election and transition in 2017 and beyond:
Electoral justice, popular sovereignty and the secession debate,” forthcoming as Chapter
14 in Ben Sihanya (2019) Constitutional Democracy in Kenya and Africa Vol. 1:
Tribalism, Elections, Governance, Human Rights, the Just Rule of Law, and Due Process,
Sihanya Mentoring & Innovative Lawyering, Nairobi & Siaya.
20. Ben Sihanya (due 2019) “Kenya’s presidential, political, governance or constitutional
crises and reform post 2017,” forthcoming as Chapter 15 in Ben Sihanya (2019)
Constitutional Democracy in Kenya and Africa Vol. 1: Tribalism, Elections, Governance,
Human Rights, the Just Rule of Law, and Due Process, Sihanya Mentoring & Innovative
Lawyering, Nairobi & Siaya.
Some key cases
21. Law Society of Kenya v. Attorney General & Another; Mohamed Abdulahi Warsame &
Another; (Interested Parties) Petition No 307 of 2018, eKLR
22. Mohamed Abdi Mahamud v. Ahmed Abdullahi Mohamad & 3 Others, Ahmed Ali Muktar
(Interested Party) Petition No. 7 of 2018 Eklr
23. Cyprian Awiti & another v Independent Electoral and Boundaries Commission & 2
others [2019] Petition 17 of 2018 eKLR
24. Hon Philomena Mbete Mwilu v. Director of Public Prosecutions and 4 Others, Petition
No 295 of 2018 (Ruling on legal representation by SC Orengo, SC Omogeni, QC Qureshi
for DPP; conflict of interest)
25. Hon Philomena Mbete Mwilu v. Director of Public Prosecutions and Others (Ruling
staying prosecution of DCJ Philomena Mwilu)
26. Prof Tom Ojienda v. Director of Public Prosecutions and Others (Ruling staying
prosecution of Prof Tom Ojienda, JSC members)
27. Maina Kiai, Khelef Khalifa and Tirop Kitur v. IEBC and the Attorney General, High
Court Petition No. 207 of 2016 eKLR
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28. Independent Electoral & Boundaries Commission v. Maina Kiai, Khelef Khalifa, Tirop
Kitur, Attorney-General, Katiba Institute & Coalition for Reforms & Democracy, CA No.
105 of 2017
29. Republic v. Independent Electoral and Boundaries Commission & another Ex Parte
Coalition for Reform and Democracy & 2 Others, Misc. Application No. 637 of 2016.
30. Dr Ekuru Aukot v. Independent Electoral & Boundaries Commission & 3 Others, Petition
No. 471 of 2017.
31. Hon Raila Odinga & Hon Steven Kalonzo Musyoka v. Independent Electoral &
Boundaries Commisssion & 2 Others, Presidential Election Petition No. 1of 2017.
32. Tom Kajwang’ v. Republic (2018) (Treason case)
33. Mwangi Stephen Murithi (1-5) (See CODEKA 2)
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