Legal Systems and Methods Consolidated Notes PDF

LEGAL SYSTEMS & METHODS Session 1 INTRODUCTION TO LEGAL SYSTEMS AND LEGAL METHODS What is the Essence of Legal Systems & Legal Methods? The legal system of any country can be described as the set of rules of substance and procedure as well as the institutions re...

LEGAL SYSTEMS & METHODS Session 1 INTRODUCTION TO LEGAL SYSTEMS AND LEGAL METHODS What is the Essence of Legal Systems & Legal Methods? The legal system of any country can be described as the set of rules of substance and procedure as well as the institutions relating to the governance of social behaviour and resolution of disputes which arise in the process. It also necessarily includes the underlined social values and attitudes which affect the operations of such values. Legal methods on the other hand refer to the manner in which those who make, activate or operate the law use the legal system to arrive at specific legal consequences. This necessarily involves rules of interpretation and other legal tools used to arrive at the desired legal consequences. Legal systems therefore deal with “what” and “why” of law while legal methods deal with “how” of law. The Essence of the Legal System in the Society Man is a social being. He is part and parcel of society which has its own structure and organisation. Society is primarily based on order which order is achieved and maintained through social rules. Man’s behaviour is closely controlled, either directly or indirectly through moral standards, religious doctrines, social edicts and customs as well as legal rules. In today’s complex society, legal rules are especially significant and it is difficult to find any area of society which is completely free from legal control. There is therefore undeniable and manifest relationship between law and society and the individual members of society. 1 To a law student society is a conglomeration of people, institutions and other social phenomena in the midst of which law occupies a central place holding these social arrangements together in an orderly fashion. Law is however only one part of the overall social structure as there are other social elements and forces. In addition to law, there are various and diverse social phenomena all of which form part of the entire social structure for example political institutions, economic and commercial institutions, religious institutions etcetera. These other institutions or social phenomena are however not completely free from legal control or influence. Law plays an important role in the definition of all kinds of social relationships between individuals and also between groups. In the early days law as we know today did not exist. The early man was self-sufficient in his wants. However as time went by need arose for specialisation in production of human necessaries and this in turn gave rise to social relationships such as trade and others for example emergency families and other units in the society. As a consequence there arose conflicts of interest and these necessitated the development of a system of social control for purposes of preserving the society itself. As the social groups became more sophisticated and complex, there occurred increase in occupational specialisation and division of labour and as a consequence legal rules became even more sophisticated and complex. This is because just as society is dynamic so is the law. The law must always change in tandem with societal change if it is to stay relevant. What is Law? Although scholars do differ in their analysis of law, there is general consensus that a legal order must provide for authorisation and recognition of legitimate authority, provide means of resolving disputes and also mechanisms for facilitating interpersonal relationships including adaptation to change. There is no definition of law which has achieved universal acceptability but different approaches have been developed and adopted in an attempt to explain the meaning and 2 functions of law. What such attempts mostly achieve is to define the characteristics of the law and also indicate the legal orientation of the person defining it. Generally the orientations are either defined as positivism and naturalism. 1.3.1 Legal Positivism Legal positivism is a philosophy of law that emphasizes the conventional nature of law - that it is socially constructed. According to legal positivism, law is synonymous with positive norms, that is, norms made by the legislator or considered as common law or case law. According to Austin, positive law is a series of both explicit and implicit commands from a higher authority. The law reflects the sovereign's wishes and is based on the sovereign's power. Backed by sanctions and punishment, According to one Salmond, law is a body of principles recognized and applied by the state in the administration of justice. According to another scholar called Holland law is the rules of external human action enforced by the sovereign political authority. Similarly, Austin defines law as a command of the sovereign that is backed by sanction. Panton on the other hand opines that law consists of a body of rules which are seen to operate as binding rules in the community and by means of which sufficient compliance with the rules may be secured to enable the set of rules to be seen as binding. Hart has defined law in terms of primary and secondary rules which govern the state and the conduct of people. 1.3.2 Natural Law Theory Naturalism or natural law theory is a philosophy of law that focuses on the laws of nature. This school of jurisprudence represents the belief that there are inherent laws that are common to all societies, whether or not they are written down or officially enacted. This school of thought tells us that law is rational and reasonable. According to natural law legal theory, the authority of legal standards necessarily derives, at least in part, from considerations having to do with the moral merit of those standards. The 3 natural law is comprised of those precepts of the eternal law that govern the behaviour of beings possessing reason and free will. There are a number of different kinds of natural law legal theories, differing from each other with respect to the role that morality plays in determining the authority of legal norms. Classical natural law theory such as the theory of Thomas Aquinas focuses on the overlap between natural law moral and legal theories. In contrast, the procedural naturalism of Lon L. Fuller is a rejection of the conceptual naturalist idea that there are necessary substantive Aquinas distinguishes four kinds of law: (1) eternal law; (2) natural law; (3) human law; and (4) divine law. Eternal law is comprised of those laws that govern the nature of an eternal universe; as Susan Dimock (1999, 22) puts it, one can "think of eternal law as comprising all those scientific (physical, chemical, biological, psychological, etc.) ‘Laws’ by which the universe is ordered." Divine law is concerned with those standards that must be satisfied by a human being to achieve eternal salvation. One cannot discover divine law by natural reason alone; the precepts of divine law are disclosed only through divine revelation. The first precept of the natural law, according to Aquinas, is the somewhat vacuous imperative to do good and avoid evil. Here it is worth noting that Aquinas holds a natural law theory of morality: what is good and evil, according to Aquinas, is derived from the rational nature of human beings. Good and evil are thus both objective and universal. In his 1958 debate with Hart and more fully in The Morality of Law (1964), Fuller sought to steer a middle course between traditional natural law theory and legal positivism. Like most legal academics of his day, Fuller rejected traditional religious forms of natural law theory, which view human law as rooted in a rationally knowable and universally binding "higher law" that derives from God. He also rejected the idea, found in some traditional natural law theorists and famously endorsed by Martin Luther King, Jr. in his Letter from Birmingham Jail, that an unjust law is not a law. On the other hand, Fuller also denied the core claim of legal positivism that there is no necessary connection between law and morality. According to Fuller, certain moral standards, which he calls "principles of legality," are built into the very concept of law, so that nothing counts as genuine law that fails to meet these standards. In virtue of these principles of legality, there is an inner morality to the law that imposes a 4 minimal morality of fairness. Some laws, he admits, may be so wicked or unjust that they should not be obeyed. But even in these cases, he argues, there are positive features of the law that impose a defensible moral duty to obey them. According to Fuller, all purported legal rules must meet eight minimal conditions in order to count as genuine laws. The rules must be (1) sufficiently general, (2) publicly promulgated, (3) prospective (i.e., applicable only to future behaviour, not past), (4) at least minimally clear and intelligible, (5) free of contradictions, (6) relatively constant, so that they don't continuously change from day to day, (7) possible to obey, and (8) administered in a way that does not wildly diverge from their obvious or apparent meaning. These are Fuller's "principles of legality." Together, he argues, they guarantee that all law will embody certain moral standards of respect, fairness, and predictability that constitute important aspects of the rule of law. Functions of Law in Society Structuring and controlling public power - Constitution, admin law etc. do these functions (i) Facilitating and effectuating private relationships: family law etc.; (ii) Resolving social conflicts; (iii) Maintains social control; (iv) Protects public order; (v) To resolve disputes; (vi) Protects certainty of systems; (vii) Facilitates orderly change; (viii) Brings out justice in society; (ix) Outlines what the government can do and what it cannot do. Classification of Law 1.5.1 Private and Public law Public law consists of those aspects of law concerned with the regulation of the relationship between the state and persons/citizens. They include constitutional law and Administrative law. 5 Private law on the other hand is primarily concerned with the regulation of relationships between persons as in people inter se for example law of contract etcetera 1.5.2 Criminal versus Civil Law Criminal law is concerned with the definition, prevention, detection and punishment of crime for example criminal law as codified in the penal code. With the exception of where the court allows private prosecution, a criminal case is initiated, not by the injured party, but the state. Thus, criminal matter will be titled Republic v. X (The Accused). In criminal litigation, the burden of proof is always on the state. The state must prove that the defendant is guilty. The defendant is assumed to be innocent and needs to prove nothing. If the There are some exceptions however. (Thus, if defendant wishes to claim that he/she is insane, and therefore not guilty, he/she bears the burden of proving his/her insanity. Other exceptions include defendants who claim self-defence or duress). In criminal litigation, the state must also prove that the defendant satisfied each element of the statutory definition of the crime, and the defendant's participation, “beyond a reasonable doubt.” Civil law, on the other hand, is primarily concerned with the regulation of relationship between persons. The matter is initiated by the individual who claims injury/violation of his right. Civil matters are referred to as X (plaintiff/claimant v. Y (Defendant/Respondent). In civil litigation, the burden of proof is initially on the plaintiff. However, there are a number of technical situations in which the burden shifts to the defendant. For example, when the plaintiff has made a prima facie case, the burden shifts to the defendant to refute or rebut the plaintiff's evidence. In civil litigation, the plaintiff wins if the preponderance of the evidence favours the plaintiff. For example, if the judge believes that there is more than a 50% probability that the defendant was negligent in causing the plaintiff's injury, the plaintiff wins. This is a very low standard, compared to criminal law. 1.5.3 Substantive versus Procedural Law Substantive law is concerned with the definition of legal rights, obligations and remedies for example land law. Procedural or Adjectival law, on the other hand is concerned with the procedure or steps to be followed in the enforcement of rights and obligations defined by 6 substantive law. For example law of evidence and law of procedure. It comprises the set of rules that govern the proceedings of the court in criminal lawsuits as well as civil and administrative proceedings. The court needs to conform to the standards setup by procedural law, while during the proceedings. These rules ensure fair practice and consistency in the "due process". Whereas substantive law deals with the legal relationship between people or the people and the state by defining the rights and duties of the people, procedural law lays down the rules with the help of which they are enforced. 