Vicarious Liability.

‘Slavery came and left many bitter wounds. The logic of the ill and vile practice has however come to be of use not only to the understanding of employer’s liability under Tort Law, but also to the employees of low means’.

Using decided cases, treatises and other academic material, discuss the statement above under the ambit of liability for others in the Law of Torts.           

Introduction

The ambit of liability otherwise known as vicarious liability arises when one party is responsible for the torts of another. This situation occurs most frequently when an employer is held responsible for torts committed by an employee. Vicarious liability is a form of joint liability where both the person who committed the tort and their employer can be sued although in most cases it is the employer because they have the insurance.^[1] Vicarious liability has certain three elements; Ratification, relation and abatement.

Ratification is agreement to accept the liability of the act of another. A person ratifying an act has to do so having full knowledge of that the act is tortious. There is a concept that there exists certain pre-conditions or pre-requisites whereby the person possessing vicarious liability is aware of the likelihood of occurrence of a tort or whereby the person is completely oblivious of the likelihood of a tortious act taking place. Assessment of the choice of the person committing the act needs to be done; there needs to be a correlation between the ratification of the act and the motive of why the act was committed.

Relation assumes pre-existing relationship between the person committing the act and the person liable for the act for example the Employer/employee; master/servant; company/director; principal/Agency relationships. The act for which we seek liability has to be a tortious act.

Under principle and agency, there are no specific rules with regards to vicarious liability. In order to establish liability under agency, it is important to point out under whose authority they were operating and to identify the terms of reference of this employee.  Directors of companies may become liable for the acts they have committed themselves or the ones they have directed their subordinates to commit. However this has to be for the overall benefit of the company. Under English law, in partnerships or firms, the firm or partnership becomes liable for the torts that have been committed by either of the partners in the course of doing business. In guardian/ minor no special liabilities apply for minors and their torts. It depends on to what extent were the guardians controlling or directing the tortious acts of the minors.

In the Master and Servant relationship, this is where employers’ liability comes in. Every act which is done by a servant in the cause of his employ is deemed to have been done under the master’s orders and is indeed considered the master’s own acts.^[2] The master is vicariously liable for the acts of the servant. The question therefore is if it an absolute principle and whether the master will always be liable. The question of course of employment also arises where it is also important to identify whether the act occurred during the course of employment.

In the case of Short v. J. V. Henderson Ltd. (1946) TLR (HL) 420 the honorable judge stated that the question of extent of liability depended on the master’s power to give direction and to control the manner in which the work is being done. He further stated requirements that determine liability and they included; the master's power of selection of his servant; the payment of wages or other remuneration; the master's right to control the method of doing the work; and the master's right of suspension or dismissal." There is evolution whereby courts have come to conclude that control is not exclusive.

There is also the concept of contract of service and contract for services by an independent contractor. Independent contractors are directly liable for a tortious act and not their employers as opposed to employees under a contract of service whose degree of permanency causes the liability of a tort to lie on the employer. In the case of Stevenson v. Montreal Locomotive Ltd, there were four issues developed in order to distinguish between contract of service and contract for servicesby an independent contractor

1.    Have to look at who has wholesome control

2.    Who has the chance to profit/benefit

3.    Who owns or provides the tools

4.    The risk of loss

Another question we need to ask ourselves is whether the unauthorized act was not so connected with the authorized act as to be a way of performing the authorized act also known as the scope of employment. There is a need to identify the totality of what the employee is authorized to do. You can commit an unauthorized act that is considered as a mode or method of performing the authorized act.

Abatement is simply assisting another in committing a tort. In order to deal with the question effectively, this essay will first begin by explaining the contest of slavery to the law of tort and specifically vicarious liability and what this then means for those employees of low means.

History and Background of Slavery

Slavery is the state of bondage. It is the state of service. An institution of the conventional law of nations, by which one person is subjected to the dominion of another, contrary to natural right.^[3] Slavery occurred along time ago and its origins started in Africa, where it was found that one indebted to the other would be subjected to work his way out of the debt if he does not have a means to pay up. With the coming of missionaries to Africa and the boosting of industries back home, this necessitated that they needed cheap labour if not free to work on their farms, and this necessitated the formation of the Trans-Atlantic Trade that forcibly embarked over twelve million Africans for transport to the Americas between the sixteenth and nineteenth centuries^[4] to Europe and the Americas.

Slaves were considered property under Roman law and had no legal personhood. Unlike Roman citizens, they could be subjected to corporal punishment, sexual exploitation (prostitutes were often slaves), torture, and summary execution. The testimony of a slave could not be accepted in a court of law unless the slave was tortured; a practice based on the belief that slaves in a position to be privy to their masters' affairs would be too virtuously loyal to reveal damaging evidence unless coerced^[5]

Whereas elsewhere slave codes existed to bind the slaves to their masters and also to restrict their movement among many more restrictions, earlier on a wrong that was committed by a slave was not compensatory and in Cawthorne v Deas^[6] the judge held that wrongs committed by slaves were as if they had been committed by natural elements such as air or fire hence there would be no compensation. But with the development of the notion of strict liability many argued that masters should be liable for their slaves wrongs, hence in Gaillardet v Demaries^[7] where it was argued that a masters liability is the burden that he has to bear for owning such a species of property, it is absolute whether the slave is supposed to be acting on their authority or not. This liability could also be expressed in the sense that if the master would have disciplined his slave well then he slave would not have committed a tort hence the master was negligent in not ensuring the slaves behavior and conduct was top grade.

