Countries of the World/COUNTRYS.BIN/dp/0208/02087.txt

Text File | 1991-06-25 | 33KB | 526 lines

$Unique_ID{COW02087}
$Pretitle{256}
$Title{Kenya
Chapter 4B.   The Legal System}
$Subtitle{}
$Author{Donald P. Whitaker}
$Affiliation{HQ, Department of the Army}
$Subject{political
ethnic
national
kanu
party
kikuyu
moi
government
law
groups}
$Date{1983}
$Log{}
Country:     Kenya
Book:        Kenya, A Country Study
Author:      Donald P. Whitaker
Affiliation: HQ, Department of the Army
Date:        1983

Chapter 4B.   The Legal System

     The Judicature Act of 1967 provides the basic definitions of the
country's legal system and establishes the court structure. It enumerates
the sources of Kenyan law as the Constitution, legislative acts of the
National Assembly, specific acts of the British Parliament before the
establishment of the Republic of Kenya, English common law, and doctrines
of equity in force at the beginning of colonial rule. African customary law,
varying according to ethnic tradition, is required to be used as the guide in
civil matters affecting persons of the same ethnic background as long as such
custom is not in conflict with statutory law or modern morality. Islamic law
has a role in some matters of personal law affecting Muslims.

     The Judicature Act provides the country's courts a major role in creating
legal precedent. Court decisions and interpretations have built up a body of
national common law, a direct outgrowth of English common law but clearly
Kenyan in scope. In 1982 the Law Reform Commission was appointed to undertake
a broad view of the country's law, leading to reform, integration,
codification, and removal of laws inherited from Britain that did not have
relevance to independent Kenya's society.

Courts

     Kenya has four levels of courts. The highest of these, the Court of
Appeal, has final appellate jurisdiction in both criminal and civil matters,
generally limited to hearing appeals from the High Court at the next level.
The High Court has original jurisdiction for certain serious crimes and major
property disputes and hears appeals from lower courts. In addition, it is
empowered by the Constitution to judge the constitutionality of acts of
parliament and all subsidiary legislation, as well as to enforce the
provisions of the bill of rights. It has final authority on disputes arising
from national elections.

     The courts have often been resorted to in challenging election results,
and the judiciary has acted impartially in cases where individuals have sought
relief against violations of their constitutional rights. Judicial review of
legislation and administrative action from the standpoint of constitutionality
has, however, been rare. Observers have concluded that the pervasive control
of public policy by the political authorities has discouraged the legal and
judicial establishment from challenging the executive through court tests
of the laws and their administration.

     At the base of the judicial structure are the lower level resident and
district magistrates' courts. Resident magistrates have nationwide
jurisdiction and are empowered in criminal cases to render punishment of
imprisonment for up to five years and fines of up to KSh10,000 and up to
KSh3,000 in civil cases. Senior resident magistrates may try cases involving
the death penalty and fines of any amount.

     District magistrates' courts generally sit at district headquarters but
may travel on circuit as well. Magistrates in these courts need not be lawyers
but are civil servants who have completed a special course at the Kenya
Institute of Administration. (Resident magistrates must be qualified lawyers
with two years of court experience.) District magistrates' courts are divided
into three classes, the major distinction being the severity of penalties
they may impose. Courts of the third class may impose prison terms of up to
six months and fines of not more than KSh1,000. Those of the second class
have authority to inflict penalties twice as severe. Courts of the first
class may impose sentences of up to five years and fines of up to KSh10,000.
A similar distinction exists regarding civil matters. District magistrates'
courts are competent to hear matters of customary law. These generally
fall under headings of land disputes or personal and family matters, such as
marriage, divorce, dowry, status of widows and children, guardianship, and
estates. In rural areas, below the official courts, various traditional bodies
are available to settle disputes. Groups of elders at the village level often
consider matters of personal law, and legislation provides that on several
subjects their decisions will be supported as final if taken to an official
court.

     Also at the level of the magistrates' courts are six kadhis' courts,
which have jurisdiction over matters of personal Muslim law, such as
marriage, divorce, or inheritance, when all the parties profess adherence
to Islam. In 1981 a dispute arose over proposed legislation to enforce a
single formula for division of estates in cases of intestacy. The Muslim
community objected that this was in conflict with the Quran. The new law
did not, however, prevent a Muslim from making a will declaring that his
property was to be divided according to Islamic law.

     The jury system does not exist in Kenya, but in cases involving murder,
treason, or other crimes tried by the High Court, judges are assisted by
assessors who are assumed to be of the same background as the accused and
who are versed in the appropriate ethnic habits and customs. Opinions of
assessors, however, are not binding on judges.

     Kenya's chief justice is appointed by the president of the republic.
Appointments to all other posts within the judiciary are controlled by the
Judicial Service Commission. Although the president also appoints the
judges of the Court of Appeal and the puisne (associate) judges of the
High Court, he does so upon the advice of the commission. The commission
selects, trains, assigns, and is responsible for the discipline of all the
country's magistrates. Judicial appointments are permanent, but retirement
is mandatory at age 68.

     In early 1981 a white judge was dismissed by the president after 15
years on the bench on advice of the Judicial Service Commission. The judge
had set free an American sailor who had confessed to the murder of a
Mombasa prostitute. The verdict had provoked a major public outcry.

     The Court of Appeal consists of the chief justice and three other
members. The number of puisne judges is set by parliament at 11, giving the
High Court a total membership of 12 justices, including the chief justice.
Civil and criminal trials are heard by a single judge, as are most civil
appeals. In criminal appeals there are usually two judges; specially
referred constitutional questions must be heard by at least three judges.
The High Court sits continuously at Nairobi, Mombasa, Nakuru, and Kisumu.
Sessions are held regularly in other centers.

Civil Rights

     In comparison with most countries of Africa, Kenya has maintained high
standards of adherence to constitutional and legal safeguards of the
individual. Persons accused of infringement of the law are assured of fair
public trials, and their rights of counsel and appeal are respected. Due
process is observed by the police, and other guarantees of English common
law have with few exceptions been complied with. The Kenyatta regime
sometimes had recourse to detentions without trial on security grounds that
were authorized under the Preservation of Public Security Act. After Moi
took office in 1978, he released about 20 political opponents who had been
interned by Kenyatta and refrained from invoking the public security act
himself until 1982, when nine persons were formally detained. The air force
coup attempt of August 1982 resulted in the arrest of several thousand
military personnel and some students. Trials of these individuals by
courts-martial or in civil courts followed prescribed legal norms, and
clemency was later extended to many of those who had been implica