1.5.4 Statutory and Non-Statutory Laws There are two basic forms of the law: statutory law and non-statutory law (or common law). Statutory law is the formal written law of a country, written by that country’s legislative authority, and is ratified by the highest executive in the government, before being published. Typically, statutes command, prohibit, or declare policy. Statutes are sometimes referred to as legislation or "black letter” law. In non-statutory forms of the law, or common law legal systems, judges have the authority and duty to decide what the law is when there is no other authoritative statement of the law. Non-statutory law forms a major part of the legal systems of those countries of the world that have at one time been territories or colonies of the British Empire (with the exception of Malta, Scotland and Quebec). Common law is notable for its inclusion of extensive non- statutory law that reflects precedent derived from centuries of judgments by working jurists. 1.5.5 Municipal and International Law Municipal law comprises of domestic laws applicable within a given state. International law regulates legal relations at international level. a) Monism and Dualism Under the Vienna Convention on the Law of Treaties, states are committed towards respecting treaties that they make and to determine their application by their own legislative, executive and judicial institutions (art 28 of the Vienna Convention). 7 Yet the Convention does not deal with the way the States have to integrate international law into their internal/municipal systems. This matter is left to be determined upon by the States themselves. This has necessarily given States the leverage to determine how to go about it. In regards to application of international law in national systems, states are considered to either be monist or dualists. In Monist States, international and national legal systems are unified into one body of law applied by the national courts. Although there is a clear division between internal and international laws, there is no need for translating the international law into a national law in these systems. In dualist states, there is a difference between internal and international law. Unlike monism, there is a need for the translation of international law into national law. Unless the translation takes place, the international law is not accepted. Moreover, an international treaty is not accepted in dualist state if it is not adapted as a national law. b) Distinction between International Law and Municipal Law There are substantive differences between international law and municipal (or domestic) law. Understanding the uniqueness of international law in relation to municipal law helps one to better understand the nature and process of international law. These may be: i) Municipal law regulates relations within a country (intra-state), while international law regulates relations between countries (inter-state); ii) Regarding the processes used to make law, municipal law are made by national organs such as parliament or decisions of courts. In case of international law, treaty-making is the principal role although customary international law may be deemed from states’ practice. iii) In relation to the obligations on parties, international law (save for international criminal law) is about state obligation while municipal law largely deal with individuals’ rights and obligations under state/national law. iv) International law is generally enforced through international mechanisms while municipal laws are generally enforced through national mechanisms like local courts and tribunals. The principal feature of municipal law is the existence of a legislature and a court system that can settle legal disputes and enforce the law. 8  At the international level, however, there is no legislature in existence and it is by way of agreements between countries (treaties) that international law is made. v) The lack of an enforcement mechanism akin to a police force at the international level impedes coercive enforcement. The court system at the international level is one that relies on the acquiescence of the countries to both its jurisdiction and to carrying out the decisions of the court. The court system is well-established at the international level and respected but it lacks the ability to compel a country to come before it, unlike courts in a municipal system which can require a government, company or individual to appear before it. vi) The role of politics in international law influences the character of international law profoundly and is more likely to reflect the political interests of the countries than might be the case at the municipal level. International law is made by way of political agreements (treaties) and will be supported or ignored according to the political interests of a country. vii) Municipal law is hierarchical or vertical - the legislature is in a position of supremacy and enacts binding legislation. International law is horizontal - all states are sovereign and equal. The distinction between the branches have nonetheless narrowed. Currently, the sphere of international law has expanded to regulation of matters that were once thought to be the preserve of municipal law. For example, how a state treats its citizens has become a subject of international law through the operation of international human rights law. International criminal law also deal with individual’s responsibility rather than the states’. 9  Session 2 THE MAJOR LEGAL SYSTEMS OF THE WORLD Introduction Most nations today follow one of two major legal traditions: common law or civil law. The common law tradition emerged in England during the middle Ages and was applied within British colonies across continents. The civil law tradition developed in continental Europe at the same time and was applied in the colonies of European imperial powers such as Spain and Portugal. Civil law was also adopted in the nineteenth and twentieth centuries by countries formerly possessing distinctive legal traditions, such as Russia and Japan, which sought to reform their legal systems in order to gain economic and political power comparable to that of Western European nation-states. The Common Law and Civil Law Legal Systems 2.2.1 Common Law System Common law traces its roots to the medieval idea that the law as handed down from the king's courts represented the common custom of the people. It evolved chiefly from three English Crown courts (common law courts) of the twelfth and thirteenth centuries: the Exchequer, the King's Bench, and the Common Pleas. Early common-law procedure was governed by a complex system of pleading, under which only the offenses specified in authorized writs could be litigated. Complainants were required to satisfy all the specifications of a writ before they were allowed access to a common-law court. This system was replaced in England in mid-1800s. The court of equity, which were instituted to provide relief to litigants in cases where common-law relief was unavailable, later merged with common-law courts to constitute the English legal system. This consolidation of jurisdiction over most legal disputes into several courts was the framework for the modern Anglo-American judicial system. Notable of the common-law system, courts base their decisions on prior judicial pronouncements rather than on legislative enactments. Where a statute governs the dispute, judicial interpretation of that statute determines how the law applies. Common-law judges 10 rely on their predecessors' decisions of actual controversies, rather than on abstract codes or texts, to guide them in applying the law. Common-law judges find the grounds for their decisions in law reports, which contain decisions of past controversies. Under the doctrine of Stare Decisis, common-law judges are obliged to adhere to previously decided cases, or precedents, where the facts are substantially the same. A court's decision is binding authority for similar cases decided by the same court or by lower courts within the same jurisdiction. The decision is not binding on courts of higher rank within that jurisdiction or in other jurisdictions, but it may be considered as persuasive authority. Because common-law decisions deal with everyday situations as they occur, social changes, inventions, and discoveries make it necessary for judges sometimes to look outside reported decisions for guidance in a case of first impression (previously undetermined legal issue). The common-law system allows judges to look to other jurisdictions or to draw upon past or present judicial experience for analogies to help in making a decision. This flexibility allows common law to deal with changes that lead to unanticipated controversies. At the same time, stare decisis provides certainty, uniformity, and predictability and makes for a stable legal environment. Under a common-law system, disputes are settled through an adversarial exchange of arguments and evidence. Both parties present their cases before a neutral fact finder, either a judge or a jury. The judge or jury evaluates the evidence, applies the appropriate law to the facts, and renders a judgment in favour of one of the parties. Following the decision, either party may appeal the decision to a higher court. Appellate courts in a common-law system may review only findings of law, not determinations of fact. Thus, common law systems place great weight on court decisions, which are considered ‘law’ with the same force of law as statutes. Common law courts have had the authority to make law where no legislative statute exists, and statutes mean what courts interpret them to mean. 11 2.2.2 Civil Law Systems Also referred to as the Roman-Germanic Law or Continental European System, this is a legal system inspired by Roman and Germanic law and whose the primary feature is that laws are written into a collection, codified, and not (as in common law) interpreted by judges. The principle of civil law is to provide all citizens with an accessible and written collection of the laws which apply to them and which judges must follow. It is the most widespread system of law in the world, in force in various forms in about 150 countries. Conceptually, it is the group of legal ideas and systems ultimately derived from the Code of Justinian, but heavily overlaid by Germanic, ecclesiastical, feudal, and local practices,1 as well as doctrinal strains such as natural law, codification, and legislative positivism. Materially, civil law proceeds from abstractions and formulated general principles and distinguishes substantive rules from procedural rules. It holds legislation as the primary source of law, and the court system is usually inquisitorial, unbound by precedent, and composed of specially trained judicial officers with a limited authority to interpret law. Juries separate from the judges are not used, although in some cases, volunteer lay judges participate along with legally trained career judges. 