What emerged as a result of a slave being regarded as property was the master servant analogy this was preferable to treating slaves as cattle or dogs^[8]. Slaves started being treated as servants but this was just a name to impose liability on their masters but the conditions of work were still the same. This doctrine had its problems as it was found that slaves and servants were not analogous.

The master servant doctrine of liability that is part of employers’ liability, was what emerged into the present day vicarious liability. In order for vicarious liability to apply the courts must ask two questions

●     Was the person who committed the tort employed by the defendant?

●     Was the tort committed in the course of that employment?

In relation to the first question, the two most important classes of persons for whose torts another person may be ultimately liable are employees and independent contractors. The general rule is that an employer is legally responsible for the negligence of his or her employees, but not for the negligence of an independent contractor. As with most broad legal principles, there are many exceptions. However, the general rule applies in most common circumstances.

A slave was an employee who worked on a forceful master servant relationship for life, this has stuck in modern times whereas employees are under a contract of service but not for life, an independent contractor is one who is hired under a contract for services, the two are often mistaken when it comes to employer’s liability. Certain tests have been brought out to distinguish between the two.

The control test.

In Short v J & W Henderson Ltd^[9] Lord Thankerton stated that there were four indications of a contract of service; The master’s power of selection, if it is the master who chose the particular worker then this specific selection makes him/her an employee; The payment of remuneration, if the master personally pays remuneration to the worker then he or she is an employee; The masters right to control the method of doing the work, if the master can dictate the type of method that is to be followed then he or she is an employee; The masters right of suspension or dismissal, if it is the master who can suspend the worker then he or she is an employee. Control was found to be an inadequate indication for an employment contract hence this led to the to emergence of yet another test to cover up the inadequacy of control.

Organization/Integral test

This test asks whether the person’s work is an integral part of the business. A person employed to work on the till in a shop would usually be an employee. However, if the till was broken, the person called in to fix it would probably be an independent contractor, as his or her work would be incidental to the business of running the shop.

In Stevenson, Jordan and Harrison Ltd v Macdonald,^[10] Lord denning stated about the integration test that ‘one feature seems to run through instances is that under a contract of service a man is employed as part of the business and his work is done as an integral part of the business; whereas under a contract for services, his work although done for the business, is not integrated into it but only as an accessory.

Economic reality test.

This is a more modern approach where the courts take a multiple factor approach; in this all aspects of the relationship are to be assessed. In Montreal v Montreal Locomotive works ltd^[11] Lord Wright suggested that it is important to assess control, ownership of the tools of work and the chance of profit or a risk of loss. These three factors were also considered by judge Mackenna in Ready Mixed Concrete (south east) ltd v Ministers of pensions and national insurance.^[12]

In the event of borrowing an employee sometimes an employee may be borrowed or on loan from another employee, the torts committed by this employee are generally vicariously liable by the original employee. This was decided in Mersey Docks and Harbor Board v Coggins &Griffith^[13] where the harbor authority had loaned a crane plus the driver to a party, the crane driver negligently drove it and injured someone, the harbor authority were held liable in that the driver acted in the capacity and method that had been vested in him by the original employee hence the authority was held liable.

The House of Lords laid down a number of principles to be used in deciding future cases: The permanent employer would usually be considered liable, unless they can show good reason why responsibility should be placed on the employer who has borrowed the worker. In deciding whether there is good reason to place responsibility on the borrowing employer, a key question is who had the immediate right to control the employee’s method of working. Courts should identify the act which caused the negligence, and ask who had responsibility for preventing that act. Other important questions to consider were: who paid the worker: who had the right to dismiss him or her, and for how long was the employee borrowed? The terms of the contract between the two employers were not to be considered conclusive. On the facts of the case, the court concluded that the Harbor Board had not shown good reason for liability to be placed on Coggins & Griffith, and so the Board were held to be the crane driver’s employer.

The principles laid down in Mersey Docks were traditionally used to enable the courts to choose between two possible employers, so that one or the other would end up taking full responsibility. However, in Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd (2005), the Court of Appeal decided that in some cases it would be more appropriate to use those principles to share liability between two possible employers.^[14] The claimants in the case owned a factory, where they were having some construction work done. During the work, a fitter’s mate, Mr. Strang, damaged the sprinkler system, causing a flood which damaged the property. The claimants had hired a company, Thermal Transfer, to do the work. Thermal Transfer had sub-contracted some jobs to a second company, Darwell, and a third company, CAT Metalwork, had supplied the fitter and his mate, MrStrang, to Darwell. It was not in dispute that Viasystems had a claim against Thermal Transfers in contract, but they also sought to sue Darwell and CAT Metalwork in negligence, claiming they were vicariously liable for Mr. Strang. Mr. Strang under the instructions of, CAT Metalwork’s fitter, but both of them were under the supervision of a foreman employed by Darwell. The Court of Appeal found that both of them Darwell and CAT Metalwork, had the right and the responsibility to control the way Mr. Strang did his work, and so it was fair that both their companies were found to be vicariously liable for him. The Court held that both should contribute equally to the damages.^[15]

‘Business on his own account’ Test

This is a growing test and was used by the Appeal court in the case of Hall v. Lorlmer.^[16] This case was concerned with whether a freelance television technician for the purposes of tax law. As a self-employed technician he could pay less tax than if he was a permanent employee. The Inland Revenue argued that he was an employee because he was subject to the control of the television companies in that they told him where, when and for how long to work.

