Kenyans probably think of the Constitution as being mostly about power and who gets it. But if you think about what power is supposed to be used for, rather than what it is actually used for — all too often — you will probably focus on what services governments are supposed to supply for the people. Security, roads, street lighting, water and electricity supply, sanitation and general environmental services, schools, healthcare and agricultural services are examples.
The Constitution is just as much about services as about power. For example, one object of devolution is to “promote … the provision of proximate, easily accessible services throughout Kenya” (Article 174 ). And the public service is supposed to operate according to certain values and principles, including the “responsive, prompt, effective, impartial and equitable provision of services” (Article 232 ).
FAIR ADMINISTRATIVE ACTION
The Constitution turns a set of principles developed by the courts over the centuries to control abuse of power by the state and its agencies. “Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair” (Article 47 ). It also requires that if administrative action affects, or may affect, any of our rights, we are entitled to reasons in writing.
Drawing from decisions of the courts over the years, and from the Fair Administrative Action Act of 2015, we can say that fair administrative action means action that is within the powers given by law to the person or body that has taken action. These requirements we can call “legality”.
And the procedure used in deciding or taking action must be fair. Of course no decision should be influenced by personal bias of the person deciding. Each case must be considered on its merit. Before a decision is made, people must be told that a decision is to be made or other action taken, must be given a chance to object if they will be affected, and must be told why action may be taken — and once action is taken must be told why. Decisions and actions must not be unreasonably delayed. Drawing from other elements of the Constitution, especially the values in Article 10 and the human rights chapter, there must be no unfair discrimination, and people must be treated with respect. Unnecessary secrecy goes against the value of openness. There must be public participation in decisions that will affect the public.
Finally, the content of decisions must not be irrational. The person making a decision or taking an action must bear in mind why the power is given — there must be a connection between the purpose and the way the power is used. The person must take the right factors into consideration, ignoring irrelevant factors. For example, there must be no discrimination on the basis of personal characteristics of the person affected — unless administering some programme that is designed to benefit people who have suffered from discrimination or other disadvantage in the past. If the decision affects people’s rights, it must be proportional to the aims to be achieved — so their rights are not more affected than is necessary to achieve the objective. If (lawful) promises have been made, the expectations the promises give rise to must be respected. Finally, public interest does not automatically trump personal interests
CAN THIS IMPROVE SERVICE DELIVERY?
Many people have suggested that this right is an important tool for achieving improved public service delivery. The Commission on Administrative Justice (also called the Ombudsman) says its job includes promoting “efficient public service delivery by enforcing the right to fair administrative action”. The potential is clear: Decisions that are speedy, that are based on public input and on the needs of those affected and on evidence and rational thinking, and that do not discriminate against individuals must be better than decisions not taking account of these factors, and result in better service delivery when that is their focus.
A South African case gives an interesting example of how fair administrative action might benefit the ordinary citizen. A publicly owned electricity company disconnected power to a block of flats because the landlord had not paid the bills. The tenants had been paying the landlord for electricity but received no notice of the disconnection. Because they paid the landlord they could not complain as “customers” of the power company.
The Constitutional Court said, “City Power must afford the applicants pre-termination notice. For the notice to be ‘adequate’, it must contain all relevant information, including the date and time of the proposed disconnection, the reason for the proposed disconnection, and the place at which the affected parties can challenge the basis of the proposed disconnection. Moreover, it must afford the applicants sufficient time to make any necessary enquiries and investigations, to seek legal advice and to organise themselves collectively if they so wish.”
A LAW FOR THE RICH?
So far, most of the cases about Article 47 in Kenya have been focussed on the concerns of the wealthier sections of society. There have several cases of potential lawyers suing for not being admitted to the Kenya School of Law. Professionals found guilty in disciplinary hearings have sued. So have people objecting to revocation of land titles or the demolition of buildings, including on road reserves. Other cases have involved complaints about the destruction of advertising hoardings or the refusal of licences to sell liquor. And several have been by foreign spouses, who have not been granted the Kenyan citizenship they were entitled to under the Constitution.
This is not surprising: Going to court takes time, money, patience and persistence. There have in fact been some cases more obviously of benefit to broader sections of society — for example concerning evictions of hawkers or people from housing.
A LAW FOR ALL
Wananchi ought not to think that the cases that have been brought are of no relevance to them. If the child of wealthy parents gets a judgment saying he or she should not have been suspended from school without a fair hearing, the same principle applies to a child suspended from an informal settlement school.
The principle underlying a court decision that a fancy house should not have been demolished might equally apply to demolition of a shack. A failure to give emergency medical treatment is wrong whoever is affected.
The South African case approach would benefit people of modest means who pay landlords, not Kenya Power directly, for power. Would a Kenyan court be prepared to apply it to disconnections even of illegal connections by landlords? Does Kenya Power give notice to anyone of imminent disconnections?
Sometimes it may seem harder if the complaint is not about bad decisions, when providing services but that no services at all were provided. However, failure to take a decision or take action that ought to have been taken is as much a failure as taking the wrong decision or action.
When the problem is that no service at all is provided, the best approach may be to link fair administrative action to the rights in Article 43, covering health, education, water and sanitation, food, housing and social security. The state has the duty to act positively to achieve these rights.
The Commission on Administrative Justice may be the most effective route for most people to achieve fair administrative justice, being cheaper and quicker than courts. It deals with thousands of complaints each year, many touching on service delivery.
The Public Service Commission, the Kenya School of Government and other responsible institutions must inculcate a commitment to fair practice in the public service.
On the part of the citizens, awareness of what ought to be done, and a commitment to insisting that it is done, are necessary. As with the more obviously political aspects of the Constitution, nothing will be achieved by moaning and hoping.
This piece is based on a presentation to the Kenya Alliance of Residents Associations, and benefited from the contributions of the other speakers and participants.
By JILL COTTRELL GHAI