2.2.3 Comparison between the Common Law System and the Civil Law Legal System The difference between civil law and common law lies not just in the mere fact of codification, but in the methodological approach to codes and statutes. In civil law countries, legislation is seen as the primary source of law. By default, courts thus base their judgments on the provisions of codes and statutes, from which solutions in particular cases are to be derived. Courts thus have to reason extensively on the basis of general rules and principles of the code, often drawing analogies from statutory provisions to fill lacunae and to achieve coherence. By contrast, in the common law system, cases are the primary source of law, while statutes are only seen as incursions into the common law and thus interpreted narrowly. 1 Charles Arnold Baker, The Companion to British History, s. v. "Civilian" (London: Routledge, 2001), 308. 12 In civil law systems, statutes set the general principles of the law expressly by stating them; the courts then make their own interpretations of those general principles afresh in each case to arrive at conclusions about how those general principles translate into details. In common law systems, the approach is the opposite: the legislation sets the details, from which the general principles emerge, much like a computer programme. The idea is that those who are making the statutes, rather than the courts, should be the ones who have the power to decide how the details work. The civil law can thus be described as a top-down approach to principles, whereas the common law can be described as a bottom up approach. Both systems ‘value’ principles equally, but arrive at them, and deal with the interface between principle and detail, in very different ways. Thus, common law and civil law systems may be distinguished in light of some key features. System Features. Of course, it must be noted that the systems may not exhibit all of the features in question, but the tendency is that most of the features will be seen to operate for a particular legal system to fall under that category. The areas of distinction include: 1) Common law systems trace their history to England, while civil law systems trace their history to Roman law and the Napoleonic Code. 2) Regarding continuity of the legal system, whereas common law is evolutionary, civil law systems are revolutionary. Civil laws are altered immediately the legislature enacts a law whereas common law courts will continue to apply precedents making the changes slow and progressive. 3) The major sources of law in the common law system are customs and practice while in civil law legislative statutes stand as the primary source of law. 4) With regard to precedents, there is a very strong reliance to them in the common law system. This is not the case with civil law system which does not rely on previous decisions, but rather on codes. 13 5) The systems may also be distinguished on the basis of judicial role in law-making. Whereas in common law it is active and creative, in the civil law system the judiciary only plays a passive and technical role. 6) The role of legal scholarship in the common law system is usually secondary and peripheral, while in a civil law system the use of legal scholarship is extensive and influential. 7) Judicial review of statutes and of executive actions is largely incorporated in common law system which is not the case in the civil law world. 8) At common law, the major decision-making stage is the trial stage, while at civil law, the critical stage in the process is at the investigation and examination period. 9) The trial format in common law is accusatorial and confrontational, while in civil law, it is inquisitorial and collaborative. 10) The use of argument and debate during trial, extensive and fundamental in common law systems. In civil law, the arguments are quite modest and restricted. 11) The style of legal reasoning in common law is inductive while in civil law, it is usually deductive. 12) Trial emphasis in common law is usually on procedural correctness, whereas the civil law system normally emphasises on factual certainty. 13) Evidentiary rules in common law is formal and restrictive. The exclusionary rule is usually employed in common law. In civil law, usually all relevant evidence considered. 14) With respect to the role of lawyers during trial, it is primary in common law system, while in civil law system the lawyers only play a secondary role. 15) The common law lawyer’s function is to debate and oppose while in civil law, the lawyer’s function is to advise and inform. 16) The judge’s role during trial is that of a referee/umpire in common law while in civil law, he/she is a director/examiner. 17) The common law judges are usually political appointees from practicing lawyers and other judicial ranks. Their status is of political VIPs. In civil law, judges are appointed 14  by merit advancement from judicial specialists. Their status is of mid-level civil servants. 18) Some common law jurisdiction allow citizen’s participation in trial by employing juries (grand & petit). In civil law, decisions are usually by members of judicial panels. 19) While appeals in common law normally focus on procedural propriety, in civil law, appeals focus both on procedural and substantive propriety. 20) The structure of the common law courts is usually unified while civil law systems have diffused court structures (with multiple specialized courts). Other Major Legal Systems 2.3.1 Socialist Legal Systems Socialist system mostly denotes a general type of legal system used in the communist and former communist states. It is based on the civil law system, with major modifications and additions from Marxist-Leninist ideology. There is controversy as to whether socialist law ever constituted a separate legal system or not,2 but prior to the end of the Cold War, socialist law ranked among the major legal systems of the world by virtue of the predominant ideology in the communist states. Socialist law is similar to the civil law system but with the following characterises: (i) A greatly increased public law sector and decreased private law sector.3 (ii) At the early stages of existence of each socialist state, the aim was the partial or total expulsion of the former ruling classes from the public life (however, in all socialist states this policy gradually changed into the policy of ‘one socialist nation without classes’); (iii) The system directly discouraged diversity of political views; 2 Quigley, J. "Socialist Law and the Civil Law Tradition". The American Journal of Comparative Law 37(1989) (4): 781–808. 3 H. Patrick Glenn, Legal traditions of the world: sustainable diversity in law (Oxford University Press, 2007) 331 15 (iv) The ruling Communist party members/leaders are usually subject to prosecution through party committees in first place; (v) Abolition of private property is usually considered as a primary goal of socialism, if not its defining characteristic. Thus, near total collectivization and nationalization of property is encouraged; (vi) There is low respect for individuals’ privacy and extensive control over private life by the ruling party; (vii) There is low respect for intellectual property. Such knowledge and culture is considered a right for human kind and not a privilege as in the free market economies; (viii) There are extensive social warrants of the state (the rights to a job, free education, free healthcare, retirement at 60 for men and 55 for women, maternity leave, free disability benefits and sick leave compensation, and subsidies to multi-children families) in return for a high degree of social mobilization. (ix) The judicial process lacks adversary character; public prosecution is considered as ‘provider of justice.’ (x) While civil law systems have traditionally put great pains in defining the notion of private property, how it may be acquired, transferred, or lost, socialist law systems provide for most property to be owned by the state or by agricultural co-operatives, and having special courts and laws for state enterprises. (xi) Although the command economy approach of the communist states meant that property could not be owned, the Soviet Union always had a Civil Code, courts that interpreted this Civil Code, and a civil law approach to legal reasoning (thus, both legal process and legal reasoning were largely analogous to the French or German civil code system). Legal systems in all socialist states preserved formal criteria of the Romano-Germanic civil law; for this reason, law theorists in post-socialist states usually consider the Socialist law as a particular case of the Romano-Germanic civil law. Cases of development of common law into Socialist law are unknown because of incompatibility of basic principles of these two 16 systems (common law presumes influential rule-making role of courts while courts in socialist states play a dependent role) 2.3.2 Religious Legal Systems Religious law refers to the notion of a religious system or document being used as a legal source. The main kinds of religious law are Sharia in Islam, Halakha in Judaism, and canon law in some Christian groups. The methodologies used in religious laws greatly vary. The use of Jewish Halakha for public law, for example, has a static and unalterable quality, precluding amendment through legislative acts of government or development through judicial precedent. On the other hand, it may be observed that Christian canon law is more similar to civil law in its use of civil codes while Islamic Sharia law (and Fiqh jurisprudence) is usually based on legal precedent and reasoning by analogy (Qiyas), and is thus considered similar to common law. During the Islamic Golden Age, classical Islamic law may have had an influence on the development of common law and several civil law institutions. In some cases the religious edicts are intended purely as individual moral guidance. Canon law, for example, is not a divine law, properly speaking, because it is not found in revelation. Instead, it is seen as human law inspired by the word of God and applying the demands of that revelation to the actual situation of the church. Canon law regulates the internal ordering of the Roman Catholic Church, the Eastern Orthodox Church and the Anglican Communion. Canon law is amended and adapted by the legislative authority of the church, such as councils of bishops, single bishops for their respective sees, the Pope for