The Court of Appeal took a slightly different approach. They held that the crucial factor was that he was not in business on his own account. Workers will be viewed as in business on their own account if, for example, they provide their own equipment, take financial risks, hire helpers, have managerial and investment responsibilities, charge varying amounts for different jobs, send out invoices for their work and have quite a few clients.

Nolan LJ said in Hall v Lorlmer that just because people do highly-skilled work does not mean they are more likely to be self-employed, for a brain surgeon is usually an employee while a window cleaner is usually self-employed. Nor, in this day and age, does the fact that a person is on short-term contracts with different employers matter. He pointed out that the label that people give themselves is relevant but never decisive. He concluded that the ‘business on their own account’ test is not the exclusive test in deciding whether workers are employees.

Liability of the employer

As mentioned before, employer liability arises out of the Master and Servant relationship which is a principle that seeks to explain vicarious liability of employers for their employees. An employer will only be liable for torts that an employee commits in the course of employment. This is determined on the facts of each case. This may, at first, appear to be straightforward: as long as the tort was committed when the employee was doing his or her job, the employer is liable. Problems arise, however, when an employee was doing his or her job in an unauthorized manner or in a way expressly forbidden by the employer. The courts often struggle to determine what exactly the phrase ‘in the course of employment’ means, and there is no definitive test

The classic test is that of Salmond^[17] which stated that tortious acts are done in the course of employment if they are:

●     wrongful acts actually authorized by the employer, or

●     wrongful and unauthorized ways of doing acts authorized by the employer also known as scope of employment

Salmonds method becomes irrelevant and unhelpful in cases of intentional wrongdoing particularly where the employee sets out to benefit himself. The esteemed worship H.M Okwengu in the case of HarunThungu Wakaba and 20 others v the Attorney General held that the state is liable for the torture,both physical and psychological, inhuman, cruel and degrading acts that were carried out by state agents in this case the police. The state was forced to pay for their misconduct and violations of the people’s right not to be tortured.^[18]

Hence Lord Steyn stated that the test for whether the employee has acted in the course of employment was whether the tort was so closely connected to his employment in that it would be fair and just to hold the employer vicariously liable.^[19] Earlier on during slavery this connection was not needed and this is because since the slaves were always under the master’s authority for life then they were always within the course of their employment.

An employer will be vicariously liable for an employee’s tort when the employee has carried out an authorized act in a careless way. In Century Insurance Co v Northern Ireland Road Transport^[20] while delivering petrol to garage, the driver was smoking a cigarette whilst petrol was flowing from the truck to an underground tank, he carelessly threw away the burning match and this caused an explosion. This act of smoking was an authorized act as it was not forbidden but he did it in a careless way hence his employers were held vicariously liable. The employer is also vicariously liable if he has allowed the employee to do an unlawful act or abated him to do a tortious act. Another instance in which the employer will be vicariously liable is if the employee has carried out an authorized act in an unauthorized way, in Poland v Parr^[21], an off duty employee who suspecting that a boy would steal sugar from the cart, punched the boy and the boy got injured, the employers were held liable as the unauthorized way the authorized act was carried in to the benefit of the employer The last situation that can guarantee the employer being vicariously liable is when the employee has carried out an act that had been expressly forbidden but was for the benefit of the employer, in CPR v Lockhart,^[22] an employee was allowed to use his personal car on outside jobs, provided that it had insurance, the privy council held that his employers despite this stipulation were liable for the damage he caused when he drove an uninsured car.

Employer’s indemnity

As vicarious liability means that two parties are held responsible for a tort, the Civil Liability (Contribution) Act 1978 applies. This means that an employer found vicariously liable may, in turn, sue its employee to recover some or all of the damages awarded against it. Common law also allows the employer to recover damages from the employee in certain circumstances

Conclusion.

During days of slavery masters were held responsible for every tort there slaves committed as it was negligent on their part not to discipline them well and that is what resulted in them committing the torts in the 1st place. During this era employers are held liable for particular torts of their employees as they are seen as being negligent enough to not to hire efficient workers who are skilled well and do not commit torts during their course of employment.

The masters indemnity during those days of slavery was that he could sell off the slave, punish him or her physically or loan his or her out so that she can work to pay the damages she caused her or his master to pay. The employer’s indemnity gives employers a chance to sue their employees on damages caused but their torts, this may be through disciplinary action such as dismissal or giving the employee a chance to make the money lost.

The logic of the ill and vile practice has however come to be of use to employees of low means, this is evident in the event that slaves were generally low employees who were worth nothing if not very little, hence low employees for example nurses , if nurses commit a tort in the course of their employment it is not them that are sued primarily for reasons of vicarious liability but secondarily because they cannot pay in damages as much as the hospital can as the hospital has more money than them.

BIBLIOGRAPHY

Elliot, C. and Quinn, F.  (2009)  Tort Law: Pearson and Longman

O.W.Holmes,(2005) Common Law,  Digireads publishers.

