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Katiba Institute Article

Thoughts about “JOYS” for Kenya

Thoughts about “JOYS” for Kenya

We have been focussing a great deal on corruption these days, and certainly corruption is a major obstacle to fair decision making. Apart from being a criminal offence (on the part of both giver and receiver of a bribe or other inducement) bribery would give rise to a decision being made on the basis of irrelevant considerations – and thus challengeable on classic administrative law criteria. On the other hand, the briber could hardly challenge – being “in pari delicto” (equally at fault).

But there are other issues about administrative decision making that get much less attention in the media but are very important for those affected by the decisions. Administrative law has all been a rather esoteric area of the law, but it has been brought into more popular focus by the presence in the Constitution of Article 47 on the Right to Administrative Justice: or more accurately to “administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair”, and to the right to written reasons if a right or fundamental freedom has been or is likely to be adversely affected by administrative action.

Public servants are now confronted not just with the (relatively rare) possibility of seeing their decisions challenged in court, but with a revivified Ombudsman (in the shape of the Commission for Administrative Justice). Perhaps there is even more possible impact from a citizenry who are aware of their entitlements, through the Constitution.

It is probably true to say that there is an ever-increasing range of decisions being made by the bureaucracy, and that the Constitution has given fresh impetus to this – as it has to accountability mechanisms. Kenya’s Parliament used to exhaust itself after passing five to eight Acts a year. In 2015, 26 Acts were passed. Increasing numbers of administrative bodies generate ever more decisions. Ordinary people are affected. Decisions may include whether someone is entitled to an ID card or to vote, whether their child is admitted to secondary school, and which one, whether they get a business licence they have applied for, or are awarded a contract, or get a title deed. Decisions are made about appointments, about dismissal, and about disciplining individuals in the public service. Decisions are made about whether a person, or a company, may build in a certain place, and what building standards must be respected. Decisions about allocating land, or revoking allocations, extending leases. Decisions about closing businesses. Decisions about taxes.

The Constitution requires a culture change: not only must decisions be made fairly (which no-one would have denied) but they must not be discriminatory – on any ground, and they must be made promptly, and those affected must be heard; still cases come when decision makers are defending not having respected the last. The constitutional developments, which draw on the Constitution of South Africa, gave an added importance, and perhaps urgency, to an idea that had simmered on a back burner for some time, namely of producing a Kenyan guide to the people at the “sharp end” – namely those who make the decisions – inspired by, if not based on, The Judge Over Your Shoulder.

Since the Constitution was adopted, there have been two legislative developments: Parliament passed the legislation required by Article 47: the Fair Administrative Action Act, in May 2015. It defines “administrative action” broadly to include “(i) the powers, functions and duties exercised by authorities or quasi-judicial tribunals; or (ii) any act, omission or decision of any person, body or authority that affects the legal rights or interests of any person to whom such action relates.” And the Act is said to apply to all state and non-state agencies, including any person(a) exercising administrative authority; (b) performing a judicial or quasi-judicial function under the Constitution or any written law; or (c) whose action, omission or decision affects the legal rights or interests of any person to whom such action, omission or decision relates.”

The second development is the Public Service (Values and Principles) Act also of 2015. This applies to “all State organs in the national and county governments, and all State corporations”.  It requires public servants to be honest; show high standards of integrity; be transparent; account for their actions; be respectful towards others; be objective; be patriotic; and observe the rule of law. Public services must be delivered promptly (which means without unreasonable delay), effectively; impartially; and equitably. Impartiality and/or equity are not achieved if there is discrimination or a failure to give accurate information.

Furthermore every public institution is to develop “standards for the responsive, prompt, effective, impartial and equitable provision of services”.

Clearly both Acts impinge on the decision making process. So it also seems that the JOYS Kenya project may help in the standards development project.