the entire Catholic Church, and the British Parliament for the Church of England. In other cases religious laws are intended and may be used as the basis for a country's legal system. The latter was particularly common during the middle Ages and today in countries adopting the Islamic legal system where Sharia (Islamic law) and Fiqh (Islamic jurisprudence) is the most widely used religious law and is one of the three most common legal systems in the world alongside common law and civil law. It is the most protected divine law, because, the majority of the rulings of Sharia law are based on the Qur'an and Sunnah, while a small fraction of its rulings are based on the Ulema (jurists) who used the 17 methods of Ijma (consensus), Qiyas (analogical deduction), Ijtihad (research) and Urf (common practice) to derive Fatwā (legal opinions). In Islamic systems, Ulema may be required to qualify for an Ijazah (legal doctorate) at a Madrasah (school) before they are able to issue Fatwā. Sharia law governs a number of Islamic countries, including Saudi Arabia, Pakistan and Iran, though most countries use Sharia law only as a supplement to national law. It can relate to all aspects of civil law, including property rights, contracts or public law. Plural and Hybrid Systems 2.4.1 Plural Systems Legal pluralism is the existence of multiple legal systems within one geographic area. Plural legal systems are particularly prevalent in former colonies, where the law of a former colonial authority may exist alongside more traditional legal systems. When these systems developed, the idea was that certain issues (e.g., criminal sanctions) would be covered by colonial law, while other issues (e.g., family and marriage) would be covered by traditional law. Over time, these distinctions tended to break down and individuals would choose to bring their legal claims under the system that they thought would offer them the best advantage. Legal pluralism also occurs when different laws govern different groups within a country. For example, in India, Kenya and Tanzania, there are special Islamic courts that address concerns in Muslim communities by following Islamic law principles. Secular courts deal with the issues of other communities. It is important to note that modern Western legal systems can also be pluralistic. It is, thus, misleading to discuss legal pluralism only in relation to non-Western legal systems. Legal pluralism also exists to an extent in societies where the legal systems of the indigenous population have been given some recognition. In Australia, for example, in Mabo v. Queensland (No 2), the decision gave recognition to native title and thus elements of traditional Aboriginal law.4 Elements of traditional Aboriginal criminal law have also been 4 (1992) 175 CLR 1. 18 recognised, especially in sentencing. This has, in effect, set up two parallel sentencing systems. 2.4.2 Hybrid Systems Hybrid systems arise where there is a mixture of notions form different legal systems coexisting with each other at the same time. The most prominent example of a hybrid legal system is the Indian legal system. India follows a mixture of civil, common law and customary or religious law. Separate personal law codes apply to Muslims, Christians, and Hindus. Decisions by the Supreme Court of India and High Courts are binding on the lower courts. Further, most of the laws are statutory and it also has a constitution which signifies the civil nature of law in India. Hybrid legal systems are also found in n South Africa and Greece where the systems are based on a mixture of Civil law and common law. US law may also be viewed as hybrid legal systems to the extent that there is a mixture of civil law, common and religious laws in the system. 19  Session 3 MATERIAL SOURCES OF LAW IN KENYA Introduction The Judicature Act and the Constitution supply a good basis for the determination of where laws in Kenya sourced. The Judicature Act, Cap 8 is guides the courts in Kenya on the law to apply. It provides that in section 3: (1)The jurisdiction of the High Court, the Court of Appeal and of all subordinate courts shall be exercised in conformity with: - a) The Constitution; b) Subject thereto, all other written laws, including the Acts of Parliament of the United Kingdom cited in Part I of the Schedule to this Act, modified in accordance with Part II of that Schedule; c) subject thereto and so far as those written laws do not extend or apply, the substance of the common law, the doctrines of equity and the statutes of general application in force in England on the 12th August, 1897, and the procedure and practice observed in courts of justice in England at that date; But the common law, doctrines of equity and statutes of general application shall apply so far only as the circumstances of Kenya and its inhabitants permit and subject to such qualifications as those circumstances may render necessary. (2) The High Court, the Court of Appeal and all subordinate courts shall be guided by African customary law in civil cases in which one or more of the parties is subject to it or affected by it, so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law, and shall decide all such cases according to substantial justice without undue regard to technicalities of procedure and without undue delay. This section creates a hierarchy of law in the following order: (i) The Constitution; (ii) Kenyan Legislations and some English Acts; (iii) Common law, the doctrines of equity and the statutes of general application in force in England on the 12th August, 1897; and (iv) African Customary law This section may be interpreted to closely relate to the new Constitution which may be seen to also supply sources from which the law of Kenya would be tapped from the courts. The Constitution identifies the sources of law to include: 20  (i) The Constitution (in article 2); (ii) Legislation (article 94(5)); (iii) Customary law (art 2(4); (iv) General rules of international law (art 2(5); and (v) Treaties or conventions ratified by Kenya (art 2(6). But the problem is that the provisions do not tally. Thus, the judicature Act may need to be amended to accord with the new constitutional structure of laws e.g. as regards international law. The Constitution The highest source of law in Kenya the Constitution. Under article 2 (comparable to section 3 of the repealed Constitution), it is provided that the Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of government. The Constitution provides that no person may claim or exercise State authority except as authorised under the Constitution. Thus in old English law, a writ of quo warranto (by what authority in Latin) would be issued to challenge a wrongful exercise of authority. This writ is still in Use in USA and in India. In the United States, the Supreme Court described it in Johnson v. Manhattan Railway Co. (1933) p. 502 as a writ “addressed to preventing a continued exercise of authority unlawfully asserted,” brought by the state or federal government against any person alleged to “exercise an office or authority without lawful right”. In India for example, in Anna Mathew v. N. Kannadasan (2008) a writ was filed under Article 226 of the Constitution of India for the issuance of Writ of Quo Warranto against the 1st respondent requiring him to show his authority to hold the office of President of the Tamil Nadu State Consumer Disputes Redressal Commission and to consequently declare his appointment by the 2nd respondent illegal and unconstitutional. Under article 2 of the 2010 Constitution, the validity or legality of the Constitution is not subject to challenge by or before any court or other State organ. However in a curious ruling, the High Court in the case of Jesse Kamau & 25 others v Attorney General eKLR held under the repealed Constitution of Kenya that: 21  Financial maintenance and support of the kadhi courts from public coffers amounts to segregation, is sectarian, discriminatory and unjust against the applicants and others... it amounts to separate development of one religion and religious practice contrary to the principle of separation of state and religion.5 This case would never stand under the new Constitution. It has further been provided in article 2 that any law, including customary law that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of the Constitution is invalid. Thus, in Godfrey Ngotho Mutiso v. Republic eKLR, section 204 of the Penal Code was declared to be unconstitutional by the Court of Appeal. The Court said: We note that while the Constitution itself recognizes the death penalty as being lawful, it does not say anywhere that when a conviction for murder is recorded, only the death sentence shall be imposed. We declare Section 204 shall, to the extent it provides that the death penalty is the only sentence in respect of the crime of murder is inconsistent with the letter and spirit of the Constitution, which as we have said, makes no such mandatory provision. In the Muruatetu Case at the Supreme Court of Kenya,6 the petitioners and others were arraigned before the High Court for the offence of murder. Upon their conviction, they were sentenced to death as decreed by section 204 of the Penal Code. Their appeal to the Court of Appeal against both that conviction and sentence was dismissed. Upon further appeal, the Supreme Court found that section 204 of the Penal Code that provided that “any person convicted of murder shall be sentenced to death”, was unconstitutional. The Supreme Court held that the mandatory nature of the death sentence as provided for under section 204 of the Penal Code deprived the Court of the use of judicial discretion in a matter of life and death. The Court stated that such law could only be regarded as harsh, unjust and unfair. The mandatory nature of the provision deprived the Courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in appropriate cases. The Court went on to order that the judgment urgently be placed before the Speakers of the National Assembly and the 5 Jesse Kamau & 25 Others v. Attorney General, High Court Nairobi Miscellaneous Civil Application 890 of 2004 eKLR 6 Francis Karioko Muruatetu & another v Republic eKLR 22 In Hamdardda Wakhama vs. Union of India (AIR 1960 at 554) where the Court stated: …when an enactment is impugned on the ground that it is ultra vires and unconstitutional what has to be ascertained is the true character of the legislation and for that purpose regard must be had to the enactment as a whole to its objects, purpose and true intention and the scope and effect of its provisions or what they are directed against and what they aim at. Written Laws 3.3.1 Acts of the Kenyan Parliament Under article 94(1), the legislative authority of the Republic is derived from the people and, at the national level, is vested in and exercised by Parliament. Moreover, no person or body, other than Parliament, has the power to make law unless the Constitution authorises it or under authority given under legislation (94(5)). 3.3.2 Delegated Legislation An Act of Parliament, or legislation of a county, may confer on any State organ, State officer or person the authority to make provision having the force of law in Kenya. For this to be so, the Act has to expressly specify the purpose and objectives for which that authority is conferred, the limits of the authority, the nature and scope of the law that may be made, and the principles and standards applicable to the law made under the authority. 