Morris, T. (1999) Southern Slavery and the Law 1619- 1860: University of North Carolina Press.

Black’s Law dictionary, 5^th edition, slavery/servitus

Slavery, http://www.slavevoyages.org/tast/index.faces, accessed on 8/16/2013

Master slave liability,http://en.wikipedia.org/wiki/Slavery_in_ancient_Rome accessed on 8/17/2013

2 port 279 Alabama1835

18 L.A 491 (1841)

1946 62 T.L.R 427 at 429

1952 1 T.L.R 101 at 111

1947 D.L.R 161 at 169

1968 2 Q.B 497

1947 A.C 1

AC 1992

J.Salmond and R.Heuston,the law of Torts 21^st edition (1996) p 443 - 445. Sweet and Maxwell publishers.

 2010 Misc. app no. 1411(OS) 2004

2001 U.K.H.L 22.

 1942 A.C 509

1927 1 K.B 366

 1942 A.C 591

---

^[1] Catherine Elliot and Francis Quinn, Tort Law, p 373

^[2] Holmes, Common Law p 179-180

^[2]

^[3] Black’s Law dictionary, 5^th edition, slavery/servitus

^[4]http://www.slavevoyages.org/tast/index.faces, accessed on 8/16/2013

^[5] http://en.wikipedia.org/wiki/Slavery_in_ancient_Rome

^[6] 2 port 279 Alabama 1835

^[7] 18 L.A 491 (1841)

^[8] Southern Slavery and the Law 1619- 1860 by Thomas.D.Morris page 39

^[9] 1946 62 T.L.R 427 at 429

^[10] 1952 1 T.L.R 101 at 111

^[11] 1947 D.L.R 161 at 169

^[12] 1968 2 Q.B 497

^[13] 1947 A.C 1

^[14] Catherine Elliot and Francis Quinn, Tort Law, p 373

^[15] Catherine Elliot and Francis Quinn, Tort Law, p 376-372

^[16] AC 1992

^[17] Salmond and Heuston on the law Torts 21^st edition (1996) p 443

^[18] 2010 Misc. app no. 1411(OS) 2004

^[19]2001 U.K.H.L 22.

^[20] 1942 A.C 509

^[21] 1927 1 K.B 366

^[22] 1942 A.C 591

Differences between The Repealed and the New Constitution of Kenya

· The preamble.
The current constitution has a preamble sets out the collective Kenyan spirit for making this constitution. Saves the spirit of posterity.
The old constitution did not have a preamble. The spirit of our forefathers has been lost with the passage of time.

· Chapter 1.
The current Constitution recognizes the Sovereignty of the people and the supremacy of the Constitution. This secures the people from abuse by those that will wield power.
The old draft fails to recognize the supremacy of the people. Rather it places the institution of the Presidency above all else through direct and indirect interpretation.

· Chapter 2.
The current Constitution sets out the foundation of the Republic.. National values and principles of governance are the biggest win in this chapter. All institutions of public life as well as the officers populating them will be guided by these principles. This lays the foundation for similar interpretation of the law and standard behavior of public officers.
Did not exist in the old constitution.

· Chapter 3.
Citizenship is defined in the current Constitution. Citizen rights are explicit and secured. Dual citizens provided for thus protecting the Kenyans who may go to other countries so that they don't lose their Kenyan citizenship unless by personal choice. Women will confer citizenship to their spouses.
In the old Constitution the National identity papers especially Passport is seen as a privilege. Women do not confer citizenship to spouses yet men easily do. Kenyans who emigrate to other countries lose their Kenyan status.

· Chapter 4.
In the current Constitution, The Bill of Rights is for once so elaborate the state will not be allowed to grant rights. The exceptions as to when any right may be abrogated have been clearly provided for. Harassment and intimidation will be a thing of the past. Redress for breach of rights is provided for. Socio economic rights recognized. The Bill of Rights forms a basis for the realization of human dignity and self-fulfillment.
Chapter V of the old constitution provides for a minimalist Bill of rights. It recognizes rights which it quickly takes away. The government has historically implemented the law by the exceptions rather than the actual rights. Retrogressive.

· Chapter 5.
Land and the environment are, for the first time, linked in the current constitution. Land is now recognized as a common heritage. No one person may own obscenely large tracts of land. Foreigners cannot have absolute ownership of land. The classification of land protects the common heritage in the user systems in accordance with the National Land Policy. Absentee land lord phenomenon is a thing of the past..
The National Land commission will work within the national values and principles of leadership thus minimize abuse of power.
In the old Constitution, Land is seen in the same way as any other property thus has been abused. No proper regulation has been in place. The commissioner of lands and the president have been the ones granting title thus abuse of the common heritage.
Common resources and opportunities are shared equitably

· Chapter 6.

For the first time our Constitution will have the principles of leadership and integrity. The chapter clearly outlaws unpatriotic conduct. Nepotism and tribalism will be dealt a serious blow. Anti-corruption mechanisms are protected thus ensuring that corruption is meaningfully dealt with. Those in power will be bound by these principles hence favoritism will be significantly reduced if not out rightly finished.
In the old Constitution, no provision exists. Weak anti-corruption laws exist outside the constitution. Lack of political will to prosecute corrupt individuals has seen corruption grow tremendously. Leaders are guided more by the fact that they have power rather than exercise it responsibly.