Our thinking so far on the scope and approach of a possible Kenyan JOYS includes:

The readership

Basically the publications should be addressed to the decision making public servant at the national and county level. The 2006 JOYS says “The target audience consists of reasonably well-informed and interested junior administrators whose task is to make decisions affecting members of the public, or to prepare the material to enable others to make such decisions.” The implication of that is that senior civil servants will not need the guidance. In the Kenyan context, however, the history of the country, and the recent developments with which we began this short paper may mean that even more senior people may sometimes be faced with some doubts about the right way to approach decision making.

The Manual of Administrative Law in Malawi is subtitled “A Guide for Ministers and Public Servants”. In the Kenyan context Cabinet Secretaries may (to take a few examples):

  • under the Basic Education Act
    • appoint people
    • make certain other human resource decisions “in consultation with the Salaries and Remuneration Commission”
    • approve charges at a public school
    • accredit curriculum development agencies
  • under the Universities Act:
    • grant a Letter of Interim Authority to a proposed university if satisfied that such institution shall, once established, contribute to the development of university education in Kenya
  • under the Kenya Citizenship and Immigration Act, 2011
    • order the removal of a person illegally in Kenya
  • under the Scrap Metal Act
    • hear appeals against the refusal of a licence to deal in scrap metal

This mini-survey shows that there is indeed room for including Cabinet Secretaries. This would have certain implications. For example, the issue of delegation: which of the huge number of functions apparently assigned  to the CS under some laws must actually be exercised by him/her personally? There is a brief discussion in JOYS, but a longer one in the Malawi version, where it is pointed out that under the equivalent of our Interpretation and General Provisions Act Ministers may delegate any power (it is the same here). Question: is this what was intended when it was provided the CS was to hear appeals under the Scrap Metal Act?

Another issue that would require to be discussed is the meaning of “in consultation with” – especially distinguished from “after consultation with”.

Some people have been assuming that this publication would be used by the public also. It will be interesting to know what civil society representatives think. If the constitution is to be really useful, the people need to understand it. Yet the style of writing may be very different for the two readerships. A possible approach may be to have brief, highlighted summaries of main issues, on the assumption that that would generally serve civil society, while the public servants would need something more detailed.

We would hope that it would also be useful for the Ombudsman’s office, and for other agencies that scrutinise decision making processes. Even the legal profession, which litigates them

The purpose

This is of course closely connected to the readership question. The first purpose of a publication of this sort is to alert decision makers to the general issues they have to be aware of, and to bring into one place, in an accessible fashion, all those issues. Many of the issues, once drawn to the attention of a decision maker will not be hard to deal with. But some will be harder: you know you have to give reasons, but how much detail does that mean?  You have to do something in reasonable time – but what is reasonable when you have many claims on your time from people every one of  whom thinks his or her claim should have priority?

Despite the name of JOYS, its Preface states that “Its purpose is not ‘How to survive Judicial Review’, but rather to inform and improve the quality of administrative decision-making – though, if we are successful, that should have the incidental effect of making decisions less vulnerable to Judicial Review.” The purpose of our publication will be similar (on the assumption that by “quality” we mean not just efficiency but also justice, equity and acceptability).

We would suggest that the hope is that decision makers with access to this publication (or trained by the KSG on the basis of it) will be able for themselves to avoid mistakes more often.

We would suggest that this is not a “be your own lawyer” publication. Obviously the framework is the constitution and the law, but actual legal cases will be handled by the AG’s chambers or by the lawyers of the particular agency. We would suggest that the real thrust of the publication should be the people: the whole point of Article 47 is that real individuals should get fairness from the system that is supposed to be theirs. On the other hand, there is also virtue in getting across that the law does require this, and that consequences of an unpleasant nature may follow from disregarding it. These consequences may include internal disciplinary procedures (it would be interesting, helpful, to know how far there are repercussions for individuals of their agency being judicially reviewed, or figuring in the Ombudsman’s naming and shaming list). We should point out, for example, that some senior public servants have been ordered by the courts to ensure that individuals who have been awarded compensation actually get it – on pain of being held in contempt of court.

It might be helpful to indicate when it is wise to seek legal advice. Where this is to be found will probably vary from agency to agency, some having more in-house capacity than others.

We very much hope that the product will be found useful for training – and this is why we are delighted that the Kenya School of Government and the Public Service Commission have been so positive about it.