3.3.3 Acts of Foreign Legislative Bodies a) English Legislation Under Part I of the Schedule to the Judicature Act Cap 8 Laws of Kenya, the following British Statutes are applicable in Kenya;  Admiralty Offences (Colonial) Act of 1849;  The Evidence Act (Sections 7 and 11 thereof)  Foreign Tribunals Evidence Act of 1856  Evidence by Commission Act of 1859  British Law Ascertainment Act 1859  Admiralty Offences (Colonial) Act of 1860  Foreign Law Ascertainment Act of 1861 23   Conveyancing (Scotland) Act of 1874 specifically S. 51 thereof  Evidence by commission Act of 1885. Under Part II of Schedule to the Judicature Act the President shall replace the Governor and a Magistrate holding a subordinate Court of the 1st Class shall replace a Magistrate of the Justice of Peace. The Judicature Act also identifies Statutes of General Application as at 12th August 1897 as sources of law in Kenya This is contained in Section 3 of the Interpretation and General Provisions Act Cap 2 of the Laws of Kenya. The expression “Statutes of General Application” is not specifically defined in the Judicature Act, Cap 2 or in any other piece of legislation. However, Kenya Courts have over the years accepted several UK Statutes as statutes of general application and applied them in determining certain cases. Three basic criteria must be satisfied in order for a UK Act to be received and applied as a statute of general application: (i) It must have been enforced in the UK on the 12th day of August 1897; (ii) It must have been applicable generally in the UK as at that date i.e. it must not have been a statute applicable only to a section of the UK or only to a section of the population; (iii) The Statute must be suitable for the circumstances of Kenya and the inhabitants. One Professor Allot in an article entitled “New Essays in African Law” has outlined a number of factors to be considered before UK Legislation can qualify as a statute of general application. These are: (i) The statute must be a government Act of the English legislature as distinguished from a local or private Act; (ii) The statute must have been in force in England at the specified reception date; (iii) The statute must be suitable for general application outside England; (iv) The Courts of the particular country concerned must rule on it; 24  (v) When there is a local enactment which is inconsistent with the English statute then the local legislation prevails. Some of the statutes of general application applied in Kenya include:  Married Women’s Property Act of 1882 (see case of I v I: 1971 case reported in EA law reports page 278);  Infants Relief Act of 1874. b) Indian Legislation There are some pieces of Indian legislation which were imported into Kenya by the British Colonial Authorities, for instance, the Indian Transfer of Properties Act (ITPA) was for a long time used to provide substantive law under various procedural land legislation until it was repealed by the comprehensive land legislation of 2012. Common Law Common-law courts base their decisions on prior judicial pronouncements rather than on legislative enactments. Common-law judges rely on their predecessors' decisions of actual controversies, rather than on abstract codes or texts, to guide them in applying the law. Under the doctrine of Stare Decisis, common-law judges are obliged to adhere to previously decided cases, or precedents, where the facts are substantially the same. A court's decision is binding authority for similar cases decided by the same court or by lower courts within the same jurisdiction. The decision is not binding on courts of higher rank within that jurisdiction or in other jurisdictions, but it may be considered as persuasive authority. Because common-law decisions deal with everyday situations as they occur, social changes, inventions, and discoveries make it necessary for judges sometimes to look outside reported decisions for guidance in a case of first impression (previously undetermined legal issue). The common-law system allows judges to look to other jurisdictions or to draw upon past or present judicial experience for analogies to help in making a decision. This flexibility allows common law to deal with changes that lead to unanticipated controversies. At the same time, 25 stare decisis provides certainty, uniformity, and predictability and makes for a stable legal environment. Doctrines of Equity Equity is the name given to the set of legal principles, in jurisdictions following the English common law tradition that supplement strict rules of law where their application would operate harshly. Equity has an ordinary meaning and a technical meaning. In the ordinary sense, equity means fairness, justice, morality, fair play, equality etc. In this sense, we are talking about doing good or doing what is morally right. It is regarded as a body of rules that is an appendage to the general rules of law. The Constitution takes this into account, for example in article 10 on National Values when it adopts the values of human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised and protects the right to equality and non-discrimination in article 27. In article 159, it provides that in exercising judicial authority, the courts and tribunals shall be guided by the following principles (a) justice shall be done to all, irrespective of status; (b) justice shall not be delayed. In a legal sense, equity it is the branch of the law which, before the Judicature Act of 1873 came into force, was applied and administered by the Court of Chancery. Equity is commonly said to ‘mitigate the rigor of common law,’ allowing courts to use their discretion and apply justice in accordance with natural law. In practice, modern equity is limited by substantive and procedural rules, and English legal writers tend to focus on technical aspects of equity. A historical criticism of equity as it developed was that it had no fixed rules of its own, with the Lord Chancellor occasionally judging in the main according to his own conscience. The rules of equity later lost much of their flexibility, and from the 17th century onwards equity was rapidly consolidated into a system of precedents much like its common-law cousin. 26  Customary Law During the colonial era, the British applied a dual system of law: in areas under “direct rule” English law applied while in areas under “indirect rule” customary or traditional laws were allowed to continue to apply to native populations under the supervision of the British. English law applied in all areas to people of English descent and to Africans who “opted out” of customary law. In addition, serious offenses against the state, or criminal offenses, were generally dealt with under English law. The Common Law system also recognised unwritten rules and norms as part of the law (as opposed to civil law systems that generally require law to be written). Against this historical backdrop, today, customary law is increasingly being treated as part of the common law. The Constitutions of some countries actually recognise this. Sierra Leone, for example, explicitly states that customary laws are part of the common law of the country. In Kenya, the Judicature Act recognises customary law as part of the Kenyan law. The discretion of the court to apply customary law is subject to the proviso that customary law cannot be applied where it is contrary to written law or is contrary to public policy or natural justice. For customary law to be applied, the following conditions should be met: (i) One or more of the parties must be subject to it or affected by it, (ii) It should not be inconsistent with any written law, and (iii) It should not be repugnant to justice and morality. But there are cases where statutes recognise the operations of customary law above the express provisions of statutory law. The Law of Succession Act, Cap 160 for example, provides in section 33 that: 27  [Notwithstanding the provisions of that part] the law applicable to the distribution on intestacy of [some] categories of property... shall be the law or custom applicable to the deceased's community or tribe, as the case may be. Now, under the Kenyan Constitution, article 11 has given more impetus to the operation of customary law by recognising culture as the foundation of the nation and as the cumulative civilization of the Kenyan people and nation and enjoins the State to promote all forms of national and cultural expression. In Monica Jesang Katam v Jackson Chepkwony & Another , Justice J.B. Ojwang’ (Now a supreme court Judge but) then at the High Court affirmed the right of Inheritance in woman to woman marriage as acceptable law in Kenya under our customs. Monica Jesang had claimed the right of inheritance by affirming that she was a beneficiary of the estate of Cherotich Kimong’ony Kibserea (deceased) by virtue of having been married to the deceased in a woman to woman marriage under the Nandi tradition. The High Court at Mombasa in deciding the case upheld customary law by observing that contemporary social systems for instance, in the shape of current practices in the domain of family among the Nandi were to be regarded as aspects of culture which would rightly claim protection under Article 11 (1) of the Constitution of Kenya 2010. The Constitution under the Article recognized culture as the foundation of the nation and as the cumulative civilization of the Kenyan people and the nation. However, it is provided in article 2 of the 2010 Constitution that customary law that is inconsistent with this Constitution is void (art 2). Furthermore, Article 159 enjoins the courts, in exercising judicial authority, to ensure that traditional dispute resolution mechanisms shall not be used in a way that— (i) Contravenes the Bill of Rights; (ii) Is repugnant to justice and morality or results in outcomes that are repugnant to justice or morality; or (iii) Is inconsistent with this Constitution or any written law. 28  International Law A source of law that is not mentioned in the Judicature Act is international law. However, the Constitution provides in article 2 that the general rules of international law shall form part of the law of Kenya. Moreover, any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution, according to the Constitution. A question that would arise in this regard is: at what hierarchical position does international law stand in the hierarchy of law, considering that it is not included in the Judicature Act, Cap 8? It may be possible to settle this through an amendment to that Act to take into consideration this issue alongside the issue of the reception date in the Act that it might seem to have been passed by the times today. Three suggestions may be made with respect to the place of international law in the hierarchy of law: (i) Since the Constitution Since international laws (especially treaties protecting human rights) deal with the same things as the Constitution in the subject, international law should be given a position at the apex with the Constitution so that any law made by the legislature that violates international law would be unconstitutional; (ii) Also stipulates for enforcement of principles created under it through diverse means, including legislation by Parliament, international law should be viewed as one such means intended to safeguard constitutional guarantees and should therefore be placed at the second tier in the hierarchy alongside Acts of Parliament; and (iii) Since international law has not been subjected to the same legislative rigours in their adoption as national laws as it normally is the case with other municipal laws, it should be viewed only as supplementing legislation by