· Chapter 7.
In the current Constitution, the electoral system, the sanctity of the vote, the right of every adult citizen to participate either as voters or candidates, independent candidates, party lists to promote equity in representation is all gains that have been introduced. Inclusion of gender parity, constitutional regulation of political parties are all important gains so that the corruption that has hitherto existed with individuals owning political parties or parties being tribal/ ethnic outfits thus politically polarizing the country will be things of the past.
The Independent Electoral and Boundaries commission will take away the gerrymandering that has previously occurred whereby government delineated boundaries to the benefit of some and to the disadvantage of others.
In the old constitution, the electoral system is not elaborate. No gender equity. Political parties are fiefdom cases though recognized by the law just as vehicles for election. Electoral malpractices are not forbidden out rightly in the old one. Systems and structures promote nepotism.

· Chapter 8.
In the current Constitution, the Legislature is clearly defined. The roles of both Houses provided for. The possibility of a rogue parliament is nibbed by the existence of the Senate. Procedures and matters of sovereign importance are provided for. The legislature is meaningfully separated from the executive. The calendar of the Houses controlled by law.
Impeachment procedures secured from malicious political machinations. Provision for effective checks and balances between the President and the parliament are made.
In the old Constitution, other than the functions of parliament being provided for as being legislative, the separation of power is minimal. No real legal mechanism for checks and balances. No devolution so no upper house exists.
The executive wields massive power and influence over the house thus causing plentiful of breaches without accountability.

· Chapter 9.
In the old Constitution, the executive authority is DECLARED in the draft to derive from the people and must be exercised in accordance with the constitution. Therefore, executive authority must defer to the sovereignty of the people and respond to the national objects values and accountability mechanisms throughout the constitution.
Deputy Presidency introduced. Deputy to seek election as a running mate.
Appointment of public officers by the President is bound to be confirmed or authorized by parliament.
Introduction of new procedures and known timelines for elections and the challenge if any to the presidential election in built in the draft. Election dates shall never again be a secret weapon nor will it be possible ever to swear presidents in surprise.
Cabinet to be appointed from outside of parliament thus take away corrupt political practices.
Number of cabinet positions set out. This will reduce unnecessary expense in servicing politically expedient objects. Possibility of abuse of power by the AG.
Security of tenure for DPP which takes away the possibility of being intimidated in the line of duty creating room for sycophancy to the executive.
The old constitution vests all executive authority on the President (and in a limited way through the National Accord) with the Prime Minister. The executive authority is authoritarian and does account to the people other than in a very limited way to parliament which is itself not effectively independent or checked.
Lacks clarity regarding the presidential election disputes resulting to legitimate disputes being obfuscated.
The AG is executive, prosecutor, and Parliamentarian. His office both abuses power to prosecute and persecute.
The DPP is subordinate to the AG thus making his/ her independence tenuous.

· Chapter 10.
In the old Constitution, Judicial authority is declared to derive from the people. This is key because the judiciary must therefore serve the best public interest.
An independent and better mixed Judicial Service Commission is established with Public participation.
Judges to be vetted and approved by Parliament. The p[positions in the judiciary to be advertised and competitively filled taking into account the principles of equity, equality expertise.
Office of Deputy Chief Justice to promote administrative accountability. In the old Constitution, the judiciary is just mentioned as an organ. Courts established but not guided by any people based principle.
The law applicable doesn't derive authority from the sovereignty of the people.
Judges appointed in opaque, manner with a JSC which is only beholden to the President.
Neither standards set out nor criteria for appointment other than age.
Corruption has been rampant without any checks and balance or accountability.
Chief Justice has no deputy thus creating incentive for personal loyalty from individual judges to the CJ thus killing judicial independence.

· Chapter 11.
In the current Constitution, devolution of power and resources has been provided for too promote effective citizen participation in governance and accountability.
County governments seek to replicate national governance structures at the local level where taxation will be levied and supported so as to enhance development at local levels as well as provide equitable and more opportunities for citizens to participate meaningfully in matters of government.
The old Constitution does not contain any form of devolution. Decentralization only transfers the challenges of the central government plagued with corruption and nepotism.
The old constitution concentrates all power and authority on the president with little or no citizen participation other than the periodic ritualistic elections.

· Chapter 12.
The new Constitution provides for Imposition of tax, regulation of taxation, allocation and establishment of funds are key features of the draft. Distinct objects and purposes of taxes is clearly set out.
Public loans to be approved by parliament as well as to be made public.
The creation of budget and revenue commissions will strengthen accountability and reduce theft or misuse of public resources for the benefit of a few regions rather than the whole country.
The old constitution creates the consolidated fund but gives parliament the power without capacity to supervise its application.
There is no budget office. Only executive budgets, usually secretly thus providing the perfect environment for misappropriation of public resources.
No known principles or guidelines for accountability and transparency.
Public debt incurred by the executive and kept secret thus providing the best environment for corruption and theft.

