Applicant: Katiba Institute, Kenya
UK partner: The Bingham Centre for the Rule of Law
ROLE UK specialists: Stephen Bramley and Cora Hoexter
Complaints about maladministration in the public sector have become increasingly common in Kenya. Public officials are responsible for a variety of decisions that include whether someone is entitled to an ID card or to vote, whether their child is admitted to secondary school, or whether they get a business licence. Decisions are also made about whether a person may build in a certain place and what building standards must be respected. Equally, they could be about allocating land, extending leases or closing businesses. Mistakes or misconduct in such decision-making, disproportionately affect people who are too poor to challenge administrative decisions in court. This poses a problem of access to justice.
An improvement in adherence to administrative law principles represents a real and practical gain for the Rule of Law. The Katiba Institute, a Kenyan organisation working to ensure implementation of Kenya’s 2010 Constitution believes that increasing Kenyan officials’ awareness of their constitutional duties will enable them to make decisions that are lawful, reasonable and procedurally fair. In conjunction with other capacity building initiatives, a partial solution may therefore lie in developing adequate training resources.
ROLE UK supports Rule of Law projects that are rooted in the needs and priorities of end-users, that solve specific problems and are strategic. In this instance, the Katiba institute wanted external experts to help develop administrative law training resources including a Kenyan version of the UK’s Judge Over Your Shoulder (JOYS) manual; a publicly available guide to administrative law aimed at civil servants without a background in law. As Bingham Centre research has shown, the use of the JOYS manual as a model by other countries has contributed to improved decision making and there has been strong support for the initiative amongst key Kenyan actors, such as the Ombudsman. The initiative also aligns with other projects intended to strengthen the responsiveness and accountability of government in Kenya.
This assignment is part of a larger programme, part-funded by the FCO Magna Carta Partnership, supporting the work of the Bingham Centre for the Rule of Law in London, and by a Swedish foundation supporting the work of the Katiba Institute in Nairobi.
Working with the Bingham Centre for the Rule of Law, ROLE secured the involvement of two specialists to contribute to a high-level consultation convened by Katiba Institute. Steven Bramley has many years’ experience providing legal advice within the civil service and conducting legal awareness training. He has also been at the forefront of legal awareness programme redesign in recent years and is the Legal Director at the UK Department of Communities and Local Government. Cora Hoexter is a South African academic and a leading expert on administrative law in the jurisdiction. She has contributed to the reform of South African administrative law via the South African Law Reform Commission and to recent Kenyan administrative law reforms.
Our specialists provided their knowledge, time and skills pro bono at the consultation which brought together Kenyan public bodies and foreign experts to discuss how a civil service guide could be devised to help implement the right to "fair administrative action" in the 2010 Constitution of Kenya.
Feedback indicates that the Bingham Centre and ROLE specialists shared their knowledge in a way that was relevant to the Kenyan audience. They judiciously pointed out the weaknesses and strengths of the UK model, highlighted points of similarity and made suggestions on how efforts to promote administrative justice in Kenya could benefit from lessons learned in their respective jurisdictions. They provided advice on a peer to peer basis and did not advocate any particular solution. This approach empowered the Kenyans to make their own decisions about what solution fit them best.
The Kenyan School of Government and the Public Service Commission, which together are responsible for recruiting and training a large proportion of civil servants, have since said that will use Katiba’s “Kenyan JOYS” to train public officials and improve administrative decisions.
“Our project was enhanced by ROLE UK who enabled us to invite senior UK and overseas experts with decades of experience in administrative justice. Both experts more than lived up to the strong credentials on the basis of which they had been invited.” -- The Bingham Centre for the Rule of Law