Parliament and therefore at a level below the Acts of Parliament in the hierarchy of laws. Any of this position may be taken depending on the legislative pattern that the country may adopt to enforce international law. 29  Session 4 LEGISLATIVE LAW-MAKING Introduction Acts of parliament and other subsidiary legislation done by bodies to which parliament has conferred the power to legislate are important sources of law. Primary Legislation An Act is a statute enacted as primary legislation by national or sub-national legislative organs. In Kenya, under the 2010 Constitution, the counties have legislative assemblies in the form of County Assemblies under the devolved system. It is important to note that the word ‘statute’ is used to denote a formal written enactment of a legislative authority. The word is usually used to distinguish between the law made by legislative bodies from case law, decided by courts, and from regulations issued by government agencies (as subsidiary legislation). Statutory law is also to be distinguished from and is subordinate to constitutional law. In Kenya, the Constitution divides the legislative competence between the national legislature and the county legislature (the 4th schedule to the Constitution). Some of the areas of legislative competence of the national and county legislative organs overlap including agriculture, education, health etc.). Statutes are of several kinds. They may be public or private; declaratory or remedial; temporary or perpetual etc. A temporary statute is one which is limited in its duration at the time of its enactment. It continues in force until the time of its limitation has expired, unless sooner repealed. A perpetual statute is one for the continuance of which there is no limited time, although it be not expressly declared to be so. If, however, a statute which did not itself contain any limitation is to be governed by another which is temporary only, the former will also be temporary and dependent upon the existence of the latter. 30 A statute made by Parliament must accord to the Constitution or else it will be void to the extent of inconsistency. In Hassan Ali Joho v Suleiman Said Shabal,7 Suleiman Shahbal had filed a petition in the High Court challenging the validity of the election of Hassan Joho at the gubernatorial election for Mombasa County. At the heart of the matter was the constitutionality of s. 76(1)(a) of the Elections Act vis-à-vis Art.87(2) of the Constitution. Section 76(1)(a) stated that a petition to question the validity of an election shall be filed within twenty eight days after the date of publication of the results of the election in the Gazette. Art. 87(2) stated that petitions concerning an election, other than a presidential election, shall be filed within twenty-eight days after the declaration of the election results by the IEBC. Defining the term ‘declaration’, the Supreme Court declared the provision of s. 76(1)(a) of theElections Act inconsistent with the provisions of Art. 87(2) of the Constitution and thus pursuant to Art. 2(4), void to the extent of the inconsistency. In the SK Macharia Case,8 an application for leave to appeal against the judgement of the Court of Appeal where the Appeal judge had been removed through the vetting of the judiciary post the 332010 Constitution, pursuant to section 14 of the Supreme Court Act, the Supreme Court declared section 14 of the Act unconstitutional insofar as it purported to confer “special jurisdiction” upon the Supreme Court contrary to the express terms of the Constitution. The Process of Legislation/Law Making Process A draft Act of Parliament is known as a Bill. In territories with a Westminster system, most Bills that have any possibility of becoming law are introduced into Parliament by the government. In the UK, this will usually happen following the publication of a ‘white paper’, setting out the issues and the way in which the proposed new law is intended to deal with them. 7 Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others eKLR 8 Samuel Kamau Macharia & Another v. Kenya Commercial Bank & 2 Others, Civil Application No. 2 of 2012 31 A Bill may also be introduced into Parliament without formal government backing; this is known as a ‘private member's Bill.’ In territories with a multi-cameral parliament, most Bills may be first introduced in any chamber. However, certain types of legislation are required, either by constitutional convention or by law, to be introduced into a specific chamber. For example, bills imposing a tax, or involving public expenditure, are introduced into the National Assembly in Kenya (see articles 109 and 114), or into the House of Commons in the United Kingdom by convention. Conversely, bills proposed by the Law Commission and consolidation bills traditionally start in the House of Lords in the UK. In Kenya, a Bill not concerning county government is considered only in the National Assembly while a Bill concerning county government may originate in the National Assembly or the Senate. Once introduced, a bill must go through a number of stages before it can become law. In theory, this allows the bill's provisions to be debated in detail, and for amendments to the original bill to also be introduced, debated, and agreed to. In bicameral parliaments, a bill that has been approved by the chamber into which it was introduced is ‘send’ to the other chamber. Broadly speaking, each chamber must separately agree to the same version of the bill. Finally, the approved bill receives assent; in most territories this is merely a formality, and is often a function exercised by the head of state. Standing orders also provide for the process of legislation. Usually, the Bill goes through: 4.3.1 First reading The first reading is a formal process that involves no debate. 4.3.2 Second reading The debate on general principles of the Bill is done. 32 4.3.3 Committee Stage Bills usually go through House Committees or to a Committee of the Whole House where the Bill goes through a detailed line by line examination. Amendments are usually considered here and public opinion is accepted. Debate on amendments is unrestricted. 4.3.4 Report Stage After the end of Committee Stage the committee tables its report before the House. At this stage, there are further chances to amend the Bills by members through a vote. For long and complex Bills, this may be spread over several days. 4.3.5 Third Reading Bill is then read and passed or opposed by the House. 4.3.6 Presidential Assent In Kenya, A Bill passed by Parliament has to get presidential assent to become a law. Under the Constitution, a Bill that has been passed by Parliament and assented to by the President shall be published in the Gazette as an Act of Parliament within 7 days after assent (art 116). An Act of Parliament comes into force on the 14th day after its publication in the Gazette, unless the Act stipulates a different date at which it will come into force. An Act of Parliament that confers a direct pecuniary interest on members of Parliament shall not come into force until after the next general election of members of Parliament. Delegated Legislation/Subsidiary Legislation/Indirect Legislation/Statutory instruments An Act of Parliament, or legislation of a county, may confer on any State organ, State officer or person the authority to make provision having the force of law in Kenya. For this to be so, the Act has to expressly specify the purpose and objectives for which that authority is conferred, the limits of the authority, the nature and scope of the law that may be made, and the principles and standards applicable to the law made under the authority. 4.4.1 Why is it necessary to have controls over delegated legislation? Delegated legislation is made by non-elected bodies away from democratically elected politicians (parliament), as a result many people have the power to pass delegated legislation, 33 which provides a necessity for control, as without controls bodies would pass outrageous unreasonable legislation which was attempted in the past. In Strictland v. Hayes Borough Council (1986), a bylaw prohibiting the singing or reciting of any obscene language generally, was held to be unreasonable and as a result the passing of this delegated legislation was rejected. It is essential to control the exercise of delegated legislative power in order to avoid authorities abusing their powers (R v Secretary of State for Education and Employment, ex parte National Union of Teachers (2000) and Commissioners of Custom and Excise v Cure and Deely Ltd (1962)). Another issue which occurs which makes controls over delegated legislation vital is sub- legislation, which is where law making is handed down another level to people other than those who were given the original power to do so, to implement important policies. Creating criticism that our law is made by civil servants (who may know hardly anything about the law) and just rubber stamped by the Minister of that apartment, this requires law passed by these civil servants to be checked by the scrutiny committee of parliament or the courts. Moreover, delegated legislation can share the same issues as Acts of Parliament such as obscure wording that can lead to difficulty in understanding the law, which again makes controls necessary as parliament or the courts can stop unclear legislation, which will affect the lives of hundreds of people from passing. 4.4.2 Advantages of Delegated Legislation (i) Parliament does not have the time to legislate on all issues; (ii) They are speedy to enact and are therefore suitable for emergency intervention; (iii) They are flexible or less rigid than Acts of Parliament and therefore they are easy to amend or appeal; (iv) Parliament will not usually have the requisite technical capacity. 4.4.3 Disadvantages of delegated legislation (i) Lack of adequate parliamentary control; (ii) Lack of adequate Judicial control; 34  (iii) They are undemocratic as they are not made by democratically elected persons; (iv) Too much delegated legislation contributes to uncertainty in the law; (v) There is the danger of sub-delegation. 4.4.4 The Concept of Ulta Vires in the Exercise of Delegated Powers With relation to delegated legislation, there are issues of ultra vires which have to be appreciated. It may be substantive or procedural ultra vires exercise of delegated powers. Ultra vires is a Latin phrase meaning literally "beyond the powers", although its standard legal translation and substitute is "beyond power". a) Substantive ultra vires - the authority making the delegated legislation exceeds the powers granted by parliament. b) Procedural ultra vires - where the authority making the delegated legislation contravenes any mandatory procedure set out in the parent statute. Ultra vires delegated legislation will be amenable for quashing by courts of law. The doctrine of ultra vires gives courts considerable powers of oversight over decision-making. The range and variety of bodies amenable to the doctrine is large. Ministers, or any public body with statutory powers, may be included. The doctrine also applies to companies and corporations that are amenable to the remedies of declaration or injunction. A local authority that enters an agreement or contract that is outside its statutory powers is said to be acting ultra vires. In Hazel v. Hammersmith 1 All ER 545, the House of Lords held that various speculative investments undertaken by local authorities lacked express statutory authorization and were void with severe consequences for those who had invested in local authority activities declared illegal by the courts. The grounds for claiming ultra vires range from abuse of power, acting unreasonably (Padfield v. Minister of Agriculture, Fisheries and Food AC 997), or acting not in accordance with the rules of natural justice. Ultra vires is a formidable doctrine for the courts to intervene and challenge the legality of decisions. Ultra vires may result in significant consequences for the body exercising legal 35 powers. In many cases the decision that is ultra vires may be said, in law, never to have taken place, with often severe consequences from such a finding on the parties to any agreement. In Kaka Travellers Cooperative and Savings and Credit Society v. Nairobi City Council, the High Court held that the levying of parking charges by the respondent without the installation of parking metres as required by the Traffic Act was ultra vires the Act. Justice Korir Weldon faulted the city council for arbitrarily increasing parking fees without following its own by-laws. The Court held that: “The Traffic Act which donated power to the local authorities to impose parking charges provided that the said parking charges should be imposed by way of by- laws made in accordance with the Local Government Act.” Under the Traffic Act, parking meters was required to assist calculate the charges to be levied. 