The scope

The situation, with the constitution, the two Acts mentioned earlier, not to mention other bodies and the laws that they administer, such as the CAJ, IPOA, the human rights commissions, lay down a complex, intertwined framework.  Then there are the statutes governing the work of individual state departments and agencies – such as those mentioned earlier. We cannot deal with all the specific Acts (though we should include some examples). We should classify the issues that they raise: such as types of consultation, recommendations (are they really recommendations or are they to be acted upon?), time limits, lists of factors to be taken into account, pre-requisites for decisions etc.

As the project goes on, we shall have to decide how much special situations should be discussed. One example is the Capital Markets Authority. This hears appeals from self-regulating organisations. From it appeals may go to the Capital Markets Tribunal. Most of the appeals would presumably be concerned with whether specific statutory rules had been applied. But Article 47 could be invoked.

As far as possible, values should probably be threaded through the other issues. Human rights perhaps need to be treated a bit differently. Many people will not be familiar with how human rights work. There needs to be some explanation of how they are relied upon, what the impact may be, and how rights may be limited.

That takes us to another issue: how far to comment if it seems that something (like a statute) may be unconstitutional.  It seems to us that s. 6(5) of the Fair Administration Act may be unconstitutional, to the extent that it gives an “let-out” from giving reasons where rights are affected: “An administrator may depart from the requirement to furnish adequate reasons if it is reasonable and justifiable in the circumstances, and shall inform the person making the request of such departure.” Article 2 says, “a provision in legislation limiting a right or fundamental freedom  … in the case of a provision enacted or amended on or after the effective date, is not valid unless the legislation specifically expresses the intention to limit that right or fundamental freedom, and the nature and extent of the limitation”. We do not believe that s. 6(5) is an adequate Article 24 statement (quite apart from the issue of proportionality).  The Malawi Guide does point out if a statute is now clearly unconstitutional. That must be right. The issue would perhaps come where it is “arguable” that a statute is unconstitutional.

We are inclined to think that it is not necessary to go into as much detail as JOYS does about the process of litigating.  On the other hand, it would be a good idea to have a brief account of how a case works. And we should also deal with the possibility of internal appeal mechanisms, and tribunals. One of the issues at present is that the whole system of judicial review is in flux to some extent. The courts are still sorting out (and perhaps counsel are not always helping them enough) the relationship between traditional judicial review, Article 47 and the new Act. This means that it is significantly easier to discuss how the responsible decision maker would behave, than the legal route by which their failure to do so might get to court.

The Ombudsman ought to be covered in some detail. Litigating is a daunting process for the ordinary citizen and the whole idea of the Ombusdman (CAJ) is to offer an alternative for the small case where going to court is not merited (or affordable). Public servants and the public need to be more aware of it.

There are other agencies, too, to which specific complaints may be made, such as the Independent Police Oversight Authority.

Should the issue of corruption be dealt with? As commented earlier, a decision made because the person who made it would benefit personally is a judicially reviewable wrong – but is also a crime.

Public participation is a national value, and the Public Service (Values and Principles) Act says a good deal about it (as does the County Governments Act). Absence of participation can vitiate a decision (as in the case of renaming a post office without consultation,[1] to take just one example). Should public participation be included? The boundary between consultation (perhaps with “stakeholders”, which is required in a number of statutes) and public participation is not a clear one.

One important administrative task that is a requirement or a possibility in almost every statute is making delegated legislation (regulations). Notionally the Cabinet Secretary makes them, but of course in reality it will be more junior public servants. The issue of needing to be within the powers delegated should be covered, as well as the process, such as any consultation required. So also should the procedure under the Statutory Instruments Act, if only because it is quite new and unfamiliar and because in a few cases regulations have been held not to be valid because the procedures under the Act have not been completed.

Article 47 is, like the Bill of Rights generally, horizontally applicable. And the Act embraces non-state actors. Some are traditionally subject to judicial review – like professional disciplinary bodies. But should the Kenyan Guide be directed fairly clearly at the public sector, or should it cover the private as well?