· Chapter 13
In the current Constitution, the public service is established with principles of probity, best public interest, equality, equity, transparency and the national values. That public servants are employees of the public rather than their bosses is clearly set out.
Regulation of the service provides for coherence between the national and country governments.
In the old Constitution, public service taken to serve at the pleasure of the president.
Neither accountability nor principles. No safeguards against ethnicity and nepotism.
Official secrecy and chain of command that does not respond to public accountability distorts service delivery.

· Chapter 14.
In the current Constitution, National security is clarified and is founded on the national principles and values.
National security is now subjected to parliamentary supervision and under authority of the constitution.
The various commissions and services are periodically responsible to the people through parliament.
In the old Constitution, the national security considered a secret. The president embodies national security. His personal interests are not distinguished from the collective national interest.
Public officers do not distinguish between personal misadventures from real national security concerns thus precipitating abuse.

· Chapter 15.

For the effective delivery of service and within the framework of constitutional accountability various commissions have been established so that they may safeguard the common national values in respect of their mandates in the current Constitution.
The commissions are protected from manipulation. Their substantive and operational independence assured.
In the old Constitution, all commissions other than the Judicial Service Commission and the Public Service Commission are established subordinate to the constitution. Even these two are created in such a way as to serve the interests of the executive or just president.
These commissions are used to perpetuate impropriety and nepotism rather than common public good.
They are not independent and are manipulable as part of the public service.

· Chapter 16.
The amendment of the current constitution is made deliberately difficult and cumbersome so that the values espoused are not lost through frivolous or sectarian political interests depending on elections and circumstances.
The foundational provisions will require referenda to cause amendment whereas the other amendments will require the absolute majority of the two houses.
Citizens also reserve the right to petition for amendment through a rigorous but safe mechanism of raising one million signatures.
The old constitution does not have any safeguards against parliamentary amendment. Indeed as a result the constitution changed its character from the innocuous one of 1963 to the mongrel and piece of dictatorship it is today.
Parliament not accountable to the public in any way. The public have no constitutional mechanism for causing amendments other than depending on the goodwill of the politicians.

· References.



http//www.google.com.

Principles of a constitutional democracy.

Rule of Law

WHAT ? The rule of law (also known as nomocracy) generally refers to the influence and authority of law within society, especially as a constraint upon behavior, including behavior of government officials.This phrase is also sometimes used in other senses.

WHO & WHEN?  It was popularized in the 19th century by British jurist A. V. Dicey. The concept was familiar to ancient philosophers such as Aristotle, who wrote "Law should govern". Rule of law implies that every citizen is subject to the law. It stands in contrast to the idea that the ruler is above the law, for example by divine right. However the principle was re-developed by the international commission of jurists, known as the Delhi declaration 1959, but was later on confirmed in 1961.

Where? In Lagos Nigeria

Why? because order is better than anarchy

How? (Manifestation of the doctrine) Mumo Matemu saga.

(1)        The historical and political context against which leadership and integrity principles are entrenched in the Constitution of Kenya (2010) leave no doubt that a new constitutional ethos has been called forth. This summon to a new normative order is perhaps the touchstone of our constitutional founding. Its embodiment is the increasing public quest for and discourses on ethics and integrity in governance and leadership. Its other emblem is the emergence of pleas for judicial intervention to interpret, enforce and breathe life to the values and principles that permeate the edifice of our Constitution. One such instance is this case, which arises from the decision of the High Court (Joel Ngugi, Mumbi Ngugi, G.V. Odunga, JJ.) delivered on 20th September, 2012 at Nairobi in Petition No. 229 of 2012. In that case, the High Court upheld a petition questioning the constitutionality of the appointment of Mr. Mumo Matemu, the interested party therein, and appellant herein, as the chairperson of the Ethics and Anti-Corruption Commission. This is because there were unanswered questions as to the integrity of Mumo Matemu.

CONSTITUTIONALISM

WHAT? This is the doctrine that emphasizes that the rulers of a state and the governed follow the constitution to the latter, it is the behavior of following the spirit of the constitution word by word and not excluding anything.

WHO & WHEN? John Locke and Thomas Hobbes are among the few of philosophers who interrogated the concept of the constitutionalism, though they never addressed it directly. They conceptualized the idea of the social contract.

A social contract, they argued, is the agreement between the government and the governed where the governed cede some of their rights to the government in exchange for protection, peace and order. This means that both parties to such a contract should not act against their agreement in the contract, which in the case is the constitution .the actions by the government and the people in a state should be in accordance with the letter and spirit of the constitution.

The idea of a constitution as a contrivance which not only describes but confines government, at least in its everyday activities. The argument for such confinement was stated by Alexander Hamilton in The Federalist: "In framing a government which is to be administered by men over men, the greatest difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

WHY-the culture of respect for the rule of law, by the states organs and a system of courts that may protect group and individuals against the abuse of power,

How(Manifestation)?

constitutionalism manifests every day when the constitution is followed an example is when followed he law, in this instance the executive the president had proposed Visram as the chief justice contrary to constitutional provisions on the election of the chief justice, the appointment was reversed and the chief justice was selected according to the constitutional process provided and constitutionalism was forced onto the executive.

  SOVEREIGNTY OF THE PEOPLE

WHAT? Popular sovereignty or the sovereignty of the people is the principle that the authority of the government is created and sustained by the consent of its people (Rule by the People), who are the source of all political power.