36  Session 5 STRUCTURE AND JURISDICTION OF COURT IN KENYA Introduction Structure of the court system refers to the hierarchical arrangement of the court from the lowest to the highest one. Composition of the court on the other hand refers to the presiding judicial officer(s) that is the Magistrates and the Judges. Kenya has a court system that operates at different levels. Jurisdiction of a court describes the kind of cases that a particular court is empowered to hear and determine. Superior Courts/Courts of Record in Kenya 5.2.1 The Supreme Court The court is established under article 163 and the Supreme Court Act (No. 7 of 2011). The Court is headed by Chief Justice, who is the president of the court and deputised by the Deputy Chief Justice. The number of Judges of the Supreme Court is 7. The Court’s jurisdiction includes: (i) Exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of President; and (ii) Appellate jurisdiction to hear and determine appeals from the Court of Appeal; and any other court or tribunal as prescribed by national legislation. (iii) Appeals from the Court of Appeal lie to the Supreme Court - For cases involving the interpretation or application of the Constitution at the Court of Appeal an appeal lies as of right to the Supreme Court. In other cases where the Supreme Court or the Court of Appeal certifies that a matter of general public importance is involved, an appeal will lie to the Supreme Court. (iv) The Supreme Court may give an advisory opinion at the request of the national government, any State organ, or any county government with respect to any matter concerning county government. In Re the Matter of Commissioner for the 37  Implementation of the Constitution (Application No. 1 of 2011, eKLR), the Supreme Court affirmed its jurisdiction to hear matters related to the date of the first elections under the 2010 Constitution but referred the case to the High Court at the first instance since it was also seized with an appellate jurisdiction were the matter to proceed beyond the High Court and Court of Appeal. All courts, other than the Supreme Court, are bound by the decisions of the Supreme Court. In Peter Oduor Ngoge v Hon. Francis Ole Kaparo and 5 Others,9 the issue was whether the Supreme Court could entertain an application where the Court of Appeal has either not determined such motion by the petitioner for leave under s.19 of the Supreme Court Act, 2011, or, has entertained such an application but declined to grant leave; and whether an ordinary subject of leave-to-appeal can trans-mutate to a meritorious theme involving the interpretation or application of the Constitution. It was held that the appellate jurisdiction of the Supreme Court is defined clearly enough under Article 163 of the Constitution, and s.19 of the Supreme Court Act and the petitioner’s case which had been brought without the leave of the Court of Appeal was outside the jurisdiction of the Supreme Court. According to the Court, the petitioner in this case had not rationalized the transmutation of the issue from an ordinary subject of leave-to-appeal, to a meritorious theme involving the interpretation or application of the Constitution – such that it becomes, as of right, a matter falling within the appellate jurisdiction of the Supreme Court. The Court further held that, in the interpretation of any law touching on the Supreme Court’s appellate jurisdiction, the guiding principle is to be that the chain of Courts in the Constitutional set-up, running up to the Court of Appeal, have the professional competence, and proper safety designs, to resolve all matters turning on the technical complexity of the law; and only cardinal issues of law or of jurisprudential moment, will deserve the further input of the Supreme Court. In the SK Macharia Case, an application for leave to appeal against the judgement of the Court of Appeal where the Appeal judge had been removed through the vetting of the 9 Supreme Court of Kenya at Nairobi Petition No. 2 Of 2012 38 judiciary post the 2010 Constitution, pursuant to section 14 of the Supreme Court Act, the Supreme Court declared section 14 of the Act unconstitutional insofar as it purported to confer “special jurisdiction” upon the Supreme Court contrary to the express terms of the Constitution. Recognising the good intention of Parliament, the Court nevertheless found that where the constitution exhaustively provides for the jurisdiction of a court of law, the court must operate within the constitutional limit. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a court of law beyond the scope defined by the Constitution. 5.2.2 The Court of Appeal This court is established under article 164. It consists of not fewer than twelve judges. The head of the Court of Appeal is the President of the Court elected by the judges of the Court of Appeal from among themselves. The Court’s jurisdiction is to hear appeals from the High Court; and any other court or tribunal as prescribed by an Act of Parliament. The decisions of the Court are binding upon the High Court and other subordinate Courts. Under the repealed Constitution, the Court of Appeal was the Highest Court of the Land (s. 64). This was created by a Constitutional amendment in 1977 after the collapse of the East African Community.10 Before that, the East African Court of Appeal which was an organ of the first East African Community was the highest appellate Court for the three East African Countries of Kenya, Uganda and Tanzania. 5.2.3 The High Court Under the repealed Constitution, the High Court was established under Section 60 as a superior court of record and which had unlimited original jurisdiction in criminal and civil matters and such other jurisdiction and powers as may be conferred on it by the Constitution or any other law. 10 Act No. 13 of 1977, s. 2, 7 39 The 2010 Constitution, established this court in article 165. The head of the Court is the Principal Judge of the High Court, who is elected by the judges of the High Court from among themselves. In terms of jurisdiction, the High Court has: (i) Unlimited original jurisdiction in criminal and civil matters; (ii) Jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened; (iii) Jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office (other than a tribunal appointed to remove the President under Article 144); (iv) Jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of: a. The question whether any law is inconsistent with or in contravention of the Constitution; b. The question whether anything said to be done under the authority of the Constitution or of any law is inconsistent with, or in contravention of, the Constitution; c. Any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and d. A question relating to conflict of laws between the county law and the national laws under Article 191; and (v) Supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court. (vi) Any other jurisdiction, original or appellate, conferred on it by legislation. The High Court does not have jurisdiction in respect of: (i) Matters reserved for the exclusive jurisdiction of the Supreme Court; or 40  (ii) Matters falling within the jurisdiction of : a) Industrial Court established under art 162(2) of the Constitution and Act No 20 of 2011; and b) Environment and Land Court established under art 162(2) of the Constitution Act No 19 of 2011. In practice only those cases in respect of which the subordinate courts have no jurisdiction will be heard in the High Court. As a superior court of record decisions of the High Court are binding on subordinate courts. Thus the High Court hears ordinary civil cases where the value of the subject matter exceeds the pecuniary jurisdiction the Resident Magistrate courts. In criminal cases the High Court only hears cases relating to offences of murder and treason. In addition to the ordinary civil and criminal jurisdiction of the High Court there are certain matters which can only be heard by the High Court exclusively. These include: (i) Interpretation of the Constitution art 165(3)(d). (ii) Cases involving enforcement of fundamental rights and freedoms of the individual which are set out in Chapter 4 of the Constitution (art 165(3)(b). (iii) Election Petitions involving Parliamentary election (for presidential, the exclusive jurisdiction is with the Supreme Court). (iv) Judicial Review - Under Order 53 of the Civil Procedure Rules, the High Court has powers of Judicial Review of administrative action and can grant orders of Certiorari, Mandamus and Prohibition. (v) Supervisory Jurisdiction: The High Court exercises supervisory jurisdiction over subordinate courts and in this regard can transfer cases from one subordinate court to another if it deems it fit. (vi) Admiralty jurisdiction - Section 4 of the Judicature Act provides that the High Court shall be a court of admiralty i.e. the court shall entertain cases of High Seas, Territorial Waters, Lakes and other navigable inland waters. 41  (vii) Appellate Jurisdiction - The High Court has appellate jurisdiction i.e. appeals from all subordinate courts and tribunals exercising quasi-judicial powers can properly be entertained by the High Court. (viii) Winding up of Companies - This can only be filed at the High Court. (ix) Probate Jurisdiction - under the Laws of Succession (x) Bankruptcy petitions (xi) Matters dealing with Intellectual property. With regard to the composition of the High Court, ordinarily, the High Court is duly constituted by a Judge sitting alone. However there are instances where two or more High Court Judges may sit together to hear certain types of cases. Issues raising substantial question of law are normally to be heard by an uneven number of judges, being not less than three. For example, in matters raising substantive constitutional question the Chief Justice is required to appoint at least three High Court judges to hear the case. Previously, section 7 of the Judicature Act Cap 8 provided a limit of 70 judges. This has now been increased to 150 under the new Constitution to tackle the backlog in the court. All appeals from the High Court lie to the Court of Appeal. 