The style

It would be appropriate in view of Katiba Institute’s focus, and would reflect the way things are often done at present in Kenya,  to begin with an account of the constitutional provisions, and of the Act. The idea would be to anchor the whole project in the Constitution, its vision and its values, and in the concept of the sovreignty of the people. It would also be appropriate to give some indications of the wide range of statutory and non-statutory sources of requirements and guidance, such as codes of practice.

We would suggest that the  style should be rather less “legal” than JOYS, its New Zealand counterpart and the Malawi Guide.  They are all written with a view to being accessible to the non-lawyer public servant. But it is hard to maintain! We would suggest not following the rather negative heading style of the NZ JOYS – which is based on types of illegality. And not quoting chunks of judgments, like the Malawi Guide. The occasional very short, neat quote may be all right.

In a law book it is necessary to give authority for every statement of law. This does not seem necessary in the current context.  It is suggested that there should be quite frequent references to cases, but as illustrations. Two KI interns, Laura and James, have been collecting cases and we should use them mostly as “stories” – this happened and the judge said it was wrong (or OK). Even better if the judge said why it was wrong. The New Zealand method of cases in boxes is quite nice.  Because the hope is that the readers will be encouraged to strive for better decision making because it is the right thing to do, rather than using the courts in terrorem, it may be good not to use too many cases. There is also the depressing fact that compliance with court decisions is not very high! The push for internalisation of higher standards of decision making may come better from other directions.

We should like to include questions for discussion, self-reflection etc. Katiba Institute has been doing that in previous publications. These would also be useful for those who use the publication for training purposes. In fact, as former university law teachers, we think it might be  good idea to include hypotheticals: short stories and questions about what would be the right way to approach the issue presented.

In terms of style of writing, we would like to aim for short sentences (no more than 30 words), the minimum of technical terms and unnecessarily long words (that is one reason why quoting too much from judges is to be avoided). But we shall seek guidance from those within the public service who know what approach works best. And if it is to be used effectively for training this will also affect style. A good deal of civil society writing, and indeed official writing, for the public and the public sector, seems to be unnecessarily turgid and technical – frankly boring.

The format

We shall have to decide the format for the printed version. Probably not A4, but a smaller page size so that what we get is a proper book. But this does not need to be decided at this stage. We are also involved in a project on a “bench book” for the judiciary on criminal procedure. An older version of that was in two formats: one about A5 size, hardback, was designed to sit on the magistrate’s bench. The hardback format does give it a certain gravitas– not just some ephemeral civil society publication! Hardback might be prohibitively expensive for us. The old bench book also appeared in pocket form, which was much appreciated by magistrates.

It would be very nice to be able to have our product online. It could simply be a pdf – just the same as the printed version. Even as pdf it could have hyperlinks to documents mentioned, including cases. Bu it always seems a shame not to use the potential of the internet. It is worth considering doing an html version: with short webpages that are linked together with plenty of hyperlinks to other material. Other material could include regulations, codes of practice and other “How to do it” guides. This would go beyond current finances.

We have been thinking of putting together the cases that Laura and James, and others, have been unearthing, at least as digests online, with hyperlinks to full reports on KenyaLaw. We were also thinking about the possibility of publishing a digest of the main cases.

The title

JOYS is a great title. But it is based on a very English idiom, and, if we are including the Ombudsman and human rights commissions, not an accurate reflection of the content. Maybe we can think in terms of “We are watching you” or “They are watching you”. Or just a tedious title like “Guide to Decision Making”. Ideas welcome!

The process

When a draft is done, our donors will require us to have a “validation meeting”.  It will be attended by representatives of various groups that will be the ultimate users. This should be organised at a stage when there is a chance for participants to make suggestions that can make a difference.  Time and money permitting, it may be possible to have more than one such meeting.

 

Yash and Jill Ghai and the Katiba Institute team

 

 

 

 

[1] Javan Oscar Buleemi (Suing as Secretary General Tiriki Union (EA) v Permanent Secretary, Ministry of Internal Security and Provincial Administration & 2 others [2015] eKLR.

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