WHO & WHEN ?  Abraham Lincoln who said that democracy is a government of the people, for the people and by the people

It is closely associated with republicanism and social contract philosophers such as Thomas Hobbes, John Locke and Jean-Jacques Rousseau. Popular sovereignty expresses a concept and does not necessarily reflect or describe a political reality. It is usually contrasted with the concept of parliamentary sovereignty, and with individual sovereignty.

Benjamin Franklin expressed the concept when he wrote, "In free governments, the rulers are the servants and the people their superiors and sovereigns

WHY? The social contract theories state that people gave up some rights and freedoms to get into a government or rather a civil society hence the power of the government originates from the people and hence the rulers are servants of the people.

HOW?(Manifestation)

Njoya & others v the AG

The constituent power of the people and its implications

 Prayers 1, 3 and 12 of the originating summons are predicated on the premise that the applicants have along with other Kenyans what is called a constituent power to participate in the making and adoption of a new Constitution of Kenya by the machinery of a constituent assembly and a referendum. Their contention is that such power is inherent in them as part of the sovereign people of Kenya and that such power has been vitiated, diluted and transgressed by the provisions of the Act to the extent that the NCC is not a constituent assembly, as they understand it, and there is no provision for a compulsory referendum on the final draft Bill prepared by the Constitution of Kenya Review Commission. All this calls for an appreciation of what is the constituent power of the people. The most elaborate definition we were supplied with is by BO Nwabwezi, a leading constitutional scholar in Commonwealth Africa. In his book entitled Presidentialism in Commonwealth Africa L Hurst and Company (1974) the author writes at 392:

The nature and importance of the constituent power need not be emphasized. It is a power to constitute a frame of government for a community, and a constitution is the means by which this is done. It is a primordial power, the ultimate mark of a people's sovereignty. Sovereignty has three elements: the power to constitute a frame of government, the power to choose those to run the government, and the powers involved in governing. It is by means of the first, the constituent power that the last are conferred. Implementing a community's constituent power, a constitution not only confers powers of government, but also defines the extent of those powers, and therefore their limits, in relation to individual members of the community. This fact at once establishes the relation between a constitution and the powers of government, it is the relation of an original and a dependent or derivative power, between a superior and a subordinate authority. Herein lies the source and the reason for the constitution's supremacy.

With respect to the juridical status of the concept of the constituent power of the people, the point of departure must be an acknowledgement that in a democracy, and Kenya is one, the people are sovereign. The sovereignty of the Republic is the sovereignty of its people. The Republic is its people, not its mountains, rivers, plains, its flora and fauna or other things and resources within its territory. All governmental power and authority is exercised on behalf of the people. The second stop is the recognition that the sovereignty of the people necessarily betokens that they have a constituent power - the power to constitute and/or reconstitute, as the case may be, their framework of government. That power is a primordial one. It is the basis of the creation of the Constitution and it cannot therefore be conferred or granted by the Constitution. Indeed it is not expressly textualised by the Constitution and, of course, it need not be. If the makers of the Constitution were to expressly recognise the sovereignty of the people and their constituent power, they would do so only ex abundanti cautela (out of an excessiveness of caution). Lack of its express textualisation is not however conclusive of its want of juridical status. On the contrary, its power, presence and validity are writ large by implication in the framework of the Constitution itself as set out in sections 1, 1A, 3 and 47. In that regard I accept the broad and purposive construction of the Constitution canvassed by counsel for the applicants. I accept that the declaration of Kenya as a sovereign republic and a democratic multi-party state are pregnant with more meaning than ascribed by the respondents. A sovereign republic is a sovereign people and a democratic state is one where sovereignty is reposed in the people. In the immortal words of Abraham Lincoln, it is the government of the people, by the people, and for the people. The most important attribute of a sovereign people is their possession of the constituent power. And lest somebody wonder why, the supremacy of the Constitution proclaimed in section 3 is not explicable only on the basis that the Constitution is the supreme law, the grundnorm in Kelsenian dictum; nay, the Constitution is not supreme because it says so: its supremacy is a tribute to its having been made by a higher power, a power higher than the Constitution itself or any of its creatures. The Constitution is supreme because it is made by they in whom the sovereign power is reposed, the people themselves. And as I shall in due course demonstrate the powers of Parliament under section 47 of the Constitution are a further recognition that the constituent power reposes in the people themselves. In short, I am of the persuasion that the constituent power of the people has a juridical status within the Constitution of Kenya and is not an extra-constitutional notion without import in constitutional adjudication

Separation of powers

WHAT?  This is the doctrine that demands that all organs of government be separate and carry out their duties independently so as to effectively serve/govern the people.

WHO?it is associated with the French jurist Montesquieu who stated in his book spirit of the laws that when the legislative and executive powers are united in the same body there can be no liberty, again there is no liberty if the judiciary power be not separated from the legislative and executive. Where joined with the legislative the life and liberty of the subject would be exposed to arbitrary control ;for the judge would become a legislator, were it joined with the executive then the judge might behave with violence and oppression. There would be an end to everything if the same man or body excercises those three powers of the state.

WHY? so that the people can be efficiently and fairly governed effectively by the three arms of government and so as to avoid a tyrannical rule

HOW? by the judiciary, legislature, executive all being independent respectively

Manifestation? Some time back the president appointed the chief justice to head a commission known a the Kenya Anti-Corruption Commission, the running of this commissions fell under the mandate of the executive and hence the president appointing a judge to chair a commission that is to be chaired by a member of the executive was found to be inconsistent with the doctrine of separation of powers and hence the ruled the appointment as null.