5.2.4 Specialised Courts Under article 159(1), judicial authority is exercisable by courts and tribunals established by or under the Constitution. Some specialised courts have thus been established by the Constitution and are ranked alongside the High Court. These include: 1) Employment and Labour Relations Court Before 2010, the Industrial Court was established under the Trade Disputes Act Cap 234. As noted above, it now ranks at the same level as the High. Its composition included a judge and two other members appointed from a panel constituted by the Minister for Labour. The judge of the Industrial Court was appointed by the President for a renewable term of 5 years and the requisite qualifications were the same as those for other judges. 42 Its jurisdiction was to hear industrial disputes that occurred between employer and employees, federation of employers and employee unions etc. These related to matters of employment, terms of employment, dismissal redundancy collective bargaining agreement etc. No Appeal lay from an award of the Industrial Court. The Constitution of 2010 has now created the Employment and Labour Relations Court, art 162, which is at the same status as the High Court to determine industrial disputes. In United States International University (USIU) v Attorney General & 2 others,11 the question was whether the Industrial Court is competent to interpret the constitution and enforce matters relating to breach of fundamental rights and freedoms and Whether employment and labour relations matters which raise constitutional issues filed in the High Court prior to establishment of the Industrial Court should be handled by the High Court. It was held that: (i) The Industrial Court Act 2011 is silent on the jurisdiction of Industrial Court to interpret the Constitution or to enforce fundamental rights and freedoms. Likewise Art 165 of the Constitution is silent whether the courts of the status of the High Court have jurisdiction to interpret the constitution, and enforce fundamental rights and freedoms under the Bill of rights. (ii) The Industrial Court as constituted under the Industrial Court Act, 2011 as a court with the status of the High Court, is competent to interpret the Constitution and enforce matters relating to breach of fundamental rights and freedoms, in matters arising from disputes falling within the provisions of section 12 of the Industrial Court Act, 2011. (iii) The Industrial Court, having been established to deal with employment and labour matters. It follows that all employment and labour relations matters pending in the High Court, shall be heard by the Industrial Court which is a court of the status of the High Court. The High Court therefore lacks jurisdiction to deal with matters of employment and labour matters whether filed in the High Court before or after the establishment of the Industrial Court. 11 High Court, Nairobi, Petition No 170 of 2012. 43 Both matters were thus transferred to the Industrial Court for hearing and disposal. In Kenyatta University v. Industrial Court of Kenya & another (Misc. Civil Appl. No. 430 of 2007 eKLR, the question before the High Court was whether the High Court had jurisdiction to entertain an application pertaining to issues of employment and labour relations and to supervise the Industrial court. It was held that the jurisdiction of the High Court vis-à-vis the Industrial Court has now been settled by Article 165 (5) of the Constitution which provide that the High Court shall not have jurisdiction to determine matters pertaining to employment and labour relations. Jurisdiction over such matters is now vested by Article 162(2) in the Industrial Court, a court with the status of the High Court established under the provisions of the Industrial Court Act, 2011. However, it was noted that neither the Constitution nor the Industrial Court Act operates retrospectively and the High Court had jurisdiction to supervise the Industrial Court as it existed in February, 2007 when the decision impugned in this application was made. Thus, had it found that the Industrial Court acted in excess of its jurisdiction, then the High Court would have had the jurisdiction to quash the decision if it was reached ultra vires the jurisdiction of the respondent. 5.2.4.1 Environment and Land Court Environment and Land Court is a relatively new court established by the Environment and Land Court Act (No 19 of 2011) pursuant to the Constitution of 2010. The court is at the same level as the High Court as per art 162(2)(a) & (b)). Subordinate Courts The 2010 Constitution does not say much else about the Subordinate Courts except to grant Parliament the powers to define the functions, roles and jurisdiction of these courts. Article 169 states: (1) The subordinate courts are: (a) The Magistrates courts; (b) The Kadhis’ courts; (c) The Courts Martial; and 44  (d) Any other court or local tribunal as may be established by an Act of Parliament, other than the courts established as required by Article 162 (2). (2) Parliament shall enact legislation conferring jurisdiction, functions and powers on the courts established under clause (1). 5.3.1 Resident Magistrates Courts These are established under Section 3 of Magistrates' Courts Act Cap 10. A Resident Magistrate Court is presided by a Resident Magistrate, Senior Resident Magistrate, Principal Magistrate, Senor Principal Magistrate or even the Chief Magistrate. The territorial jurisdiction of an RM is country wide (Section 3(2) of Cap 10). However, under the Civil Procedure Act particularly Sections 11 to 18 the place for suing with regard to civil proceedings is specifically provided for. At present, all Resident Magistrate Courts have only original jurisdiction in both civil and criminal matters. In criminal cases Resident Magistrates Courts have power to hear and determine all cases involving offences under any Kenyan Law except those exclusively triable by the High Court. In Civil cases the current jurisdiction of Resident Magistrate Courts is set out in the in the Magistrates’ Courts Act cap 10 (as amended from time to time). In Justus Kyalo Mutunga v Labh Sing Harnam Civil Suit 338 of 2012 High Court at Nairobi eKLR, the issues were about the application to transfer a suit for damages arising from a road accident, after the suit had mistakenly been filed in a subordinate court outside the territorial jurisdiction of where the accident had occurred. According to the respondent, the suit could not legitimately be transferred from the Court that had no jurisdiction to one of competent jurisdiction. It was Held, the Civil Procedure Act is not the instrument that confers jurisdiction upon the subordinate courts since the jurisdiction of the subordinate courts is governed by Magistrate’s Courts Act. Section 3(2) of the former Act expressly states that the Resident Magistrate’s Court shall have jurisdiction throughout Kenya. Per Ringera J in Mohamed Sitaban v George Mwangi Karoki Civil Application No. 13 of 2002: Under section 3(2) of the Magistrate’s Court Act, a court of the resident magistrate has jurisdiction throughout Kenya. Such a court is not subject to the local territorial jurisdiction contemplated by section 15 of the Civil Procedure Act which applied only to courts lower than the Resident Magistrate’s Court. 45  The Magistrates Court Act was enacted in 1967 long after the Civil Procedure Act. The Legislature was therefore aware of the provisions of section 15 of the Civil Procedure Act and where two provisions in different statutes conflict, the provision in the latter statute is deemed to amend the earlier provision. There may be sound administrative reasons for filing suits in administrative Districts in which the defendant resides but those reasons cannot oust a statutory jurisdiction. The rule that a suit filed in a court without jurisdiction is a nullity and cannot be transferred is inapplicable in such cases. Subsequent to the 2013 General Elections, the Magistrate Courts were engaged in hearing electoral petitions for County Assembly seats. The Chief Justice has also been granted by the Industrial Court Act, 2011 the authority to appoint some Magistrates Courts to hear and determine employment and labour relations (industrial) disputes. Obviously, appeals from these courts would then fall back on the Industrial Court. 5.3.2 District Magistrates Courts These are established under Section 7 of the Magistrates Courts Act Cap 10. There are 3 classes of DM’s courts: DM3; DM2; DM1. District Magistrate 3 has since been phased out administratively although the Act has not yet been amended. However Criminal Law Amendment Act No. 5 of 2003 has expressly abolished DM courts with regard to criminal proceedings. Each DM Court is presided over by one Magistrate. The territorial jurisdiction of a DM’s court is limited to the administrative district for which the court is established. However the Chief Justice may designate two or more districts for purposes of District Magistrates Courts. These courts only have original jurisdiction as opposed to appellate jurisdiction i.e. the power to hear cases at first instance only. They have no appellate jurisdiction whatsoever. Under Section 9 of the Magistrates Court Act the civil jurisdiction includes: (i) Where the proceedings concern a claim under customary law; (ii) Civil cases where the value of the subject matter in dispute does not exceed the amounts set for each court. 5.3.3 Kadhi Courts Kadhi Courts are established under art 170 of the Constitution of 2010 as subordinate courts. The jurisdiction of a Kadhi court is limited to the determination of questions of Muslim law 46 relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion and submit to the jurisdiction of the Kadhi’s courts. Tribunals are usually established by Acts of Parliament. 5.3.4 Courts Martial Under part VIII of the Armed Forces Act, cap 199, Parliament and the Chief of Defence Forces have the power to establish a court martial in Kenya. Courts martial have power to try persons for any offence and to mete punishment. A court martial is convened to deal with a specific matter. There is, therefore, no permanent structure. People to be tried by courts martial include members of the Army, Air Force, the Navy and their reserves. However, the court does not apply to the police force. The courts martial exercises limited criminal jurisdiction, under only one type of law —military law. Jurisdiction is penal or disciplinary and designed to ensure discipline in the Armed Forces. The cases tried include insubordination, cowardice, fraud, theft, aiding an enemy and neglect of duty. Appeals from the decisions of the courts martial lie with the High Court, which must grant leave before the appeal is heard. 5.3.5 Children’s Court Part VI of the Children Act (No 8 of 2001) establishes the Children’s Courts. As a subordinate courts of any class (under the First Schedule to the Criminal Procedure Code). The Act empowers the Chief Justice may, by notice in the Gazette, appoint a magistrate to preside over cases involving children in respect of any area of the country. The Jurisdiction of the court includes: (i) Conducting civil proceedings on matters set out under the Act; (ii) Hearing any charge against a child, other than a charge of murder or a charge in which the child is charged together with a person or persons of or above the age of eighteen years;- (iii) Hearing a charge against any person accused of an offence under the Act; (iv) Exercising any other jurisdiction conferred by this or any other written law. 47  Other Tribunals and Quasi-Judicial Bodies  Business Premises Rent Tribunal - was established under the Landlord and Tenants (Shops, H