RESPONSIBLE AND ACCOUNTABLE GOVT

WHAT? In ethics and governance, accountability is answerability, blameworthiness, liability, and the expectation of account-giving. "Government accountability means that public officials - elected and un-elected - have an obligation to explain their decisions and actions to the citizens. Government accountability is achieved through the use of a variety of mechanisms - political, legal and administrative

WHY? Designed to prevent corruption and ensure that public officials remain answerable and accessible to the people they serve. In the absence of such mechanisms, corruption may thrive."

WHEN? Early origins of responsibility can be traced back to ancient England where royal wills bore the royal seal and were applied by ministers hence for every exercise of power a minister was answerable.

HOW? Kenya has set up commissions such as the K.A.C.C which is to detect and prevent corruption through holding people in govt positions as being answerable. the J.S.C which monitors the conduct of judges

Collective responsibility is a concept or doctrine, according to which individuals are to be held responsible for other people's actions by tolerating, ignoring, or harboring them, without actively collaborating in these actions.

Transparency and accountability are core national values and principles as stipulated in Art 10(2)(c). there are various constitutional provisions which aim at enhancing transparency and accountability. Art 243 establishes  the National Police Service whose functions under Art 244(b) is to prevent corruption and promote and practice transparency and accountability. Art 179 establishes an independent Ethics  and Anti-corruption Commission which shall ensure promotion of the principles of leadership and integrity.

In the case of Rebecca Kerubo V.Nancy Baraza (2012) it was shown that a public officer must behave in a manner that promotes human rights, human dignity and integrity making the Deputy Chief justice lose her job for gross misconduct

Sometime back when the former minister for foreign affairs Moses Wetangula was being suspected as having embezzled money for constructing embassies abroad for the country, was urged to take political responsibility and step aside to pave way for investigations.

PARLIAMENTARY SUPREMACY

WHAT? Parliamentary sovereignty (also called parliamentary supremacy or legislative supremacy) is a concept in the constitutional law of some parliamentary democracies. It holds that the legislative body has absolute sovereignty, and is supreme over all other government institutions, including executive or judicial bodies in terms of making law. The concept also holds that the legislative body may change or repeal any previous legislation, and so that it is not bound by written law (in some cases, even a constitution) or by precedent

Who? A.V. Dicey  wrote in his book Introduction to the Study of the Law of the Constitution (1885)Parliament means, in the mouth of a lawyer (though the word has often a different sense in conversation) The King, the House of Lords, and the House of Commons: these three bodies acting together may be aptly described as the "King in Parliament", and constitute Parliament. The principle of Parliamentary sovereignty mean neither more nor less than this, namely that Parliament thus defined has, under the English constitution, the right to make or unmake any law whatever: and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.

WHY? Supremacy can be described as 'the supremacy of the political party holding most common seats'. The members that make up the parliament are all elected and have the power to determine policy and therefore have political sovereignty; this refers to parliament being the highest source of English Law

HOW? Parliament can make laws concerning anything.

No Parliament can bind a future parliament (that is, it cannot pass a law that cannot be changed or reversed by a future Parliament).

A valid Act of Parliament cannot be questioned by the court. Parliament is the supreme lawmaker. except in the event that it is inconsistent with the constitution.

Manifestation ; for a very long time now the Kenyan parliament has been passing bills to increase their wages from time to time, this has of course not been acceptable in the public eyes, but regardless of the demonstrations that the people participate in to oppose such bills parliament always finds a way to pass them and nothing can be done to them or stop them as they are the supreme law making body

CONSTITUTIONAL SUPREMACY

WHAT? Constitutional supremacy definition is that the constitution is upheld above any law or legislation. A law that is passed cannot violate constitution rights. If a law is passed that violates the constitution then it can be taken to court and contested as unconstitutional.

WHO? This is evident with the social contract philosophers such as John Locke, Thomas hobbes, who emphasized that the social contract between the governing and the governed is the constitution hence must be respected and upheld at all times.

WHERE? Under article 2 of the  Kenyan constitution.

WHY? This is because the constitution is the contract between the governing and the governed, it is the sacred law through all which other laws obtain their validity. Hence must be respected and upheld to the core.

. In Crispus Karanja Njogu v Attorney-General (criminal application 39 of 2000), a three judge bench of this Court had this to say on constitutional interpretation.

We do not accept that a Constitution ought to be read and interpreted in the same way as an Act of Parliament. The Constitution is not an Act of Parliament. It exists separately in our statutes. It is supreme ... it is our considered view that, constitutional provisions ought to be interpreted broadly or liberally, and not in a pedantic way, that is restrictive way. Constitutional provisions must be read to give values and aspirations of the people. The Court must appreciate throughout that the Constitution, of necessity, has principles and values embodied in it; that a Constitution is a living piece of legislation. It is a living document.

And later on in the same ruling, the Court said:

We hold that, due to its supremacy over all other written laws, when one interprets an Act of Parliament in the backdrop of the Constitution, the duty of the Court is to see whether that Act meets the values embodied in the Constitution.